刑事檢控科各律師/高級律政 - Department of Justice

To : All Counsel/Senior Law Clerks/ProsecutionsAll Court Prosecutors/Magistracies致 : 刑 事 檢 控 科 各 律 師 / 高 級 律 政 書 記裁 判 法 院 各 法 庭庭 檢 控 主 任A Publication of the Prosecutions Divisionof the Department of Justice律 政 司 刑 事 檢 控 科 出 版 的 刊 物General Editor總 編 輯William Y H Tam譚訦 耀 豪Editors編 輯Wesley W C Wong黃 惠 沖David C Y Leung梁 卓 然Fanny K H Wong黃 錦 卿Isaac S L Tam譚訦 思 樂Martin S T Hui許 紹 鼎Vinci W S Lam林 穎 茜Virginia S Y Lau劉 少 儀Franco B O Kuan關詉 百 安Ira T M Lui雷 芷 茗Peggy P K Leung梁 寶話 琦Hermina W H Ng吳 穎 軒Samantha P Y Chiu招 秉 茵Rosa S Y Lo羅訌 心 怡Betty Y Y Fu傅 悅 耳Winnie W Y Mok莫 韻詐 妍CRIMINAL APPEALS BULLETIN刑 事 上 訴 案 判 例 簡 訊October Edition/20122012 年 10 月 號

2INDEXPageA. Hong Kong Court of Final Appeal香 港 終 審 法 院3B. Application for Review of Sentence申 請 刑 罰 覆 核4 – 6CCase-stated Appeal以 案 件 呈 述 方 式 上 訴7 – 11D. Criminal Appeal / Against Conviction刑 事 上 訴 案 件 / 針 對 定 罪12 – 14E. Magistracy Appeals / Against Conviction裁 判 法 院 上 訴 案 件 / 針 對 定 罪15 – 23[ ] – denotes paragraph number in the judgment.

3A. Hong Kong Court of Final Appeal香 港 終 審 法 院KOSAR MAHMOOD v HKSARCOURT OF FINAL APPEALFAMC 31/2012Ma CJ, Chan & Ribeiro PJJDate of Hearing and Decision: 28 September 2012Date of Handing Down of Reasons: 16 October 2012Counsel for the Respondent: Alex Lee Ag DDPPCounsel for the Applicant: M PanesarCriminal law & procedure – Leave to appeal to the Court of Final Appeal on “substantial andgrave injustice” ground – Not to re-argue the points which failed in the Court of Appeal刑 事 法 及 訴 訟 程 序序 — 以 「 實 質 及 嚴 重 不 公 平 」 為 理 由 申 請 許 可 向 終 審 法 院 上訴 — 不 可 再 辯 論 在 上 訴 法 庭庭 不 成 立 的 論 點The Applicant was convicted after trial of trafficking in dangerous drugs. He was sentencedto imprisonment for 21 years. The issue at the trial was one of credibility. Customs and Exciseofficers gave evidence that they had seen the Applicant place a bag containing the drugs into theboot of a car immediately before they arrested him. The Applicant denied the entire prosecution caseand accused the Customs and Excise officers of framing and brutalising him.The Court of Appeal dismissed his appeal against conviction and sentence. He applied forleave to appeal to the Court of Final Appeal on the substantial and grave injustice ground. Counselfor the Applicant sought to re-argue the points which failed in the Court of Appeal. The AppealCommittee found that every point had been properly disposed of by the Court of Appeal.Held, application for leave to appeal dismissed:(1) The “substantial and grave injustice” ground for granting leave is not intended to cast theCourt of Final Appeal in the role of a second Court of Appeal (see So Yiu Fung v HKSAR (1999) 2HKCFAR 539, 541-543) [5].(2) In all future applications on the substantial and grave injustice ground, the application forleave to appeal must identify the specific way in which it is submitted that the court below hasdeparted from established legal norms; and why such departure is so seriously wrong that justicedemands a hearing before the Court of Final Appeal notwithstanding the absence of any realcontroversy on any point of law of great and general importance. It will simply not be sufficientmerely to set out the same arguments that were canvassed in the court below [6].(3) If the application for leave to appeal does not disclose such grounds or does not provide areasonably arguable basis for such submissions, it may expect to be dismissed summarily under Rule7 of the Court’s rules [7].

5(4) 答 辯 人 曾 因 其 他 罪 行 被 判 感 化 , 但 他 並 沒 有 珍 惜 機 會 , 更 在 感 化 期 間 多 次 繼繼 續續 濫 用 毒品品 及 和和 黑 社 會 分 子 交 往 。 以 本 案 所 涉 控 罪 之 嚴 重 性 及 犯 案 手 法 , 答 辯 人 不 適 宜 繼繼 續續 接 受 感化 , 特 別 是 答 辯 人 曾 違 反 以 往 的 感 化 令 , 顯 示 感 化 令 對 答 辯 人 已 失失 去 其 應 有 之 效 力 [31]。(5) 以 本 案 的 情 節 及 答 辯 人 的 背 景 而 言 , 原 審 法 官 以 感 化 令 判 罰 答 辯 人 是 犯 了 原 則 性 錯誤 , 而 感 化 令 亦 是 過 輕 的 判 罰 。 本 案 唯 一 適 當 的 判 刑 是 即 時 監 禁 , 以 反 映 答 辯 人 所 犯 的 罪 行之 嚴 重 性 。 以 案 件 的 背 景 , 包 括 答 辯 人 的 犯 案 手 法 及 受 害 人 的 傷 勢 , 適 當 的 量 刑 基 準 是 3 年監 禁 [32]-[34]。(6) 答 辯 人 承 認 控 罪 , 理 應 獲 三 分 一 之 刑 期 扣 減 。 上 訴 法 庭庭 考 慮 到 答 辯 人 已 在 戒 毒 會 自 願地 接 受 過 約 6 個 月 禁 閉 式式 治 療 , 而 本 申 請 亦 是 刑 期 覆 核 申 請 , 上 訴 法 庭庭 認 為 適 當 的 判 刑 是 18個 月 監 禁 。 答 辯 人 被 改 判 入 獄 18 個 月 。[English Translation of CAAR 4/2012 above]SECRETARY FOR JUSTICE v KO KWOK SHUNCOURT OF APPEALCAAR 4/2012Cheung CJHC, Yeung VP, Yuen JADate of Hearing and Judgment: 25 October 2012Counsel for the Applicant: Alain Sham DDPPCounsel for the Respondent: Juliana ChowCriminal sentencing – Unlawfully and maliciously causing grievous bodily harm with intent –Retaliatory gang attack – Triad-linked Respondent relapsing into drug addiction duringprobation period – Sentence of probation erroneous in principle and manifestly inadequate – 3years’ imprisonment an appropriate starting pointThe Respondent was convicted in the District Court on his own plea of a charge ofunlawfully and maliciously causing grievous bodily harm with intent, contrary to s 17(a) of theOffences against the Person Ordinance (Cap 212) and sentenced to probation for 24 months, with thecondition of receiving drug detoxification treatment for not less than 12 months within the probationperiod [1].The Secretary for Justice applied for a review of sentence pursuant to s 81A of the CriminalProcedure Ordinance (Cap 221) on the basis that the sentence imposed was manifestly inadequate[2].The facts were that around 0330 hours on 19 May 2011, in the vicinity of Shop No. 5,Ground Floor, in Sheung Tak Shopping Centre, a group of 12 males (including the Respondent and“Wong Chai”) dashed towards the victim and attacked him. The purpose was to teach the victim alesson for a wordy quarrel which had occurred earlier on that night. In addition to punching andkicking, the males threw traffic cones at the victim. Some assailants punched the victim’s head atthe back several times and caused the victim to fall on the ground. The Respondent, however,continued kicking the victim’s head, causing the victim to bleed. The assailants left after assaultingthe victim for 5 to 8 minutes [7]-[8].

