刑事檢控科各律師/高級律政 - Department of Justice

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4Appeal No.(Date of Case SignificanceJudgment) TitleA. CRIMINAL APPEALS/AGAINST CONVICTION/ CA 401/99Stuart-MooreACJHCStock JA &Burrell J(15.6.2001)*Darryl SawSC &Wayne Moultrie# Neville SaronySC &Nigel BedfordTSUI Chu-tin,JohnMurder/Diminished responsibility/Terms of directions/Requirements of a summing-up - - - The Applicant was convicted after trial of an offence ofmurder.On appeal, it was submitted, inter alia, that the directions tothe jury as to how to approach their deliberations on the focal issueof ‘diminished responsibility’ were fatally flawed.The issue for consideration was one of whether thesumming-up accurately crystallised, and with sufficient clarity, thekey issue which the jury had to decide, and whether the jury wasgiven adequate assistance in the difficult task which it faced. Theissue was not whether, at the material time, the Applicant sufferedfrom an abnormality of mind. The essential question for the jury’sconsideration was whether that abnormality operated substantiallyto impair his mental responsibility for his act. It required adirection to the jury which precisely and accurately specified therelevant law and which summarised accurately and clearly how theevidence in the case might bring the Applicant within the defenceand how, on the other hand, the Applicant’s act might,notwithstanding his acknowledged illness, fall outside the defence.Held :(1) It was not desirable to talk to a jury in terms of first finding adefendant guilty of murder before going on to consider the issue ofdiminished responsibility. There was no question of any findingof guilt of murder unless the defence first failed to provediminished responsibility on a balance of probabilities. Althoughthe direction given in this case was not fatal, as it was cured bylater directions, judges should stick to the established formula:Providing that the prosecution has proved all theelements of the offence of murder, you must convict thedefendant of that offence, unless you find that at the

5time of the offence he was suffering from anabnormality of the mind which in law substantiallyimpaired his mental responsibility for the killing. If hewas, his responsibility is diminished and that willreduce the offence from one of murder to one ofmanslaughter … If his defence fails to prove any oneor more [of the elements of diminished responsibility],providing that the prosecution has proved theingredients of murder to which I have referred, yourverdict must be guilty of murder. If, on the other hand,the defence has satisfied you that it is more likely thannot that all three elements of the defence’s diminishedresponsibility were present when the defendant killedyour verdict must be not guilty of murder but guilty ofmanslaughter.(2) The directions given by the judge carried too much room forthe jury to understand as a theme that if the attack was triggered ormotivated by jealousy and anger, accompanied by an intention tokill or cause serious harm, then that was somehow to be divorcedfrom the mental illness, and that the defence of diminishedresponsibility did not apply. It was impairment that was the keyfactor, and the concentration on a complete loss of control causedby the disease alone detracted from the concept that the juryshould have had at the forefront of its mind, a concept illustratedin the rationale for the defence:A man whose impulse is irresistible bears no moralresponsibility for his act, for he has no choice; a manwhose impulse is much more difficult to resist thanthat of an ordinary man bears a diminished degree ofmoral responsibility for his act (Smith & Hogan,‘Criminal Law’, 7th ed., p.p. 213-214.)(3) The defence of diminished responsibility was said in R vByrne [1960] 2 QB 390, 403-405, to be:… wide enough to cover the mind’s activities in allits aspects, not only the perception of physical actsand matters, and the ability to form a rationaljudgment as to whether an act is right or wrong, butalso the ability to exercise will power to controlphysical acts in accordance with that rationaljudgment. The expression ‘mental responsibility forhis acts’ points to a consideration of the extent towhich the accused’s mind is answerable for hisphysical acts which must include a consideration ofthe extent of his ability to exercise will power tocontrol his physical acts …

6Inability to exercise will power to control physicalacts, provided that it is due to abnormality of mindfrom one of the causes specified in the parenthesis inthe subsection is, in our view, sufficient to entitle theaccused to the benefit of the section; difficulty incontrolling his physical acts depending on the degreeof difficulty, may be. It is for the jury to decide onthe whole of the evidence whether such inability ordifficulty has, not as a matter of scientific certaintybut on the balance of probabilities, been established,and in the case of difficulty whether the difficulty isso great as to amount in their view to a substantialimpairment of the accused’s mental responsibility forhis acts.There was no such qualification to be found in this summing-up.In other words, no suggestion that real difficulty in controloccasioned, or significantly contributed to, by the illness, mightsuffice. Not every case would call for the introduction of thequestion of difficulty in exercising control. This case did. Thiswas not necessarily a black and white issue, yet it was painted assuch: on the one side was total loss of control, and caused only bythe illness, and on the other, was rage, anger and jealousy, andthere was no reference in this summing up to the role whichabnormality of mind might play in promoting or aggravating angerand rage, or to the role it might play in conjunction with anger,rage and jealousy;(4) What was required was a summing-up which accurately andclearly defined the issues of law, with reference then to the salientevidence, and the summing-up had not sufficiently met thatrequirement. There was a real misgiving that the jury might haveapproached its task with an inaccurate or unclear understanding ofthe issue which it had to determine. The verdict was not safe andsatisfactory.Result - Appeal allowed. Retrial ordered.CA 333/2000Stuart-Moore &Mayo VPPStock JA(1.6.2001)*Simon Tam#Keith Oderberg(1) LIKam-chiu(2) KWOKSiu-hoIdentification evidence/Rejection of alibi evidence lendingsupport to identification/Accused party to fabricated alibis - - The Applicants were convicted after trial of two offences ofwounding with intent, contrary to s 17(a) of the Offences Againstthe Person Ordinance, Cap 212. The second Applicant pleadedguilty to a charge of resisting a police officer in the execution of hisduty.

7& Simon Ng (1)David Khosa (2)On appeal, it was submitted, inter alia, that the judge erredin finding support for the identification evidence from the fact thateach Applicant called alibi witnesses who the judge held had beenlying and fabricating the alibi evidence and assuming that they hadconnived in this. A1 submitted that there was no authority whichextended the doctrine of lies propounded in HKSAR v Mo Shiushing[1999] 2 HKLRD 155, to apply to a person other than thedefendant so that it could be used to support an identification by awitness. A2 contended that the judge erred in applying theprinciples laid down in Mo Shiu-shing as there was no positive orindependent evidence that the alibi witnesses had deliberately lied.That error had been compounded, so it was said, by the judge’sobservation that A2 had an obvious motive to fabricate theevidence and that he had not given evidence at his trial, all ofwhich supported the correctness and reliability of theidentification.Held :(1) Rejection of alibi evidence could lend support toidentification evidence. Support for this proposition could befound from the judgment of Widgery LCJ on p. 230 of Turnbull:Care should be taken by the judge when directingthe jury about the support for an identificationwhich may be derived from the fact that they haverejected an alibi. False alibis may be putforward for many reasons: an accused, forexample, who has only his own truthful evidenceto rely on may stupidly fabricate an alibi and getlying witnesses to support it out of fear that hisown evidence will not be enough. Further, alibiwitnesses can make genuine mistakes about datesand occasions like any other witnesses can. It isonly when the jury is satisfied that the solereason for the fabrication was to deceive themand there is no other explanation for its being putforward can fabrication provide any support foridentification evidence. The jury should bereminded that proving the accused has told liesabout where he was at the material time does notby itself prove that he was where the identifyingwitness says he was.While Widgery LCJ was commenting upon directions whichshould be given to a jury it must be the case that where a judgewas sitting as a judge and jury these considerations would havebeen self evident to the judge. Implicit also in that passage wasthat the rejection of the alibi evidence referred to by Widgery LCJdid not have to be established by positive or independent evidence.

8It was sufficient that the jury rejected the testimony. That wasalso consistent with the principles enunciated in Mo Shiu-shing;(2) It was manifest from the judge’s reasons for verdict that shedid for obvious reasons reject entirely the evidence of both alibiwitnesses. It was also clear that if the reasons for verdict wereconsidered in context that the judge was satisfied that theApplicants must have been parties to the fabrications as it wasinconceivable that these witnesses would have come forward andgiven this evidence unless requested to do so by the Applicants.This might also have been a relevant consideration as to why theApplicants had not gone into the witness box;(3) It was not clear from the judge’s observations that she wassaying that the Applicants’ election not to give evidence was ofitself in any way evidence of these Applicants’ guilt.Result - Applications dismissed.CA 28/2000Stuart-Moore VPWoo & StockJJA(14.6.2001)*Cheung Waisun&Ko Po-chui#Eric KwokHUYNHBat-muoiAiding and abetting, counselling and procuring the using offorged travel document/Meaning of forgery- The Appellant was convicted of two charges of aiding,abetting, counselling or procuring D1 to use a forged traveldocument for the purpose of Part II of the Immigration Ordinance,contrary to s 42(2)(b) of the Immigration Ordinance, Cap 115 ands 89 of the Criminal Procedure Ordinance, Cap 221.On 26 September, 1999, the Appellant and D1 togetherentered Hong Kong from the Mainland at Lo Wu. D1 was inpossession of a passport bearing D1’s photograph in the name ofHuynh Minh Hoa of Belgian nationality. The Appellant was inpossession of a valid Belgian passport in her own name. Theypassed through Immigration Arrival Inspection. While in HongKong the Appellant bought for herself and D1 air tickets for theUSA, departing on 27 September for the USA via Vancouver. Onthat day at the airport, using the same passports, they passedthrough Immigration Department inspection.In a recorded interview, the Appellant admitted that inAugust, 1999, she met a man called Ng in Beijing who specializedin producing forged passports for Chinese to go to work abroad.Ng suggested to her that she could have a remuneration ofUS$1,000 for taking each Chinese holder of a forged passport to aforeign country and all her expenses for meals, accommodation

