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 /A Publication of the Prosecutions Divisionof the Department of JusticeGeneral EditorI Grenville Cross, SC CRIMINAL APPEALS BULLETINMay Edition/2002Assistant EditorsD G Saw, SC Patrick W S CheungDenise F S ChanLily S L WongThis Bulletin summarises recent judgments which the editors consider of significance.( * Denotes Government Counsel( *# Denotes Appellant’s/Applicant’s/Respondent’s Counsel)# / /)

c.c. SJ LOsDDPPs/DSG/Secretary, Law Reform CommissionEditor/Hong Kong Law Reports & DigestDLABar Association (Attn : Administrative Secretary)Law Society (Attn : Secretary General)General Editor/Hong Kong CasesHong Kong Cases Faculty of Law, HKU (Attn : Dean of Faculty)Librarian (Law), City University( )PHQ/HKPF (Attn : ACP/Crime)( )ICAC (Attn : Head/Ops)PTS/HKPF (Attn : FTO(Exam))( )Administrator/Duty Lawyer ServiceC & E Training Development Group (Attn : Staff Officer)C & E Prosecution Group (Attn : Superintendent)LegCo Secretariat (Legal Service Division)D of Imm (Attn : AD(EL))()Judiciary (PM/JISS Project)Librarian/D of JDirector of Advanced Legal EducationHung On-to Memorial Library (HK Collection)/HKUDepartmental Prosecution Sections2

3INDEXA. p. 4 - p. 646B. p. 7 - p. 11711C. p. 12 - p. 251225D. p. 26 - p. 312631E. p. 32 - p. 413241Application for Review of SentenceCriminal Appeals/Against Conviction/ Criminal Appeals/Against Sentence/ Magistracy Appeals/Against Conviction/ Magistracy Appeals/Against Sentence/

4Appeal No.(Date of Case SignificanceJudgment) TitleA. APPLICATION FOR REVIEW OF SENTENCEAR 15/2001Stuart-Moore &Mayo VPPSeagroatt J(19.4.2002)*D G Saw SC &Michael Wong#Laurence PootsSJvKOFei-tatTrafficking in dangerous drugs/Young offender/Trainingcentre rarely appropriate/Good character of little assistance/Deterrent sentences required- - - - The Respondent (D2 at trial, and aged 18 years) was chargedwith three co-defendants. They were D1, aged 20, D3, aged 20,and D4, aged 21. D1 pleaded guilty to nine counts of traffickingin dangerous drugs and one count of conspiracy to traffic indangerous drugs. He was imprisoned for 5 years. D3 pleadedguilty to one count of trafficking in cannabis and to one count ofpossession of cannabis for which he was ordered to undergo 100hours of community service. D4, who pleaded guilty to threecounts of trafficking in dangerous drugs involving 2.33 grammesof ‘ecstasy’ and 0.29 gramme of ‘ice’, received a sentence of 2years’ imprisonment.The offences committed by the Respondent were connectedto trafficking in dangerous drugs, and were committed between 28August 2000 and 6 October 2000, at which time he was nearly 17years old. His date of birth was 13 October 1983.The case against the Respondent and his co-defendants arosefrom an undercover operation in which a female police officer, aWPC, posed as a customer at the ‘One Night Stand Disco’ inGloucester Road, Wanchai, in order to observe dangerous drugsactivities. Between July and October 2000, various of thedefendants approached her to sell dangerous drugs, namely,ecstasy, ice and cannabis. The operation culminated in the arrestof the Respondent and his co-defendants on 6 October 2000.The four offences related to the Respondent (counts 7-10)were jointly committed with D1 who also pleaded guilty to them.The total amount of methamphetamine hydrochloride or iceactually trafficked in these counts was 39.58 grammes and theRespondent (and D1) had agreed to a further supply of a furtherounce (or approximately 28 grammes), making a total of just under70 grammes of ice . The total amount of cannabis supplied was27.61 grammes.

5It was admitted at the time of sentencing that the policemonthly survey of the street level of methamphetaminehydrochloride showed that the value of the ice actually traffickedby the Respondent in August and September 2000 (in counts 7 and8) would have amounted to approximately $22,300.Although the judge, who had earlier obtained reports aboutthe Respondent, acknowledged the very serious nature of theoffence of trafficking in dangerous drugs, he went on to say:The offences that you pleaded to would normally havecarried an immediate custodial sentence, but becauseof your age, your clear record, and the fact that youwere only involved in four transactions out of the 10charges, I am prepared to give you a chance to learn atrade and came out of detention a better person. So,in respect of the four offences to which you pleadedguilty, you are sent to be detained in a training centre.The usual period of detention in a training centre isabout a year to 18 months depending on your conductin the training centre …On review, it was submitted that the judge had effectivelypaid mere lip-service to the need for deterrence in dealing withoffences of this type because of their seriousness to society,particularly its younger members. It was said that the judge gaveundue weight to the Respondent’s previously clear record and hisage.Held :(1) The normal tariff for trafficking in 10 to 70 grammes of iceshould range from 7 to 10 years’ imprisonment: Attorney Generalv Ching Kwok-hung [1991] 2 HKLR 125. The Respondent’scriminality would normally have merited a sentence, after trial, atthe upper end of that bracket bearing in mind that each of theoffences was a discrete and separate offence calling with totality inmind, for the imposition of sentences which were to an extentconsecutive. This was repeated trafficking in ice, over a period ofsome weeks by the Respondent who, although comparativelyyoung for a wholesale trafficker in ice, was obviously well versedin this activity and had the ability to obtain it in comparativelysizeable quantities at short notice;(2) As regards the Respondent’s age and clear record, it wassaid, in R v Lau Tak-ming & Others [1990] 2 HKLR 370, 386,with reference to trafficking in heroin, but with equal force whenapplied to trafficking in ice:

6It must be borne in mind that these are offences of theutmost gravity which may well result in mitigatingfactors which, for less serious offences could lead to adiscount, having little weight. By this we mean ageand disability - though extreme youth may call forspecial consideration. Drug dealers are notorious forattempting to elicit sympathy from the courts for theirmiddlemen by the use of the blind, the maimed, thehalt, the young and the aged in the carrying out oftheir nefarious trade;(3) With present sentencing policy in mind, regardless of hisprevious clear record, the Respondent’s timely pleas of guiltywould have entitled him to have received a one-third discount inthe event of a prison sentence being imposed upon him.Conversely, it could be that if he had a previous history oftrafficking this would, for the purposes of sentence, haveaggravated the offence. However, the one-third discount in suchcircumstances as these was generally to be regarded as the highwatermark of the discount. The Respondent could not plead thathe had a positive good character in the sense that, for example, hehad given his services freely to the community in some useful andconstructive way which might have enabled him to claim anyfurther discount. The Respondent’s conduct revealed that hisconduct was not confined to a one-off offence;(4) As was said in Attorney General v Suen Yuen-ming [1989] 2HKLR 403, save in ‘very rare cases ’ a training centre order fortrafficking in substantial quantities of dangerous drugs should notbe imposed. The judge had overlooked the well-establishedprinciple of imposing deterrent sentences in Hong Kong for thistype of case. Here there were no exceptional circumstances.Substantial quantities of ice were being trafficked by an active,persistent and willing participant in the trade who was driven bygreed to act in the way he did.Result - SJ’s review allowed.imprisonment substituted.Sentences of 4½ years’