6The victim sustained lacerations above the rim of right eye which required suturing; multiplebruises on the rim surrounding the eye, the back, both sides of elbows and knees; haematoma at leftear; bilateral traumatic subconjunctival haemorrhage in the ears [9].Held, application for review of sentence by the Secretary for Justice allowed:(1) The act of the Respondent ganging up with more than 10 persons to attack the victim in apublic place in retaliation for the victim’s unpleasant behaviour earlier on was apparentlypremeditated or planned, albeit not well orchestrated or well thought-out. For this kind of retaliatorygang attack, there were no particular circumstances or facts which called for unusual sentences [24]& [27].(2) The Court of Appeal could not overlook the fact that the Respondent continued kicking thevictim’s head after the victim was knocked over to the ground and became defenceless. The attacklasted for 5 to 8 minutes. The victim sustained serious injuries and was hospitalised for two days[25].(3) Causing grievous bodily harm with intent was a very serious offence. As the circumstancesof attack and the extent of injuries sustained by victims varied from case to case, there was no acrossthe board approach for sentencing. But an immediate custodial sentence would usually be imposed[28].(4) The Respondent was previously put under probation for other offences. However, he did nottreasure the opportunity. He even repeatedly abused drugs and associated with triad members duringthat probation period. In view of the gravity of the offence and the modus operandi, the Respondentwas no longer suitable for probation; especially when he had breached the previous probation order.This showed that probation was not effective for him [31].(5) In light of the circumstances of the case and the background of the Respondent, the trialjudge erred in principle by imposing a probation order. The probation sentence was also manifestlyinadequate. The only appropriate option in the present case was an immediate custodial sentence soas to reflect the gravity of the offence committed by the Respondent. Considering the background ofthe case (including the Respondent’s modus operandi and the victim’s injuries), the appropriatestarting point would be 3 years’ imprisonment [32]-[34].(6) The Respondent deserved a discount of 1/3 of the sentence for his guilty plea. Taking intoaccount that the Respondent had received a 6 months’ residential drug treatment at the Society forthe Aid and Rehabilitation of Drug Abusers and that the present application was a review ofsentence, the Court believed that the appropriate sentence would be 18 months’ imprisonment.Accordingly, the Respondent’s sentence was varied to 18 months’ imprisonment.

7C. Case-stated Appeal以 案 件 呈 述 方 式 上 訴HKSAR v LEUNG KWOK WAH & ORSCOURT OF FIRST INSTANCEHCMA 54/2012Lam JDate of Hearing: 27 July 2012Date of Judgment: 19 October 2012Counsel for the Appellant: Alain Sham DDPP & Ira Lui SPPCounsel for R1 to R5: Martin Lee SC, Douglas Kwok & Charleen TongCounsel for R6: In PersonCriminal law & procedure – Appeal by way of case stated pursuant to s 115 of MagistratesOrdinance (Cap 227) – Unlawful assembly – Freedom of assembly and freedom ofdemonstration – Right to demonstrate in premises of a public nature – Breach of the Peace刑 事 法 及 訴 訟 程 序序 — 依 據 香 港 法 例 第 2 2 7 章 《 裁 判 官 條 例 》 第 1 1 5 條 以 案 件 呈呈述 方 式式 提 出 上 訴 — 非 法 集 結 — 集 會 自 由 和和 示 威威 自 由 — 在 屬 於 公 共 性 質 的 處所 示 威威 的 權 利 — 破 壞 社 會 安 寧The Respondents were jointly charged with one count of taking part in an unlawful assembly,contrary to s 18(3) of the Public Order Ordinance (Cap 245). They were acquitted after trial before amagistrate. The Prosecution appealed by way of case stated.The incident took place on 25 December 2009. The Respondents and other persons held ademonstration outside the Liaison Office of the Central People’s Government in the Hong KongSpecial Administrative Region (the ‘LOCPG’). Outside its building, the LOCPG had a foregroundwhich was enclosed by a wall with a gateway for access to Connaught Road West. Initially, thedemonstration took place outside the wall and the gate was closed. Later, a vehicle left the LOCPGand the gate was opened to let it get out. Some protesters, including the Respondents, took theopportunity to move into the foreground whilst some security guards and police officers tried to stopthem and asked them to leave. The protesters insisted on moving closer to the building. Itdeveloped into some pushing and towing and resulted in a melee. Three persons, namely a policeofficer, a security guard and R1, were injured [6].At trial, the magistrate was satisfied that while it was impossible for the protestors to havereached any prior agreement on their conduct inside the LOCPG, they shared a common objective.Accordingly, the court was satisfied that the Respondents were at the material time assemblingtogether inside the LOCPG [7].On the issue of whether the Respondents were conducting themselves in a disorderly orprovocative manner, the magistrate referred to the evidence of the Prosecution witnesses that it wastheir concern that the protestors might enter the office building of the LOCPG, thereby causingdamage to property. However, on the evidence, the Court found as a fact that there was no intentionon the part of the protestors to enter the office building. Acknowledging that the Police officers andsecurity staff of the LOCPG might not have been able to make a considered judgement in such achaotic situation, the magistrate found their reaction ‘understandable’ [7].

8Although the head of the administrative and financial department of the LOCPG (PW4)testified that the foreground was private premises, the magistrate considered it unclear whether hewas giving evidence in his personal capacity or as an authorized person of the LOCPG. There wasno documentary proof to support his assertion that the LOCPG was private premises. On that basis,the magistrate found that the status of the LOCPG, being the official representative of the CentralPeople’s Government in Hong Kong, may be similar to the government bodies in Hong Kong (suchas the Immigration Tower and court buildings) where citizens can enter without prior permission orauthorisation. The magistrate went on to say that if the LOCPG was not private premises, then theRespondents’ rights of assembly and demonstration should be protected and they should be freefrom unlawful or unreasonable interference. He concluded that the Respondents were notconducting themselves in a disorderly or provocative manner [8]-[9].The magistrate went on to consider whether the Respondents would have by their conductprovoked others to commit a breach of the peace. On the evidence, the front gate was closed shortlyafter the protestors moved into the LOCPG. At the time of the offence, there were only Policeofficers, security staff of the LOCPG, protestors and reporters inside the premises. There was noevidence that other members of the public were inside the premises of LOCPG. Nor was thereevidence that any member of the public could have entered the LOCPG of his/her own volition. Inthe absence of any ‘innocent third parties unconnected to the incident’ in the vicinity, the magistratefound there was no realistic prospect that someone would have been provoked into committing abreach of the peace. There being a doubt on this issue, the Respondents was given the benefit of thedoubt and acquitted of the charge of unlawful assembly [10]-[12].Five questions of law were raised in the Case Stated. They were as follows: -‘1. When adjudicating the issues of whether the Liaison Office of the Central People’sGovernment was public or private premises, and whether the prosecution had proventhe element that the conduct of the Respondents was likely to cause any personreasonably to fear that the persons so assembled would commit a breach of the peace,did I err in law by applying the wrong test to the facts of the case by: -(i) limiting myself to a consideration of whether the premises were public orprivate in nature;(ii) failing to consider the whole of the evidence relating to the Respondents’ right(iii)to enter the premises; andfailing to make a finding that the Respondents were trespassing upon LOCPGpremises, that being the only finding that a reasonable magistrate properlydirecting himself as to the law could make in respect of the evidence beforehim.2. In relation to the findings in paragraph 9, namely the Respondents were assemblingwith other protestors in the foreground of the LOCPG, did I err in view of theevidence set out in paragraph 21(c)?3. When adjudicating whether the prosecution had proven the element of whether theconduct of the Respondents was likely to provoke other persons to commit a breachof the peace did I err in excluding from consideration the security guards of theLOCPG thereby erroneously concluding that no such other persons were present?4. Whether adjudicating whether the prosecution had proven the element of whether theconduct of the Respondents was likely to cause any person reasonably to fear that thepersons so assembled will commit a breach of the peace or will by such conductprovoke other persons to commit a breach of the peace did I err in failing to take intoaccount that from the viewpoint of the security guards of the LOCPG theRespondents were: -(i)(ii)knowingly trespassing on LOCPG property;advancing towards the LOCPG building; and