9and plane tickets would be paid for. However, she had to look forher own clients and he would supply the forged passports. Sheasked D1 if he would like to go to work in a foreign country. Shetold D1 that she had a friend who could arrange a forged passportfor him to go to work overseas. She would accompany him to goall the way. D1 agreed. The Appellant took D1 to have 10photographs taken. She passed them onto Ng. On 23 September,1999, Ng told her to get D1’s forged passport. When she washanded the passport, she found it to be a Belgian passport anddiscovered that only the photograph was D1’s whilst the otherparticulars in the passport did not relate to him. The record ofinterview was admitted in evidence.The Appellant gave evidence that all along she had neverknown that there was any problem with D1’s passport. She wasnevertheless convicted.On appeal, the Appellant said that the passport was genuine.She produced a letter from the Consulate General of Belgium inHong Kong which was to the effect that the passport was issued bythe Townhall in Brussels and that the only untruth contained in itwas that the photograph in it did not show Huynh Minh Hoa butinstead D1. That letter was admitted into evidence pursuant tos 83V of the Criminal Procedure Ordinance, Cap 221.The Appellant argued that the passport was not a ‘forged’document within the meaning of s 42(2)(b) of the ImmigrationOrdinance, Cap 115.The Respondent submitted that:(1) S 42(2)(b) of the Immigration Ordinance, Cap 115 provided,‘Any person who ….. uses ….. any forged, false or unlawfullyobtained or altered travel document ….. shall be guilty of anoffence’. ‘False’ meant false in a material particular and ‘forged’had the meaning assigned to that term by Part IX of the CrimesOrdinance, Cap 200;(2) S 68(2) of the Crimes Ordinance, Cap 200 provided that‘forgery’ should be construed in accordance with Part IX;(3) S 71 of the Crimes Ordinance, Cap 200 provided, ‘A personwho makes a false instrument, with the intention that he or anothershall use it to induce somebody to accept it as genuine, and byreason of so accepting it to do or not to do some act to his own orany other person’s prejudice, commits the offence of forgery .....’;(4) S 69 of the Crimes Ordinance, Cap 200 provided, ‘(a) aninstrument is false if it purports to have been ….. (vii) made or

10altered on a date on which or place at which or otherwise incircumstances in which it was not in fact made or altered .....’;(5) S 69 of the Crimes Ordinance, Cap 200 had extended themeaning of ‘forgery’ to ‘false’. If any of the circumstances ins 69(a) were established, the related instrument was a forgedinstrument under s 42(2)(b) of the Immigration Ordinance,Cap 115. S 69(a)(vii) of the Crimes Ordinance, Cap 200 providedthat an instrument was false if it purported to have been made incircumstances in which it was not in fact made. Thecircumstances in which a genuine passport would have been madeand issued by the authorities in Brussels were that the photographssubmitted were those of Huynh Minh Hoa, but these were not theactual circumstances in which the passport was issued. Thepassport was therefore a forgery.Held :(1) The significant words in s 69(a)(vii) of the CrimesOrdinance, Cap 200 were ‘the circumstances in which’ theinstrument was ‘in fact made’. The passport purported to say thatit had been issued by an official on such and such a date, and atsuch and such a place, pursuant to the authority which that officerhad to issue it. The passport was in fact made in the form andupon the terms in which the maker made it. It had not since beenaltered, and was made on the date and place and in thecircumstances in which it purported to have been made. If it alsopurported to represent that it was made after an application for apassport, then that too was an accurate representation about itself.The subject passport contained no lie about itself, although itcontained a lie. It also contained no lie about the circumstances inwhich it was made, whether as to time, or place, or authority. Itdid not qualify as a forgery under s 69(a)(vii) or any of thecategories of false instrument within the ambit of any othercategory under s 69. The factual situation here was very differentfrom those in Attorney General’s Reference (No 1 of 2000) [2001]1 WLR 331, R v Donnelly (Ian) [1984] 1 WLR 1017, R v Jeraj[1994] Crim L R 595 and R v Warneford [1994] Crim L R 753;(2) The two charges would be amended by replacing the word‘forged’ with the word ‘false’ wherever ‘forged’ appeared on thecharge sheet: R v Chan Chak-fan CA328/93 followed.Result - Appeal dismissed.[See also Criminal Appeals/Against Sentence: Ed]

11B. CRIMINAL APPEALS/AGAINST SENTENCE/ CA 414/99Stuart-Moore& Mayo VPP(30.5.2001)*David Leung#Phillip Ross& Corinna TaiLEEYat-fanAssistance to authorities/Not guilty plea/Computation ofdiscount - - The Applicant was convicted after trial of two counts oftrafficking in heroin hydrochloride and was sentenced to a total of15 years’ imprisonment.The Applicant sought leave to appeal out of time against hissentence. It was submitted that the sentence was manifestlyexcessive having regard to the assistance given by the Applicant tothe police and prosecuting authorities in HCCC 97/2000. TheApplicant provided important evidence for the prosecution, andthe defendant in that case was convicted and sentenced to 10years’ imprisonment.The Applicant had heard the defendant in HCCC 97/2000speaking in Stanley prison where, for a time, he shared a cell withhim, and he made a statement revealing how the defendant felt‘cheeky’, as he put it, at successfully persuading a doctor to certifyhim as being ‘dumb’.That statement was made on 27 July 2000, and he testifiedsoon afterwards at the defendant’s trial.Held :(1) In view of the assistance given to the authorities, which wasto an extent peripheral to the main issues in the trial of thedefendant in HCCC 97/2000, the Applicant deserved a substantialdiscount. His evidence cancelled the effect of the doctor who wasor might have been called to say that the defendant in that casewas unable to speak. In view of his pleas, which were notdeserving of any discount, it would be wrong to give the Applicantthe usual discount of 50% which was given to those who pleadedguilty and gave truthful and material evidence against others ontrial. A discount of 50% assumed an original discount of about33% for the plea of guilty. The remaining 17% was usually givenfor providing a statement against some other offender and goinginto the witness box to testify;(2) The Applicant’s sentence could be reduced by 20%. Takingthat from the sentence of 15 years, the sentence would be reducedto 12 years’ imprisonment.

12Result - Appeal allowed. Sentence of 12 years’ imprisonmentsubstituted.Obiter - Normally, after a lengthy period of time, an appeal forclemency to the executive would be appropriate and thecourt would not entertain such an application.CA 28/2000Stuart-Moore VPWoo& Stock JJA(14.6.2001)*CheungWai-sun &Ko Po-chui#Eric KwokHYUNGBat-muoiProcuring issue of false travel document/Conduct of a typewhich assisted snakeheads in illegal migration/Familycircumstances not mitigating factors- - The Applicant was convicted after trial of two offences ofaiding, abetting, counselling or procuring the issue of a forgedtravel document for the purpose of Part II of the ImmigrationOrdinance, contrary to s 42 (2)(b) of that Ordinance and s 89 ofthe Criminal Procedure Ordinance, Cap 221. The particulars ofthe two offences were that the Applicant on 26 September 1999(27 September 1999 for the other offence), in Hong Kong, aided,abetted, counselled or procured Lau Wo-hing to use a forgedtravel document, namely, Kingdom of Belgium Passport NoEB904980 for the purpose of Part II (Immigration ArrivalExamination) of the Immigration Ordinance.After an appeal against conviction (qv), the court amendedthe two charges to replace the word ‘forged ’ with the word ‘false’wherever the word ‘forged ’ appeared on the charge sheet.The judge sentenced the Applicant to 2 years and 9 months’imprisonment for each of the offences, to run concurrently. Thatwas after he had referred to R v Yu Wing-wut Cr App 346/84,HKSAR v Kim Tae-kuk Cr App 449/98, and HKSAR v Pak WanhungCr App 573/98. He took 3 years as his starting point.Held :On appeal(1) The sentence was on the lenient side. The Applicant told theImmigration Department that she had been promised US$1,000 bythe person who would provide her with a forged passport for eachtransaction. She had to accompany the illegal immigrant to goabroad with the forged passport. All her expenses for such a tripwould be paid for. She approached her co-defendant to offer himthe services for US$5,000. She acted not only as a go-between for

13the snakehead and the intended illegal immigrant, but she alsooperated as a ‘salesman’ to recruit people to use the service aswell as to assist in the production of the false passport by takingthe co-defendant to have photographs taken and passed to a mannamed Ng in Beijing who specialised in producing forgedpassports for Chinese to go to work abroad. The role she playedwas of a type which assisted snakeheads in the internationallydenounced illegal migration trade;(2) Although the Applicant sought release as well on the basisthat she was divorced with two daughters and an aged mother whodid not have anyone to look after them, such circumstances werenot uncommon amongst convicted persons. They did not qualifyas mitigating factors. She should have thought of theconsequences to her family members before she engaged in thisheinous crime;(3) If Kim Tae-kuk (supra) had been faithfully followed as aguide, a starting point of no less than 3½ to 4 years would not havebeen inappropriate for the Applicant. But for the fact that thecharges had been amended and that it was not appropriate to actagainst the spirit of s 83A (2) Cap 221, another year would havebeen added to the sentence.Result - Application dismissed.CA 450/2000WongKeith &Stock JJA(30.5.2001)*Sin Pui-ha#D Tolliday-WrightSIMKa-wingBurglary of non-domestic premises/Factors affectingconventional starting point/Burglary committed by employeeof victim firm/Effect of aggravating factors/Weight to be givento previous good character- - - - The Applicant was convicted after trial of an offence ofburglary.The evidence showed that the Applicant had been employedby Delifrance (HK) Ltd. At the time he submitted his resignationtherefrom on 8 June 2000, he was an area manager responsible forseveral of its outlets. On the evening of 19 June 2000, while theApplicant was working out his period of notice, he hid in a toiletin Worldwide House, and after the Delifrance outlet there, ofwhich he had once been the manager, shut for the night, he prizedopen the rear door of the premises. The Applicant then drilled intothe door of the safe in the kitchen, but was unable to gain access toit. When he switched on the kitchen lights, a security guard was

