刑事檢控科各律師/高級律政 - Department of Justice

To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies
/
A Publication of the Prosecutions Division
of the Department of Justice
General Editor
I Grenville Cross QC, SC
CRIMINAL APPEALS BULLETIN
September Edition/2000
Assistant Editors
D G Saw QC, SC
Patrick W S Cheung
Denise F S Chan
Lily S L Wong
This Bulletin summarises recent judgments which the editors consider of significance.
( * Denotes Government Counsel
(*
# Denotes Appellant’s/Applicant’s/Respondent’s Counsel)
#
/ /
)

c.c. SJ
LOs
DDPPs/DSG
/
Secretary, Law Reform Commission
Editor/Hong Kong Law Reports & Digest
DLA
Bar Association (Attn : Administrative Secretary)
Law Society (Attn : Secretary General)
General Editor/Hong Kong Cases
Hong Kong Cases
Faculty of Law, HKU (Attn : Dean of Faculty)
Librarian (Law), City University
( )
PHQ/HKPF (Attn : ACP/Crime)
( )
ICAC (Attn : Head/Ops)
PTS/HKPF (Attn : FTO(Exam))
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(
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Judiciary (PM/JISS Project)
Librarian/D of J
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Hung On-to Memorial Library (HK Collection)/HKU
Departmental Prosecution Sections
2

3
INDEX
A. p. 4 - p. 7 Hong Kong Court of Final Appeal/Appeal Committee
4 7
/
B. p. 8 - p. 14 Criminal Appeals/Against Sentence
8 14
/ C. p. 15 - p. 28 Magistracy Appeals/Against Conviction
15 28
/ D. p. 29 - p. 36 Magistracy Appeals/Against Sentence
29 36
/ E. p. 37 - p. 38 Practice and Procedure
37 38
F. p. 39 - p. 40 Costs in Criminal Cases
39 40

4
Appeal No.
(Date of Case Significance
Judgment) Title
A. HONG KONG COURT OF FINAL APPEAL/
APPEAL COMMITTEE
/
FAMC 15/2000
Bokhary,
Chan &
Ribeiro PJJ
(14.9.2000)
*Peter Chapman
& R K Y LEE
#Clive
Grossman SC &
Paul Stephenson
BARNES,
Stephen Daryl
Construction of s 46 of Cap 159/Wilful pretence that qualified to
act as solicitor/Whether ‘wilful’ includes ‘reckless’/Concept of
recklessness applicable to acts of pretence/Questions of fact not
giving rise to questions of law of great and general importance
159 46 -
-
- -
The Applicant was convicted of three offences contrary to s 46
of the Legal Practitioners Ordinance, Cap 159.
The first offence charged the Applicant with ‘being an
unqualified person on or about 19 September 1997, in Hong Kong,
wilfully pretending to be recognised by law as qualified to act as a
solicitor by means of an advertisement inserted in the Hong Kong
Post’.
The second offence charged a repeat of the first offence on
3 July 1998.
The third offence charged the Applicant with ‘being an
unqualified person in February 1998, wilfully using descriptions,
namely, ‘Lawyer’ and a certain Japanese phrase, implying that he
was qualified or recognised by law as qualified to act as a
solicitor’.
The magistrate held that a ‘Lawyer’ in the context in which the
Applicant had used the term was to be taken to mean someone
qualified to practise law and that it was unnecessary for the prosecution
to show that the Applicant had misled anyone by so describing himself.
The magistrate found that the Applicant had not deliberately pretended
to be recognised by law as qualified to act as a solicitor. However, he
held that in s 46 ‘wilfully’ included ‘recklessly’ and that the evidence
established the requisite recklessness on the Applicant’s part. In
particular, in order to promote his business, the Applicant had

5
consciously taken the potentially harmful risk that people might think he
was a solicitor when he was not. Precautions to counteract that risk
were inadequate to negate recklessness.
On appeal, the Court of First Instance upheld the magistrate’s
decision, and held that in the context ‘wilful’ meant ‘deliberate and
intentional’ but that it also encompassed recklessness, relying
principally on R v Sheppard [1981] AC 182. The court declined to
certify the case for appeal under s 32 of Cap 484 on the ground that it
was not reasonably arguable.
The Applicant sought to have certified as raising points of law of
great and general importance these questions:
1. Whether a person can be convicted of an offence under the
provisions of s 46(1) of the Legal Practitioners Ordinance, Cap 159 on
the basis of recklessness.
2. If the answer to Question 1 is in the affirmative, whether the
mens rea necessary to constitute recklessness is abrogated or rendered
otherwise insufficient to constitute recklessness in law if the appellant
puts in place steps or procedures which he believes will avoid
constituting the offence but which in fact failed to eliminate the risk of
commission of an offence under the provisions of s 46(1) of the Legal
Practitioners Ordinance.
3. If the answer to Question 1 is in the affirmative, whether in
relation to SPS 2286 and SPS 2287 the appellant’s conduct could in
law have amounted to recklessness.
Held :
Section 46, so far as was material, provided:
Any unqualified person who wilfully pretends to be, or
takes or uses any name, title, addition or description
implying that he is qualified or recognised by law as
qualified to act as a solicitor shall be guilty of an
offence …
Question 1
(1) The authority of R v Sheppard (above), which supported the
proposition that where a statutory offence prohibited conduct
performed ‘wilfully’, it was generally sufficient for the prosecution to
prove that the accused recklessly, had been followed in Hong Kong in
R v Li Wang-fat [1982] HKLR 133, and in R v Chau Ming-cheong

6
[1983] 1 HKC 68;
(2) Although the Applicant contended that the wording of s 46 was
such as to require proof of an intention to deceive or mislead, the
section penalised someone who ‘wilfully pretends to be or takes or
uses any name, title, addition or description implying that he is
qualified or recognised by law as qualified to act as, a solicitor’.
The word ‘pretends’ comprehended acts of pretence or conduct which
expressly or impliedly conveyed a false representation. The word was
plainly intended by the legislature to represent one form of the actus
reus of the offence created by s 46. The other possible forms
comprised acts of taking or using the misleading name or description in
question. The word ‘wilful’ specified the mental element required to
accompany one or more of the forms of conduct constituting the actus
reus. Support for that approach to the elements of the offence could
be found in Carter v Butcher [1966] 1 QB 526;
(3) Section 46 was not aimed merely at persons who ‘wilfully
pretend’. It also penalised someone who ‘wilfully … uses’ or
‘wilfully … takes’ a name, title or description carrying the misleading
implication. It could not be suggested that as a matter of language, the
verb ‘uses’ (or ‘takes’) implied an intention to deceive on the part of
the ‘user’ (or ‘taker’). There was no reason to think that s 46 was
designed to require intentional conduct in relation to an offence of
wilfully pretending to be a solicitor while accepting recklessness as
sufficient in respect of offences of ‘wilful use’ or ‘wilful taking’.
Moreover, if, as was submitted, the word ‘pretend’ carried in itself the
meaning of deliberate deceit, the word ‘wilful’ was redundant;
(4) There was no difficulty with applying the concept of recklessness
to acts of pretence within s 46. If, as in the present case, the accused
inserted advertisements and used business cards which constituted a
relevant false representation, recklessness would be established by
showing that he had done these acts while careless, regardless, or
heedless of whether they conveyed the false representation to others.
In s 46, ‘wilful’ was the requisite mental state applicable to all forms of
the actus reus, including ‘pretending’;
(5) The question formulated as Question 1 was not reasonably
arguable;
Question 2
(6) This question did not in fact arise in the present case. The three
summonses related to the placing of advertisements and the use of
business cards which contained no such disclaimers and involved no