9(iii) resisting the efforts of both the police and LOCPG security staff who weretrying to impede their progress.5. Am I correct in dismissing the information at the hearing on 20 December 2010?’ [1]Question 2 was included at the request of the Respondents [80].The magistrate did not set out specific findings in the Case Stated as to what each of theRespondents had done at each stage of the incident. Though he recited the evidence adduced at thetrial, he did not indicate the extent to which the evidence was accepted. As such, the Court could noton appeal assume that such summary of evidence was part of his factual findings [7].Held, answering Questions 1, 3 and 4 in favour of the Prosecution with no answer rendered inrespect of Questions 2 and 5:(1) For an offence under s 18(3) of the Public Order Ordinance, an unlawful assembly is made upof those conducting themselves in the prescribed manner. If there was only one person out of thoseassembled together who conducted himself in the prescribed manner, he could not be guilty of thisoffence. If more than three persons amongst those assembled together conducted themselves in theprescribed manner, it is still necessary to consider whether in so conducting themselves they couldbe described as acting as an assembly. The conduct of the defendants had to be assessed together tosee whether this criterion can be satisfied. There must be sufficient nexus between the conduct ofthe defendants to justify having them considered together. And the fear required is that such personsso assembled, viz acting together, will commit a breach of the peace [17]-[19].(2) On the second ingredient of the offence, namely whether the defendants were conductingthemselves in the prescribed manner, the statute refers to the character of the conduct, not thelegality of the purpose behind the conduct. The same point has been made with regard to thecharacter of the assembly as opposed to the purpose of the assembly. Thus, even if the Court were tocome to the conclusion that the cordon was not lawful, it does not mean that the conduct of theprotesters in charging it was not disorderly or provocative. Public order and public peace can still bedisturbed, people can still be injured and property can still be damaged even though such protestersperceived (perhaps justifiably) that they were acting in the furtherance of a just cause. The law doesnot give a licence to such protesters to act with impunity without regard to the law and order of thecommunity at large just because the police may have erred in the judgment as to how the balanceshould be struck in a difficult situation occasioned by a demonstration [24]-[26].(3) A review of the authorities showed that in considering whether a person conducts himself in adisorderly manner for the purpose of the Public Order Ordinance, whether in the context of s 17B ors 18, the fact that he is exercising his freedom of assembly should not call for special or exceptionalconsideration [27]-[32].(4) The third ingredient of the offence is more complicated because different permutations areprovided for in the Public Order Ordinance. It could be a case where the conduct of a defendant wasintended to generate the stipulated fear (the subjective limb) or it could be a case where the conductcaused any person reasonably to have such fear (the objective limb) [35].(5) Section 18 is very much a preventive measure. There is no need for a breach of the peace tohave occurred. It is sufficient that a person present at the scene reasonably fears that it would occurif no action is taken in the meantime to prevent it. The law is there to put a stop to a deterioratingsituation [40].

10(6) In HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, the Court held that the right of peacefulassembly and the right to freedom of expression stopped at the boundary of private residentialproperty belonging to others in the absence of any permission to enter [48].(7) Whilst there is a positive duty on the part of the Government to take reasonable andappropriate measures to enable lawful assemblies to take place peacefully, there is also a duty on thepart of the Government to take reasonable and appropriate measures to protect the personal safetyand property of other citizens who might be affected. Public order and public safety must beweighed in the balance [50].(8) This is the position even if the right of assembly and the right to demonstrate are exercised atpublic places at the very end of the spectrum. But it does not mean that the protesters have anabsolute right in choosing the place and the manner in which they demonstrate. Even in the contextof cases involving peaceful assembly and peaceful expression of opinion, there is no absolute rightto demonstrate even at public places or premises of a public nature [51]-[57].(9) On Question 1, the magistrate erred in law in holding that the Respondents did not conductthemselves disorderly simply because the Liaison Office was not private premises. His reasoningwas erroneous in law. First, whether a person is entitled to demonstrate at a place without thepermission of its owner does not simply depend on a dichotomy between private premises and publicpremises. There is a wide spectrum and even in premises which can be said to have a publiccharacter within the spectrum, there is no absolute right to enter for the purpose of demonstration.Even for premises with a public character, one must consider whether it is premises generally opento the public and if there are restrictions, what those restrictions are, and what are the objectives forthose restrictions. The right of a property owner, including governmental agencies, to set conditionsfor the use of his property is an exercise of his proprietary right. In the case of government premisesnot generally open to the public, there is no right of access to demonstrate at such premises. Thepositive duty on the part of the government is a duty to enable lawful assemblies to take place butsuch duty cannot be elided into a duty to open all government premises for demonstration.Protesters who entered premises not generally open to the public are not exercising their right ofassembly lawfully [64]-[67].(10) Even assuming for the sake of argument that the Respondents were entitled to enter theforeground to hold their demonstration there, it does not mean that in so doing they had notconducted themselves in a disorderly or provocative manner. The magistrate erred in law inassuming otherwise. Irrespective of the lawfulness as to the exercise of the right of demonstration atthe foreground, the magistrate should have considered the evidence on the conduct of theRespondents after they had entered the premises and made findings of fact as to how they hadconducted themselves. There were material matters which the magistrate had failed to consider byreason of his error in law in focusing on the public character of the Liaison Office [69]-[73].(11) There was strong circumstantial evidence that the foreground was not open to the publicgenerally. The magistrate should have considered the evidence of PW4 in that light. He had failedto do so. The case of the defence, based on the function of the Liaison Office as shown on itswebsite and in Articles 27 and 41 of the Constitution of People’s Republic of China, does not evenbegin to address the question whether the foreground of the Liaison Office was open to publicgenerally. The reliance by the Respondents on these materials was misconceived [77].(12) In the absence of clear findings of fact and the identification of the Respondents’ commonobjective as found by the magistrate, Question 2 could not be answered.

11(13) Questions 3 and 4 were considered together. Properly understood, the phrase ‘innocent thirdparties’ does not exclude those, like the security guards, who were confronted by the conduct of theRespondents. They could not be regarded as participants in the illegal activities in question. On thescenario that the Respondents had no right to enter the foreground to demonstrate, the securityguards merely performed their duties in trying to prevent the Respondents from moving further intothe premises. There was also no reason why the reporters should be excluded. As such, themagistrate was wrong to exclude from his consideration the security guards and was wrong in failingto have regard to the matters set out under Question 4 [86] & [94]-[95].

12D. Criminal Appeal / Against Conviction刑 事 上 訴 案 件 / 針 對 定 罪HKSAR v AKHEMETZYANOVA, IRINACOURT OF APPEALCACC 194/2011Stock VP, Lunn JA, McWalters JDate of Hearing: 30 May 2012Date of Judgment: 24 October 2012Counsel for the Respondent: William Tam DDPPCounsel for the Applicant: Paul LoughranCriminal law & procedure – Trafficking in dangerous drugs – Whether possession not forself-consumption – Whether alternative charge should have been left to the jury – Whethercomments by judge were based on factual inaccuracies and encouraged jury to drawimpermissible inferences against defendant – Whether conviction rendered unsafe刑 事 法 及 訴 訟 程 序序 ─ 販 運 危 險 藥 物 ─ 是 否 管 有 而 非 作 自 服 ─ 應 否 給 陪 審 團 考慮 交 替 控 罪 ─ 法 官 的 評 論 是 否 建建 基 於 不 準 確 事 實 及 邀 請 陪 審 團 作 出 對 被 告告 人 不 恰當 的 推 論 ─ 定 罪 是 否 因 此 不 穩 妥妥The Applicant, a Russian national, was intercepted after she emerged from the premises (the“Premises”) which were then under observation by police officers. Upon search, a packet of ‘Ice’and seven packets of ketamine were found on her. The Applicant was arrested and subsequentlycharged for trafficking in those dangerous drugs (the “Charge”). Upon arrest, the Applicant deniedthat she was a drug trafficker. At trial before a Judge and a jury in the Court of First Instance, theApplicant maintained that (i) she did not abuse or own any dangerous drugs; (ii) she was not awareof the presence of any dangerous drugs or paraphernalia for drug consumption on the Premises; (iii)upon search, there were in fact no dangerous drugs found on her; and (iv) police officers plantedthose packets of dangerous drugs on her [3]-[7].The Applicant was convicted after trial of the Charge. The Applicant applied for leave toappeal against conviction on the following grounds: (i) the Judge erred in permitting the prosecutionto present its case on the basis that the Applicant’s departure from the Premises in possession of thedangerous drugs were acts evidencing or constituting trafficking in the dangerous drugs, whereasthe prosecution accepted they were done to avoid detection by the police (“Ground 1”); (ii) the Judgeerred in not leaving the alternative verdict of simple possession to the jury (“Ground 1A”); and (iii)the trial was rendered unfair because of a speculative, unwarranted and incorrect observation by theJudge which invited the jury to draw an inference against the Applicant on the basis that thePremises were used regularly for drug trafficking when that premise was false for the only evidencewas of drug consumption on the Premises in the early morning of the day in question (“Ground 2”).Held, the appeal against conviction was allowed, conviction set aside and retrial ordered (perMcWalters J giving the judgment of the Court):Ground 1(1) In construing the definition of “trafficking” as defined under s 2(1) of the Dangerous DrugsOrdinance (Cap134), the courts have recognized that the various acts listed in the definition are not