14alerted. The Applicant tried to brazen things out by saying he wasemployed by Delifrance; that he did not have his staff card withhim, and that his identity card was in his car. Outside the building,the Applicant made a run for it, but was caught by two patrollingpolice officers.The judge acknowledged that the usual starting point forburglary of non-domestic premises was in the order of 2½ years’imprisonment. Although he noted that the Applicant had beendisturbed before he had been able to steal anything, and that thedamage he caused had been minimal, he regarded two factors asaggravating features. First, the Applicant had taken unusuallyelaborate steps to prepare for the burglary. Second, the Applicanthad been employed by Delifrance at the time, and the crimeinvolved an abuse of trust.The judge did not feel able to give the Applicant credit forhis clear record which was ‘more than offset’ by the fact that theoffence had been carried out in abuse of his employer’s trust. Hedid conclude, however, that the sentence could be reduced to giveeffect to the fact that although the Applicant had pleaded notguilty, the issues in the trial were very limited. Having taken astarting point of 4 years’ imprisonment, he imposed a sentence of3 years.Held :On appeal(1) The conventional starting point of 2½ years’ imprisonmentfor the burglary of non-domestic premises related to burglarieswith no aggravating or mitigating features. Such burglariesinvolved a measure of planning, and a degree of premeditationand planning was already built in to the conventional startingpoint. The conventional starting point could be covered in thecase of an opportunistic burglar, and increased in the case ofprofessional criminals who planned their burglaries withmeticulous care and stole goods and cash of considerable value.In the present case the degree of planning and premeditation wasmore than normal, and justified a moderate increase in thestarting point;(2) Breach of trust was an aggravating feature in cases ofdishonesty. That was so because, as Lord Lane CJ observed in R vBarrick (1985) 7 Cr App R 142, the offender was in a ‘privilegedand trusted’ position. It was that position of privilege and trustthat he abused. The Applicant, however, was not placed in aposition of privilege and trust by Delifrance which he abused. Hisbreach of trust involved his use of knowledge about the Delifrance

15outlet in Worldwide House which he had acquired while workingthere. Although a breach of trust of that kind was not to bebelittled, it was not a breach of trust of the kind to which thephrase normally applied, and only a modest enhancement of thestarting point was warranted;(3) Putting the two aggravating factors in their proper context,they did not cumulatively justify an enhanced starting point of 4years’ imprisonment. They justified an increase in the startingpoint of 6 months’ imprisonment, making the appropriate startingpoint one of 3 years’ imprisonment;(4) The judge erred in concluding that the Applicant’s clearrecord should not have been taken into account on the basis that itwas offset by the breach of trust. That was tantamount topunishing the Applicant twice over for the breach of trust. Thatthe offence was committed by a man of hitherto unimpeachablecharacter, and therefore was totally out of character, was a relevantand significant mitigating factor. As against that, the Applicantwas a little fortunate to have obtained as much as a 25 % reductionin his sentence in view of the limited issues in the trial. That said,the various mitigating factors, taken cumulatively, justified areduction of 25% on the sentence which would otherwise havebeen imposed.Result - Appeal allowed. Sentence of 2 years’ imprisonmentsubstituted.CA 104/2001Mayo VPKeith &Stock JJA(14.6.2001)* Kevin Zervos#David MaCHUKa-shingDoing an act intended to pervert the course of publicjustice/Disparity of sentence/Effect of aggravating factors/Assistance to authorities/Effect of failure to apply initially forleave to appeal- -- - The Applicant pleaded guilty to a charge of doing an acttending and intended to pervert the course of public justice.The Applicant was employed by an engineering company.He reported to the foreman of a construction site. The foremanwas due to be tried at Western Magistracy last October on variouscharges of false accounting. On the first day of the trial, theApplicant went to the Magistracy and approached a fellowemployee who was due to give evidence on behalf of theprosecution in the foreman’s case. The Applicant told the witnessto do what he could to minimise the foreman’s role in the evidence

16which the witness was going to give. The Applicant added that heknew where the witness’s wife worked, thereby implying thatsomething might happen to his wife if he did not moderate hisevidence against the foreman.When the witness was due to give evidence, the Applicantfollowed him into the courtroom. He remained in the publicgallery throughout the witness’s evidence. He was visible to thewitness while the witness was in the witness box. Although thewitness had previously signed a witness statement setting out thefacts to which his evidence was to relate, he claimed during hisevidence to be unable to recall the events in respect of which hisevidence was required. In fact, the witness felt threatened by theApplicant, and that was the real reason for his apparent lack ofrecollection. In due course, the foreman was acquitted, butwhether he would have been convicted if the witness hadoriginally given evidence in accordance with his witness statementit was not possible to say, because once it had been discovered thatan attempt had been made to influence the witness’s evidence, thewitness was recalled and the evidence which he then gaveaccorded with his witness statement.The judge regarded the Applicant’s conduct as serious. Shecalled it ‘a thoroughly reprehensible act’ which required ‘adeterrent sentence’. She quoted that said in Attorney General vYeung Sau-shing AR 21/80, namely, that the crime of attemptingto pervert the course of justice.… is a crime which is essentially against the publicinterest as a whole. It strikes at the very heart of thesystem by which law and order is enforced in society.If it were to succeed to any appreciable extent it wouldcompletely destroy public confidence in that system.Strong measures are needed to preserve thatconfidence and consequently, the personalcircumstances of an individual defendant carry lessweight in this case than they would in relation to someother crimes.The judge also recognised that crimes of this kind variedwidely, and that what was an appropriate sentence in one casemight not be an appropriate sentence in another. As said inYeung Sau-shing:.… attempting to pervert the course of justice isalways a serious offence, although that being said, theactual gravity in any given situation will depend uponthe circumstances, which may vary very widely fromone case to another.The judge took 24 months’ imprisonment as her starting

17point. She reduced that term by one-third to reflect theApplicant’s plea of guilty. She then reduced it by a furthermonth for what she described as the Applicant’s franknessand co-operation. That co-operation was a reference to thefact that the Applicant had explained to officers of the ICAChow it was the foreman himself who had asked him to speakto the witness about the evidence which the witness was goingto give, and how the foreman had paid the Applicant $1,000for doing so. She therefore sentenced the Applicant to 15months’ imprisonment, but added that, if the foreman weretried and the Applicant gave evidence against him, ‘no doubta further reduction in sentence would be given by theauthorities’.The Applicant did not initially seek leave to appealagainst his sentence. Instead, he waited to see what happenedto the foreman. In due course, the foreman was tried in theDistrict Court by Judge Sweeney on a similar charge of doingan act tending and intended to pervert the course of publicjustice, the allegation being that he had paid the Applicant topersuade the witness to modify his evidence. The foremanpleaded not guilty. The Applicant gave evidence against him.The foreman was convicted, and he was sentenced to 18months’ imprisonment.When sentencing the foreman, Judge Sweeney said:I have every sympathy for the [the Applicant] whofrankly admitted his participation in this offence whenfirst charged and subsequently gave his evidencebefore this Court in a frank and dignified manner. Inthese circumstances, [the Applicant] might now have ajustifiable sense of grievance at the length of hissentence, imposed before he gave vital prosecutionevidence in this trial, with the inevitable result that hereceived no benefit for becoming a prosecutionwitness. I hope that his case can be revisited for areassessment of penalty.In the light of those remarks the Applicant applied for leaveto appeal against his sentence out of time. He did so on theground that, in Judge Sweeney’s words, he had a ‘justifiable senseof grievance at the length of his sentence’ when compared with thesentence imposed on the foreman, and on the additional groundthat, leaving aside the sentence imposed on the foreman, he wasnow entitled to a further reduction in sentence to reflect the factthat he gave evidence against the foreman which was instrumentalin securing the foreman’s conviction.Held :

18(1) Such disparity as there might be between the Applicant’ssentence and the foreman’s sentence did not of itself justify areduction in the Applicant’s sentence. If the foreman’s sentencewas too light, the windfall which the foreman received would notjustify reducing the Applicant’s sentence if the Applicant’ssentence was correct, bearing in mind that the Applicant and theforeman were sentenced by different judges on different occasions.The real question was whether the starting point of 24 months’imprisonment which the judge took in the Applicant’s case wasexcessive;(2) Cases of this kind varied considerably, and the appropriatesentence for one case was not necessarily the appropriate sentencefor another. However, what could be said was that where theattempt to influence the outcome of the case was accompanied bythreats or intimidation of one kind or another, that was anaggravating factor which should be reflected in the ultimatesentence to be imposed;(3) Few cases of this kind had reached the Court of Appeal inrecent years. None of the three cited cases attempted to laydown any generally applicable tariff. They merely sought toidentify the appropriate sentence in the particular case. Thus, inAttorney General v Yeung Kwong-chi [1989] 1 HKLR 266, inwhich an attempt was made to frame an innocent man ‘whomight well have been sent to prison for a considerable period’,the Court of Appeal regarded 18 months’ imprisonment as theappropriate sentence following a plea of not guilty. That wasalso the sentence which the Court of Appeal passed in R v LamHon-kwan Cr App 525/84, following pleas of not guilty, inwhich the defendant had attempted to obtain money from a mancharged with robbery in return for their co-defendant either notgiving evidence against him or giving false testimony to securehis acquittal. In Yeung Sau-shing itself, a case relatively similarto the present one, in which money was offered to induce thewitness’s co-operation rather than subjecting the witness tointimidation, the Court of Appeal, following a plea of not guilty,took a term of 12 months’ imprisonment before reducing it to 9months’ imprisonment to reflect the fact that the sentence wasbeing imposed on an application for review. However, in noneof these three cases was there the significant aggravating elementof threats or intimidation;(4) The present case had the aggravating features of the threatsimpliedly being made outside the courtroom to the witness’s wife,and the intimidation of the witness by the presence of theApplicant in the courtroom while the witness was giving hisevidence. These aggravating features were significant, and they

19justified the judge in taking 24 months’ imprisonment as herstarting point;(5) However, in addition to (a) the one-third discount to whichthe Applicant was entitled for his plea of guilty, and (b) theadditional modest discount for informing the police that it was theforeman himself who had put him up to do what he did, theApplicant was now entitled to a further discount to reflect (i) hiswillingness to give evidence against the foreman and (ii) the factthat the evidence which he in fact gave was instrumental insecuring the foreman’s conviction. The courts should play theirrole in encouraging such conduct, especially in a case such as thiswhere the judge presiding over the trial at which the Applicantgave evidence was so impressed by the manner in which hisevidence was given. The Applicant’s sentence should bediscounted from its proper starting point by 50%;(6) The final question was whether the situation was affected bythe failure of the Applicant to apply initially for leave to appealagainst his sentence. As said in R v Mak Chan-pui Cr App 483/92:As this Court has said on a number of occasions, whenassistance is given to the prosecuting authorities by aprisoner after sentence and after the time forappealing has expired, the proper procedure is forsuch an applicant to petition HE the Governor and notto seek further leave to appeal to this Court. Thatcourse is still open to this applicant.Those comments were expressly approved in HKSAR vKwan Yun-hang Cr App 252/97. However, in the present case anapplication by the Applicant for executive clemency could onlyhave been made after the trial of the foreman was over. That trialended on 3 April. Applications to the Chief Executive forclemency took some time to be considered, and in this case theApplicant would almost certainly have served his sentence by thetime when his application for clemency would have beendetermined. In the circumstances, it was entirely proper for theApplicant to apply for leave to appeal against his sentence out oftime.Result - Application granted, appeal allowed and sentence of 12months’ imprisonment substituted.HKSAR v NG Lok-wan, Lorraly– 2000 483