7B. CRIMINAL APPEALS/AGAINST CONVICTION/ CA 31/2001Stuart-Moore VPStock JASeagroatt J(8.5.2002)*CheungWai-sun#I/PTAMKing-honStandard of proof/Counsel telling jury of need to be ‘absolutelysure ’ of guilt/Counsel to deal with law in strict terms withoutgloss/Standard less than certainty/Jury to be directed to besatisfied so as to be sure/Judicial misdirection to dilutestandard in criminal cases - ‘ ’ - - - - The Applicant was convicted after trial in the High Court ofthree counts of trafficking in heroin. He was sent to prison forconcurrent terms of 2 years’ imprisonment on each count.On appeal, the judge’s direction as to the standard of proofjustified close examination. He commented on defence counsel’sreference, in his closing speech to the jury, to a requirement thatthey should be ‘absolutely sure ’ of guilt before they couldconvict. He said that ‘the burden of proof is not as high asrequiring the prosecution to satisfy you so that you are absolutelysure ’ .Held :(1) The word ‘absolutely ’ was plainly superfluous because itmight have seemed to indicate two possible states of mind, sureand absolutely sure. If counsel sought to deal with matters of lawin their addresses to the jury they should use strict terms and notindulge in loose language or seek to add their gloss to establishedand standard criteria. It would have been best had the judge notdrawn attention to defence counsel’s use of the word ‘absolutely ’which was probably a slip in a moment of forensic enthusiasm;(2) For a judge to give any impression that the burden of proofupon the prosecution was not as high as some other hypotheticalstate of sureness was a misdirection. He should confine himself toa direction in simple terms that the jury must be sure of guilt inorder to convict. The old expression ‘satisfied beyond areasonable doubt ’ was slowly giving way to a simple statementthat a jury should be satisfied so that it was sure. That was not tobe regarded as other than a high standard of proof and nothingshould be said to suggest that there might be a higher standard.That could only dilute the standard of proof required in criminal

8cases. There was none higher;(3) In Archbold (2002 Edn) at para 4-385(d) it was stated:it is well established that the standard of proof is lessthan certainty. As in ordinary English ‘sure’ and‘certain’ are virtually indistinguishable. It savours ofwhat the late Sir Rupert Cross might have describedas ‘gobbledygook’ to tell the jury that, while they mustbe ‘sure’, they need not be ‘certain’.That passage indicated the problem in such semantics;(4) Although the questioned direction was a material one, thejudge had on other occasions given clear, unambiguous and properdirections so that in its overall impact, rather than as a matter ofisolated comment, the summing-up could have left the jury in nodoubt as to how they should approach their task in respect of thestandard of proof. The evidence against the Applicant wasoverwhelming. Notwithstanding the material nature of themisdirection, this was a proper case to exercise the proviso under s83(1) as no miscarriage of justice had actually occurred.Result - Leave to appeal allowed, but appeal dismissed.CA 85/2001Stuart-Moore VPStock &Cheung JJA(13.5.2002)*CheungWai-sun &Lam Wing-sai#Richard WongWONGSau-mingCredibility of police officers/Evidence from another trial ofjudicial reservations about witnesses/Earlier court doubting,but not disbelieving testimony/Directions to jury on a properfactual basis- - - The Applicant was convicted in the Court of First Instanceof an offence of trafficking in a mixture which contained63.8 grammes of heroin hydrochloride.As the prosecution case depended upon the credibility of PC3432 (PW1) and six members of his team, the defence launched anassault at trial on the credibility of the police officers whoseevidence cast blame on the Applicant. Defence counsel had beenmade aware that PW1 had given evidence in North KowloonMagistrates’ Court, together with others in his team, in R v LeungTat-ming (NKCC 7674/1997). A transcript of the magistrate’sReasons for Verdict was produced following a ruling whichallowed defence counsel, pursuant to R v John Edwards (1991) 93Cr App R 48, to cross-examine PW1 and other officers on issues

9related to their credibility arising from the facts and themagistrate’s findings in NKCC 7674/1997. There weresimilarities between the two cases. In the Magistrates’ Court case,the magistrate had expressed reservations relating to the testimonyof the police officers.In John Edwards, Lord Lane CJ said:The acquittal of a defendant in case A, where theprosecution case depended largely or entirely uponthe evidence of a police officer, does not normallyrender that officer liable to cross-examination as tocredit in case B. But where a police officer who hasallegedly fabricated an admission in case B, has alsogiven evidence of an admission in case A, where therewas an acquittal by virtue of which his evidence isdemonstrated to have been disbelieved, it is properthat the jury in case B should be made aware of thatfact. However, where the acquittal in case A does notnecessarily indicate that the jury disbelieved theofficer, such cross-examination should not be allowed.In such a case the verdict of not guilty may mean nomore than the jury entertained some doubt about theprosecution case, not necessarily that they believedany witness was lying.In this case, the judge made a purely formal ruling that theSummary of Evidence and Reasons for Verdict taken from NKCC7674/1977 should be admitted, and that the police witnesses couldbe cross-examined about the magistrate’s reservations relating totheir testimony in that case.On appeal, it was submitted, firstly, that having allowed thedefence to introduce the facts and the magistrate’s Reasons forVerdict in NKCC 7674/1997, the judge erred in permitting theprosecution to examine the case in order to see whether themagistrate ‘disbelieved the evidence of PW1, PW3 and PW5’, ormerely ‘gave the benefit of the doubt to that defendant’. It wasfurther said the judge erred in inviting the jury to consider ‘to whatextent the magistrate disbelieved those witnesses on the previousoccasion’ . It was not, so it was said, a matter for the jury toexamine the issue of disbelief when the evidence in NKCC7674/1997 had been specifically introduced pursuant to JohnEdwards which, in turn, could only have meant that the evidenceof the police witnesses had been demonstrably discredited on aprevious occasion. The jury should have been directed that theyshould take into account the fact that the police officers had beendisbelieved by the magistrate and that they could take this intoaccount when assessing the reliability of the police officers.Thirdly, it was contended that the judge erred in directing the jury

10to:Bear in mind it is a matter for you to decide to whatextent the magistrate disbelieved those witnesses on thatprevious occasion. It is also a matter for you to decideto what extent, if at all, the magistrate’s disbelief of thewitnesses in that case undermines the credibility in thepresent case.Held :(1) The judge carefully analysed the findings of the magistratebefore inviting the jury to find that, because the magistrate hadfound ‘some dubious points’ which had left him dissatisfied withthe police evidence, this did not ‘necessarily mean’ that theyshould similarly find themselves dissatisfied with the policeevidence in an ‘entirely different case’;(2) The prosecutor’s analysis involved doing no more thangoing through the magistrate’s Reasons for Verdict, emphasisingthe approach the magistrate had taken to each of the witnesses inthat case. It would have amounted to a distortion of the factualposition for the prosecutor to have accepted that the magistrate hadfound, as a fact, that the officers had given false evidence;(3) The direction of the judge was unobjectionable. It wouldhave been a different matter if the evidence of the police officersin the case before the magistrate had been demonstrated to befalse. In such circumstances there could be no justification for thejury being invited to form their own opinion when the evidencehad established, as a fact, that the officers had previously givenfalse evidence. While the jury in this case was entitled to considerwhether this was what, effectively, the magistrate’s findings mighthave amounted to, they were equally entitled to consider whetherthe witnesses’ evidence had simply been doubted, which seemedto be the case. Had the judge directed the jury that the magistratehad disbelieved the officers, this would not have summarised thetrue factual position;(4) The evidence of the earlier case was admitted for thepurpose of enabling the jury to test the credibility of the witnessesin the light of the findings of the magistrate. If that was done withfairness, which meant not only towards the defence but theprosecution as well, it had to be done on a proper factual basis.The fallacy in the Appellant’s submission was the assumption thatas the evidence about the earlier case had been introducedpursuant to the judgment in John Edwards’ case, this necessarilymeant that the police evidence had been demonstrated to havebeen disbelieved or it should never have been introduced. Perhapsit should not have been admitted. But having been admitted, it had

11to be examined on a true factual premise.Result - Leave to appeal granted, but appeal dismissed, by amajority.