13intended to apply to acts committed by a consumer of drugs for the purpose of his consumption ofthe drugs. R v Wong Yin-yu [1972] HKLR 6, Attorney General v Sin Chi-keung [1995] 2 HKCLR 1,and HKSAR v NG Hung Chi (unreported, CACC 186/2000) considered [22]-[26].(2) The present case concerns acts of trafficking by way of “dealing in or with” dangerous drugs,but such acts do not include any actions by a consumer of drugs that relate to his consumption ofthem, be it by storing them, handling them or even discarding them to avoid detection. Whattransforms the transporting or conveying of the drugs or storage of them into trafficking in them isthe purpose for which the transportation or storage takes place. Attorney General v Lau Chi-sing[1987] HKLR 703, HKSAR v Chan Hong [1995-2000] HKCLRT 147, and HKSAR v Yau Suk Yin[2004] 1 HKLRD 677 considered [27]-[32].(3) As a result of these decisions it is incumbent upon the prosecutor in drug trafficking caseswhere there is little evidence other than bare possession of the dangerous drugs to focus on theelement of “trafficking” so that he is in a position to explain clearly to the judge and jury how heintends to prove this element and on what basis he will invite the jury to find this elementproven. There may be more than one basis but, if so, they should he identified. Glossing over thesequestions is only likely to lead to uncertainty by the judge as to how to direct the jury and confusionby the jury as to how they should satisfy themselves as to this element of the offence [33].(4) The jury were not required to identify the purpose of the Applicant in transporting thedangerous drugs, but what the jury did have to satisfy themselves was that for whatever reason theApplicant was transporting the drugs, it was not for the purpose of enabling her, at some future time,to consume them. This was clearly spelt out by the prosecutor in his closing address and, eventhough the Judge did not emphasise this point with the same clarity, that was the thrust of herdirections viewed as a whole and the jury could not have been in any doubt as to the law [47]-[49].Ground 1A(5) Not only was it not the Applicant’s case that she was in simple possession of the dangerousdrugs but also the quantity of the dangerous drugs, namely over 80 grammes of ketamine and9 grammes of ICE, their value ($17,754), in the context of the Applicant’s evidence that she earnedabout $6,000 per month, together with the nature of the packaging of the seven packets of ketaminewere overwhelmingly compelling factors to the contrary. There was no evidential basis upon whichit was appropriate to leave the alternative verdict of simple possession of dangerous drugs to thejury. The same position applied in respect of the possibility that the jury might find that theApplicant’s possession was a joint possession or a possession as agent for others. There was noevidence before the jury which would have entitled them to make either of these findings. To havedone so would require them to enter the realm of speculation and conjecture. HKSAR v Ho Hoi Shing(2008) 11 HKCFAR 354 applied [55]-[58].(6) The sort of evidence relied on by the prosecution in this case has long been accepted assufficient to found an inference of trafficking. In discussing the distinction between “dealing in” and“dealing with”, the Full Court in R v Wong Yin-yu [1972] HKLR 6 said that “dealing in” has theconnotation of a commercial transaction but not so for “dealing with” and went on to explain theprocess of drawing inferences based upon the value and volume of the drugs. Something more mustbe shown than the sort of handling which is inseparable from possession. However, a jury is entitledto have regard to the realities of life and, in the absence of any explanation, to assume that a personwho has possession of a very large quantity of drugs does not intend to keep it as a collector’sitem. Where the quantity of drugs is large enough, the jury can assume that it is to be disposed of toothers. Such disposal will amount to a “dealing in” if the possessor is party to a sale or similartransaction but only to “dealing with” if it is not. In either event the purpose for which the goods arepossessed is “trafficking” [63].

14(7) On the evidence presented by the prosecution, the jury was entitled to draw the inference, asthe only reasonable inference, that the Applicant had possession of the drugs for the purpose oftrafficking in them. Such trafficking would have to be a “dealing in or with” the drugs and mostlikely an unidentifiable act of “dealing with” them [64].Ground 2(8) The complaints against the comment made by the Judge were: (i) it portrayed the Premiseswhere the Applicant lived as a place where drug trafficking was regularly carried on and this wascontrary to the evidence; (ii) it further suggested that the Applicant would only be allowed to live inthe Premises if she was also a trafficker and given her relationship with the tenant there may havebeen other reasons for her being allowed to live there; and (iii) it made an unwarranted assumptionthat mere association with the traffickers was sufficient basis to show that the Applicant herself wasengaged in drug trafficking. There was simply no evidence in the prosecution case of any earlierincidents of drug trafficking or drug consumption [66].(9) Given the state of the evidence it would have been impermissible for the jury to have inferredpast use of the premises for either drug trafficking or drug consumption and this was something onwhich the Judge should have directed the jury. Comments by a judge are permissible, withinrecognized boundaries, but the main problem with the comment in question was that it was based ona false premise presented as fact [69].(10) Even if there had been evidence of past drug use at the Premises, it still would have beenquite wrong for the Judge to suggest to the jury that they could infer from the fact that the Applicant,as the co-habitee of the tenant, was allowed to live in the Premises, only because she was party to thedrug trafficking being carried on there. As the girlfriend/cohabitee of the tenant of the Premises, itwas quite possible that she was trusted to live in the Premises, albeit that she herself was notinvolved in drug dealing or the consumption of dangerous drugs [70].(11) The Judge’s comment was problematic in two regards. The first was that it was premised ona factual inaccuracy which the Judge should have corrected but by her comment appeared to lendlegitimacy to. Secondly, it allowed, if not encouraged, the jury to engage in an impermissible line ofreasoning and draw inferences which were not open to them to draw. Given the importance of thecomments to the Applicant’s defence, the directory language employed by the Judge and theimpermissible line of reasoning founded on a factual inaccuracy which the Judge invited the jury toemploy, it was impossible to be confident that the jury’s decision-making process was unaffected bythe Judge’s comment [83].