20Chan FungshanA HungCOURT OF APPEAL OF THE HIGH COURTCRIMINAL APPEAL NO. 483 OF 2000Leong CJHC, Wong & Woo JJADate of Hearing: 17 May 2001Date of Judgment: 17 May 2001- - -- 20 3642 36 24 42 285214 2842

21 ( )[1996] 2 HKCLR 19(1) ()[1993] 1 HKC 215(2) (3) (4) CrApp 575/97[English digest ofCA 483/2000,above]Leong CJHCWong& Woo JJANGLok-wan,LorralyBurglary in domestic premises/Second offence occuringshortly after the first offence/Two offences not part of onetransaction/ Consecutive sentences required/Overall startingpoint consideredThe Applicant pleaded guilty to two charges of burglary.Both charges alleged that the Applicant committed the offences atthe same domestic premises on different days. The Applicant,

22(17.5.2001)*Chan Fungshan#A Hungaged 20, had a previous record of theft but had not received acustodial sentence before. She was found not to be suitable fordetention in a Training Centre or for probation.In sentencing, the judge opined that the sentences for thesetwo offences should run consecutively because they werecommitted at the same place but on different days with two days inbetween. He took a starting point of 36 months and 42 monthsrespectively for the first and second offences. [He then reducedthe sentence to 24 months for the first offence and to 28 monthsfor the second offence for the guilty pleas. He further consideredthe sentence of a total of 52 months’ imprisonment was excessive.Having taken into consideration the totality principle, he sentencedthe Applicant to 14 months’ imprisonment and 28 months’imprisonment respectively for the first and second offences.] Bothsentences were to run consecutively making a total of 42 months’imprisonment.On appeal, it was submitted, inter alia, that the judge shouldhave treated the two offences as one transaction and orderedconcurrent sentences. It was said that the judge should not firsthave decided a starting point for each offence and then given aseparate discount for the guilty pleas. The judge should in relationto the overall culpability of the Applicant in the two offencesinvolved have determined the totality of sentences before makingany deduction. Reliance was placed upon AG v Lo Ching-fai[1996] 2 HKCLR 19.Held :(1) The Court of Appeal in AG v Lo Ching-fai cited AG v LuiKam-chi [1993] 1 HKC 215, and held that it was well establishedthat the starting point of a sentence for an adult convicted of asingle domestic burglary with no aggravating or mitigatingfeatures was three years. Where a defendant had committed morethan one offence of a similar nature at different times, it was rightfor the court to award a higher sentence than if there had been onlyone offence. It did not matter whether the starting point wasarrived at by way of concurrent or consecutive sentences. If thesentences were concurrent, then each term must be higher than itwould have been if it were set for one offence only; if consecutive,each term must be scaled down to avoid an excessive total;(2) The crucial point in the appeal was whether or not theoverall sentence imposed was appropriate. It did not matter howthe sentence was arrived at by the trial judge. The trial judge wasabsolutely justified in treating the two burglaries, which occurredat the same place but at different times, as two separate events andthe imposition of consecutive sentences for these two offences wastherefore not improper;

23(3) Having considered the facts of the case and the backgroundof the Applicant, it was considered that the sentence of 42 months’imprisonment after guilty pleas, which meant a starting point ofover five years, was indeed excessive;(4) The starting point for the first offence should be three years,and, for the second offence, which was more serious than the first,four and a half years: HKSAR v Law Fat-chai Cr App 575/97.However, as the sentences were to run concurrently, the overallstarting point should be four and a half years. After giving onethirddiscount for the guilty pleas, the total sentence should bethree years.Result - Appeal allowed. Total sentence of 3 years’ imprisonmentsubstituted for the sentence of 42 months’ imprisonment.

24C. MAGISTRACY APPEALS/AGAINST CONVICTION/ MA 1355/2000Barnes DJ(23.5.2001)*Ian McWalters#Andrew BruceSCSIT Kan-taiPre-trial admission/Admission not tendered/Maker not crossexamined on pre-trial admission/Existence of immunity notdisclosed to court/Need for witness to be shown to haveunderstood immunity- - - - The Appellant was convicted after trial of two charges ofconspiracy to offer an advantage to a public servant, contrary tosections 4(1)(c) and 12(1) of the Prevention of Bribery Ordinance,Cap 201, and sections 159A and 159C of the Crimes Ordinance,Cap 200.The Appellant was a principal in Shing Shun EngineeringFactory (‘Shing Shun’), which dealt with the Housing Department.It was the prosecution case that the Appellant was a party to anagreement on two occasions to offer $5,000 by way of cheques toa public servant (‘Stella’) for Stella’s assisting or having assistedShing Shun in its dealings with the Housing Department. The firstcheque was handed to Stella by an employee of Shing Shun(‘Irene’) and the second by another employee (‘Donna’). TheAppellant did not have any lawful authority or reasonable excusefor doing so.Although the Appellant faced two charges, they were in factthe third and fourth charges on the charge sheet, the first andsecond charges being against Stella for accepting an advantage asa public servant. Stella pleaded guilty to the charges and gaveevidence for the prosecution in the trial of the Appellant. It wascommon ground that the magistrate had taken into account whatwas called the ‘pre-trial admission of Stella’ and he said:Her testimony clearly contradicts her pre-trialadmission of the prosecution case against her for‘tipping off Irene, a clerk of Shing Shun, with othertenderers’ information, including bidding prices. Sheis trying to scale down her involvement in the illicitscheme to get a lighter sentence. I reject Stella’stestimony where it is inconsistent with thecounterparts of Irene and Donna.When he used the term ‘pre-trial admission’, the magistrate

25appeared to refer to the Summary of Facts upon which Stella hadpleaded guilty to the first and second charges.It was an agreed fact that Irene and Donna testified underimmunity. It was not disputed that the terms of the immunity werenot disclosed to the magistrate.On appeal, it was submitted, inter alia, that the magistrateerred in taking account of the ‘pre-trial admission’. Theadmission was never tendered and would not be evidence againstthe Appellant. Stella was not cross-examined on the admission.The magistrate mentioned his reliance on the pre-trial admissionfor the first time when he considered the verdict, thus not availingdefence counsel of the chance to cross-examine Stella on a‘previous inconsistent statement’, and/or to make submissions. Itwas said that the theory of the magistrate (ie scaling down ofinvolvement) was entirely speculative as Stella was not given thechance to answer this criticism. That theory was only one of thepossibilities and it was also possible that her ‘pre-trial admissions’were untrue. It was also contended that for a defendant whoawaited sentence to testify before the magistrate in a mannerapparently inconsistent with the ‘pre-trial admission’ was hardlycalculating to reduce the sentence.The Appellant, in the second ground of appeal, contendedthat the witness must be shown to be aware of the terms of thedocument of immunity: R v McDonald (1983) 77 Cr App R 196.It was also said that the terms of the immunity must be disclosedto the triers of fact: R v Tsui Lai-ying [1987] HKLR 857, R v HwaTak-ming [1996] 2 HKC 62.Held :(1) It was quite clear that the magistrate had wrongly used the‘pre-trial admission’ of Stella. An important issue at trial waswhether the Appellant knew the purpose of the payments andwhether he had agreed to them as co-conspirator. The Appellantwas not present when the two payments were made. His evidencethat he did not know of the status of the recipient of the paymentsclashed with that of Irene and Donna. Stella provided evidence ofpayments made but also contradicted the evidence of Irene andDonna. It appeared the only reason the magistrate gave forpreferring the evidence of Irene and Donna over Stella where therewere conflicts was upon his theory of Stella ‘trying to scale down’her involvement. It could not be said that had the magistrate notcommitted the error of relying on the ‘pre-trial admission’ ofStella, he would undoubtedly have entered the same verdict;(2) There was nothing before the magistrate to indicate that

26either Irene or Donna understood the terms of the immunity. Thelaw did not require the prosecution to tender physically theimmunity document to the court. Nevertheless, the contents of theimmunity had to be made known to the court as they were relevantto the assessment of the credibility of such tainted witnesses. Thewitness testifying under immunity should also be shown to haveunderstood the terms of the undertaking. The failure to disclosethe terms of the immunity to the magistrate amounted to anirregularity. The defence were denied the opportunity to crossexaminethe two witnesses, and the magistrate was not able to takeinto account the extent of the immunity in his evaluation of theundoubted ‘accomplice’ evidence.Result - Appeal allowed. Retrial ordered.MA 1039/2000Barnes DJ(31.5.2001)*Anthea Pang#Philip WongLO Ho-chungIdentity parade/Suspect a police officer/Identity paradecomposed of police officers and not actors/UK and HK Codes/No statutory rules regulating parades in HK/Effect of noncompliancewith rules - - - - - The Appellant was convicted after trial of an offence ofindecent assault, contrary to s 122(1) of the Crimes Ordinance,Cap 200.The prosecution case was that the Appellant, a policeofficer, went with a colleague, while on duty, to a one-womanbrothel in Tai Po, and checked the identity card of the prostitute.In the absence of his colleague, it was alleged that he indecentlyassaulted the prostitute. After the incident, the prostitutecomplained of indecent assault to her flatmate and she positivelyidentified the Appellant at an identification parade five days later.As the prosecution case was based on identificationevidence, on appeal, it was submitted, inter alia, that theidentification parade evidence had been wrongly admitted as therehad been a flagrant disregard of paragraphs 24 to 26 of the ForceProcedure Manual on Identification Procedures. Paragraphs 24-26 read:The parade is to consist of at least eight persons (inaddition to the Suspect) who should as far as possibleresemble the Suspect in age, height, generalappearance and position in life. If the Suspect has any