12C. CRIMINAL APPEALS/AGAINST SENTENCE/ CA 327/2001Stuart-MooreACJHCSeagroatt J(22.4.2002)*CheungWai-sun &Polly Wan#Wilson ChanTAMKam-munAssisting passage to Hong Kong of a conveyance carryingunauthorised entrants/Sentencing of a crew member/Previous similar conviction an aggravating factor justifyingenhancement of sentence- - The Applicant pleaded guilty to an offence of assisting thepassage to Hong Kong of a conveyance, namely a motorisedsampan, which carried unauthorised entrants, contrary tos 37D(1)(a) of the Immigration Ordinance, Cap 115. The judgetook a starting point of 7 years’ imprisonment which he reducedby 20%, instead of the usual one-third, to take into account theApplicant’s conduct which he considered necessitated a Newtonhearing on an issue which was ultimately decided against theApplicant. That hearing caused the attendance of 14 prosecutionwitnesses. In the result, a sentence of 5 years and 7 months’imprisonment was imposed on the Applicant.The facts showed that the sampan in which the Applicanttravelled to Hong Kong with four other illegal immigrantsmeasured 6.7 metres in length. It had an outboard motor. As anattempt was made to land at Cheung Chau, the vessel capsized inrough sea shortly before 7 am on 25 February 2001. All thepassengers in the boat were thrown into the water. Twoapparently drowned, although it was a week later before a bodywas found. The other body was not found.The sampan was unsuitable for carrying passengers in theopen sea. It carried no life jackets or fire-fighting equipment andit was a small, open-topped boat with about ten watercompartments apparently designed to keep fish inside. It was nota vessel intended for the open sea.After arrest, the Applicant claimed that one of the unlawfulentrants on board had steered the vessel and that his role was to actmerely as a lookout on the way to Hong Kong to warn of thepresence of any police vessels. In return for this service, he saidthat he had paid a lower fee for his passage to Hong Kong than theother passengers.The Applicant had a previous similar conviction, dated

1330 September 1996. He had been convicted after trial on thatoccasion of being a member of the crew of a ship which was aspeedboat which had entered Hong Kong with unauthorisedentrants on board. He was also convicted on a second charge ofendangering safety at sea where no life jackets or fire-fightingequipment had been kept on board. In that case the Applicant hadsteered the sampan into Hong Kong waters, and when called uponto stop by a police launch he had steered in such a way as to causethe sampan to collide with the police vessel. This caused everyoneto fall into the water, but all were rescued.In passing sentence in this case, the judge apparentlyaccepted that the Applicant had not been responsible for steeringthe sampan. He said:You say that one of those illegal immigrants steeredthe vessel while you acted as a lookout on the way towarn of the presence of any Hong Kong Police vessels.The benefit to you was, you say, that you paid a lowerfee for the passage than the others in return for youracting as lookout.He later added:The sampan by its very nature and size is unsuitablefor carrying passengers in the open sea, even for avoyage as short as the distance between Lingding andHong Kong waters. You say that the vessel did havelife-preservers on board but that none of thepassengers wore them. However, none were found onboard the vessel and none were found in the sea afterthe capsize. Nor was any fire-fighting equipmentfound. The fact that the sampan was unsuitable for thevoyage which you undertook and was therefore by thatfact unseaworthy, was demonstrated by the fact that itcapsized close to shore, throwing all aboard into thewater. That the vessel was unseaworthy by the verynature of its size and construction is manifest by thefact that it capsized; the loss of two lives emphasisesthat fact. This fact, its unseaworthiness, is anaggravating feature of the case.You have also been previously convicted of a similaroffence in 1996 when you were sentenced to 5 yearsand 11 months’ imprisonment. That sentence clearlywas not a deterrent for you because you chose tocommit the same offence again.The sentencing guideline for this type of case is givenin Ng Kit-yuen [1992] 1 HKCLR 170. More recently,Cr App No. 145 of 1995, Pang Wing, is authority forthe proposition that 5 years’ imprisonment should be

14the starting point in the ordinary case of this type.The case that I have quoted, Ng Kit-yuen, also allowsfor the increase of that sentence of 5 years where thereare aggravating features such as the unseaworthynature of the vessel.The fact that you are a repeat offender for this type ofoffence is also significant. There is clear authoritythat in such a case, a court is entitled to take a higherstarting point for sentence ... so in your case I have 7years imprisonment as the starting point made up of 5years basic starting point with an addition of 1 yearfor the unseaworthy nature of the vessel an addition ofa further 1 year for the fact that you are a repeatoffender.On appeal, it was submitted that as the Applicant’s accountof being a ‘lookout ’ had apparently been accepted, and as therewas no evidence that the Applicant was in charge of the vessel orthat he had taken any active part in the organisation of the venture,the judge should have taken a basic starting point of 4 years’imprisonment, rather than 5 years, in accordance with R v WongYin-lung [1995] 1 HKCLR 151, 153. It was also said that thejudge erred by increasing the starting point by a year on account ofthe ‘unseaworthiness ’ of the vessel when the Applicant’s role waslimited to that of a ‘lookout ’ . It was as well submitted that thejudge erred in enhancing the Applicant’s sentence by an additionalyear because of the previous conviction.Held :(1) As the prosecution pointed out, the whole weight of earlierauthority, since Wong Yin-lung (above), seemed generally tofavour 4 years as a suitable starting point after trial for a merecrew member of a vessel engaged in assisting the passage ofunauthorised entrants, with five years reserved as the starting pointfor the captain or person in charge of a vessel. Whilst theApplicant was not charged with being a crew member under s37C, it was plain that as a ‘lookout ’ the Applicant’s position wasanalogous to that of a crew member. Furthermore, his offence ofassisting the passage of a conveyance carrying unauthorisedentrants under s 37D carried precisely the same penalties;(2) Although there was every indication in this case that as allthe passengers, including the Applicant, intended to land and stayin Hong Kong, the boat, having served its purpose, wouldprobably be abandoned, it was far from clear who, if anyone, was‘in charge ’ of the boat on which the Applicant was a lookout. Itseemed therefore that the judge should more properly, inaccordance with prior authority, have selected a four-year starting

15point rather than the higher basic starting point of 5 years reservedfor those in charge of a conveyance bringing unlawful entrantsinto Hong Kong;(3) It followed that if the Applicant had not been shown to bethe person in charge, he could not be held responsible for theunseaworthy state of the boat for which the judge had added afurther year to the starting point after conducting a Newton hearinginto its condition. Such an enquiry was not necessary in thecircumstances, and it was not right to penalise the Applicant by areduction of the discount he would normally have received for hisplea of guilty;(4) The previous conviction was a gravely aggravating factor inthe circumstances, not merely because the earlier sentence of5 years and 11 months which the Applicant had served had plainlyhad no deterrent effect. Coupled to the sentence for being a crewmember entering Hong Kong waters with unauthorised entrants onboard, the Applicant had received a concurrent sentence of12 months for the offence of endangering safety at sea, and hecould therefore be taken as someone who was well aware of thedangers of this kind of operation. In the result, one illegalimmigrant had almost certainly been shown to have drowned andanother was missing, presumed drowned;(5) This was a serious case of its kind and the judge had noterred in his approach to the Applicant’s previous history or itseffect upon the sentence in this case. The Applicant had only beenreleased six months earlier from the prior sentence and both casesinvolved very considerable dangers which must have been obviousto him, regardless of his knowledge of the actual condition of theboat. No one could have known better than the Applicant aboutthe perils of such a venture as this. He had not only done thisbefore, but he had actually seen the small boat on his earlierunauthorised venture empty its passengers, including himself, intothe sea;(6) The appropriate starting point, on the facts accepted by thejudge, was 4 years’ imprisonment enhanced by 12 months, to takeinto account the aggravation of the offence, for sentencingpurposes, of the Applicant’s previous record.Result - Appeal allowed. Sentence of 3 years and 4 months’imprisonment substituted.CA 516/2001Stuart-Moore VPSHUMChung-waiCredit card fraud/Sentencing considerations/Potential forfuture loss/Need to protect integrity of credit card system/Family circumstances to be disregarded where serious offences