7
other steps taken to prevent the public from potentially being misled as
to his professional qualification. It was in respect of these activities that
the Applicant was found to have been reckless. That was a conclusion
involving questions of fact for the magistrate, and raised no point of law
of great and general importance;
Question 3
(7) This question raised no point of law of great and general
importance. The magistrate found that given the contents of the
advertisements and business cards and the circumstances of their
publication and use, by describing himself as a ‘lawyer’ and his
company as a ‘law firm’, the Applicant had made a false
representation that he was someone qualified to practise law as a
solicitor;
(8) The question properly before the magistrate was whether, given
their contents and the context in which they were published and used,
the advertisements and business cards amounted to a pretence caught
by s 46. That was a question specific to the circumstances of the case,
and involved no point of law of great and general importance.
Result - Application dismissed.

8
B. CRIMINAL APPEALS/
AGAINST SENTENCE
/ CA 195/2000
Stuart-Moore VP
Leong &
Wong JJA
(4.8.2000)
*Louisa Lai
#I/P
HOANG
Thi Thu Huyen
Offence committed whilst accused on bail for earlier offence/
Totality not relevant to sentencing exercise/Consecutive
sentence appropriate
- -
On 2 May 2000, the Applicant pleaded guilty to a charge of
trafficking in a mixture containing 47.24 grammes of heroin
hydrochloride. She was sentenced on 16 May 2000 to 4 years’
imprisonment.
When he sentenced the Applicant, the judge observed:
Defence counsel also urges me to take into account
the totality principle, insofar as the defendant has
just commenced a sentence of imprisonment for
theft. For the present offence I select from the
guidelines a starting point of 7 years and discount
that by one-third for the plea of guilty, leading to a
result of 4 years and 8 months. I discount that by a
further 8 months in accordance with the totality
principle, and in the result I impose 4 years’
imprisonment, that sentence to be consecutive to the
sentence at present being served.
On appeal, it was submitted that the sentence was too heavy and
that leniency ought to be shown to her because her mother was
seriously ill in Vietnam.
Held :
The offence was committed whilst the Applicant was on bail for a
theft offence which had been committed on 13 September 1999. It
was very difficult to see why totality played any part at all in the
sentencing exercise undertaken by the judge. The present offence was
entirely separate to the other matter and was, in any event, committed
whilst the Applicant was on bail. In such circumstances it was almost
inevitable that the sentence for this offence should have been ordered to
run consecutively. If the overall effect produced a sentence which was
considered to be too long then a part of the sentence could have been
ordered to run concurrently. The Applicant was remarkably fortunate
to have had the benefit of a somewhat unusual approach taken by the
judge.

9
CA 200/2000
Leong, Wong &
Keith JJA
(5.9.2000)
*Sin Pui-ha &
Tam Sze-lok
#Michael Lunn
SC & Freddy
Woon (A1)
A2 I/P
(1) CHEUNG
Chi-wai
(2) FUNG
Hiu-chong
Result - Application dismissed.
Training centre/Whether community service order appropriate
alternative for grave offence/Comments on suitability of
pregnant offender for training centre
-
-
The Applicants were convicted after trial of offences of blackmail
and theft. As they were aged, respectively, 19 years and 17 years, the
judge called for pre-sentencing reports. They were subsequently
sentenced to detention in a training centre.
It was the case for the prosecution that the Applicants had been
engaged in an unpleasant scheme to exploit the vulnerability of those
who engaged the services of prostitutes. When a client requested the
services of a prostitute, she would visit his home or hotel room and
demand payment of a sum greater than had been agreed for her
services. The client would be threatened with violence if he refused to
pay. Those threats would be made over the telephone or by a man in
the street when the client went to a cash dispenser to obtain the money
demanded. The Applicants were each involved in such a scheme on
two occasions.
The judge took the view that the offences committed by the
Applicants were so serious that despite their age they had to receive
custodial sentences. However, by ordering their detention in the
training centre he apparently concluded, in the light of the language of s
4(1) of the Training Centres Ordinance, Cap 280, that it was expedient
for their reformation and for the prevention of crime that they should
undergo a period of training in a training centre.
A1 submitted that the judge was in error in not having considered
a community service order as an alternative to a custodial sentence.
The judge was said to have fallen into the same error as had the judge
in HKSAR v Chow Tak-man [1999] 2 HKC 659, who was said, at
663, ‘not to have addressed the particular matter and to have
regarded himself as simply precluded from imposing a community
service upon the basis [that] burglary was a serious offence and
that a custodial sentence was inevitable’.
A2 submitted that she came from a stable working-class, and
that she got into the wrong crowd after failing to achieve at secondary
school. As she was also four months’ pregnant, the pre-sentence
assessment panel officer at the institution at which she was held pending

10
sentence considered her unsuitable for detention in a training centre.
However, the judge concluded otherwise and said:
Held :
Pregnant women are regularly imprisoned or found
to be pregnant after imprisonment. The authorities
have medical facilities and tailor work programmes
accordingly. The original concept of training centre
was that they were to be institutions short of
imprisonment, to which young persons could be sent
with a hope of reformation, and where they could be
kept apart from more hardened adult prisoners.
That principle, in my view, remains paramount and
the authorities should be prepared to tailor physical
activities and medical care to accord with pregnancy,
and not the other way round.
(1) Although it was true, as A1 submitted, that the judge did not
refer to the community service option in his sentencing remarks, that did
not mean that he did not consider it. The judge had to be assumed to
have concluded that community service was not, in this case, a viable
alternative to a custodial sentence, and he was right. In Chow Chakman
the Court of Appeal approved the guidance given by the English
Court of Appeal in R v Brown [1981] 3 Cr App R (S) 294 as to those
offenders who could be said to be best suited for a community service
order. Some of the features identified in that case could be said to
apply to A1, but the nature of his offences, in particular his involvement
at a professional level with vice activities and organised crime, took
away much of the benefit to be derived from his lack of previous
convictions hitherto and his previous work record;
(2) The judge did not err in sentencing A1 to detention in a training
centre. The nature of the offences he committed made a custodial
sentence inevitable, and although he was a real candidate for the strict
regime to be experienced in the training centre, on one view he was
lucky to avoid a sentence of imprisonment;
(3) Although detention in a training centre was also the most
appropriate way dealing with A2, her pregnancy meant that such a
disposal was less appropriate than would otherwise have been the case
for two reasons. First, the regime in the training centre was physically
demanding, and her condition would, for the first few months at any
rate, prevent her from firstly participating in the activities of the training
centre. Second, as said by Cross & Cheung, in ‘Sentencing in Hong
Kong’, 3rd ed, at p 465:

11
A court ….. should think long and hard before
sending a pregnant woman to the training centre.
Such an institution has no proper facilities for babies,
and the separation of mother and child at some stage
will be inevitable;
(4) The inability of A2 to take part in the physical activities of a
training centre would be over within a few months after she had given
birth and confinement;
(5) The separation of mother and child caused greater concern. Rule
21 of the Prison Rules - which applied to training centres as well as to
prisons, by virtue of s 8(1)(b) of the Training Centres Ordinance –
enabled the authorities to permit a mother to keep her baby with her in
prison until it reached 9 months, and apply thereafter for the baby to
remain with her until the age of three - the difficulty was that this facility
was not available in training centres. One view of the matter was that
this should not deter the court from sentencing a pregnant offender to
detention in a training centre if that was the correct sentence to pass.
The court should not be deflected from passing the appropriate
sentence simply because of the lack of facilities for mothers and babies.
If the sentence was an appropriate one, it was for the authorities to
make those facilities available. On the other hand, if mother and child
did not have to be separated because such facilities were made
available, the point of sending A2 to a training centre would be
defeated. She would have to devote so much time to nursing and
caring for her baby that she would not receive the training which she
was sent to the training centre to receive;
(6) The only viable sentencing options - if mother and child were not
to be separated - were to convert A2’s sentence to one of
imprisonment or to place her on probation. It might be that the 4
months during which A2 had been undergoing training might have had a
salutary effect upon her, and provided her with the insight into her
behaviour which she was lacking. A further report would therefore be
needed for the purpose of obtaining up-to-date information (a) as to
whether her insight into her behaviour had improved to such an extent
as to enable probation to provide her with the counselling she needed
to lead a productive and crime-free life, and (b) as to what were her
future plans for the child. It was also necessary to know from the
Correctional Services Department whether it was feasible for A2 to
keep her baby in the training centre, and what facilities would be
available to her there.
Result - Application of A1 dismissed. Application of A2 adjourned to
a date to be fixed.

12
CA 146/2000
Leong &
Wong JJA
(6.9.2000)
*Cheung Wai-sun
#C Remedios
FRANCISCO
Reynaldo F
Manslaughter after trial for murder/Offer to plead guilty to
manslaughter due to provocation rejected/Discount of one-third
not to be denied after self-defence raised in cross-examination
-
-
The Applicant was convicted after trial of manslaughter, having
pleaded not guilty to murder.
The deceased was the girlfriend of the Applicant, and the
evidence pointed to an unpremeditated homicide in a domestic setting.
Death was caused by a single blow. In his testimony the applicant
claimed that he had been provoked and that he had acted as he did in
order to protect himself. The issue of self-defence came out in crossexamination.
The judge directed the jury both on murder and manslaughter
and on provocation and self-defence. By their verdict it was obvious
that the jury had rejected the Applicant’s case of self-defence.
Although the jury did not indicate the basis of their verdict, it was clear
that it had been reached on the basis of provocation.
In sentencing the Applicant, the judge said:
Your counsel has said that neither unlawful
manslaughter nor manslaughter by provocation is
more serious than the other. I certainly will not
sentence you on any assumption other than the one
most favourable to you. This is a bad case of
manslaughter since someone was killed by being
struck on the head with a hard and heavy object, but
it is not the worst category of manslaughter. All
things considered, I proposed to take a starting point
of 8 years’ imprisonment. I will reduce it for the
mitigation available to you. As to that, I will take
into account everything that has been urged on your
behalf by your counsel.
The mitigating factors included the Applicant’s good character,
his remorse which the judge accepted as genuine and deep as
evidenced by his attempted suicide and distress throughout the trial,

13
and his offer to plead to manslaughter before trial. However, the judge
took into account the fact that he had eventually run a defence of selfdefence
with a view to avoiding any conviction at all.
The judge sentenced the Applicant to 6 years’ imprisonment.
On appeal, it was submitted, inter alia, that the judge failed to
give consideration to the remorse of the Applicant as evidenced by his
confession to his employer shortly after the killing, his attempted suicide
and his offer to plead guilty to manslaughter.
Held :
The Applicant had indicated from the outset that he was
prepared to plead guilty to manslaughter, and the issue of self-defence,
which the judge had to put to the jury, came out in the heat of his giving
evidence related to provocation. That should not be regarded as a
defence that he was actually pursuing and one that he intended to make.
The Applicant should not have been penalised for what was not really a
defence he intended to run at the trial, and he was entitled to the onethird
discount from the starting point.
Result - Application allowed. Sentence of 5 years and 4 months’
imprisonment substituted.
CA 248/2000
Leong &
Wong JJA
(8.9.2000)
*Edmond Lee
#I/P
TUNDE
Anofi Hamid
Using a false instrument/Starting point for single offence
-
The Applicant pleaded guilty to an offence of using a false
instrument.
The facts showed that on 27 January 2000, the Applicant used
his passport to open a personal account with the Bank of
Communications. On 8 February 2000, he went to the bank and
deposited into his account with the bank a bank draft purportedly
issued by Svenska Handelsbanken drawn on the Hang Seng Bank in
his favour in the amount of $450,000. Subsequently, Hang Seng Bank
made inquiries and Svenska Handelsbanken confirmed that the draft
was false. Hang Seng Bank then notified the Bank of Communications
of the matter and a report was made to the police. The Applicant, who
had come to Hong Kong on 25 January 2000, was arrested when he
attempted to leave Hong Kong.
After the judge took a starting point of 3 years’ imprisonment,

14
the Applicant was sentenced to 2 years’ imprisonment. On appeal
Held :
A starting point of 3 years’ imprisonment for such an offence was
neither wrong in principle nor manifestly excessive.
Result - Application dismissed.