27distinguished marks or features (e.g. tattoos or visiblescars), they should be covered or obscured in someway and the corresponding locations on the bodies ofthe actors should be similarly treated. Where theSuspect wears spectacles, a beard, moustache etc., allthe actors should present similar features. OneSuspect only will be included in a parade, unless thereare two Suspects of roughly similar appearance, inwhich case they may be paraded together, but with atleast twelve other persons. In no circumstance willmore than two Suspects be included in one parade.Members of a particular group such as the disciplinedservices or the military will normally be used asparticipants in a parade when the Suspect is himself amember of that particular group. Occasionally, morethan one member of a group is a possible Suspect (e.g.an allegation against an unidentified officer which canonly be narrowed down to a number of officers whowere on duty at the time and place in question). Insuch circumstances, separate parades are to be heldfor each officer, unless there are two of similarappearance, when they may appear on the sameparade with at least twelve other officers from anotherdistrict or unit who could not possible (sic) have beeninvolved in the circumstances leading the allegation.Where members of the military or disciplined servicesin uniform form a parade, numerals or otheridentifying badges/features of the uniform will beremoved or concealed.When the Suspect is brought to the place where theparade is to be held, he is to be asked by the OCParade whether he has any objections to thearrangements for the parade or to any of the otherparticipant in it. Any objections will be recorded onthe Pol 279 and, where applicable, steps taken toremove the grounds of objection. The Suspect will beallowed to select his own position in the line and thatposition will be recorded clearly in writing on the Pol279 where there is more than one Witness, the OCParade will tell the Suspect, after each Witness hasleft the room, that he can if he so wishes change hisposition in the line. In this respect, each position inthe line need be clearly numbered, either by means ofa numeral laid on the floor in front of each parademember or some other means.The Appellant submitted that since arrangements were madefor all members of the Tai Po Tactical Unit, which included the

28Appellant, to take part in Identification Parades, each and everyone of them was a suspect. By having 8 other suspects to beviewed together with the Appellant at the parade, there were infact 9 suspects altogether. There was no attempt to arrange forother members of the police force to be actors to ensure that theIdentification Parade followed the guideline, which was a flagrantbreach of the rules. The effect of such a breach was, so it wassaid, that justice had not been seen to be done. Although themagistrate had considered the issue of consent en masse and thedifference (or lack of it) among participants, since he was notalerted to this particular breach, he might have been under theimpression that that was the best the police could have done andheld that there was no unfairness in the circumstances.The Appellant relied on the Archbold, 2001 ed Para 14-84when dealing with the effect of breaches of Code D (UK Code),which, it was said, was in essence the same as the HK Code:Although every case has to be determined on its ownfacts, it is submitted that whenever Code D isbreached, the resolution of two preliminary issuesshould be of considerable assistance in determiningthe fundamental issue as to the fairness of theproceedings. First, did the breach occasion themischief which the code was designed to prevent? Ifso, the identification may be flawed. Secondly, wasthe breach caused by a flagrant disregard of the code,or was the breach, or the cumulative effect of morethan one breach, capable of engendering considerablesuspicion that the identification procedure was unfair?If so, even if the breach of a particular provision didnot lead to the mischief intended to be prevented, theevidence of identification might be so tainted withunfairness that it should not be admitted, as in R vGall and R v Finley ...Reliance was placed upon R v Gall (1990) Cr App R 64, inwhich the police officer responsible for the investigation of thecase against the defendant took part in the conduct of theIdentification Parade, which was in breach of the UK Code. TheCourt of Appeal endorsed the view taken by the first trial judge,Judge Black, to exclude such evidence. Judge Black expressed hisview that ‘a prisoner could well feel considerable suspicion ofwhat might be going on if an investigating officer comes into theparade room, has a look at the parade, has the opportunity to talkto the witness, and then the witness is introduced into the parade’.The Appellant submitted it was not enough that the police officerhad exonerated his conduct, it was what the prisoner felt that wasimportant. In other words, justice must be seen to be done.

29The Appellant also relied on R v Finley [1993] Crim LR 50,where the Court of Appeal held that the police had broken somany parts of the Code that it was difficult to believe it was mereinefficiency rather than deliberate flouting of the Code. It wassubmitted that the police in the present case similarly flouted therules. In R v Finley, the witnesses were kept in the same roombefore the parade and were not warned not to discuss the case.Although they said they had not discussed the case the Court ofAppeal found that they were in a position where they could havedone so.The Respondent submitted that the UK Code was issuedpursuant to the Police and Criminal Evidence Act whereas the HKCode was contained in the Force Procedure Manual and was notissued pursuant to any Ordinance. There were no statutory rulesas to the conduct of identification parades in Hong Kong. It wasargued that even in the UK context, non-compliance with the Codewas not decisive. It was again only a factor, may be a cogentfactor, in the decision to admit or exclude evidence: R v Popat[1998] 2 Cr App R 208, p 213. The mere non-compliance with theForce Procedure Manual on Parade Procedures was not anautomatic basis to exclude the evidence of the identificationparade. What was important was whether the parade wasconducted fairly.Held :(1) The evidence of the identification parade had not beenwrongly admitted. The status of the HK Code was certainly not ona par with the UK Code, not having been issued pursuant to anystatute. In any event, even if one were to accord the HK Code thesame status as the UK one, what the English authoritiesdemonstrated was that under certain circumstances the breachcould be so serious that the identification evidence should beexcluded. Each case must be decided on its own facts;(2) Whether a breach or non-compliance with the HK Coderendered the evidence of an identification parade inadmissibledepended on the nature of the breach and what had actually takenplace during the particular parade. In the present case, it was clearthat there was indeed a breach of the relevant HK Code though itwas not apparent why such a breach occurred. The magistrate’sattention was certainly not drawn to that aspect of the breach.Speculation as to what the magistrate might or might not havedone if he had been made aware of such breach at the time of thetrial was best avoided. The officers’ rights were fully explained tothem and they were told that they could refuse to participate. TheAppellant chose, which was his right, to remain silent so there wasno evidence to suggest that he had participated in the parade

30involuntarily or that he felt compelled to take part. There was alsopositive evidence from another officer, who had taken part in theparade, that he knew he could refuse to participate and that he hadparticipated voluntarily. The magistrate had carefully comparedthe appearances of various officers and came to the conclusion thatthere was no significant difference between the Appellant and theother participants of the parade;(3) The mere fact that the rules had not been complied with didnot mean that there was a flagrant breach. It was not apparent whythe relevant HK Code had not been complied with, but there wereno grounds to rule that there had been a flagrant breach. Therewas no unfairness or injustice to the Appellant, whether actual orperceived.Result - Appeal dismissed.HKSAR v NG Chi-sai–Sin Pui-haV SoCOURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 522 OF 1998Nguyen JDate of Hearing: 11 January 2001Date of Judgment: 17 May 2001( ) - ( 59) ( ) 9 14(b) (‘

31’) 31(1)9 14(b) 2 ... ... ...( ) [English digestof MA 522/98,above]Nguyen J(17.5.2001)*Sin Pui-ha#V SoNGChi-saiAppellant convicted of offences under the Factories andIndustrial Undertakings (Electricity) Regulations/Meaning of‘proprietor’ under the RegulationsThe Appellant was convicted on three summonses, two ofwhich were in contravention of Regulation 9 of the Factories andIndustrial Undertakings (Electricity) Regulations, made under theFactories and Industrial Undertakings Ordinance, Cap 59, and oneunder Regulation 14(b) of the same Regulations.The facts showed that the Appellant was one of the twopartners of Kam Tin Decoration and Furniture Co (‘Kam Tin’)which was assigned to carry out certain decoration work. Aworker employed by Kam Tin was electrocuted whilst the

32decoration work was being carried out.On appeal, it was argued that the Appellant was not theproprietor of the industrial undertaking because there wasinsufficient evidence to prove that he had the management orcontrol of the decoration work. According to Regulation 31(1), itwas the duty of the ‘proprietor’ to ensure that the provisions ofRegulations 9 and 14(b) were complied with. The word‘proprietor’ was defined thus:In relation to any industrial undertaking ... includesthe person for the time being having the managementor control of the business carried out in suchindustrial undertaking.Held :The only evidence adduced at the trial was that theAppellant had arrived at the scene and told PW2 (an OccupationalSafety Officer of the Labour Department) that he was a partner ofKam Tin. He also said that Kam Tin was responsible for thedecoration work and the deceased was employed by Kam Tin.The magistrate was entitled to take into account the Appellant’sconduct and to conclude that he had the management or control ofthe decoration work. In other words, the Appellant was the‘proprietor’ of the industrial undertaking.Result - Appeal dismissed.MA 273/2000Toh DJ(11.6.2000)*V Chan#E LaskeyHUIKin-faiIdentification an issue at trial/Turnbull direction required/Appellant convicted on uncorroborated evidence/Appropriatefor magistrate to give corroboration warning- Turnbull - - The Appellant was convicted after trial of indecent assault.The facts showed that PW1 was crossing the road when someonepinched her buttock. When she looked to the left, she saw theAppellant who was about an arm’s length away from her. She saidthat the Appellant walked past her and she walked parallel to himon the opposite side of the road. She did not lose sight of theAppellant. The Appellant elected to testify at the trial. Hisdefence was that PW1 and her colleagues had framed him.On appeal, it was submitted, firstly, that the identification ofthe Appellant by PW1 was manifestly unsatisfactory. Secondly,the magistrate had failed to give himself the Turnbull direction on

33identification. Thirdly, the magistrate had failed to direct himselfappropriately on the issue of corroboration.The Respondent submitted that the defence was one offrame-up, and as it was not the defence case that it was a mistakenidentification, it was not necessary for the magistrate to givehimself a Turnbull warning.In the oral reasons for verdict, the magistrate said that:She testified that she never lost sight of this personthereafter until he was stopped leaving the BelgianBank. She identified the defendant as that person. Iam satisfied that it is safe to rely on her identificationof the defendant as being that person.In the Statement of Findings, the magistrate said that theidentification of the Appellant by PW1 was in no way a fleetingglimpse:She saw his face as he passed her by. She observedhis clothing. She never lost sight of him during thetime she followed him. He was in her sight even whenhe was inside the bank as he was close to the entrance.It was safe to rely on her identification of theappellant.Held :(1) It was clear from the transcript that the magistrate did nothave in mind the Turnbull directions when he was delivering hisoral reasons for verdict. But by the time he came to write hisStatement of Findings, the Turnbull directions were indeed in hismind and that was why he mentioned in his Statement of Findingsthat he did not consider the identification to be one of a fleetingglimpse;(2) The magistrate did not have to recite the principles inTurnbull’s case to demonstrate that he was aware of them.However, he needed to demonstrate that he was aware of thespecial need for care concerning identification evidence inaccordance with the principles set out in R v Turnbull [1977] QB224. This was especially so in a case of this nature where themain issue was one of identification;(3) In R v Tsang Pak-ming MA 391/1988, it was held thatThe call in R v Turnbull for caution when consideringidentification evidence should not (have) been mere lip