15E. Magistracy Appeals / Against Conviction裁 判 法 院 上 訴 案 件 / 針 對 定 罪HKSAR v JOCKEY CLUB KAU SAI CHAU PUBLIC GOLF COURSE LIMITEDCOURT OF FIRST INSTANCEHCMA 719/2011J Yau DJDate of Hearing: 30 August 2012Date of Handing Down Reasons for Judgment: 8 October 2012Counsel for the Respondent: Vinci Lam SPPCounsel for the Appellant: Michael Ozorio SC & Eric TsoiCriminal law & evidence – Using a motor vehicle without third party insurance – Whether anunnamed road within the golf course a “road”/“private road” – Whether the definition of“public” in the Interpretation and General Clauses Ordinance (Cap 1) applicable to the word“public” in the definition of “road” – What constitutes “a class of the public” as defined in Cap1 – Whether a light utility vehicle a “motor vehicle” – Burns test – Motor Vehicles Insurance(Third Party Risks) Ordinance (Cap 272)刑 事 法 及 證 據 — 沒 有 第 三 者 保 險 而 使 用 汽 車 — 高 爾 夫 球 場 內 的 未 命命 名 道 路 是否 「 道 路 」 / 「 私 家 路 」 — 可 否 將 香 港 法 例 第 一 章 《 釋 義 及 通 則 條 例 》 中 「 公眾 」 的 定 義 應 用 於 「 道 路 」 的 定 義 內 的 「 公 眾 」 一 詞 — 什 麼 構 成 香 港 法 例 第 一章 所 界 定 的 「 某 一 類 的 公 眾 人 士 」 — 輕 型 工 作 車 輛 是 否 「 汽 車 」 — B u r n s 一 案的 驗 證 標 準 — 香 港 法 例 第 2 7 2 章 《 汽 車 保 險 ( 第 三 者 風 險 ) 條 例 》The Appellant was the operator of a public golf course on the island of Kau Sai Chau. Itslight utility vehicle was carrying four workers on an unnamed road within the golf course when itoverturned, killed one of them and injured the others [3]. The unnamed road led to and from thethree courses of the golf course [19], [20] & [25]. The light utility vehicle was being used on theisland only. It was not contemplated that it would be used outside the island [63]. It did not havedoors, rear view mirrors, seatbelts, indicator lights and speedometer. The motor vehicle examinerwho examined the vehicle agreed that it was designed for use on golf course and not on roads,although he added that it did not mean that it could not be used on roads [65]. Its owner’s manualrepeatedly pointed out that it was not an all terrain vehicle and was manufactured for off-road use,not being equipped for operation on public streets or public highways [66]. It did not fall within thedefinition of a “golf cart” or a “village vehicle” [78].The magistrate found that the light utility vehicle was a “motor vehicle” and that theunnamed road was a “road”, or alternatively, a private road for the purposes of the Motor VehicleInsurance (Third Party Risks) Ordinance (Cap 272) (“MVI(TPR)O”). The Appellant was thereforeconvicted of using a motor vehicle without third party insurance [5]. On appeal, it was contendedthat the magistrate’s findings were erroneous [6].Held, appeal dismissed:Status of the unnamed road and the word “public”(1) MVI(TPR)O defines the word “road” to mean “any highway and any other road to which thepublic have access” [8]. The court could not agree with the contention of the Appellant that the

16magistrate had erred in construing the word “public” by applying the Interpretation and GeneralClauses Ordinance (Cap 1) (“IGCO”). In MVI(TPR)O there is no definition of the word “public”.There is nothing in IGCO or MVI(TPR)O to the effect that the meaning of “public” in the formershould not apply. If the intention of the legislature was to have a different meaning for the word inMVI(TPR)O it would surely enact a new definition or expressly say so in it. Such an omission mustshow that the intention of the legislature was that the meaning of “public” set out in IGCO applied toMVI(TPR)O [12].(2) English authorities are of limited use because there is no equivalent enactment of s 3 ofIGCO (definition of “public”) in England, and because of the lack of equivalent in the Englishlegislation of the provision in MVI(TPR)O that the ordinance applies to a private road [17].(3) The state of the evidence was such that any person who had gone up to the island, be theygolfers or people using the driving range, could go to the unnamed road without any hindrance [26].(4) The golfers allowed to go to play at the three golf courses on the island were no doubt aspecial class of the public as distinct from the general public. The question was whether they were“a class of the public” within the definition of “public” in IGCO [27].(5) If a member of the public can at any time bring himself within a certain class of persons thatclass of persons are the general public, not merely “a class of the public” envisaged in the definitionof “public” in IGCO [29]. It follows that “a class of the public” includes a class of persons eventhough members of the public cannot at any time bring themselves within the class. For a class ofpersons which consists of a small number of people such as “invited guests” in a party, or“members” of a private club they are no doubt not “a class of the public” under IGCO. There thencame the question of where to draw the line. The view of the court was that it would depend on thecircumstances of individual cases. The factors to consider would include the size of the class, thenature of the qualification required to become a member of the class, the difficulty involved for amember of the public to become qualified and who has the control over how the qualification can beobtained and the number of people so qualified [30].(6) The golfers who had access to the unnamed road were “a class of the public” [36]. Thosepeople using the driving range clearly fell within “a class of the public” in the definition in IGCOand could even be regarded as members of the general public. They alone were already sufficient toshow that the public had access to the unnamed road [37]. The unnamed road was a road within themeaning of MVI(TPR)O [42].(7) Section 3 of MVI(TPR)O provides that the provisions of the ordinance shall apply to privateroads and that “private road” means a private road within the meaning of the Road Traffic Ordinance(Cap 374) (“RTO”)[43]. In RTO, a private road means “every thoroughfare, street, lane, alley, ……,passage, path, way and place to which access by the public may be restricted under common law,irrespective of whether such access is so restricted” [44]. The Appellant might restrict the access tothe unnamed road by the public under common law and as such the unnamed road falls within thedefinition of “private road” in RTO no matter the Appellant had so restricted the access or not.MVI(TPR)O applied to the unnamed road [55].(8) The inevitable conclusion was that if the unnamed road was not a road within the definitionof MVI(TPR)O, because of the restriction on its access by the general public it would still become aprivate road within the meaning of the RTO and the provisions of MVI(TPR)O were applicable to it[56]. No matter the unnamed road was a “road” or “private road” it did not affect the proof of thesummons: s 119, RTO [57].

17“Motor vehicle”(9) Section 2 of MVI(TPR)O defines a “motor vehicle” to mean “a vehicle intended or adaptedfor use on roads, and propelled by any form of mechanical power” [59]. It was not in dispute thatthe light utility vehicle was mechanically propelled within the interpretation of a “motor vehicle” inMVI(TPR)O. The test of whether a vehicle is “intended” for use on roads, is the one formulated inBurns v Currell [1963] QB 433 which is whether a reasonable person, looking at the vehicle, wouldsay that one of its uses would be use on the road. In this connection the question is not whether thereis an isolated use, or a use in an emergency, but whether some general use on the road iscontemplated as one of the uses [60].(10) PW1 had travelled on the light utility vehicle or a similar type of vehicle to go to work on theisland for roughly 5 times or more before the accident and PW2 said that he had also done thesame. PW2 even said that on the day of the accident he had travelled on it for 2 times. PW3 said hehad seen light utility vehicles as well as golf carts travelling along the unnamed road. All theseshowed that the light utility vehicle was for general use on the roads on the island including theunnamed road. On the day of the accident the use of the light utility vehicle on the unnamed roadwas not an isolated incident and general and habitual use of the vehicle on the unnamed road wascontemplated [72].(11) It had already been found by the court that the unnamed road was a road for the purpose ofMVI(TPR)O. Applying the test in Burns v Currell, any reasonable man looking at the light utilityvehicle would say that one of its uses would be use on the roads. The magistrate correctly appliedthis test and his conclusion that the light utility vehicle was a motor vehicle within the meaning ofMVI(TPR)O could not be faulted [73].(12) There was clear evidence that golfers had access to the unnamed road. Even if they werewrongly held by the magistrate and the court to be “a class of the public”, they were still peopleusing the unnamed road to which MVI(TPR)O applied. As could be seen from the photographs ofthe scene the unnamed road was part of a very well-constructed road system with clear roadmarkings and signs and some part of it was of dual carriageway of substantial width. Taking allthese into consideration and applying the test in Burns v Currell, any reasonable man looking at thelight utility vehicle would say that one of its uses would be use on the roads. The light utility vehiclewould still be a motor vehicle for the purpose of MVI(TPR)O [75].香 港 特 別 行 政 區 訴 祥 記 馮 祥 建建 築 有 限 公 司原 訟 法 庭庭HCMA 600/2011原 訟 法 庭庭 暫 委委 法 官 邱 智 立聆 訊 日 期 : 2012 年 8 月 24 日判 案 日 期 : 2012 年 10 月 10 日答 辯 人 法 律 代 表 : 高 級 檢 控 官 黃 俊 賢上 訴 人 法 律 代 表 : 王 寶 榮刑 事 法 及 訴 訟 程 序序 ─ 香 港 法 例 第 59AC章 《 工 廠廠 及 工 業 經 營 ( 吊 船 ) 規 例 》 第 25(2) 條 ─是 嚴 格 責 任 罪 行 ─ 罪 行 的 相 關 法 例 中 的 用 語 ─ 考 慮 其 他 沒 有 這 麼 嚴 苛 的 責 任 形 式式 是 否 仍可 達 到 立 法 的 目 的

