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 QC, SCCRIMINAL APPEALS BULLETINNovember Edition/2001Assistant EditorsD G Saw QC, SCPatrick 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. SJLOsDDPPs/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. 17417B. p. 18 - p. 221822C. p. 23 - p. 392339D. p. 40 - p. 464046E. p. 47 - p. 504750F. p. 5151Applications for Review of SentenceCriminal Appeals/Against Conviction/ Criminal Appeals/Against Sentence/ Magistracy Appeals/Against Conviction/ Magistracy Appeals/Against Sentence/ Practice and Procedure

4Appeal No.(Date of Case SignificanceJudgment) TitleA. APPLICATIONS FOR REVIEW OF SENTENCEAR 11/2001Stuart-MooreACJHCStock JALugar-Mawson J(8.11.2001)*I G Cross SC& Wong Sze-lai#Raymond W SChanSJv(1) CHEUNGChun-chin(2) CHEUNGSiu-wa(3) WONGChan(4) WONGChi-fai(5) CHOIKar-leung(6) WONGTin-waiRiot/Large scale and protracted offence/Injury and damage/Need for deterrence - - - The Respondents were convicted of riot, contrary to s 19 of thePublic Order Ordinance, Cap 245.The Respondents were inmates at the Hei Ling Chau DrugAddition Treatment Centre (‘the Centre’). At about 6.45 p.m. on4 June 2000, fighting erupted between Vietnamese and local inmates.This led to rioting outside Dormitory 11. The rioters damaged and setfire to buildings and facilities at the Centre. CSD and police officerswere attacked by rioters using stones, improvised weapons and otherhard objects. Eventually, at 4 am on 5 June 2000, after the use of teargas, the police quelled the riot. In the riot, 9 police officers, 29 CSDofficers and 71 inmates were injured. Estimates indicated that at least$10 million would be required to make good the damage which wasdone.R1, R2 and R4, all of whom pleaded guilty, were amongst 100local inmates who riotously assembled outside the AdministrationBlock. Most of those rioters held improvised weapons including metalrods and water pipes. They set up barricades using liquid petroleumgas (LPG) cylinders. R1, R2 and R4 were amongst those whoassembled immediately behind the LPG cylinders. Weapons werebrandished at the officers who were warned to stay away. Some of therioters opened the valves of the cylinders to let out the gas. AlthoughCSD personnel tried to persuade the rioters to stop, they onlydispersed after police used tear gas.R3 and R5 were convicted after trial. R3 armed himself with astick at the start of the riot and acted aggressively. He later armedhimself with a metal bar which he used to resist the authorities. R5armed himself with a blade and told CSD officers that he planned todeal with the Vietnamese. He also threatened to use it to stab police.R5 was also present at the LPG cylinders.

5At about midnight on the night of the riot, about ten inmates,including R6, riotously assembled outside the hospital inside theAdministration Block. These rioters all held improvised weapons suchas metal rods and water pipes. They stoned the gate at the entrance tothe hospital and threatened to set it on fire. They threw hard objectsinto the hospital. The incident only ceased when police dispersed therioters. R6 pleaded guilty.Having said that the case was an ‘extremely serious incident’,the judge took a starting point of 3 years’ imprisonment for each of theRespondents. He reduced this by one-third for R1, R2, R4 and R6,who had pleaded guilty.On review, it was submitted that the sentences imposed upon theRespondents were manifestly inadequate, and lenient in the extreme.They were not such as to punish the Respondents for their involvementin a serious, protracted and large-scale riot.Held :(1) Although none of the Respondents had committed any specificact of violence which had led to a separate charge of assault, thegraveness of riot was the commission of a breach of the peace whiletaking part in an unlawful assembly. The whole purpose of the riotseemed to have been to inflict violence on the Vietnamese inmates and,when that became impossible, the violence was directed at CSDofficers and, later, at police who came to quell the riot;(2) The 3-year starting point adopted was manifestly inadequate.After trial, a proper sentence would have been 6 years’ imprisonmentbearing in mind the scale of the riot and the consequences which flowedfrom it. Severe sentences were needed for such offences in order toprovide an adequate element of deterrence as well as a penalty whichproperly reflected the gravity of such crimes. The potential for seriousinjury and large-scale damage arising from mob violence of this kindwas enormous: Attorney General v Tse Ka-wah and Others [1992]2 HKCLR 16.Result - SJ’s applications allowed. Sentences of 5½ years’imprisonment substituted for R3 and R5, and of 3½ years’imprisonment for R1, R2, R4 and R6.