34service. That cautionary tone reflects the soberingexperience of many past instances of mistakenidentification. It seems to me therefore that it is atleast desirable for magistrates dealing withidentification cases, and where it is appropriate to doso, to clearly indicate that they have had regard to theprinciples enunciated in R v Turnbull. Failure to doso, in appropriate cases, may well cause the appellatetribunal to doubt that the magistrate’s decisionfollowed a proper consideration of all relevantfactors.(4) In R v Domincan (1992) 60 A Crim R 169, the High Courtof Australia held that:a general warning of the dangers of identificationevidence had to be given whatever defence was beingrun at trial.(5) In HKSAR v Nguyen Lam Cr App 496/99, it was held thatwhere a magistrate did not expressly say that the court was awareof the dangers outlined in the Turnbull guidelines, it was then opento the appellate court to examine the evidence and its strength indetermining how to dispose of an appeal on the ground of a failureto give an express warning or to demonstrate awareness of theconcerns which underlined the guideline;(6) The magistrate should have warned himself of the risks ofmistaken identification. While it could be said that it was not afleeting glance situation but an observation under difficultcircumstances, nevertheless the magistrate, apart from saying thatit was not a fleeting glance situation, had failed to warn himselffurther on this matter. A mere general warning was insufficient;(7) At the time of the trial, a corroboration warning was stillnecessary. The magistrate in his oral reasons for verdict had failedto mention explicitly or implicitly that he had warned himself ofthe dangers of convicting on the uncorroborated testimony ofPW1. This defect was not cured until his Statement of Findingswhere he did so warn himself. It was correct that a magistrate didnot have to mention every thought process that went through hishead, and an experienced magistrate was deemed to have thenecessary relevant law in his mind. However, a corroborationwarning was important in this case, particularly when themagistrate had found no corroboration. He should have expressedin a few words that he had it in mind at the time when heconvicted the Appellant.Result - Appeal allowed.

35MA 60/2001Lugar-Mawson J(14.6.2001)*S Chan &G Lam#J McGowanSOWai-shingWhether mere presence at scene of crime gave rise to liabilitya question of fact/Magistrate asking leading questions/Test ofwhether Appellant had a fair trial/Determination of credibilitya function of magistrate and not appellate court- - - The Appellant (D3 at the trial) together with D1 and D2were convicted after trial on a single charge of robbery.The facts showed that the alleged victim was approached bythe Appellant, D1 and D2. The three of them accused the victimof damaging D2’s mobile phone and demanded compensation. D1and D2 attempted to take away the victim’s handbag by force.The Appellant was present for most of the time with the otherdefendants, but was seen by the victim to move away for a fewminutes during the course of the interchange between the victim,D1 and D2. Later, the victim led the three of them to a shoppingarcade where he worked in order to get more money, and he askedthe Appellant to follow him to his shop. On the way, he managedto escape and made a report to the police.On appeal, it was submitted, inter alia, that the magistrateerred in finding that the Appellant was guilty based on his merepresence. In the alternative, the magistrate failed to consideradequately, or at all, the Appellant’s absence from the scene of therobbery or the state of his knowledge as to the intentions andactions of the other two defendants. Besides, it was said that themagistrate descended into the arena by conducting theexamination-in-chief of the victim.Held :(1) Neither mere presence at the scene of a crime, nor a failureto prevent an offence, would generally give rise to liability.However, presence at the scene of a crime was capable ofconstituting encouragement: R v Jefferson [1994] 1 All ER 270, Rv Coney [1882] 8 QBD 534. If the accused was present inpursuance of a prior agreement with the principal, that wouldnormally amount to aiding and abetting. It was a question of factin every case;(2) It made no difference if the Appellant was away from thescene for a short while. It was clear from the transcript that themagistrate considered all the circumstances and formed the viewthat all three defendants were engaged in a joint enterprise. This

36was a conclusion he was entitled to reach from the evidence. Themagistrate considered the claim of damage to the mobile phonewas a ruse to extort money from the victim who was subject to athreat of force at the time. Despite the fact that there was noevidence to suggest that the Appellant spoke, or did anything, tothe victim, the magistrate was justified in inferring that he knewwhat was going on;(3) The test of whether or not the magistrate had descended intothe arena by conducting the examination-in-chief of the victim waslaid down in R v Yeung Man-lam [1991] 2 HKLR 486:… the ultimate question for the consideration of anappellate court is whether the judge’s conduct wassuch that it would have caused the informed bystanderlistening to the case to say that the defendant had nothad a fair trial.(4) This was a case that revolved around the credibility of thewitnesses both for the prosecution and the defence. Themagistrate had the advantage of having heard and seen thewitnesses, including the Appellant, give evidence. The personappointed to resolve the issues of credibility was the magistrate. Itwas not for an appellate court to usurp his function;(5) In R v Turnbull [1977] QB 224, Lord Widgery LCJ said that:…we can do no more than the Criminal Appeal Act1968 authorises us to do. It does not authorise us tore-try cases. It is for the jury in each case to decidewhich witnesses should be believed. On matters ofcredibility this Court will only interfere in threecircumstances. First, if the jury has been misdirectedas to how to assess the evidence; secondly, if there hasbeen no direction at all when there should have beenone; and thirdly, if on the whole of the evidence thejury must have taken a perverse view of witnesses, butthis is rare.(6) Section 119(1)(d) of the Magistrates Ordinance, Cap 227 didnot authorise the appellate court to re-try cases;(7) In R v R E Low [1961] HKLR 13, which was approved inR v Godber [1975] HKLR 340, R v Chan King-man & Others[1980] HKLR 105 and R v Sheikh Abdul Rahman Bux and Others[1989] 1 HKLR 1 and HKSAR v Lee Hon-shun CA 626/99, Blair-Kerr J said that:… an appellate court would not, except in the mostexceptional circumstances, interfere with a findingwhich depended on the credibility of a witness; and,

37when the District Judge draws inferences of fact,which inferences depend not only on an examinationof documents and facts which are not in dispute butalso depend partly on the credibility of witnesses andfacts which were very much in dispute, then I think anappellate court should act with the greatest cautionbefore interfering with the District Judge’s finding if,having regard to the whole of the evidence, suchfindings appear reasonable.Result - Appeal dismissed.

38D. MAGISTRACY APPEALS/AGAINST SENTENCE/ MA 1316/2000Toh DJ(17.5.2001)*P Madigan#I/PMASai-yukCopyright Ordinance/Hawker offering for sale low valueinfringing copies/Deterrent sentence appropriate/First offenceof its type/Fine rather than imprisonment/Wilful assault onCustoms Officer a grave offence- - - - -The Appellant was convicted after trial of one charge ofoffering for sale infringing copies of copyright works for thepurpose of trade or business without the licence of the copyrightowner, contrary to s 118(1)(e)(ii) and s 119 of the CopyrightOrdinance, Cap 528. He was also convicted of wilfully assaultingan officer of the Customs and Excise Service, acting in theexecution of her duty.The particulars of the copyright offence were that the Appellant,on 29 June 2000, at a hawker stall at the pavement near the entranceto the Choi Hung Mass Transit Railway, without the licence of thecopyright owner, offered for sale six video compact discs and 36music compact discs being infringing copies of copyright works,namely, (i) films, and (ii) sound recordings, for the purpose of tradeor business. The total value of the goods was about $2,400.The Appellant had 58 previous convictions, and had beenconvicted three times of assaulting a police officer and once ofcommon assault. He was 45 years old and lived alone.The magistrate said that in respect of both offences deterrentsentences were necessary. On the first charge of infringingcopyright, he sentenced the Appellant to 12 months’imprisonment. On the second charge of assault, he was sentencedto a term of imprisonment of 4 months, of which 2 months wasordered to run concurrently to the 12 months.Held :On appeal(1) Deterrent sentences were appropriate for the offences ofselling infringing copy in order to stop the trade which was quiteprevalent in Hong Kong and which spoiled the internationalreputation of Hong Kong;

39(2) However, this was the first conviction of the Appellant forselling infringing copy and the total value was about $2,400. Inthese circumstances the sentence of 12 months’ imprisonment wasmanifestly excessive. As was said in Secretary for Justice v LamChi-wah [1999] 4 HKC 343, in the case of hawkers and smalltraders who dealt in counterfeit goods, heavy fines, not necessarilylinked to the value of the goods, might be imposed for the future,and an immediate custodial sentence might be considered for arepeat offender;(3) The sentence of 4 months for wilfully assaulting theCustoms Officer was appropriate.Result - Appeal allowed, in part. A fine of $25,000 substituted forthe sentence of 12 months’ imprisonment, with 2 months’imprisonment in default.MA 313/2001Toh DJ(22.5.2001)*P Madigan#Josiah LeeLOChui-yuk,MichelleDrink driving/Gravity of offence/Sentencing considerations/Clear record no bar to imprisonment - - -The Appellant pleaded guilty to one offence of carelessdriving and one offence of driving a motor vehicle with an alcoholconcentration in the breath which exceeded the prescribed limit of22 micrograms of alcohol in 100 ml of breath - she had 65micrograms of alcohol in 100 ml of breath, which was almostthree times over the limit.The facts showed that at about 8 pm on 7 February 2001, theAppellant got into her car which was in the access road outside thePeninsula Hotel. When she started the car she lost control of itbecause the car suddenly accelerated at a high speed and grazedsome of the cars which were parked at the roadside and finallycame to a halt after it rammed into a taxi. The police were calledand she was breathalysed.The Appellant was aged 27 years and had a clear record. Onthe first charge, the magistrate sentenced her to a fine of $2,000.On the second charge, he sentenced her to a fine of $5,000,together with 18 months’ disqualification from driving and 2months’ imprisonment suspended for two months.On appeal against the sentence on the second charge of drinkdrivingHeld :