18上 訴 人 經 審 訊 後 被 裁 定 6 張 傳 票 罪 名 成 立 。6 張 傳 票 , 可 分 為 3 組 , 每 組 涉 及 兩 張 傳票 及 一 隻 吊 船 。 一 張 傳 票 指 上 訴 人 身 為 它 工 業 經 營 內 吊 船 的 擁 有 人 沒 有 展 示 吊 船 徹 底底 檢 驗 的證 明 書 副 本 (「( 表 格 二 」), 另 一 張 傳 票 則 指 上 訴 人 以 同 一 身 份 沒 有 展 示 吊 船 負 荷 測 試 及 徹底底 檢 驗 的 證 明 書 副 本 (「( 表 格 三 」)。 每 張 傳 票 被 判 罰 款 1,200 元 。 上 訴 人 不 服 定 罪 , 提 出上 訴 。於 2010 年 7 月 8 日 , 勞 工 處 的 安 全 主 任 巡 視 一 個 上 訴 人 為 總總 承 建建 商 的 住 宅 外 牆 粉 飾 工程 時 , 發 現 3 部 吊 船 上 沒 有 展 示 表 格 二 及 表 格 三 。 這 工 程 是 上 訴 人 分 判 了 給 順 盈 工 程 有 限 公司 (「 順 盈 」) 的 , 及 這 3 部 吊 船 是 由 順 盈 的 工 人 在 吊 船 上 操 作 的 。 上 訴 人 及 順 盈 的 職 員員 在地 盤 辦 公 室 內 找 到 表 格 二 及 表 格 三 , 並 解 釋 因 為 天 雨 而 沒 有 將 表 格 張 貼 在 吊 船 上 。本 案 罪 行 的 有 關 規 例 及 賦 權 條 例 (enabling ordinance) 都 沒 有 提 供 免 責 的 辯 護 條 款 。暫 委委 裁 判 官 指 案 中 罪 行 的 性 質 是 確 保 工 人 使 用 的 吊 船 安 全 。 裁 判 官 因 此 裁 定 傳 票 中 的 罪 項 乃「 絕 對 法 律 責 任 」(absolute liability) 罪 行 而 非 「 嚴 格 責 任 」(strict liability) 罪 行 。 基 於 裁判 官 認 為 本 案 的 罪 行 為 絕 對 責 任 罪 行 , 自 然 地 沒 有 考 慮 上 訴 人 是 否 可 以 成 功 地 使 用 普 通 法 的抗 辯 理 由 , 即 上 訴 人 須 在 相 對 可 能 性 的 衡 量 標 準 證 明 它 已 採 取 一 切 合 理 和和 切 實 可 行 的 步 驟 把證 明 書 在 吊 船 上 明 顯 地 展 示 出 來 。 基 於 上 述 理 由 , 裁 判 官 裁 定 上 訴 人 6 張 傳 票 罪 名 成 立 。裁 決 , 上 訴 得 直 , 定 罪 推 翻 , 罰 款 撤 銷 :(1) 在 Hin Lin Yee v HKSAR [2010] 13 HKCFAR 142 一 案 中 , 終 審 法 院 就 在 決 定 法 定 罪 行中 , 控 方 須 證 明 犯 罪 意 圖 的 推 定 是 否 已 被 移 除 (presumption of mens rea to be proved byprosecution is displaced) 所 須 要 考 慮 的 因 素 作 出 了 全 面 的 討 論 。 就 算 這 個 「 推 定 」 被 移 除了 , 法 庭庭 仍 要 決 定 罪 行 是 嚴 格 責 任 或 是 絕 對 責 任 [11] 及 [15]。(2) 在 本 案 中 , 沒 有 爭 議 所 涉 及 的 罪 行 的 「 推 定 」 已 被 移 除 了 , 爭 論 點 就 是 這 些 罪 行 是 嚴格 責 任 還 是 絕 對 責 任 [16]。(3) 在 Hin Lin Yee 一 案 , 終 審 法 院 認 為 不 能 一 刀 切 地 把 所 有 與 工 業 安 全 有 關 的 法 定 罪 行 視為 絕 對 責 任 罪 行 , 及 認 為 法 庭庭 不 應 輕 易 就 推 論 立 法 原 意 是 將 罪 行 定 為 絕 對 責 任 , 特 別 是 當 比較 中 庸庸 一 些 的 責 任 形 式式 , 例 如如 嚴 格 責 任 仍 能 達 到 立 法 的 目 的 的 時 候 。 就 算 是 規 管 性 質 的 罪 行(regulatory offences) 也 不 會 因 其 性 質 而 自 動 成 為 絕 對 責 任 的 罪 行 [19] 及 [20]。(4) Ribeiro, PJ 在 Hin Lin Yee 一 案 中 提 出 兩 種 絕 對 責 任 罪 行 的 情 況 。 第 一 種 是 當 法 律 認 為相 關 的 行 為 從 社 會 角 度度 來 看 並 非 重 要 或 不 一 定 為 社 會 所 接 受 , 而 與 未 成 年 少 女女 發 生 性 行 為 的罪 行 便 是 其 中 一 個 例 子 。 第 二 種 情 況 涉 及 法 例 向 某 人 ( 這 可 包 括 法 人 團 體 ) 施 加 若 干 責 任 ,而 該 責 任 所 牽 涉 的 行 為 或 任 務 實 際 上 相 當 可 能 由 另 一 人 ( 例 如如 僱 員員 或 承 判 商 ) 作 出 或 執 行 。很 多 屬 監 管 性 質 的 罪 行 均 可 能 受 這 一 類 情 況 涵 蓋 [22] 及 [23]。(5) 法 庭庭 認 為 本 案 的 控 罪 其 實 是 類 似 Ribeiro, PJ 所 指 的 第 二 種 情 況 , 即 是 有 關 的 吊 船 是 由上 訴 人 的 分 判 商 所 租 賃 回 來 及 使 用 。 這 似 乎 有 著 可 施 加 絕 對 法 律 責 任 的 特 徵 。 但 正 如如 Ribeiro,PJ 多 次 指 出 , 法 庭庭 不 應 輕 易 將 罪 行 定 性 為 絕 對 責 任 , 及 應 先 考 慮 其 他 沒 有 這 麼 嚴 苛 的 責 任 形式式 是 否 仍 可 達 到 立 法 的 目 的 [24]。(6) 本 案 罪 行 的 有 關 規 例 中 完 全 沒 有 使 用 「 須 確 保 」 的 字 眼 。 本 案 的 罪 行 的 相 關 法 例 中 的用 語 是 「 須 展 示 」。 法 庭庭 留 意 到 本 案 的 罪 行 只 涉 及 行 政 上 的 規 管 。 因 此 , 單 單 觸 犯 本 案 的 罪