15
C. MAGISTRACY APPEALS/
AGAINST CONVICTION
/ MA 683/2000
Tong DJ
(25.8.2000)
*Cheung Wai-sun
#I/P
CHI
Wing-kin
Guilty plea/Application to reverse plea/Informed decision taken
by adult accused
- -
The Appellant pleaded guilty to three charges of burglary.
When the Appellant sought subsequently to reverse his pleas,
the magistrate refused his application. In so ruling, the magistrate
observed:
In the present case, the plea of guilty and the
admission of the brief facts by the appellant in court
were unequivocal. He had been legally represented,
and there was no suggestion that he had not been
properly advised by counsel. I was satisfied that the
appellant in pleading guilty had not been subject to
any duress, he had not been misled by anyone, and
there was no misunderstanding on his part. Under
those circumstances, I refused leave for him to
reverse his plea.
On appeal, the Appellant reiterated that he had been pressured
by his father and the lawyer into pleading guilty.
Held :
(1) The father and the lawyer of the Appellant were entitled to give
him the benefit of their opinion and advice, even in strong terms.
Ultimately, however, it was the Appellant’s own decision to plead guilty
to the charges. He was an adult;
(2) In reaching her decision, the magistrate was guided by the
approach indicated in the authorities of R v Smith (1992) 94 Cr App R
230, R v Turner (1970) 54 Cr App R 352, and R v Peace [1976]
Crim L R 119. The correct principles, which were also reflected in
Hong Kong in HKSAR v Au Yeung Boon-fai [1999] 3 HKC 605, and
HKSAR v Wong Chi-yuk MA 381/99, were applied by the magistrate;
(3) The magistrate was right to reject the application to reverse the
pleas.

16
MA 912/99
Chu DJ
(1.9.2000)
*Vivien Chan
#Eric Kwok
CHAN
Hoi-ying
Result - Appeal dismissed.
Magistrate’s findings/No direct evidence of offence /Need to
identify primary facts and inferences drawn/Specific findings to
be indicated
-
- -
The Appellant was convicted after trial of an offence of theft.
The particulars of offence alleged that the Appellant on 21 April
1999, at a Wellcome Supermarket in Yuen Long, stole a total of 10
items belonging to Wellcome Company Limited.
On appeal, it was submitted, inter alia, that the magistrate failed
to make a specific finding that the 10 items were property belonging to
Wellcome, and that he did not appear to have properly drawn an
inference that the 10 items were the property of Wellcome.
Held :
(1) There was no direct evidence that the Appellant took the 10
items from the goods racks inside Wellcome, and there was no direct
evidence that they were the goods of Wellcome. Since it was a case of
drawing inferences from primary facts, it was prudent and necessary for
the magistrate to indicate and set out the primary facts as proved and
then to state the inferences drawn from the proven facts. This had not
been done in either the oral reasons or the statement of findings. The
omission was not necessarily fatal where the facts were straightforward
and the inferences to be drawn were apparent. However, it was the
Appellant’s case that she purchased the ten items elsewhere and the
burden was on the prosecution to prove beyond reasonable doubt the
issues of appropriation and of property belonging to another. That
required the magistrate to evaluate the evidence and to make specific
findings on these issues;
(2) It was not sufficient for the magistrate to state in his findings that
in reliance on the evidence of the prosecution witnesses he found the
prosecution had proved each ingredient of the offence of theft beyond
reasonable doubt. That was insufficient because the credibility of the
prosecution witnesses, including the supermarket cashier and manager,
was not conclusive of the matter, particularly so since the manager
testified under cross-examination that goods sold in other shops could
still be registered on Wellcome cash registers when being scanned by
the scanners at the supermarket cashier counters. This was not
explored further, and it was not clear how goods sold by the

17
supermarket could be distinguished from goods sold elsewhere. There
was a reasonable doubt or, at least, a lurking doubt as to whether all or
any of the 10 items were taken from Wellcome and whether they were
the property of Wellcome;
(3) The failure of the magistrate to make a specific finding on the
issues of appropriation and property belonging to another, and his
omission to set out the process whereby he came to his findings,
rendered the conviction unsafe and unsatisfactory.
Result - Appeal allowed.
MA 231/2000
Tong DJ
(2.9.2000)
*David Leung
#Kevin Egan
YEOH
Kar-miin
Comments by court after no-case submission and before
ruling/Caution necessary at sensitive stage of trial/Possibility of
accused being misled by court
-
- The Appellant was convicted after trial of three offences of
accepting an advantage as an agent, contrary to ss 9(1)(a) and 12(1) of
the Prevention of Bribery Ordinance, Cap 201.
On appeal, complaint was made about remarks made by the
magistrate after counsel had completed his submission of no case to
answer. After the submission, the magistrate asked defence counsel to
confirm his assumptions that the Appellant would not give evidence,
that there would be no defence witness and further that defence counsel
would simply adopt the no-case submission as the final submission if he
were to find a case to answer. The magistrate had also adjourned the
ruling to a date when counsel had to return to the High Court at 10 am.
In reply, the Respondent submitted that the magistrate was
simply dealing with case management.
Held :
(1) The no-case submission stage was a sensitive stage of the
proceedings. Magistrates tended to be very cautious in what they said
at that juncture because any comments from the bench could be
misinterpreted as some kind of hint, and counsel gave advice to clients
based on such comments. The magistrate had, perhaps inadvertently,
given the impression that he was giving an indication;
(2) It was inappropriate for the magistrate to have made such

18
remarks regarding the defence evidence at that time and in that manner.
If something needed to be clarified for the purpose of case
management, the magistrate should have clearly predicated his inquiry
on that basis;
(3) There was a possibility that the Appellant might have been misled
and misguided in making her decision to remain silent, and this was a
material irregularity which meant that justice had not been seen to be
done.
Result - Appeal allowed. Retrial ordered.
MA 867/99
Gall J
(22.9.2000)
*Graham Harris
#Gerard McCoy
SC & Raymond
Pierce
SFC
v
CHU
Sing-ming,
Jason
Time limits/Prosecution under Securities Ordinance/
Computation of time
-
- The Appellant was convicted on 29 June 1999 after trial of one
offence of aiding and abetting, counselling and procuring another to act
as a dealer’s representative without that other being registered as a
dealer’s representative under the Securities Ordinance, contrary to ss
50(1) and (2) of the Securities Ordinance, Cap 333, and s 89 of the
Criminal Procedure Ordinance, Cap 221.
On appeal, it was submitted, inter alia, that the Securities and
Futures Commission (‘SFC’) had not lawfully commenced the
prosecution by laying an information against the Appellant within the
time fixed for the laying of such information, namely, within 12 months
after the discovery of the offence by the SFC, pursuant to s 148A of
the Securities Ordinance, Cap 333.
On 28 November 1998, the SFC laid three informations against
the person the Appellant and one against Li Chin-yu, Molly (‘Molly
Li’), the Appellant was alleged to have aided and abetted, counselled
and procured to act as a dealer’s representative of Quest Stockbrokers
(HK) Ltd. (‘Quest’), without her being registered as a dealer’s
representative under the Securities Ordinance.
The information alleged that the offence took place between 3
February 1997 and 29 April 1997. During the trial, the dates of the
information were amended to read from 31 January 1997 to 29 April
1997. The defendants were tried separately. The Appellant was
convicted, whilst Ms Molly Li was acquitted.