40(1) Cases which involved the driving of vehicles under theinfluence of alcohol had to be taken very seriously. Even for afirst offender, the facts might be such as to merit a custodialsentence. In cases of this type, there were a wide variety ofcircumstances;(2) A sentencing magistrate had to look at the circumstances ofthe case, and the alcohol limit on the excess alcohol that was in thebreath of the defendant was one of the factors to be taken intoaccount when sentencing. Also to be taken account of were thecircumstances of the case, the kind of damage that was done andwhether any physical injuries were caused to people at the time.The driving record of the defendant was also relevant: HKSAR vHo Ho-chuen [1998] 2 HKC 544;(3) The Appellant had a clear record and had been driving since1993. It was also necessary therefore to consider whether asentence of imprisonment was appropriate;(4) Being a first offender was no bar to imprisonment for drinkdriving. But as the Appellant had pleaded guilty and had a clearrecord, and as the accident happened in the access road, andhaving regard to the damage caused, the sentence of two months’imprisonment, although suspended, was, in all the circumstances,manifestly excessive.Result - Appeal allowed. Sentence of 2 months suspendedimprisonment quashed, and substituted with a fine of$3,000. Disqualification order of 18 months remained.MA 251/2001Toh DJ(17.5.2001)*P Madigan#Suen Kam-heeDINHKhac NhatAttempted theft/Starting point/Persistent offender/Prevalentoffence/Offender serving pre-existing sentence/Need toconsider totality principle - - - - - The Appellant pleaded guilty to a charge of attempted theft,contrary to s 9 of the Theft Ordinance, Cap 210, and s 159G of theCrimes Ordinance, Cap 200.The charge alleged that the Appellant, on 10 February 2001,in Jardine’s Bazaar, Causeway Bay, attempted to steal a comb andmirror, a cleaning cloth for glasses, a bottle of antiseptic and onepacket of oil-clear paper which were in the victim’s rucksack atthe time.The Appellant had 13 previous convictions, of which 5 were

41similar theft convictions. On 13 February 2001 the Appellant hadbeen convicted of a similar offence of theft and sentenced to 10months’ imprisonment; that offence was committed on 6 February,and the present offence, which attracted 12 months’ imprisonment,after a starting point of 18 months had been taken, occurred on 10February 2001. The magistrate ordered that the 12 months shouldrun consecutively to the 10 months.Held :On appeal(1) As the Appellant was a persistent offender and the offencewas prevalent in the area, the magistrate was correct to take astarting point of 18 months;(2) By ordering the sentence of 12 months to run consecutivelyto the sentence of 10 months, the magistrate failed to consider thetotality principle. When sentencing an offender who was alreadyin prison, that principle always had to be considered.Result - Appeal allowed. Sentence varied so that 6 months of the12 months would run concurrently to the pre-existingsentence of 10 months.MA 250/2001Toh DJ(30.5.2001)*Chan Man-wai#Richard WongLEUNGKa-longShop theft/Prevalent offence difficult to detect/Losses to shops/Deterrent sentence appropriate - - -The Appellant pleaded guilty to an offence of theft. Thecharge alleged that he stole a DVD valued at $280 from a shop inCauseway Bay.The admitted facts indicated that the Appellant entered theshop and removed the wrapping and the anti-theft device andplaced the DVD in a plastic bag, which he had brought with him tothe shop. When he left the shop without paying, he was arrestedand the item was recovered from his possession.In his oral reasons for sentence, the magistrate stated thatdue to the prevalence of the offence and the fact that the Appellantwas a persistent offender, a starting point of 12 months’imprisonment was appropriate, discounted to 8 months to reflectthe plea. In his written reasons for sentence, the magistrateexplained that the 12 months’ starting point was appropriate as theAppellant was a persistent offender, the offence was extremely

42prevalent and it had not occurred on the ‘spur of the moment’. TheAppellant had entered the shops equipped to remove the anti-theftdevice from the packaging of the disc - this was not a fact theAppellant had admitted - and this justified an enhanced penalty.Held :(1) The magistrate should not have included facts which theAppellant had not admitted. He had enhanced sentence on thebasis that this was not a ‘spur of the moment’ offence. That waswrong in principle;(2) Because of the prevalence of the offence and the previousconvictions of the Appellant for dishonesty, a starting point of 9months’ imprisonment was appropriate, discounted by one-third to6 months to reflect the guilty plea;(3) Imprisonment was appropriate for most shoplifting casesbecause of the prevalence of the offence and the difficulty ofdetection. Many millions of dollars were lost by shops due toshoplifting. A deterrent sentence was necessary.Result - Appeal allowed. Sentence of 6 months’ imprisonmentsubstituted.MA 284/2001Gall J(25.4.2001)*Poon Oi-lin#Susanna LeeDUONGDuc PhongShop theft/Deterrent sentence appropriate where offenceprevalent/Need for general deterrence/Imprisonment appropriatefor first offender - - - The Appellant pleaded guilty to an offence of shop theft.The admitted facts indicated that on 24 February 2001, theAppellant entered a shop owned by Marks and Spencer (HK) Ltdat Times Square. He carried a plastic bag. He took from a displayshelf a black jacket which he put into the plastic bag and attemptedto leave the premises. In addition to taking the jacket, he took thehanger upon which it was placed so as to avoid the appearance ofan empty hanger in the shop to alert the staff of the theft. He wasstopped outside the shop where he dropped the plastic bagcontaining the jacket on the floor and attempted to flee. He wasstopped by an employee and a report was made.In sentencing the Appellant, the magistrate said:The offence was committed cynically and withforethought by the Defendant. This type of offence isextremely prevalent and particularly so in large

43department stores in Times Square.Because of the prevalence of the offence and thebrazen manner in which the Defendant committed it Itook 9 months imprisonment as the starting point forsentence. I allowed a reduction of one-third for theDefendant’s plea and clear record.On appeal, it was said that the sentence was wrong inprinciple as the magistrate had imposed a deterrent sentence.Held :(1) Although the Appellant was right to contend that in respectof a first offender it was inappropriate to impose a sentence ofdeterrence personally upon the offender, there was a principle thata sentence might be imposed where the offence was one whichwas prevalent in a particular area or of a particularly prevalentnature. That was not deterrence to a particular individual but ageneral deterrence in respect of the commission of that type ofoffence or of an offence in that particular area. This case fellwithin that category;(2) The magistrate would have known the frequency of this typeof offence in this type of store in that area. It was that prevalencewhich he took as an aggravating factor, not the individualcircumstances of the Appellant;(3) Although the sentence was on the high side for a firstoffender, it was not manifestly excessive.Result - Appeal dismissed.MA 109/2001Gall J(28.3.2001)*Chan Fungshan#Susanna LeeLEESheung-chuenPossession of apparatus fit and intended for injection of adangerous drug/Customary sentence after guilty plea- The Appellant was convicted on his own plea of an offenceof possession of an apparatus fit and intended for the injection of adangerous drug.The facts showed that when the Appellant was stopped bypolice in Chai Wan Road on 9 November 2000, he was found to bein possession of a used syringe, which upon subsequent testingwas found to contain traces of No 4 heroin. Under caution, headmitted that the syringe was for use for the injection of a

44dangerous drug and asked for a chance.Held :In his Reasons for Sentence, the magistrate said:In sentencing the Appellant I took a starting point of 12months’ imprisonment and reduced the sentence to oneof 8 months imprisonment to reflect his plea of guilty.The other factors referred to in mitigation do not justifyany further reduction in sentence. I accordinglysentenced the Appellant to a term of 8 months’imprisonment.On appeal(1) As the prosecution conceded, in R v Law Sing [1996] 4HKC 477, 479, it had been held that a sentence in the order of 3months’ imprisonment was the accepted tariff for cases ofpossession of apparatus fit and intended for the consumption ofdrugs after a plea;(2) The maximum penalty for this offence was 3 years’imprisonment and the appropriate sentence which should havebeen passed was one of 3 months’ imprisonment.Result - Appeal allowed. Sentence of 3 months’ imprisonmentsubstituted.MA 291/2001Barnes DJ(25.5.2001)*Paul Madigan#I/PLAMHon-kwongDangerous drugs/Possession in prison/Appropriate penalty - - The Appellant pleaded guilty to an offence of possession ofa dangerous drug, contrary to s 8(1)(a) and (2) of the DangerousDrugs Ordinance Cap 134.The admitted facts showed that during a routine search ofthe Appellant, whilst he was an inmate of the Lai Chi KokReception Centre, a white packet containing the heroin was foundfrom his excrement. The Appellant admitted that he hadswallowed the heroin when he was stopped by the police prior tohis detention.In passing sentence, the magistrate took account of AttoneyGeneral v Au Kwok-chai [1996] 3 HKC 192, where the Court ofAppeal held that smuggling of drugs into prison was a seriousoffence which called for a deterrent sentence. Having taken 18months’ imprisonment as his starting point, he gave the Appellant

45a one-third discount for his plea, and imposed 12 months’imprisonment.Held :The reasoning of the magistrate could not be faulted. Thestarting point of 18 months was proper, as was the ultimatesentence of 12 months which reflected the guilty plea.Result - Appeal dismissed.MA 1321/2000Gall J(15.6.2001)*Chan Suk-ling#I/PSALIMMohammedPossession of forged identity card/Family circumstances asmitigation/Reduction of sentence on humanitarian grounds- - The Appellant was convicted on 20 November 2000 of onecharge of possession of a forged identity card, and was sentencedto 15 months’ imprisonment.The agreed facts were that at about mid-day on 18 October2000, he was seen acting in a furtive manner. He was stopped andasked to produce proof of identity for inspection. He producedwhat purported to be an identity card. The police suspected it wasforged and arrested him. He was interviewed by police. He saidthat he arrived in Hong Kong by plane sometime in September2000 and was robbed. His passport was taken. Later he said hemet a compatriot and obtained the identity card which he hadshown the police. The Government Laboratory confirmed that itwas forged.The sole ground of appeal was that since coming to HongKong, the mother of the Appellant had passed away and she wasthe person in whose care the Appellant had left his two smallchildren. He had, in support of his allegation of her death,supplied a letter from a doctor in Pakistan dated 1 December 2000,certifying as to her death; a letter from a neighbour in April 2001,saying that he was no longer able to look after the two youngchildren and a photograph showing the children with theirdeceased grandmother. The Appellant’s wife died in 2000 inchildbirth, and this, so it was said, led the Appellant to come toHong Kong in the first place. Interpol had not been able to clarifymatters.Held :The authorities entitled a judge in cases such as this to take