16Stock JALugar-Mawson J(23.4.2002)*Paul Madigan#I/Pwere concerned- - - - The Appellant, a man of 21 years, pleaded guilty to 25charges in the District Court; 17 of theft, contrary to s 9 of theTheft Ordinance, Cap 210; 2 of possession of an identity cardrelating to another, contrary to s 7A(1A) of the Registration ofPersons Ordinance, Cap 177; 4 of forgery, contrary to s 71 of theCrimes Ordinance, Cap 200; and 1 of possession of equipment formaking a false instrument, contrary to s 76(1) of the CrimesOrdinance, Cap. 200. He was sentenced to a total of 4 years’imprisonment. With leave of the single judge, he appealed againstsentence.On 27 December 2000, the Appellant was seen by plainclothes police officers to be acting suspiciously in the lobby of abuilding in North Point. He removed three letters from theletterboxes in the lobby (charge 1). He was apprehended andsearched, and found to be in possession of another person’sidentity card (charge 2), together with a large bunch of keys, oneof which opened one of the mailboxes in the lobby.The Appellant led the officers to his home in Quarry Bay.In his bedroom were found eight stolen credit cards (charges 3 to10); four false credit cards (false instruments) which had beenelectronically altered to contain false information on theirmagnetic strips (charges 11 to 14); one credit card with a blank(unrecorded) magnetic strip (charge 15); a computer and otherelectronic equipment capable of altering information on creditcards (charge 16); three further stolen items of mail (charges 17 to19); and another identity card relating to another person(charge 20). Also found were notebooks containing a largenumber of dates, names of people and numbers that appeared to becredit card numbers.Following the search at Quarry Bay, the Appellant led thepolice to a room in Tin Hau Temple Road, which he said he hadrented for a few days in October 2000. There he pointed out ahidden compartment in the ceiling, and the police found five morestolen credit cards (charges 21 to 25).Later, the Appellant made inculpatory admissions in a videorecorded interview. He described how he had stolen credit cardsfrom letterboxes and under the tuition of another had learned howto alter the data on their magnetic strips.

17The stolen credit cards were from a variety of credit cardcompanies. The forged ones all purported to be VISA cards, butissued by various banks.The psychologist’s report revealed that the Appellant wasintellectually normal, although he lacked proper social skills andfailed to appreciate the seriousness of his offences. The probationreport revealed a history of social difficulties in his early teens,when he had mixed with ‘bad elements ’, and experimented withdrugs. It showed a decline into a wasteful lifestyle, overseen by anindulgent divorced father. The Appellant claimed to have sufferedtrauma when his parents’ divorced. He left school in November1997, with no qualifications, and since then he had never held ajob and had been reliant on his father for his support.The Appellant had two previous convictions; one was for asimilar offence. The facts of that offence were that on 11 October2000 he attempted to buy a notebook computer, worth $29,120,with a forged American Express card. As he was unable toproduce his identity card, he was asked to return later in the day.In the meantime the salesman had checked with American Expressand found that the card was a forgery. When the Appellantreturned he was arrested. On 24 May 2001, at North KowloonMagistrates’ Court, he was sentenced to 8 months’ imprisonmentfor this offence. On 28 November 1995, in the District Court, hewas placed on probation for 18 months for an offence of woundingwith intent to do grievous bodily harm committed when he was ateenager.The judge took a starting point of 6 years in respect of eachof the forgery charges (charges 11-14) and the two possession ofequipment for making a false instrument charges, (charges 15 &16) and reduced it to 4 years to be served concurrently for thepleas of guilty. He considered that he was unable to give anyfurther reduction in the light of the Appellant’s criminal record.The judge did not differentiate between the charges relating to thetheft of mail (charges 1 & 17-19), the theft of other credit cards(charges 3-10 & 21-25), and the possession of another’s identitycard (charges 2 & 20), referring to them all as ‘theft ’. He took astarting point of 3 years for each and reduced it to 2 years toreflect the guilty pleas, to be served concurrently. Following thetotality principle, he ordered all sentences to run concurrently,making a total of 4 years. He ordered the Appellant’s sentences torun consecutively to the sentence he was already serving.The Appellant submitted that his sentences were manifestlyexcessive and that the judge gave him an insufficient discount toreflect his guilty pleas and his cooperation with the police. Healso pleaded for leniency on the ground that his father had liver

18cancer and it fell to him to look after his 16-year-old youngerbrother.Held :(1) In R v Chan Sui-to & Anor [1996] HKCLR 128, severalfactors that a sentencer should take into account in offences ofcredit card fraud were listed:(1) The size of the operation; for example, whetherit involved large sums of money, whether itconcerned a large number of persons or forgedcredit cards;(2) The planning that had gone into perpetrating thefraud, whether it was elaborate or simple,whether technical skills were used, and to whatextent;(3) Whether there was an international dimension;(4) Whether the accused played a major role; forexample, running a syndicate, engaging inactual manufacture, organizing the use of forgedcards; or whether he was a mere ‘cog in thewheel ’ as a courier or a custodian or keeper;and(5) Whether there was a plea of guilty.(2) Many of the factors from Chan Sui-to (above) were presentin this case; four forged cards were involved; the Appellant’soperation was a planned one of some sophistication; he hadthirteen stolen cards in his possession; he was actively engaged inthe actual manufacture of forged cards and had not only theequipment and technical skills to manufacture them, but alsodetails of other persons’ credit card accounts. He was far morethan a ‘cog in the wheel ’ of another’s enterprise; the enterpriseappeared to have been entirely his own. Although there was nointernational dimension to his offences, there was clearly thepotential for that. The judge acknowledged his guilty plea with aone-third discount from the starting-point sentence. He was givena full and adequate discount for his guilty pleas and cooperationwith the authorities;(3) As the Appellant faced no charges of using the cards inattempting to obtain property by deception, there were no amountsto provide guidance in the determination of the proper level ofsentence. However, there could be little doubt that the seriousnessof the Appellant’s offences lay in the potential for losses in thefuture had they not been discovered. HKSAR v Ng Swee Thiam &Ors [2000] 1 HKLRD 772, HKSAR v Heung Ka-wo Johnny