6AR 12/2001Stuart-MooreACJHCStock JALugar-Mawson J(8.11.2001)*I G Cross SC& Wong Sze-lai#Philip WongSJvKO Wai-kit,PaulDangerous driving/Worst case of its type/Drugs an aggravatingfactor/Mitigation of little effect/Maximum penalty as startingpoint/Serious offence of resisting arrest requires deterrentsentence - - - - - The Respondent pleaded guilty to an offence of dangerousdriving, contrary to s 37 of the Road Traffic Ordinance, Cap 374, andto one charge of resisting police officers in the due execution of theirduties, contrary to s 36(b) of the Offences against the PersonOrdinance, Cap 212.The judge in the District Court sentenced the Respondent to12 months’ imprisonment for the dangerous driving offence, and to 1week’s imprisonment, consecutive, for the resisting police offence. TheRespondent was also disqualified from holding or obtaining a drivinglicence for all classes of vehicles for 2 years.The facts showed that at about 5.30 p.m. on 6 April 2001, apatrolling motorcycle police officer saw the Respondent driving a van inKowloon erratically. The Respondent refused the command to stop,and drove off. In the course of a crazed journey from Jordan ValleyRoad to Prince Edward Road East, Prince Edward Road West,Waterloo Road, Chatham Road, Austin Road and Canton Road, hecommitted one traffic offence after another, jumped red lights, collidedwith motor vehicles, and with motorcycles, injured a police officer andtwo civilians, failed to obey police commands to stop, and whenultimately he was stopped, violently resisted arrest, injured a number ofpolice officers.The judge said it was a matter of luck that no one was seriouslyinjured during the Respondent’s escapade. He went on:I accepted that the defendant was under the influenceof drugs but this self-induced. I do not think this canbe a very good mitigating factor. Of course, if thedefendant was deliberately driving the car on the wayhe did on that day, the court would have no hesitationto pass the maximum sentence, being 3 years’imprisonment, but I accepted the defendant was undersome influence of the drug and he must be, otherwise

7there would be no good reason why he should bedriving in such a manner for such a long time or longperiod on that day. But as I have said, this is a caseclose to self-intoxication which should not be a verygood mitigating factor. Nevertheless, this would be afactor I would take into account.I will also take into account defendant’s backgroundand young age. I understand this is not an exceptedoffence. The defendant is under 25 years old and Ishall not pass an imprisonment term unless it isnecessary. But in view of the very seriouscircumstances of the offences, a term of imprisonmentis inevitable. I do not think Drug Addiction TreatmentCentre or Detention Centre would be appropriate.I will adopt a starting point of 2 years for thedangerous driving offence, the 1st charge. I give fullcredit for pleading guilty and I would also give somereduction in view of the fact that this is the firstoffence. Defendant is of young age and the principle isthat a first imprisonment term should be as short aspossible. So, in respect of these, I will give another 4months reduction, so altogether there will be 12months remission, so in respect of the 1st charge, I willpass a sentence of 12 months’ imprisonment.And the 2nd charge is really part and parcel of the 1stcharge. It would be difficult to expect the defendantto behave sensibly at the time of arrest when he hadbeen driving in such a dangerous manner under theinfluence of drugs. So I pass a short term, 1 weekimprisonment, consecutive to the 1st charge.On review, it was submitted that the sentence for the dangerousdriving offence was wrong in principle and/or manifestly inadequate;that the judge took a starting point which was too low; that he erredwhen treating the drug factor as a mitigating factor; and that he erredalso in allowing a discount for the Respondent’s previous goodcharacter. In relation to the charge of resisting arrest, it was said thatthe sentence of one week’s imprisonment was manifestly inadequate.Held :(1) The driving offence fell within the broad band of the worst typeof case of dangerous driving which came before the courts, and thejudge ought to have taken as his starting point the 3 year maximum