19
Section 148A of the Ordinance provided:
1. Notwithstanding section 26 of the Magistrates
Ordinance, Chapter 227 an information or complaint
relating to an offence under this Ordinance may be
tried if it is laid or made, as the case may be, at any
time within three years after commission of the offence
or within twelve months after the first discovery
thereof by the prosecutor, whichever expires first.
2. This section should not apply in relation to an
offence committed before the commencement of the
Securities (Amendment) Ordinance 1991(6 of 1991).
The chronology of events which gave rise to this prosecution
revealed that the matter had been originally brought to the attention of
the SFC by a letter of complaint dated 15 June 1997 from a Ms Wong.
Annie Kwong, an SFC investigator, gave evidence that she had
commenced investigation on 22 October 1997 when she received a
number of documents from the Stock Exchange of Hong Kong
(‘SEHK’), including the original letter of complaint. These documents
had been delivered by hand to the SFC under cover of a letter dated
22 October 1997 from the Assistant Director of Regulation of the
SEHK to the Senior Director of Enforcement. Ms Molly Li and the
Appellant were interviewed and denied the existence of any contract of
employment between them, and also the payment of any remuneration.
On 2 July 1998, the SFC issued a notice to banks to obtain bank
documents of Molly Li and the Appellant. On 13 July 1998, the
Standard Chartered Bank and the Bank of China supplied bank
statements of Molly Li and the Appellant which showed that three
cheques issued from the Appellant’s account had been deposited into
the account of Molly Li.
The SFC contended that until they had received the bank
documents in July 1998, there had been no discovery of the fact of
payment to Molly Li by Quest, a material fact which had to be proved.
Held :
(1) It was without doubt that where a time limit was imposed for the
commencement of proceedings or for the laying of an information, it
was for the prosecution to prove, if necessary, that the prosecution had
been brought or the information laid within the time limit. However, it
was also clear that where the facts of the alleged commission of offence
emerged over a period of time, it might be difficult to determine the
exact point at which the period within which prosecution must be

20
brought or an information laid commenced. In R v Yau Hing-ping and
Another [1992] 1 HKCLR 188, Yang CJ held:
The issue here is when it was that the [prosecutor]
first discovered the offence. In other words, when it
was that he was informed of the offence.
In R v Beaconsfield Justices, ex parte Johnson & Sons Limited
(1985) 149 JP 535, Stuart-Smith J adopted the proposition of McNeill
J in the unreported case of John Charles Brookes v Club
Continental Limited, dated 13 October 1981, and held:
I think it is sufficient for the purposes of this case, to
say that the word ‘discover’ means no more in this
context than that all the facts material to found the
relevant charge under the Act were disclosed to the
appropriate officer. The word ‘discovery’ here does
not import any investigation by the officer. It is
simply his knowledge, from disclosure to him in some
way, of the material facts which would found the
offence.
It was argued that the word ‘discovery’ did not infer any investigation,
and that Beaconsfield was therefore authority for the proposition that
knowledge of the material facts should not be confused with
confirmation of those facts and that the time started to run from a date
when the prosecutor had no serious doubts as to the veracity of the
complainant who had produced the relevant documents. It was held
that at that time the prosecution had all the relevant and material facts in
hand for time to commence to run;
(2) In the present case, the original complaint was made prior to 2
November 1997 and thereafter interviews took place with the parties
and relevant witnesses and with the Appellant himself. Trading histories
were provided and the Appellant’s commission rebates had been
provided. Some of the documents related to the dealings of Molly Li
and to the Appellant’s clients. This detail was all included in a report
provided under cover of a letter dated 22 October 1997 from the
Assistant Director of Regulation at the SEHK to the Senior Director of
Enforcement of the SFC. This report concluded that in the view of the
SEHK, there was suspicion that Quest aided unregistered dealings by
Molly Li. The Appellant then faced a charge of aiding and abetting
unregistered dealings by Molly Li. By that time, therefore, the
Appellant was suspected of the offence upon the basis of materials in
the hands of the prosecuting authority rather more concrete than the
claims of the original complainant. And it was from the delivery of the

21
letter dated 22 October 1997 to the Senior Director of Enforcement of
the SFC that the Appellant argued that the period of one year within
which the prosecution had to be brought commenced to run. That
submission was correct;
(3) In Morgans v Director of Public Prosecutions [1999] 1 WLR
968, Kennedy LJ stated:
Mr Blackman contends that the words ‘sufficient in
the opinion of the prosecutor to warrant the
proceedings’ are merely descriptive of the evidence,
and that the prosecutor would not have to form his
opinion before time begins to run. I accept that
submission because otherwise the prosecutor, in full
possession of all relevant information, can prevent
time from running simply by not applying his mind to
the case.
In the present case the prosecutor was in a position, upon receipt
of the report from the SEHK, to apply his mind to the laying of charges
and it was at that point that the period of one year commenced to run.
Result - Appeal allowed.
HKSAR v TANG Don-yuk
1999 931
*
Sin Pui-ha
#
Mui Kwok-keung
COURT OF FIRST INSTANCE OF THE HIGH COURT
MAGISTRACY APPEAL NO. 931 OF 1999
Pang J
Date of Hearing : 12 July 2000
Date of Judgment : 9 August 2000

22
-
- -
(i)
(ii)
(1)
14
(2) R v Pitt (1982) 75 Cr App R 254

23
(3)
[English digest of
MA 931/99
above]
Pang J
(9.8.2000)
*Sin Pui-ha
#Mui
Kwok-keung
TANG
Don-yuk
Husband testifying against wife /Whether warning to husband
necessary/Whether husband compellable/Effect of witness
summons issued to husband
The Appellant was convicted after trial of assault occasioning
actual bodily harm. The victim was the husband of the Appellant. The
Appellant appealed against conviction.
Held :
On appeal, it was submitted, inter alia, that:
(i) under the common law a spouse of the accused
could not be ‘forced’ to give evidence in a criminal
proceeding against the other. The husband was
served with a witness summons to attend court to
give evidence. That meant that the husband was
‘forced’ to give evidence. It was a material
irregularity;
(ii) the magistrate failed to give a warning to the
husband that he could elect not to give evidence,
and the court could not ‘force’ him to testify.
(1) The witness summons was issued in accordance with Form 14 of
the Magistrates Ordinance. It required a witness to attend before a
magistrate on a certain date to give evidence. Once a witness had
attended court on a specified date, his duties under the witness
summons were discharged. The witness summons did not require that
a witness must give evidence before a magistrate;
(2) In R v Pitt (1982) 75 Cr App R 254, it was held to be
desirable that where a wife was called as a witness for the prosecution
of her husband - she being a competent but not a compellable witness -
the judge should explain to her, in the absence of the jury and before