19Cr App 136 of 2001. In Chan Sui-to it was said:… the sum of money involved is of course only one ofthe factors to be taken into account. It is not eventhe most significant factor.And in Ng Swee Thiam it was said:… The question of the amount of losses which may beproved may pale into insignificance whenconsideration is given to losses in the future … It isthis potential for losses which is the most importantconsideration.(4) The Appellant was in possession of four forged credit cards,which he had forged, as well as thirteen stolen credit cards and oneblank card, together with information about other persons’ creditcards, which he had obtained from the stolen items of mail. Healso had equipment that could tamper with the data on the stolencards. Provided that he could get his hands on genuine cards tocorrupt (an activity he was apparently engaged in when the policecaught him) he could with that equipment forge any number ofcredit cards. Given all that, the potential for future loss appearedto have been very great indeed;(5) The need to protect the integrity of the credit card system ina sophisticated economy, such as Hong Kong’s, was an extremelyrelevant factor in this case. Given the prevalence of forged creditcards in this society, computer equipment, such as that involved inthis case, was the modern day equivalent of the forger’s printingpress and the blank card the modern day equivalent of bank notepaper and security inks. It had to be borne in mind that, unlike aforged banknote, which could only buy goods or services up to itsapparent face value, a forged credit card could purchase goods orservices up to the victim’s credit limit with the issuing bank.Further, a forged credit card could be used to make manypurchases. The sentences of 4 years’ imprisonment, after plea, forthe four offences involving the forgery of the credit cards and thetwo offences of possession of equipment for making false creditcards, were not manifestly excessive;(6) The offences of theft of other peoples’ credit cards and mail,and the two identity card offences, might be considered to becomparatively less serious than the forgery and possession ofequipment offences. There could be no doubt that without thecards and the information in the stolen mail the Appellant couldnot have forged further cards. There was no tariff for theft and 2years for each of the theft offences was not manifestly excessive.Had they stood alone, the identity card offences would haveattracted sentences in the region of 15-18 months’ imprisonment.They, however, did not stand alone, and when the Appellant’s

20overall culpability was taken into consideration those sentenceswere not manifestly excessive;(7) It had been said many times that family circumstancesshould be disregarded, particularly when sentences for seriousoffence were concerned. As Cons VP said in R v Shipra [1985] 2HKLR 493, 494:… a man must appreciate before he commits a crime,that his family will suffer if he is caught andconvicted.And Silke VP said in R v Chin Hon-yuen Cr App 393/1988:… family circumstances are matters which a wiseman would take into consideration before hecommits an offence not after.Result - Appeal dismissed.CA 33/2002Stuart-Moore VPStock JALugar-Mawson J(10.5.2002)*Simon Tam#ShahminKhattakMAKim-hungFraud on social welfare system/Methodical embezzlement of alarge sum over a long period/Restitution as a mitigatingfactor/Effect of delay in prosecuting/Comments on TICprocedure- - - - The Appellant pleaded guilty to 25 charges of procuring themaking of an entry in a bank record by deception, contrary tos 18D(1) of the Theft Ordinance, Cap 210. He was sentenced toconcurrent terms of 18 months’ imprisonment on each offence.The case related to a fraud upon the social welfare system.The Appellant first applied for Comprehensive Social SecurityAssistance (‘Assistance ’ ) from the Social Welfare Department inlate 1995. On 3 December 1995 he attended an initial interviewwith a social security officer, and he and his wife were told he hadto fill in all the details on the form truthfully, otherwise he mightface prosecution. The Appellant falsely declared on the form thatthe value of his family’s assets was $25,805; in truth they were$288,317; he had concealed the existence of two bank accounts inhis name. Assistance was granted to him as a result of his falseclaim. The first payment was backdated to 18 October 1995. Hadhe declared that his family’s assets were over $71,000 he wouldhave been ineligible for Assistance.The Appellant had to re-confirm his means every six months

21at an interview at the Social Welfare Department (‘SWD’) offices.There he was required to fill in a review form stating the currentvalue of his family’s assets. From 12 December 1995 to 12August 1999 - a period of 3 years and 8 months - at each of thosetwice-yearly interviews, the Appellant deliberately misstated thetrue value of his family’s assets. By 1999 the Appellant’s family’sassets had grown from $288,317 to around $442,000.The fraud came to light when, in early August 1999, hisdaughter applied for Student Financial Assistance when sheentered university. The Social Welfare Department then came toknow of the existence of the two bank accounts, which theAppellant had concealed from them. When questioned about thisby an investigating Social Welfare Officer on 26 August 1999, headmitted that he had deliberately made false declarations. Herepaid the whole amount of Assistance that he had fraudulentlyobtained since October 1995 on 3 December 1999; this amountedto $425,244.It was not until 28 November 2000, nearly 12 months afterhe had made full repayment, that the SWD’s Internal ReviewCommittee recommended that the Appellant should be prosecuted.The Department referred the matter to the police and it was notuntil 2 April 2001, five months later, that the Appellant wasarrested. After caution, he made a full confession in which he saidthat he had deliberately made the false claims in order to fund hisdaughter’s education, and out of greed.The Appellant was eventually prosecuted in the DistrictCourt on 25 specimen charges which related to a total amount of$258,892. He was not charged with fraudulently obtaining thewhole amount of $425,244 Assistance paid to him because theprosecution did not wish to overload the charge sheet. Nearly 2½years passed between the day the frauds were discovered, and headmitted committing them, and the day he was sentenced for hisoffences.The Appellant was aged 67 years. He had little educationand no trade. He was married, and his wife could not workbecause of illness. His daughter had graduated from university.He had assumed responsibility for the care of his wife’s mother,who was 83 and in poor health.In her Reasons for Sentence the judge said that she took anoverall starting point of 2½ years and reduced that by one-third toreflect the Appellant’s guilty pleas, and then by a further twomonths to acknowledge the fact that he had made full restitution.

22Held :On appeal(1) There were no Hong Kong authorities on the sentencingprinciples to be applied, and the approach to be taken, whensentencing for offences which involved frauds upon the publicwelfare system. However, given that these offences werecommitted over 3½ years, and given the amount of moneyinvolved in the 25 charges, and given that it was a deliberatedeception from the very beginning, a starting point of 2½ years’imprisonment was not manifestly excessive;(2) Restitution should be encouraged and acknowledged with adiscount in sentence. The size of that discount depended verymuch upon the facts and circumstances of each case. Theadditional discount to reflect the restitution in this case was twomonths, which represented no more than a reduction of 6.6% fromthe starting point. In arriving at the appropriate figure thesentencing principle that an accused should not be allowed to keephis ill-gotten gains had to be borne in mind, as should the questionof whether or not he had suffered financial hardship in makingrestitution;(3) The timing and circumstances under which the Appellantmade restitution were very much in his favour. The fraud wasdiscovered in early August 1999. He admitted his wrongdoing on28 August 1999. Full restitution of the entire amount ofAssistance paid to him since October 1995 was made on 3December 1999. This was 11 (nearly 12) months before the SWDdecided to prosecute him, 16 months before his arrest, 23 monthsbefore he faced any criminal charge and nearly 25 months beforehe fell to be sentenced. This was not a case where the Appellantmade restitution as a tactical move only days, or hours, before hissentencing. His restitution had the hallmarks of being the act of aman who had realistically accepted that the game was up and thathe had been found out, and who genuinely wished to make amendswith the authorities he had cheated. It was an act motivated moreby genuine remorse than self-interest. The restitution should havebeen rewarded by a much greater discount than two months;(4) The delay of over 2½ years between the Appellant’sadmission of the offences and the date of his sentence wasinexcusable. This was a potentially complicated investigation,which had been made very simple by the Appellant’s cooperation.The discussions about what to do within the SWD went on far toolong, as did the subsequent police investigation. This must havehad a debilitating effect upon the Appellant. He would not have