46into consideration humanitarian grounds. It was rarely done.However, given that the Appellant had served a considerableportion of his sentence, and given that the authorities in Pakistanseemed unable within a reasonable time to furnish the informationrequired, his appeal would be allowed on humanitarian grounds.Result - Appeal allowed. Sentence varied to permit of immediaterelease.HKSAR v YIP Wai-leung–2000 1265B ChengE KwokCOURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 1265 OF 2000Barnes DJDate of Hearing: 10 May 2001Date of Judgment: 21 May 2001- 18-

47 62(3) 1981Lane v Auckland CityCouncil [1975] 1 NZLR 353 R v Vy Van-kien MA 1162/90R v PhamVan-hoa MA 1179/90HKSAR v Chan Puichi[1999] 2 HKLRD 830 Vy Van-kien VyVan-kienChan Pui-chi(1) Vy Vankien1999Vy Van-kien 1990 Vy Van-kien

48(2) (3) Vy Vankien[English digest ofMA 1265 of2000, above]Barnes DJ(21.5.2001)*B Cheng#E KwokYIPWai-leungAssault committed by pickpocket/Starting point of 18 monthsappropriate for pickpocketing but not for assault/Aggravatingfactor that victim was assaultedThe Appellant was convicted after trial of assaultoccasioning actual bodily harm, and sentenced to 18 months’imprisonment.The facts showed that PW1 was waiting for a train to theMainland on the platform of the Mongkok railway station. Herealised he was being pickpocketed. He was punched on his lefteye. PW2 saw that the victim was assaulted by 3 men, one ofwhom was the Appellant.In sentencing, the magistrate considered the followingfactors:(i) the fact that the Appellant and his group failed topick the pocket and thus assaulted PW1aggravated the offence;(ii) PW1 was a 62-year-old man; and(iii) the Appellant’s record of pickpocketing wentback to 1981, and since then he kept oncommitting offences of pickpocketing and he hada conviction record for violent offences.

49The magistrate made it clear that the sentence had not beenenhanced due to the Appellant’s past record.On appeal, it was submitted, firstly, that the magistrateshould not have taken into account that the Appellant togetherwith two other persons were pickpocketing as the Appellant hadnot been charged with such offence. Relying upon Lane vAuckland City Council [1975] 1 NZLR 353, it was argued that thecourt might not increase the sentence for a particular offencebecause of the commission by the defendant of other offences forwhich he had not been charged or had gained an acquittal.Secondly, it was argued that the sentence was manifestlyexcessive even if the Appellant’s pickpocketing in concert withothers was taken into account. The sentence of 18 months’imprisonment was applicable to the act of pickpocketing but not toassault: R v Vy Van-kien and Another [1991] HKLR 422 and R vPham Van-hoa MA 1179 of 1990. It was also argued that themagistrate had passed a sentence for pickpocketing, an offencewith which the Appellant had neither been charged nor convictedof.As to the question of whether a sentence could be increasedin consideration of the Appellant’s criminal record, it was said thatR v Vy Van-kien should be followed and not HKSAR v Chan Puichi[1999] 2 HKLRD 830, because the Court of Appeal in HKSARv Chan Pui-chi did not consider R v Vy Van Kien.Held :(1) It was true that the Court of Appeal in Chan Pui-chi did notrefer to Vy Van-kien. It was to be noted that Chan Pui-chi washeard by three Justices of Appeal in 1999, while Vy Van-kien washeard by a High Court Judge in 1990. It could be seen that ChanPui-chi was binding whilst Vy Van-kien was only a persuasive butnot a binding authority. The principle decided in Chan Pui-chihad to be followed;(2) There was no evidence to show that the Appellant was anoffender who always assaulted people in the course ofpickpocketing. Even if the principle in Chan Pui-chi was to beapplied, it was difficult to conclude that the Appellant was apersistent violent offender;(3) The magistrate could and should take into account theaggravating factor that the Appellant assaulted the victim becauseof the failure to pick the pocket. However, the sentence of 18months’ imprisonment as a starting point was, according to VyVan-kien, only applicable to pickpocketing in a public place. As

50for the offence of assault, even if the aggravating factor had beentaken into account, 18 months was still manifestly excessive.Such a sentence would give an impression that the magistrate hadprobably sentenced the Appellant for his pickpocketing and not forhis offence of assault. The appropriate sentence should be 9months’ imprisonment.Result - Appeal allowed. Sentence of 9 months’ imprisonmentsubstituted for the sentence of 18 months’ imprisonment.

51E. COSTS IN CRIMINAL CASESCA 40/2000Stuart-Moore VPWong & StockJJA(13.6.2001)*D G Saw, SC &David Leung#Hylas ChungWONGWah-yeeApplication for certificate/Section 32 of Court of Final AppealOrdinance/No inherent power to award costs/Court of Appealnot empowered to award costs upon dismissal ofunmeritorious application for certificate/Comments on lacuna - 32- - - On 17 November 2000, the Applicant’s application for leaveto appeal against conviction of two charges of attempted robberywas dismissed.The Applicant then sought a certificate, pursuant to s 32 ofthe Court of Final Appeal Ordinance, Cap 484, that certain pointsof law of great and general public importance were involved n thedecision. That application was dismissed on 3 May 2001, and thecourt pointed out that of the three questions posed for suggestedcertification, two had misunderstood the issue in the case as wellas the judgment delivered; and that the second was entirely bereftof any merit.Although the application for a certificate was so devoid ofmerit that the court was minded to award costs to the Respondent,the issue arose as to the power of the court to award costs.The power of the court to grant a certificate, which mightthen trigger the grant by the Court of Final Appeal for leave toappeal in a criminal case, was implicit in s 32 of the Court of FinalAppeal Ordinance, which provided:(1) No appeal shall be admitted unless leave to appealhas been granted by the Court; and(2) Leave to appeal shall not be granted unless it iscertified by the Court of Appeal or the Court ofFirst Instance, as the case maybe, that a point oflaw of great and general importance is involved inthe decision on it is shown that substantial andgrave injustice has been done.Held :(1) It was clear enough that in a case in which the applicationwas dismissed because it had no merit, there was no power in thecourt to condemn an applicant to pay the costs of an application

52for leave under s 32, Cap 484. There was no inherent power toaward costs and, if the power existed, it had to be found in statute;(2) By section 52A of the High Court Ordinance, Cap 4, ‘thecosts of and incidental to all proceedings in the Court of Appeal inits civil jurisdiction … shall be in the discretion of the Court …’.There was no like provision in relation to the exercise of such apower in the court’s criminal division. In so far as Order 62 of theRules of the High Court applied to criminal proceedings, the orderwas expressed to apply ‘under enactments relating to the costs ofcriminal proceedings to which this Order applies’: O 62-2(4);(3) The power in the court to award costs against anunsuccessful applicant or appellant was housed in the Costs inCriminal Cases Ordinance, Cap 492, section 13; but the power wasexercised only where the court was satisfied that an appeal waswithout merit, or that an application to the court for leave toappeal against conviction was without merit. It was perfectly clearthat the leave to appeal to which that section applied was leave tothe Court of Appeal from a decision of a lower court. It did notembrace leave to the Court of Final Appeal and, in any event,under s 32 of the Court of Final Appeal Ordinance, applicationsfor leave were made to that Court and the only application withwhich the Court of Appeal was concerned was an application for acertificate. It was clear, therefore, that s 13 of the Costs inCriminal Cases Ordinance did not empower the court to awardcosts upon a failed application for leave for a certificate;(4) Although attention had been drawn to s 17 of the Costs inCriminal Cases Ordinance, which permitted a court to award costswhere in the course of criminal proceedings costs had beenincurred as a result of ‘an unnecessary or improper act oromission by or on behalf’ of a party to the proceedings, it was notnecessary to determine whether such circumstances might beinvoked in the context of an application for a certificate under s32, and it was not necessary because the circumstances envisagedby s 17 were not what the present question was about. Thatquestion was whether in an ordinary case an unsuccessfulapplication for a certificate might be the subject of a costs order,whereas s 17 addressed particular types of conduct which meritedcondemnation in costs, such as negligence or specificunreasonable conduct, or improper conduct;(5) In an ordinary case of an application for a certificate under s32 of the Court of Final Appeal Ordinance, which wasunmeritorious and failed, the Court of Appeal had no power toaward costs in favour of the Respondent. That was a lacuna whichdeserved some consideration, for experience showed that someapplications which were made had no chance whatsoever of

53success. In such circumstances there was no reason why theRespondent, on whose representation public funds were expended,should not in a proper case be the beneficiary of a costs award.Result - No jurisdiction existed in the Court of Appeal to awardcosts in respect of an unsuccessful application for acertificate made pursuant to s 32, Cap 484.

54F. PRACTICE AND PROCEDURECA 571/98Stuart-Moore& Mayo VPPStock JA(22.6.2001)*B Ryan &G Shiu#K EganCHEUNGWai-mingSkeleton argument/Form of submission/Offensive conduct/Wasted costs order - - - The Applicant was convicted after trial of one count ofmurder, contrary to s 5 of the Offences Against the PersonOrdinance, Cap 212, and one count of conspiracy to pervert thecourse of public justice.Having dismissed the appeals against conviction andsentence, the court observed:We wish to add that what was put before this courtpurporting to be a skeleton argument on behalf of theapplicant was of no assistance to us. For example:“Ground 8: Again this ground of appeal speaks foritself and the appellant adopts the arguments in thecourt below for the purposes of the appeal (seetranscript pages 786B-920G).” This is unacceptable.First, the ground did not speak for itself, referring asit did to a suggested failure to meet the requirementsof section 77 of the Evidence Ordinance, withoutspecifying the nature of the failure, without explainingwho the witness was, or addressing the materiality ofthe evidence. Secondly, to tell this court to fish andfind out for itself, by reading 134 pages of transcript,what the meat of the argument is, is offensive. We are,fortunately, rarely faced with material drawn in thisway, but we warn that should this happen again, sucha case will, in the absence of very good contraryreasons, be adjourned, and that counsel responsiblewill personally be at risk of a wasted costs orderpursuant to the provisions of section 18 of the Costs inCriminal Cases Ordinance, Cap 492.