24
she took the oath, that she had a right to refuse to give evidence;
(3) On the authorities it could not be said that there was a procedural
requirement that such a warning must be given in cases involving a
witness who gave evidence against his/her spouse.
Result - Appeal dismissed.
MA 955/99
Gall J
(8.9.2000)
*B Ryan &
M Yang
#A Hoo SC &
Lee Wai-keung
CHIM
Pui-chung
Corrupt and Illegal Practices Ordinance/Definition of ‘election
meeting’/Onus on accused not contrary to the Bill of Rights
Ordinance/Meaning of ‘election expenses’
- ‘ ’ -
- ‘ ’
The Appellant was convicted after trial of two offences, namely,
treating and failing to obtain written authorisation to incur election
expenses, contrary to s 7(a) and s 12(1), respectively, of the Corrupt
and Illegal Practices Ordinance, Cap 288.
The evidence showed that on 2 April 1998, there was to be an
election to select an Election Committee. One of the constituencies
entitled to elect members of that Committee was the Financial Services
sector. The Appellant was a member of the Provisional LegCo and
had been elected to that position by the Financial Services
Constituency. He was not a candidate in the election of 2 April.
On 27 March 1998, the Appellant held a dinner which 90 people
attended. During the evening, the Appellant made a short speech and
referred to the election to be held on 2 April and asked people to refer
to the handbill. He told them that they should make their own choice
when they voted. The handbills giving the time, date of the election and
number of candidates to be elected were distributed to guests. A list of
11 recommended candidates together with a further list of 3 candidates
under the heading ‘Please choose from one of the following three’
was also distributed.
The prosecution case was that the dinner was provided with the
corrupt intention to influence the voters in the election on 2 April, and
that, by providing it, the Appellant was incurring election expenses on
behalf of the candidates whose cause had been promoted, and this was
without the authorisation of those candidates.
The defence case was that the Appellant was generous and the
dinner was no different to others that he held for his constituents to

25
keep them abreast of what he was doing on their behalf and to solicit
their views. On appeal, it was submitted, first, that the magistrate erred
in his definition of an ‘election meeting’. Second, it was argued that s
7(ii), which provided ‘The serving of meals of any kind incidental to
an election meeting shall of itself prima facie be deemed corrupt
within the meaning of this section’, threw upon the Appellant the
obligation of proving, on the balance of probabilities, that the provision
of a meal incidental to the election meeting was not corrupt and that by
placing that onus upon him, he was deprived of his right to be
presumed innocent as enshrined in article 11 of the Bill of Rights
Ordinance. Third, it was contended that the magistrate erred in finding
that ‘election expenses’ were incurred on behalf of the candidates
because it mattered not that he did so without their prior knowledge or
agreement. It was argued that knowledge or agreement of the
candidate to the incurring of election expenses was necessary to the
definition. If not, the words ‘on the candidates behalf’ would be
otiose.
Held :
(1) ‘Election meeting’ meant a meeting organised by a person for
election campaigning purposes, or with a view to promoting the
candidature of a person either directly or indirectly. The intention of the
legislature in the wording of s 7 must have been to strike at the practice
of the serving of meals to a gathering promoting the candidature of a
particular person or persons so as to affect their votes. To narrow that
definition by restricting it to gatherings held by the candidate himself or
by any other person with consent on his behalf would narrow the scope
of the section unduly. The words ‘election meeting’ were to be given
their ordinary meaning;
(2) It was the policy of the legislature that elections be kept free of
corruption and, given that an honest legislature was essential to the
proper governance of Hong Kong, measures to ensure that honesty
were very important. S 7(ii) did not contravene article 11 of the Bill of
Rights Ordinance;
(3) ‘Election expenses’, as defined in s 2 of the Corrupt and Illegal
Practices Ordinance, meant ‘incurred by a candidate and by any
other person on the candidate’s behalf on account of or in respect
of the conduct or management of the election or for the purpose of
promoting or procuring the election of that candidate’. The words
‘on the candidates behalf’ re-enforced the intent of the definition that
the expenses incurred by another must be in the election of that
candidate and not the election at large or any other candidate. On the
ordinary construction of the definition, knowledge and/or agreement of

26
the candidate prior to the incurring of the expense was not necessary to
the definition of ‘election expenses’ in the offence.
Result - Appeal dismissed.
HKSAR v CHOI Chi-hung
2000 62
*
Vivien Chan
#
Eric Kwok
COURT OF FIRST INSTANCE OF THE HIGH COURT
MAGISTRACY APPEAL NO. 62 OF 2000
CHU DJ
Date of Hearing : 1 September 2000
Date of Judgment : 1 September 2000
-
374
39B(6)

27
(1) R v Lennard [1973] 1 WLR 483
’
(2)
374 39B(6) 1967
( Road Safety Act 1967 )3(3)
3(3)
(3)
39B(6)
(4)
[English digest of
MA 62/2000
above]
Chu DJ
(1.9.2000)
*Vivien Chan
#Eric Kwok
CHOI
Chi-hung
Offender unable to provide breath specimen/Whether
drunkenness a reasonable excuse
The Appellant was convicted after trial of an offence contrary to
s 39B(6) of the Road Traffic Ordinance, Cap 374, i.e. failure to
provide a specimen of breath. He appealed against conviction.
The Appellant was shown how to conduct a breath test. He
made five attempts and still failed to provide a specimen of breath. The
magistrate found that the Appellant deliberately failed to provide a
specimen or he was so drunk that he could not follow the instructions
given to him by the police to provide a specimen. Neither amounted to
a reasonable excuse. The issue on appeal was whether a person who
was so drunk that he could not provide a specimen had a reasonable

28
excuse.
Held :
(1) In R v Lennard [1973] 1 WLR 483, it was held that ‘no excuse
can be adjudged a reasonable one unless the person from whom
the specimen is required is physically or mentally unable to
provide it or the provision of the specimen would entail a
substantial risk to his health’;
(2) S 39B(6) of Cap 374 was similar to s 3(3) of the Road Safety
Act 1967 which aimed at solving the difficulty the prosecution had
when it proved the offence;
(3) If intoxication could amount to a reasonable excuse, it would be
contrary to the legislative intent;
(4) Although it was submitted that a person could not commit the
offence if he was so drunk that he could not provide a specimen, and
that the failure to provide a specimen was due to his unconscious state,
the Appellant was not unconscious and he understood the request to
provide a specimen.
Result - Appeal dismissed.