23known whether the SWD considered the matter concluded with hispayment of restitution, or whether they were to take it further.Some discount for that should have been given to him;(5) The Appellant’s offences were so serious that they amplyjustified him being ordered to serve immediate custodial sentencesfor each one. For over 3½ years he deliberately and methodicallyembezzled a very large sum of money from the SWD. However,the judge had not given sufficient consideration to the quiteexceptional mitigating factors in this case.Result - Appeal allowed. Each of the Appellant’s 25 sentences of18 months’ imprisonment reduced by 9 months. Allsentences concurrent, making an overall period ofimprisonment of 9 months.Obiter - It was open to the prosecution to have dealt with thefraudulent obtaining of the remaining amounts ofAssistance by way of the ‘taking into consideration’procedure, which was expressly provided for by s 81 ofthe District Court Ordinance. The prosecution was urgedto use that procedure in future cases where it wasappropriate to do so.CA 508/2001Stuart-Moore VPStock JALugar-Mawson J(15.5.2002)*Ho May-yu#I/PFOKLin-hingTrafficking in dangerous drugs/Family circumstances notrelevant as mitigation/Good character of little avail- - The Applicant, aged 37 years, a nightclub waitress and amother of a 12-year-old daughter, pleaded guilty to two counts oftrafficking in dangerous drugs. The first count related to2.62 grammes of cannabis and 23.65 grammes of a crystallinesolid containing 23.14 grammes of ‘ice ’ . The second countrelated to 45.45 grammes of cannabis and 174.85 grammes of icehaving a narcotic content of 173.62 grammes.The Applicant was sentenced to 5 years and 4 months’imprisonment on the first count and 8 years’ imprisonment on thesecond; 5 years of that sentence was allowed to run concurrentlywith the sentence on the first count, producing a total sentence of8 years and 4 months.The judge applied the guidelines in AG v Ching Kwok-hung[1991] 2 HKCLR 125, and adopted a starting point of 8 years forthe first count and 12 years for the second. He gave the Applicanta one-third discount to reflect her guilty pleas and said he couldfind no other mitigating factors. The Applicant had one previous

24conviction in 1982, when she was 18, for fighting in a publicplace, and had been bound over.On appeal, the Applicant prayed in aid the distress caused toher daughter by her situation, and her virtually clear criminalrecord.Held :(1) The distress of the child should have been anticipated by theApplicant before she committed her offences and deterred herfrom doing so;(2) Where substantial quantities of drugs were involved, verylittle credit could be given for previous good character: HKSAR vLau Kin Cr App 147/98, Ng Tat-shing & Another v R [1977 -1979] HKC 71;(3) Whatever credit could have been given to the Applicant toreflect her slightly tarnished previous good character wassubsumed in the one-third discount;(4) The sentences for trafficking in ice were in accordance withthe guidelines.Result - Application dismissed.CA 193/2002Woo JALugar-Mawson J(2.5.2002)*Ho May-yu#Giles SurmanWOOChung-hingTrafficking in dangerous drugs/Consecutive sentencesappropriate for separate offences on differentdays/Commission of offence on bail an aggravating factor- - The Applicant pleaded guilty to two offences of traffickingin dangerous drugs with a narcotic content, respectively, of 8.25grammes and 7.2 grammes of heroin hydrochloride. He wassentenced to consecutive terms of imprisonment of, respectively, 2years and 2 years and 8 months, producing a total of 4 years and 8months’ imprisonment. A one-third discount was given in respectof each sentence to reflect the guilty pleas.The first offence was committed on 17 August 2001, and thesecond, while the Applicant was on bail for the first offence, on 8September 2001. The judge when sentencing observed that‘people who commit offences on bail must expect the secondoffence to be consecutive’.

25On appeal, it was submitted that the sentence was manifestlyexcessive, and that the judge erred by suggesting that the totalweight of the narcotic content of the heroin covered by bothcharges should be considered together, commenting that whenadded together ‘it puts you in the right place on the next band upin the guideline’ . It was also said that the judge erred in appearingto rely on the fact that the Applicant committed the second offencewhilst on bail for the first in ordering the sentences to runconsecutively, when he had already relied on that fact to increasethe sentence on the second charge.Held :(1) Following the guidelines in R v Lau Tak-ming & Others[1990] 2 HKLR 370, the weight of the narcotic content in bothcharges placed the Applicant at risk of receiving an after-trialsentence of up to 5 years’ imprisonment for each; each offencefell, for sentencing purposes, into the first of the suggestedsentencing tariff bands of up to 10 grammes of narcotic;(2) As two separate and distinct trafficking offences had beencommitted on different days, consecutive sentences were called foras a matter of sentencing principle;(3) That the Applicant had committed the second offence whilston bail for the first was a factor that went to aggravation ofsentence;(4) The individual length of each of the sentences was notmanifestly excessive, nor was the total length of time to be servedin prison for them. The Applicant had only himself to blame forthe fact that he would be in prison for a period of time morecommensurate with the second of the Lau Tak-ming tariff bands.There was no escape from the fact that when the narcotic contentsof both charges were added together, it showed that on twooccasions in less than a month he had trafficked in heroin whichhad a total narcotic content of 15.45 grammes.Result - Application dismissed.

26D. MAGISTRACY APPEALS/AGAINST CONVICTION/ MA 85/2002Pang J(3.5.2002)*Joseph Wong#Andrew Bruce SC& Simon Woo(1) LAUMan-shing(2) TANGChung-kwanIdentification in court/No formal parade held/Identification incourt not per se inadmissible/Formal parades not necessarywhere witnesses have identified accused to police/Questionspermissible on whether accused in the dock same person asarrested by police- - - - The Appellants were convicted after trial of an offence ofassault occasioning actual bodily harm.The trial turned on the issue of the correctness of theidentification of the Appellants by PW1 and PW2. Subsequent tothe arrest of the Appellants, no formal identification parade wasconducted by the police. At trial, PW1 and PW2 were asked bythe prosecution to identify the Appellants. That was done over theobjection of their counsel. The witnesses were allowed to confirmthat the defendants in the dock were the assailants. The magistrateconvicted the Appellants on the basis that both prosecutionwitnesses had correctly identified both Appellants as havingparticipated in the assault of PW1.The Appellants submitted that the magistrate erred in law inallowing the court identifications by PW1 and PW2. It was saidthat the magistrate failed to inquire sufficiently into the nature andquality of the purported identifications of the Appellants by PW1and PW2 in the evening of the incident before allowing them toidentify the Appellants at trial. Had he alerted himself to theinherent flaws of the street identifications, the magistrate wouldnot have allowed the subsequent court identifications. Therehaving been no properly conducted formal identification parade,the court identification should not have been admitted. Havingdone so, the evidence was nevertheless highly prejudicial to thedefence and it rendered the convictions unsafe or unsatisfactory.The Appellants relied upon that said by King CJ in R v Hamood(1987) 27 A Crim R:The courts have emphasised that the formalidentification parade is the method which should beused wherever that is practicable and have frequentlydrawn attention to the defects of other methods ofidentification. If it is not practicable to arrange anidentification parade at a particular time, but the

27Held :suspect indicates a willingness to participate in such aparade when it can be arranged, the police shouldgenerally refrain from arranging or permitting otherforms of identification which might prejudice theformal identification parade... Such alternative formsof identification should not be resorted to, however,except for substantial and defensible reasons.(1) In Hamood, the Appellant was convicted of rape. Shortlyafter the incident, the victim described her attacker to the policeand, acting on information, police arrested the Appellant at hishome. He agreed to take part in an identification parade but, as itwas late at night, the only available comparable sample of menwas to be found at the bar of a local hotel. The Appellant wastaken to the hotel where he joined the crowd at the bar. Thevictim identified the Appellant. In a similar situation in HongKong, it was to be imagined that police would have taken everystep to conduct a formal identification parade in accordance withestablished procedures. On appeal, the Court of Appeal, SouthAustralia, held that under the conditions of that case theidentification process was fair and fairly conducted, and that thetrial judge had correctly exercised his discretion to admit theidentification evidence;(2) In the present case the circumstances of the purportedidentifications were very different from Hamood. Bothprosecution witnesses were able to recognise the Appellantsseparately as having taken part in the assaults following whichboth were arrested by the police. The identity of the Appellantswas also confirmed by PW3. In these circumstances, formalidentification parades to be attended by the three prosecutionwitnesses who had previously identified the arrested persons werenot necessary;(3) Identification evidence in court was not per se inadmissibleas a matter of law. The central issue at trial, as the magistrate hadstated, was the quality of the identification evidence of theprosecution witnesses. What was described as ‘courtidentification’ was not an attempt by the prosecution to invite thewitnesses to identify the Appellants for the first time. It was nomore than evidence confirming that the Appellants were thepersons arrested by the police. It was an erroneous conception thatthe magistrate should not have allowed questions to be put to theprosecution witnesses as to whether the defendants sitting in thedock were in fact the persons arrested by the police. This was notthe case as this was not identification for the first time;(4) As to the quality of the identification, the magistrate