8permitted by s 37 of the Road Traffic Ordinance;(2) It was fundamentally wrong in principle for the judge to havegiven a discount for the fact that the Respondent was under theinfluence of drugs when he drove. That the Respondent drove whilstunder the influence of drugs was an aggravating factor: R v Boswell[1984] 1 WLR 1047, R v Gilmartin [2001] 2 Cr App 2 (S) 212;(3) In a case of this type the Respondent’s age, 22 years, constitutedno mitigation at all. So, too, the judge ought not to have discounted aperiod from the sentence on account of the fact that at the time ofsentence the Respondent had not been convicted of a like offence.Lack of previous convictions would often be subsumed in the creditgiven for a guilty plea. No further credit should have been given in thiscase for, when having regard to character, regard had to be as well tothe facts of the offence in question. That a 22-year-old had notpreviously driven to the terror and danger of the public in the way theRespondent drove, injuring people, was a matter carrying scant credit;(4) The correct starting point for the resisting officer offence ought tohave been 18 months’ imprisonment - the maximum being 2 years.Such cases had to carry a heavy deterrent element, as it was vital thatthose engaged to execute police duties were enabled properly to do so;(5) Although the judge had said that the second charge was part andparcel of the first, it was not. It was one thing to drive dangerously, andquite another to behave violently when approached by police officersafter the episode was over.Result - SJ’s application allowed. Sentences of 2 years’ imprisonmentsubstituted for charge 1, and 12 months for charge 2, to runconsecutively. Disqualification increased to 5 years.Per cur -The maximum term allowed to the courts for dangerousdriving cases of 3 years’ imprisonment would, even in thevery worst cases, permit a sentence of but 2 years upon aguilty plea. So dangerous and wicked was the driving inthis case, so threatening to public safety and to the safety ofpolice officers, that the maximum permitted was a constraintwhich might be thought to be contrary to the public interest.

9HKSAR v MA Hon-chung– 2001 10Maria Ip &Kelvin LeeSterling TsuCOURT OF APPEAL OF THE HIGH COURTCRIMINAL APPEAL NO. 10 OF 2001Leong CJHCWoo JAYeung JDate of Hearing: 18 October 2001Date of Judgment: 18 October 2001- - 200 76(1) 19200012191,23044620,000

106(1) R v Hui Kwok-ho Cr App 174/90R v Kwai Ying-ho Cr App 527/92R v Chan Sui-to[1996] 2 HKCLR 128(2) 21(3) 35 R v Hor Wai-ming andAnother [1985] HKC 30 AG v Kong Kin-man[1989] 2 HKLR 177

11AG vFong Ming-yuen[1989] 2 HKLR 177(4) [English Digest ofAR 10 of 2001above]Leong CJHCWoo JAYeung J(18.10.2001)*Maria Ip &Kelvin Lee#Sterling TsuiSJvMAHon-chungPossession of equipment for making a false instrument/Imprisonment the norm/Training centre option available foryoung offenderThe Respondent pleaded guilty to an offence of possessingequipment for the making of a false instrument, contrary to s 76(1) ofthe Crimes Ordinance, Cap 200. He was aged 19 years and wasordered to be detained in a training centre.The admitted facts indicated that when the Respondent returnedto Hong Kong from Shenzhen through Lo Wu on 19 December 2000,he was found to be in possession of 1,230 forged Visa and Mastercardbase credit cards, which he was seeking to smuggle into Hong Kong.Each card contained a hologramme, a logo and a magnetic strip, buthad not been embossed with an account holder’s name or an accountnumber. It was estimated that these forged credit cards might cause apotential loss of about US$4.46 million. The Respondent admittedpossession, and said he had to repay a debt of $20,000 to loansharks.Although the judge said that an appropriate sentence in a casesuch as this should be 6 years’ imprisonment, as the Respondent was afirst offender in respect of whom reports recommended training centre,