29
D. MAGISTRACY APPEALS/
AGAINST SENTENCE
/ MA 341/2000
Gall J
(12.7.2000)
*Albert Wong
#Duncan Percy
LAW
Hon-hing
Assaults on fellow driver/Seriousness of ‘road rage’/
Community service order not appropriate
-
-
The Appellant was convicted of three offences: (1) common
assault, (2) criminal damage and (3) assault occasioning actual bodily
harm. He was sentenced, to 7 days’ imprisonment on charges 1 and 2,
and to 14 days’ imprisonment on charge 3.
The facts showed that a taxi-driver was driving his taxi with one
passenger on board when he saw another taxi being driven erratically
by the Appellant. He sounded his horn and overtook the Appellant’s
taxi. When he stopped at the traffic lights, the Appellant alighted from
his taxi and shouted at him and, after the victim swore at him, he
punched him on the face (charge 1).
The victim drove off and stopped to allow his passenger to alight.
The Appellant, who had followed in his taxi, alighted with another man
and assaulted the victim with fists (charge 3).
The Appellant also kicked the offside front mud-guard of the
victim’s taxi, causing a dent (charge 2). The Appellant drove off and a
report was made to the police.
The victim suffered a small sub-conjunctival haemorrhage over
the left eye, mild bruises and tenderness to the left chest region and
abrasions over both forearms. The Appellant, a taxi-driver of previous
good character, was also found to have sustained some injuries.
On appeal, it was submitted, first, that the magistrate gave too
much weight to deterrence in imposing an immediate term of
imprisonment of 14 days. It was argued that the magistrate erred in
concluding that she was bound by HKSAR v So Ming MA 264/98,
and that she was precluded by its guidelines from imposing a noncustodial
sentence. In that case, imprisonment had been suggested in
cases where one road user attacked another. Second, it was said, in
reliance upon HKSAR v Chow Chak-man [1999] 2HKC 659, that
more consideration ought to have been given to the imposition of a
community service order.

30
Held :
(1) The magistrate treated So Ming as a guide, and did not blindly
reject any other penalty;
(2) Although the factors which could lead to the imposition of a
community service order, as identified in HKSAR v Chow Chak-man
(above), were all present in this case, these had to be looked at in the
framework of the offence itself;
(3) A Driver was entitled to use a horn to warn another driver that he
was driving erratically. Any driver who did that was entitled to believe
that he would not thereafter be assaulted in consequence by an irate
driver. An offence of this type could not appropriately be dealt with by
way of a community service order. This was a case which demanded
an immediate custodial sentence;
(4) Successive attacks by, at first, one person, and then two persons
aiding each other in the attack, whereby direct injuries were
occasioned, were not a minor matter. That was not to suggest that
community service orders were not an alternative in appropriate cases
to immediate custodial sentences nor that they were available only for
minor cases. This case was of such a nature and such severity that it
warranted, even having considered the alternative of community
service, an immediate custodial sentence. The magistrate was correct
and the duration of the sentence was entirely appropriate. A
suspended sentence was not appropriate.
Result - Appeal dismissed.
MA 206/2000
Gall J
(28.8.2000)
*Kevin Zervos
#TRW Jenkyn-
Jones
PINCHES
Sydney Charles
Accepting advantage as agent/Immediate imprisonment
necessary as deterrent/Promise to testify for prosecution no
basis for discount/Effect of mitigating factors arising since
sentence
-
-
-
The Appellant pleaded guilty to three offences of accepting an
advantage as an agent, contrary to s 9 (1)(b) of the Prevention of
Bribery Ordinance, Cap 201.

31
The facts showed that whilst the Appellant was employed as
Chief Estate Manager at the Taikoo Shing residential estate, and in the
course of his employment, he accepted from a company that had been
awarded the maintenance contract for Phase II of the estate at a total
sum of about $300,000 over the three charges.
The magistrate took as a starting point for each of the offences a
period of 12 months’ imprisonment on each charge, and he reduced
that to 8 months to reflect the early plea. The terms of imprisonment
for each charge were further reduced to 6 months to reflect the
previous exemplary character and the service of the Appellant to the
community. The sentences were ordered to run concurrently.
On appeal, material was produced to show that the Appellant
had done good works whilst awaiting his appeal. He had also given
evidence for the prosecution in a corruption trial. The health of the
Appellant’s wife had also suffered, and the family had been affected.
The Appellant contended that the magistrate had erred in not taking into
account the undertaking to give evidence for the prosecution. It was
also said that the sentence of imprisonment should have been
suspended.
Held :
(1) A mere promise to give evidence on a future occasion was not a
mitigating factor. No discount should attach to a promise which might
not be fulfilled: R v Wong Kam-chiu [1993] 2 HKC 700;
(2) Where there was a promise from an offender to assist the
prosecution, the appropriate course was to either defer sentence until
he had had the opportunity to deliver upon his promise, or to sentence
forthwith, leaving it to the appellate court or the Chief Executive to give
the proper discount after he had testified;
(3) Even a first offender convicted of an offence of corruption under
the Prevention of Bribery Ordinance, unless it was a merely technical
breach, had usually to expect a deterrent sentence. As Stuart-Moore
VP said in Secretary for Justice v Kwan Chi-cheong and Others AR
1/1999:
A punishment that fails to deter will produce all the
wrong signals just as sentences which act as a
deterrent will reinforce this community’s efforts to
rid itself of corruption.
The magistrate could not be criticised for taking a starting point of 12
months’ imprisonment;

32
(4) The mitigating factors since sentence was imposed warranted a
further reduction of sentence. However, the sentence could not be
suspended as this was not a case of technical breach of the Ordinance.
The family’s circumstances and the personal considerations of the
Appellant had force but they were not such as to make an exceptional
case to warrant a departure from the customary sentence of immediate
custody.
Result - Appeal allowed. Sentences of three months’ imprisonment on
each charge substituted. Sentences to be served concurrently.
MA 333/2000
Beeson J
(6.9.2000)
*Leung Sun-yee
#Ching Y Wong
SC & Barbara
Cheng
(1) LAM
Wai-hung
(2) LAI
Yeuk-ho
Assault on USD hawker control officers/Immediate custodial
sentence appropriate/Deterrent purpose of sentence
-
-
The Appellants were each convicted after trial of an offence of
common assault. Each was sentenced to 3 months’ imprisonment.
The evidence at trial showed that the victims, who were USD
hawker control officers, were physically assaulted while they were on
patrol checking for incidents of obstruction.
On appeal, it was submitted, first, that the magistrate erred in
viewing each offence as a ‘serious charge’, and by equating an offence
of common assault simpliciter with the offence of assaulting a police
officer in the due execution of his duty, contrary to s 36 of the Offences
Against the Person Ordinance, Cap 212. Second, it was argued that
the magistrate erred in basing her sentence in part on the fact that the
officers were intimidated, chased and/or assaulted by persons other
than the Appellants. Third, it was said that the sentence passed on
each Appellant was wrong in principle and/or manifestly excessive.
Overall, it was submitted that the sentence passed on each Appellant
was wrong in principle and/or manifestly excessive.
Held :
(1) The only reasonable inference to be drawn was that this was a
deliberate, concerted assault on the officers by a group of men. The
magistrate was quite correct to treat this as a serious offence of its type.
Assaults on hawker control officers, whether by disgruntled hawkers
and shop-keepers, or by those persons who chose to ally themselves
with such persons, could not be allowed to occur;