28approached the evidence with extreme caution. He stated thatidentification evidence was the key to the prosecution’s case andreminded himself of the guidelines in Turnbull. He warnedhimself of the special need for caution before relying on theevidence of identification. He resolved all the apparent conflictsand discrepancies in the prosecution witnesses’ testimony.Result – Appeal dismissed.MA 352/2002McMahon DJ(8.5.2002)*Chiu Wai-tin#I/PCHEUNGLing-kingDuty Lawyer Scheme/Accused unhappy with DLS lawyer attrial/No right to lawyer of choice/Alternatives open to accused- - - The Appellant was convicted of an offence of living on theearnings of prostitution, contrary to s 137(1) of the CrimesOrdinance, Cap 200.On appeal, it was complained that during the trial theAppellant had attempted to change her lawyer but was told that noother lawyer was available.Held :The Duty Lawyer Scheme was not there to provide a lawyerof choice. It provided competent and qualified lawyers for personswho could not otherwise be represented. Although the schemewas undoubtedly administered with as much flexibility aspossible, defendants did not and could not have a right under it tobe represented by a lawyer of their choice. If a defendant wasdissatisfied with a duty lawyer’s representation, then his onlyalternative right was either to retain a lawyer privately or to appearin person. The Appellant chose to continue with her existinglawyer, and he represented her capably and competently.Result - Appeal dismissed.

29HKSAR v A person unknown–2001 1244Polly WanRichardWongCOURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 1244 OF 2001Toh DJDate of Hearing: 12 March 2002Date of Judgment: 12 March 2002- -

30visitation of god”[English digestof MA 1244 of2001 above]Toh DJ(12.3.2002)*Polly Wan#Richard WongA personunknownAccused silent upon arrest and at trial/Medical reportsconsidered by magistrate/Magistrate entitled to make findingof mute of maliceThe Appellant was charged with unlawful remaining andresisting arrest. He stood mute to these charges. The prosecutioncalled two police officers to give evidence.PW1 testified that he intercepted the Appellant as he wasseen lowering his head and walking fast. When PW1 asked himfor proof of identity, the Appellant made no response. He wasthen searched and arrested. During the whole incident, he did notsay anything.At trial, the Appellant made no response at the start of thetrial, as the witnesses testified, after the prosecution had closed itscase and after the magistrate had explained to him his rights.The magistrate called for two medical reports. The first one

31indicated that the Appellant did not lodge any complaint when hewas detained in Siu Lam psychiatric centre and had no physicalabnormality. The second report by Dr Choi revealed that theAppellant responded to noises and was able to follow the routinein the centre. He was seen playing Chinese chess with otherinmates and watching television. However, with Dr Choi, theAppellant refused to communicate. Dr Choi found he did notsuffer from any psychiatric illness and did not rule out thepossibility of malingering.Having considered all the evidence, the magistrate convictedthe Appellant as charged.On appeal, it was submitted that the magistrate should nothave relied on the medical reports in drawing an irresistibleinference that the Appellant was mute of malice since thepossibility of ‘visitation of God ’ could not be ruled out.Held :The duty of a magistrate was to consider the opinions ofdoctors, the observations by medical staff on the Appellant’sresponses during his stay in the centre, the facts of the case, theobservations of police officers upon the Appellant’s arrest andother circumstances of the case. The magistrate had taken intoaccount all these, and he did not err in finding that the Appellantwas mute of malice.Result - Appeal dismissed.

32E. MAGISTRACY APPEALS/AGAINST SENTENCE/ MA 114/2002Wong DJ(26.3.2002)*Paul Madigan#Ching Y Wong,SC &ChristopherGroundsMOKKing-yinDangerous driving causing death/Aggravating factors of drinkand showing off/Need for higher sentences/Comments onmaximum penalty- - - The Appellant was convicted after trial of a charge ofdangerous driving causing death, contrary to s 36(1) of the RoadTraffic Ordinance, Cap 374. He was sentenced to 18 months’imprisonment and disqualified from driving for a period of 3years. At the outset of the trial, he pleaded guilty to drinking withan alcohol concentration in his breath above the prescribed limit(charge 2) and carrying excessive passengers (charge 3). Inrespect of charge 2, he was sentenced to imprisonment for 1month, to be served concurrently with the sentence of 18 months.In respect of charge 3, he was sentenced to a fine of $1,000.The evidence showed that when the Appellant was drivinghis Mercedes Benz in the early hours of 5 May 2000, the car wentout of control and struck a bollard and the railings on the centralisland at the Garden Road end of Lower Albert Road, killing thedeceased who was in the front passenger seat. The Appellant anda number of his friends who were in the car at the time of theaccident had been drinking alcohol in bars in Happy Valley andLan Kwai Fong since the previous evening. Some of thepassengers were excited and told the Appellant to drive faster twoto three times. PW1, a passenger with 9 years’ driving experience,estimated the speed of the car to be 70 to 80 kph. PW1 thoughtthe speed was too high and told the Appellant to slow down orstop and as a result the Appellant applied the brakes and the carwent out of control. The magistrate found that the accident wascaused by excessive speed and excessive alcohol consumed by theAppellant.Held :On appeal(1) Sentences for the offence of dangerous driving causing deathhad hitherto been at a very low level, as most previous decisions inHong Kong suggested. This was a lamentable state of affairs;(2) Motor cars could be used as lethal weapons, as guns or

33knives, if they were not properly used. Anyone who drovedangerously and killed had to expect to pay a high price. Heavypenalties were necessary where aggravating features existed. Inthis case the aggravating features of drinking and showing offwere found to exist by the magistrate;(3) Had it not been for the constraint of previous authorities, thesentence of 18 months’ imprisonment would have been upheld.There was no reason why Hong Kong should not follow England,and raise the maximum sentence to 10 years’ imprisonment. Theloss of a human life, when viewed from whatever angle, was avery serious consequence indeed.Result - Appeal allowed. Sentence of 9 months’ imprisonmentsubstituted.))HKSAR v YUEN Yuk-king (1)LEUNG Chi-keung (2)Polly WanY C Yeung–2002 12COURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 12 OF 2002Toh DJDate of Hearing: 5 March 2002Date of Judgment: 5 March 2002- - - 200 139(1)(a)139(1)(b)20015 18 20017

34187 (5$5,00077(1) (2) (3) 31818[English digestof MA 12 of2001 above]Toh DJ(5.3.2002)*Polly Wan#Y C Yeung(1) YUENYuk-king(2) LEUNGChi-keungKeeping and managing a vice establishment/Accused ofprevious good character/Guilty pleas/Suspended sentenceappropriateA1 pleaded guilty to an offence of keeping a viceestablishment, contrary to s 139(1) of the Crimes Ordinance,Cap 200, and A2 pleaded guilty to an offence of managing a viceestablishment, contrary to s 139(1)(b), Cap 200.The facts showed that between 18 May and 18 July 2001,