19行 並 不 會 對 使 用 吊 船 的 工 人 的 安 全 構 成 威威 脅 , 只 會 對 巡 查 的 執 法 人 員員 稍 為 做 成 不 便 。 法 庭庭 認為 立 法 的 原 意 並 非 對 本 案 罪 行 施 加 絕 對 法 律 責 任 [25]-[27] 及 [30]。(7) 本 案 罪 行 的 有 關 規 例 及 賦 權 條 例 (enabling ordinance) 都 沒 有 提 供 免 責 的 辯 護 條 款 ,因 此 上 訴 人 只 可 依 賴 普 通 法 的 抗 辯 理 由 , 即 上 訴 人 須 在 相 對 可 能 性 的 衡 量 標 準 證 明 它 已 採 取一 切 合 理 和和 切 實 可 行 的 步 驟 把 證 明 書 在 吊 船 上 明 顯 地 展 示 出 來 。 這 個 議 題 涉 及 案 中 的 事 實 裁定 。 但 基 於 裁 判 官 認 為 本 案 的 罪 行 為 絕 對 責 任 罪 行 , 他 自 然 地 沒 有 考 慮 上 訴 人 是 否 可 以 成 功地 使 用 普 通 法 的 抗 辯 理 由 。 法 庭庭 認 為 上 訴 人 這 6 張 傳 票 的 定 罪 不 安 全 及 不 穩 妥妥 [33]–[35]。[English Translation of HCMA 600/2011 above]HKSAR v CHEUNG KEE FUNG CHEUNG CONSTRUCTION COMPANY LIMITEDCOURT OF FIRST INSTANCEHCMA 600/2011Yau DJDate of Hearing: 24 August 2012Date of Judgment: 10 October 2012Counsel for the Respondent: Nicholas Wong SPPCounsel for the Appellant: Wong Po WingCriminal law & procedure – Regulation 25(2) of the Factories and Industrial Undertakings(Suspended Working Platforms) Regulation (Cap 59AC) – Being strict liability offence –Wording of offences in relevant statutory provision – Considering whether statutory objectivemight well be attainable by adopting other less onerous basis of liabilityThe Appellant was convicted after trial of 6 summonses. The 6 summonses could be dividedinto 3 groups, each of which involved two summonses and one suspended working platform. Onesummons alleged that the Appellant being the owner of a suspended working platform in itsindustrial undertaking failed to display a copy of the certificate (“Form 2”) in respect of a thoroughexamination on the suspended working platform. The other summons alleged that the Appellant inthe same capacity failed to display a copy of the certificate (“Form 3”) in respect of a load test andthorough examination on the suspended working platform. A fine of $1,200 was imposed on eachsummons. The Appellant appealed against the convictions.On 8 July 2010, during an inspection of the external-wall refurbishment works on theresidential flats in question, a safety officer of the Labour Department found that Form 2 and Form 3were not displayed on each of the 3 suspended working platforms. The Appellant was the maincontractor of the said project, which it had sub-contracted to Gold Profit Engineering Limited (“GoldProfit”). These 3 suspended working platforms were at that time being operated by workers of GoldProfit thereon. Staff members of the Appellant and Gold Profit subsequently found the sets of Form2 and Form 3 in the site office and explained that the forms had not been posted on the suspendedworking platforms because of the rain.Neither the Regulation nor its enabling Ordinance relating to the offences provided anystatutory defence. As the deputy magistrate believed that the nature of the offences was to ensure thesafety of suspended working platforms used by workers, he found the summonses to be “absoluteliability” rather than “strict liability” offences. Since he took the view that they were absolute

20liability offences, naturally he did not consider whether the Appellant could run the common lawdefence by which the Appellant was required to prove on a balance of probabilities that it had takenall reasonable and practicable steps to display the certificates prominently on the suspended workingplatforms. For the above reasons, the deputy magistrate convicted the Appellant of the 6summonses.Held, appeal allowed, convictions quashed and fines set aside:(1) In Hin Lin Yee v HKSAR [2010] 13 HKCFAR 142, the Court of Final Appeal had extensivediscussion on the factors to be taken into account in determining whether the presumption of mensrea to be proved by prosecution was displaced. Even when this “presumption” was displaced, thecourt still had to decide whether the offence was one of strict liability or absolute liability [11] &[15].(2) In the present case, there was no dispute that the “presumption” in relation to the offenceshad been displaced. The issue was whether the offences were strict liability or absolute liabilityoffences [16].(3) In Hin Lin Yee, the Court of Final Appeal did not think it right to make sweepinggeneralizations by imposing absolute liability on all statutory offences in the context of industrialsafety or lightly draw inferences that those offences were intended by the legislature to be absoluteliability ones, especially when the statutory objectives might well be attainable by adopting anintermediate basis of liability such as strict liability. Regulatory offences did not as a rule involveconduct where absolute liability might be justified [19] & [20](4) Ribeiro PJ in Hin Lin Yee identified two situations where absolute liability might be imposed.The first was where the law did not consider the conduct in question to be essential or evennecessarily acceptable from a societal point of view. An example was men having sexual intercoursewith under-aged girls. The second class of cases involved the statutory imposition of a duty on aperson (which might be a corporate body) where the conduct or task which was the subject of theduty was in practice likely to be carried out by someone else, such as an employee or a contractor.Many regulatory offences might fall within this category [22] & [23](5) The court found that the offences in the present case were in fact similar to the second classof cases referred to by Ribeiro PJ in that the suspended working platforms in question had been hiredand used by the sub-contractor of the Appellant. This seemed to bear the characteristic of imposingabsolute liability. However, as repeated by Ribeiro PJ, the court should not lightly hold an offenceto be absolute but rather should first consider whether the statutory objectives might well beattainable by adopting any other less onerous basis of liability [24].(6) The words “shall ensure” were not used at all in the relevant regulation. The wording of theoffences in the relevant statutory provision was “shall display”. It was noted that the offences in thepresent case concerned only administrative regulation. As such, the mere commission of theoffences would not pose risk to the safety of the workers who used the suspended working platformsbut would only cause some inconvenience to the law-enforcing inspectors. The court held that thelegislature had not intended to impose absolute liability on these offences [25] -[27]&[30].(7) Neither the Regulation nor its enabling Ordinance relating to the offences provided anystatutory defence. Therefore, the Appellant could only rely on the common law defence, namely thatthe Appellant was required to prove on a balance of probabilities that it had taken all reasonable andpracticable steps to display the certificates prominently on the suspended working platforms. Thisissue would have involved the findings of fact in the case. However, since the deputy magistratetook the view that they were absolute liability offences, naturally he did not consider whether the

21Appellant could run the common law defence. The court found the convictions in respect of the 6summonses unsafe and unsatisfactory [33]-[35].香 港 特 別 行 政 區 訴 鍾 見 年原 訟 法 庭庭HCMA 301/2012原 訟 法 庭庭 法 官 李 瀚 良聆 訊 日 期 : 2 0 1 2 年 7 月 1 3 日判 案 日 期 : 2 0 1 2 年 1 0 月 2 5 日答 辯 人 法 律 代 表 : 檢 控 官 戚 雅 琳上 訴 人 法 律 代 表 : 無 律 師 代 表 , 親 自 出 庭庭刑 事 法 及 訴 訟 程 序序 ─ 不 小 心 駕 駛 ─ 「 駕 駛 」 這 詞 彙 沒 有 法 律 定 義 , 是 事 實 裁 斷 , 視 乎 個別 案 情 ─ 「 駕 駛 」 的 含 義 應 該 寬 鬆 , 但 不 應 超 出 該 詞 彙 日 常常 使 用 的 意 思刑 事 法 及 訴 訟 程 序序 ─ 不 小 心 駕 駛 ─ 「 道 路 」 ─ 呈呈 堂 相 片 顯 示 , 現 場 明 顯 是 通 道 或 地方 , 就 算 如如 上 訴 人 講 是 維 修 用 的 地 方 , 也 屬 「 道 路 」上 訴 人 就 一 項 「 不 小 心 駕 駛 」 罪 被 定 罪 。 上 訴 人 不 服 定 罪 , 提 出 上 訴 [1]。於 案 發 前 , 控 方 第 一 證 人 的 客 貨 車 停 泊 在 貨 櫃 碼 頭 南 路 亞 洲 貨 櫃 碼 頭 M 樓 行 車 通 道 。約 半 小 時 後 , 他 回 來 時 發 現 右 邊 車 身 有 花 痕 , 車 身 沾 了 紅 色 油 。 當 時 客 貨 車 右 後 方 約 5 米 有一 紅 色 貨 車 , 車 頭 向 著 相 反 方 向 , 貨 車 頭 蓋 揭 起 [2]。警 誡 下 上 訴 人 承 認 事 發 時 在 現 場 維 修 紅 色 貨 車 , 他 承 認 曾 開 動 紅 色 貨 車 引引 擎 , 但 忘 了紅 色 貨 車 入 了 「 波 檔 」, 所 以 紅 色 貨 車 衝 前 , 撞 著 客 貨 車 右 邊 造 成 損 毀 。 審 訊 時 , 上 訴 人 聲稱 會 面 紀 錄 是 在 他 自 願 的 情 況 下 錄 取 , 但 內 容 不 是 他 的 原 意 , 他 用 詞 不 適 合 [3]。原 審 裁 判 官 接 納 會 面 記 錄 和和 附 帶帶 文 件 的 招 認 內 容 , 認 為 當 時 是 上 訴 人 開 動 紅 色 貨 車 引引擎 導 致 該 車 向 前 撞 著 客 貨 車 , 又 認 為 現 場 是 道 路 , 而 上 訴 人 令 紅 色 貨 車 向 前 行 , 沒 有 做 防 範工 作 , 不 論 是 企 在 車 上 還 是 坐 在 車 上 , 都 算 是 駕 駛 ; 因 此 裁 定 上 訴 人 不 小 心 駕 駛 罪 成 立 [7]。上 訴 理 由 為 (1) 上 訴 人 他 認 為 自 己 沒 有 在 車 上 , 並 非 控 制 紅 色 貨 車 , 不 是 駕 駛 ;(2) 他重 複 口 供 所 講 不 清 楚 , 他 用 詞 不 適 合 及 (3) 客 貨 車 右 邊 車 身 意 外 之 前 曾 撞 凹 過 [8]。裁 決 , 上 訴 得 直 , 定 罪 撤 銷 :(1) 法 庭庭 並 不 接 納 上 訴 人 表 示 在 會 面 時 講 得 不 清 楚 的 理 由 [9]。「 駕 駛 」 這 詞 彙 沒 有 法 律定 義 , 是 事 實 裁 斷 , 視 乎 個 別 案 情 。 法 庭庭 同 意 英 國 案 例 的 原 則 , 並 使 用 這 原 則 去 界 定 「 駕駛 」 的 意 思 。 上 訴 人 的 行 為 是 否 構 成 「 駕 駛 」 視 乎 當 時 他 是 否 實 際 控 制 貨 車 移 動 和和 方 向 。 其次 , 他 的 行 為 是 否 符 合 「 駕 駛 」 這 詞 彙 日 常常 使 用 的 含 意 。 英 國 上 訴 庭庭 又 指 出 「 駕 駛 」 的 含 義應 該 寬 鬆 , 但 不 應 超 出 該 詞 彙 日 常常 使 用 的 意 思 。 根 據 字 典 的 解 釋 ,「 駕 駛 」 是 操 縱縱 汽 車 、 飛機 、 船 等 使 行 駛 [10]。 上 訴 人 忘 記 貨 車 已 「 入 波 」, 檢 查 貨 車 後 , 他 開 動 引引 擎 , 是 控 制 貨 車