33
(2) Although the magistrate did not specifically turn her mind to the
question of suspended sentences or community service orders, she was
correct in deciding that an immediate custodial sentence was
appropriate in the circumstances. The need for a deterrent element in
sentences was all-important;
(3) The magistrate did not give sufficient attention to the personal
circumstances and the hitherto clear record of the Appellants, and the
deterrent purpose would be served by a lesser period of imprisonment.
Result - Appeal allowed.
substituted.
Sentences of 6 weeks’ imprisonment
MA 1131/99
Beeson J
(7.9.2000)
*Kevin Zervos
#Graham Harris
THAPA
Magdalena E
Theft by maid from employer/Offender of Previous good
character/Comments on desirability of pre-sentence reports
-
-
The Appellant was convicted after trial of an offence of theft.
She was sentenced to 2 months’ imprisonment.
The evidence showed that she stole $162 from her employer
while working as a shop assistant.
Held :
On appeal
(1) Although the Appellant was a woman in her thirties with a
previous clear record, the magistrate did not consider any other form of
sentence, apart from the possibility, which he ruled out, of a suspended
sentence;
(2) What was more important was that no background reports were
obtained, nor was consideration given to the possibility of a probation
order, or a community service order, for what was a first offender with
a good employment record. Although it was not always incumbent
upon a magistrate when sentencing a first offender to obtain reports, as
a rule of practice it was sensible for magistrates to seek such reports in
all cases where a first offender appeared on a fairly serious charge such
as this;
(3) Had reports been obtained, the magistrate might well have come
to a different conclusion about the Appellant’s sentence. For that

34
reason, a sentence of 3 weeks’ imprisonment - being the time already
served - would be substituted. Such a sentence would meet the needs
of the case, even allowing for the fact that this was a case of breach of
trust.
Result - Appeal allowed.
HKSAR v CHEUNG Man-hang
2000 585
*
Jonathan Man
#
Selwyn Yu
COURT OF FIRST INSTANCE OF THE HIGH COURT
MAGISTRACY APPEAL NO. 585 OF 2000
CHU DJ
Date of Hearing : 30 August 2000
Date of Judgment : 30 August 2000
- -
-
528
118(1)(d)119(1)

35
(1)
(2)
20
[English digest
of MA 585/2000
above]
Chu DJ
(30.8.2000)
*J Man
#Selwyn Yu
CHEUNG
Man-hang
Copyright offence/Young offender/Sentencing considerations/
Community service order not appropriate for recidivist
The Appellant pleaded guilty to an offence contrary to ss
118(1)(d) and 119(1) of the Copyright Ordinance, Cap. 528. The
magistrate called for a probation report and a training centre report.
The probation officer considered the Appellant not suitable for a
probation order but suitable for a community service order. The
Appellant was sentenced to detention in a training centre.
On appeal, it was submitted, inter alia, that the sentence was
manifestly excessive and the magistrate should have ordered the
Appellant to serve a community service order.
Held :
(1) Such an offence was to be considered serious. A custodial
sentence was inevitable. The Appellant committed the present offence
three months after she was convicted of an offence under the Trade
Descriptions Ordinance for which she was ordered to serve a
community service order. It was obvious the CSO did not have a
deterrent effect on her;

36
(2) The Appellant was aged 20 years at the time of sentence. The
magistrate was right in concluding that a term of imprisonment for her
was a last resort. A training centre order would have a positive effect
on the Appellant and she would be subject to supervision for a period
of time upon her release from the training centre.
Result - Appeal dismissed.

37
E. PRACTICE AND PROCEDURE
CA 87/2000
Wong &
Keith JJA
Stock J
(31.8.2000)
*Peter Chapman
#Wong Man-kit
CHAN
Man-chung
Reasons for verdict/Extent of duty on court to resolve conflicts
in evidence/Comments on resolution of differences by judge or
magistrate
-
-
In the course of dismissing an application for leave to appeal
against conviction for three offences of wounding with intent, which was
made on the basis that the judge had not referred in his Reasons for
Verdict to a number of differences in the evidence of the prosecution
witnesses, and had not thereby complied with that said by the Court of
Appeal in R v Lam Kam-ming Cr App 607/79, namely, that
‘significant inconsistencies and conflicts should be dealt with in
such a manner as to indicate how these matters were resolved’, the
court observed:
It is appropriate, we think, for us to reiterate that it
is not necessary for judges or magistrates to resolve
in their Reasons for Verdict every single conflict in
the evidence. They only need to decide those issues
of fact which need to be decided in order to answer
the ultimate question, which is whether the
prosecution has proved each of the ingredients of the
offence beyond reasonable doubt. That is not to say
that peripheral factual issues never need to be
resolved. What issues of fact need to be resolved in a
particular case will depend on the circumstances of
that case. But what we can say without reservation
is that in the present case the judge was entitled to
take the view that the differences in the evidence did
not have to be resolved. It was open to him to
conclude - as we must assume that he did - that,
however those differences were resolved, the
evidence of identification remained sufficiently
reliable for the judge to have safely convicted the
Applicant on the basis of it.

38
CA 254/98
Mayo ACJHC
Leong JA
Beeson J
(26.9.2000)
*Peter Chapman
#I/P
MAN
Wai-ming
Application to Court of Appeal for certificate under Cap
484/Comments on effect of delay in making application/
Application unmeritorious
484
-
-
The Applicant sought, many months out of time, a certificate
pursuant to s 32 of the Court of Final Appeal Ordinance, Cap 484.
In rejecting the application, the Court indicated that not only was
it without merit, but also that the explanation provided by the Applicant
for the delay was not such as to justify the granting of leave to proceed
out of time.

39
F. COSTS IN CRIMINAL CASES
HKSAR v CHEUNG Lung-cheong, Eric
2000 255
*
Jonathan Man
#
I/P
COURT OF FIRST INSTANCE OF THE HIGH COURT
MAGISTRACY APPEAL NO. 255 OF 2000
CHU DJ
Date of Hearing : 30 August 2000
Date of Judgment : 30 August 2000
-
1,000
11(1)(a)
[English digest of CHEUNG Costs awarded against defendant as punishment/Proper basis to

40
MA 255/2000
above]
Chu DJ
(30.8.2000)
*J Man
#I/P
Lung-cheung,
Eric
award costs
The Appellant was convicted after trial of careless driving. He
was ordered to pay costs of $1,000. The magistrate considered it a
special case in which costs would be ordered against the Appellant for
his failure to stop his car and trying to escape from the scene after the
accident. The Appellant was considered to be irresponsible. The
magistrate made an order of costs against the Appellant under s
11(1)(a) of the Costs in Criminal Costs Ordinance, Cap 492. On
appeal
Held :
The behaviour of an offender when he committed the offence
should not be a factor to be considered in an order of costs. An order
of costs was not designed to punish the offender. The court should
consider the manner in which a defendant conducted his defence when
making an order of costs.
Result - Appeal allowed. Order of costs set aside.