35the police mounted 7 undercover operations against Sea WavesBeauty and Massage (‘Sea Waves’), the subject premises. Duringthese operations a total of 5 women provided sexual services to theofficers who disguised themselves as customers.In sentencing, the magistrate considered the option ofcommunity service and obtained relevant probation reports. Hetook into account the Appellants’ clear records and their guiltypleas and found it appropriate to sentence each of them to3 months’ imprisonment and a fine of $5,000.On appeal, it was submitted that Sea Waves had operated forseven years and was only involved in this one episode. It hadpreviously provided proper massage and beauty services to itscustomers.Held :(1) The circumstances of the case were serious. The police hadmanaged to carry out seven undercover operations within a periodof two months, and on each occasion the service fee was paideither to A1 or A2;(2) The provision of lewd services on account of the pressuresof economic recession was not a mitigating factor;(3) Since the Appellants were first offenders and had pleadedguilty at the first opportunity, and as Sea Waves had all along beena duly licensed beauty and massage company with no criminalinvolvement, an immediate custodial sentence of 3 months’imprisonment was considered excessive. A sentence of 3 months’imprisonment suspended for 18 months was more appropriate.Result - Appeal allowed. Suspended sentence of 18 monthssubstituted.[See also Sentencing in Hong Kong, 3rd edition, at pp 432 to 443:Ed]HKSAR v CHEUNG Tsz-cheung

36–2002 42AnthonyCheangAndy HungCOURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 42 OF 2002Toh DJDate of Hearing: 7 March 2002Date of Judgment: 7 March 2002- - 24528118(1)(d)119(1)10125 10155 19 121 70KCCC 3389/20016 7 1997 156 KCCC 3390/2001 20018 1603

37 3389/2001 3390/2001 3389/2001(1) 5 6 (2) KCCC 3389/20013 153389/200118[English digestof MA 42 of2002 above]Toh DJ(5.3.2002)*AnthonyCheang#Andy HungCHEUNGTsz-cheungPossession of pirated VCDs/Proximity of offences/Wrong toadopt a higher starting point for first offenceThe Appellant, aged 24, pleaded guilty to two offences ofpossession of infringing copies of copyright works with a view tocommitting any act infringing the copyright without the licence ofthe copyright owner, contrary to ss 118(1)(d) and 119(1) of theCopyright Ordinance, Cap 528. He was sentenced to 10 months’imprisonment on the first charge and 12 months’ imprisonment onthe second charge, 5 months of which were to run consecutively tothe sentence imposed on the first charge, making a total of15 months’ imprisonment.The first offence happened on 19 May 2001, with 121 VCDsand 70 MCDs found to be pirated copies: KCCC 3389/2001. Thesecond offence happened 19 days later on 7 June with 97 VCDsand 156 MCDs found to be pirated copies: KCCC 3390/2001.

38The Appellant had been sentenced to perform 160 hours ofcommunity service for a similar charge in August 2001. He wasnot a first time offender when the present two offences werecommitted.In sentencing, the magistrate explained that a higher startingpoint was adopted because the Appellant had committed twooffences of the same nature within a short period of 3 weeks.On appeal, it was submitted that the magistrate failed tomention that the offence in 3389/2001 was committed prior to thatin 3390/2001. He therefore erred in saying that a higher startingpoint should be adopted in 3389/2001.Held :(1) The Appellant had committed a similar offence previously,and committed the present offences in May and in June. Themagistrate was correct to say that the act of the Appellant haddemonstrated his flouting of the law and of the law enforcementofficers. It was more serious than other cases involving pirateddiscs in general;(2) It was wrong for the magistrate to have adopted a higherstarting point in 3389/2001 on the basis that the two offencesoccurred within a short period of 3 weeks. Notwithstanding this,the starting point of 15 months for the first offence was not wrong.The Appellant had committed a similar offence prior to3389/2001. Although a starting point of 18 months for the secondoffence was on the high side, it was not manifestly too high orexcessive. The sentences imposed were appropriate.Result - Appeal dismissed.MA 183/2002Lugar-Mawson J(27.3.2002)*Wong Sze-lai#Newman WongCHANHung-yauAssault on police/Possession of small quantity of midazolam/Sentencing considerations- - The Appellant was convicted after trial of an offence ofassaulting a police officer in the execution of his duty. He pleadedguilty to a second offence of possession of a dangerous drug,namely, a packet containing 230 milligrams of a powdercontaining 13 milligrams of midazolam.The facts showed that when the Appellant was stopped and

39searched in the street, drugs were found on his person. When hewas being arrested, he pushed the police officer, who fell to theground.The DATC report indicated that the Appellant was notsuitable for DATC as he had been sent there four times previously.The magistrate sentenced the Appellant to 6 months’imprisonment on the assault charge, and to 4 months’imprisonment on the drugs charge, the sentences to runconsecutively.On appeal, it was submitted that the sentences, bothindividually and collectively, were manifestly excessive, given thevery small weight of drugs and the minor circumstances of theassault upon the police officer. It was also said that the magistratehad failed to give a sufficient discount under the totality principle.Held :(1) Assaults on police officers were serious offences and shouldattract custodial sentences, save in exceptional circumstances.They should also attract sentences that were consecutive to thosepassed for any other offence of which the accused was convicted;(2) This assault was one of the least serious of its kind. Itamounted to little more than resisting the police officer in theexecution of his duty;(3) The narcotic weight in the midazolam possessed by theAppellant was very low - 13 milligrams. It had been held thatpossession of up to 500 milligrams of midazolam attracted asentence of no higher than 6 months’ imprisonment.Notwithstanding the Appellant’s background, which included7 drug-related matters, the sentence was excessive.Result - Appeal allowed. Sentences of 2 months (assault) and 3months (drugs) substituted, to run consecutively.MA 38/2002Wong DJ(4.4.2002)HONNgau-sinAiding and abetting remaining in Hong Kong of illegalimmigrant/Gravity of offence/Impact on Hong Kong of illegalimmigration/Appropriate signal as to heavy sentencesrequired- -

40*Polly Wan#Bernard Yuen- The Appellant pleaded guilty to an offence of aiding andabetting, counselling and procuring an illegal immigrant to remainin Hong Kong, without the authority of the Director ofImmigration. She was sentenced to 9 months’ imprisonment.The facts showed that the Appellant and the illegalimmigrant claimed to be clanswomen. On 29 November 2001, theAppellant came to Hong Kong as a visitor and was permitted tostay until 29 December 2001. The Appellant’s brother rented aflat for the Appellant to stay in Western. On 11 December 2001,the illegal immigrant was due to give birth and the Appellantcalled the police. The Appellant and the illegal immigrant weretaken to QMH. The status of the pregnant woman came to lightwhen the Appellant admitted that she had harboured the illegalimmigrant. Enquiries revealed that the illegal immigrant sneakedinto Hong Kong at Sha Tau Kok, and took a taxi to Westernlooking for her relatives to help her in the birth of her baby. Wheninterviewed, the Appellant said she had met the illegal immigrantat Centre Street Market and invited her to live at the flat, andsubsequently became aware she was an illegal immigrant.In sentencing, the magistrate opined that it was too much ofa coincidence that the Appellant happened to be her clanswoman.He therefore imposed the sentence he did.Held :On appeal(1) Hong Kong was a very small city with very limitedresources, and for its own protection and its own survival, it couldnot afford to allow a large number of people to come and stay.Hong Kong was not in a position to look after others; if that wereallowed to happen, a massive number of pregnant women comingto Hong Kong would be seen;(2) Without people helping the illegal immigrants, there wouldbe fewer people coming to Hong Kong either to seek employmentor to give birth. A serious view had to be taken. No signal was tobe sent to those across the border that heavy sentences would notbe imposed on those who disrespected our law or had no regardfor the interest of our society.Result - Appeal dismissed.