22移 動 的 主 要 行 為 , 就 算 不 在 司 機 位 上 , 他 仍 是 控 制 紅 色 貨 車 移 動 和和 方 向 的 人 [11]。 不 過 , 沒有 證 據 證 明 意 外 前 上 訴 人 的 位 置 , 他 自 己 呈呈 上 相 片 表 示 意 外 前 他 只 站 在 司 機 位 旁 , 這 講 法 吻吻合 控 方 的 相 片 , 考 慮 過 上 文 關 於 「 駕 駛 」 定 義 的 原 則 , 很 難 想 像 他 當 時 是 在 「 駕 駛 」 紅 色 貨車 [12]。(2) 上 訴 人 在 審 訊 時 曾 質 疑 現 場 是 否 「 道 路 」, 根 據 香 港 法 例 第 374 章 《 道 路 交 通 條 例 》第 2 條 ,「 道 路 」 包 括 公 眾 可 連 續續 或 間 歇 進 入 的 公 路 、 停 車 場 、 通 道 、 路 和和 地 方 , 呈呈 堂 相 片顯 示 , 現 場 明 顯 是 通 道 或 地 方 , 就 算 如如 上 訴 人 講 是 維 修 用 的 地 方 , 也 屬 「 道 路 」[14]。(3) 雖 然 上 訴 人 當 時 控 制 紅 色 貨 車 移 動 , 但 他 的 行 為 並 不 符 合 「 駕 駛 」 的 常常 用 意 義 , 由 於當 時 他 不 是 「 駕 駛 」 紅 色 貨 車 , 所 以 ,「 不 小 心 駕 駛 罪 」 不 能 成 立 [15]。[English Translation of HCMA 301/2012 above]HKSAR v CHUNG KIN NINCOURT OF FIRST INSTANCEHCMA 301/2012Li JDate of Hearing: 13 July 2012Date of Judgment: 25 October 2012Counsel for the Respondent: Noelle Chit PPCounsel for the Appellant: In personCriminal law & procedure – Careless driving – Word “drive” not defined by law and it was afinding of fact dependent on individual cases – “Drive” should be given a wide meaning but notbeyond the meaning of the word in ordinary useCriminal law & procedure – Careless driving – “Road” – Photo exhibits showed the sceneobviously to be a passage or place, and the scene was still a “road” even if it was a place formaintenance as alleged by the AppellantThe Appellant was convicted of a charge of “careless driving”.conviction [1].He appealed againstPrior to the occurrence of the offence, PW1 parked his van at the service road on M Floor ofthe ATL Logistics Centre in Container Port Road South. When he returned about half an hour later,he found scratch marks on the right side of the van’s body and red paints on the body panel. At thattime, a red goods vehicle was parked at the right rear side of the van about 5 meters away, with itsfront facing the opposite direction and its hood being lifted up [2].The Appellant admitted under caution that at the material time he was repairing the red goodsvehicle at the scene. He admitted that he started the engine of the red goods vehicle but hadforgotten that it was “in gear”. As a result, the red goods vehicle rushed forward and hit the van,causing damage to the right side of the van. At trial, the Appellant claimed that the record ofinterview was taken voluntarily. However, its content was not what he intended. He had usedinappropriate wording [3].

23The trial magistrate accepted the confession in the record of interview and the supplements.He found that the Appellant at the time of the offence turned on the engine of the red goods vehiclecausing it to move forward and hit the van. He also found the scene to be a road. Since theAppellant, without taking any precaution, caused the red goods vehicle to move forward, he held thatthe Appellant was driving no matter he was standing or sitting in the vehicle. Therefore, theAppellant was convicted of careless driving [7].The grounds of appeal were: (1) the Appellant argued that he was not driving as he was noton board the red goods vehicle nor in control of it; (2) he reiterated that the content of the statementwas unclear and he had used inappropriate wording; and (3) the right side of the van was dentedprior to the accident [8].Held, appeal allowed and conviction dismissed:(1) The Court refused to accept the Appellant’s ground that he had spoken unclearly at theinterview [9]. The word “drive” was not defined by law and it was a finding of fact dependent onindividual cases. The Court agreed with the principles in English authorities and used theseprinciples to define the word “drive”. Whether the Appellant’s act constituted “driving” dependedon whether he was in control of the movement and direction of the goods vehicle at the materialtime. Then it was the question of whether his act fell within the meaning of the word “driving” inordinary use. It was further pointed out by the English Court of Appeal that the word “drive” shouldbe given a wide meaning, but not too wide to extend beyond the meaning of the word in ordinaryuse. According to dictionary, “drive” means operate and control the course of a vehicle, plane andvessel, etc [10]. The Appellant had forgotten that the goods vehicle was “in gear”, and started theengine after having examined the vehicle. This was the principal conduct in controlling themovement of the goods vehicle. Even if the Appellant was not in the driver seat, he was still theperson in control of the movement and direction of the red goods vehicle [11]. Nevertheless, therewas no evidence to prove the position of the Appellant prior to the accident. He submitted photos toshow that he was only standing next to the driver seat before the accident. His version of the casewas consistent with the photos submitted by the prosecution. In view of the above mentionedprinciples in relation to the definition of “driving”, it was difficult to envisage that the Appellant was“driving” the red goods vehicle at the time of the offence [12].(2) At trial, the Appellant challenged whether the scene could be taken as a “road”. Under s 2 ofthe Road Traffic Ordinance (Cap 374), “road” includes every highway, car park, passage, way andplace to which the public have access either continuously or intermittently. The photo exhibitsshowed the scene obviously to be a passage or place. The scene was still a “road” even if it was aplace for maintenance as alleged by the Appellant [14].(3) Although the Appellant was in control of the movement of the red goods vehicle, his act didnot fall within the ordinary meaning of the word “driving”. Since he was not “driving” the red goodsvehicle, he could not be convicted of “careless driving” [15].