12she would impose a training centre order.On review, it was submitted that the sentence was manifestlyinadequate and wrong in principle.Held :(1) The courts had taken a serious view of offences involving falsecredit cards. Custodial sentences were the usual penalty: R v HuiKwok-ho Cr App 174/90, R v Kwai Ying-ho Cr App 527/92, R vChan Sui-to [1996] 2 HKCLR 128;(2) Where an offender was, as here, aged under 21 years, an option,provided the offence was not of the most serious, such as murder,robbery or rape, was a training centre order which would rehabilitatehim. The judge had great discretion over sentencing. With a youngoffender the judge might take into account the particular circumstancesand select from the range of penalties one that was in the best interestsof the public and best suited to the defendant. Even if the offence wasserious, the court might still take into consideration the particularcircumstances of the offence and impose alternative custodial sentencesin lieu of imprisonment;(3) The offender who received a training centre order was liable to 3years supervision after release, and that would produce a check on hisactivities for longer than 5 years: R v Hor Wai-ming and Another[1985] HKC 30. It was not a soft option: Attorney General v KongKin-man [1997] 1 HKC 537. In Attorney General v Fong Mingyuen[1989] 2 HKLR 177, it was stated that there was no rule thatunless the offender was of extreme youth, it was wrong in principle tosentence him to training centre for a serious offence; in fact, it was in thepublic interest and in the defendant’s own interest that detention in thetraining centre might pave the way for his eventual integration intosociety;(4) The judge was fully aware of the seriousness of the offence andshe took into consideration the sentencing guidelines. Having regard tohis character and background and the circumstances of the case, sheconsidered a training centre order to be appropriate. She struck aproper balance between the two contradictory principles of imposing adeterrent and punitive sentence and of offering a chance forrehabilitation.Result - SJ’s application dismissed.

13HKSAR v CHUNG So-kiu– 2001 8Arthur Luk &Sin Pui-haPetrus ChanCOURT OF APPEAL OF THE HIGH COURTCRIMINAL APPEAL NO. 8 OF 2001Leong CJHCWoo JATong JDate of Hearing: 26 September 2001Date of Judgment: 26 September 2001- - -- (1) 48(2) 144(3) 4 3 68726199839

1424312 40034(1) R v Mo Kwong-sang [1981] HKLR 810 7 R v Lo Man-choi Cr App73/849(2)

15(3) Secretary for Justice v Lau Yun-keung [1999]4 HKC1 10(4) 10854 32 854281010[English Digest ofAR 8 of 2001above]Leong CJHCWoo JATong J(26.9.2001)*Arthur Luk &Sin Pui-ha#Petrus ChanSJvCHUNGSo-kiuRobbery and indecent assault/Invasion of premises by armedgang/Aggravating factors/Rape of lone woman on hillside/Calculation of correct totalityThe Respondent pleaded guilty to counts of robbery, indecentassault and rape, and was sentenced, respectively, to terms ofimprisonment of 4 years and 8 months, 1 year and 4 months, and 4years. By ordering the sentences for the indecent assault and rapeoffences to be partly concurrent to that for the robbery offences, a totalsentence of 6 years and 8 months was achieved.The judge had taken, as his starting points, 7 years for therobbery, 2 years for the indecent assault, and 6 years for the rape. Adiscount of one-third was given to produce the aforementionedsentences. He concluded that the totality would be too great if thesentences were made consecutive.The admitted facts showed that at about 2.45 am on 9 March1998, the Respondent, with two other men, entered a nursing homeand clinic at Ho Ma Tin, and that each was armed with a 12-inch longknife. They threatened the two female attendants who were on duty,tied them up and took from them a gold necklace and $400 cash.

16Before leaving, the Respondent removed the lower garments of one ofthe attendants, and, after she said she was menstruating, he forced herto fellate him. He then left.Later that same day, the Respondent stopped a woman on ahillside in Lai Chi Kok, dragged her into the long grass, threatened herwith a knife, tied her hands with rattan strips, removed her lowergarments, forced her to fellate him, and then raped her.On review, it was submitted that the sentences did not, eithersingly or cumulatively, reflect the aggravating features of the offences,and that they fell outside the range of sentences which could reasonablybe considered appropriate.Held :(1) If the offence of robbery involved gang activity and the invasionof private premises in the dead of night, and knives and violence suchas the tying up of victims was used, the sentence of 7 years should beapplied: Mo Kwong-sang v R [1981] HKLR 810. In R v Lo ManchoiCr App 73/84, it was said that where a gang used choppers tothreaten, tie up and rob victims in a public bathroom at night, theappropriate starting point would be 9 years’ imprisonment. In thepresent case there were aggravating factors of a very serious nature andsevere punishment was called for to safeguard the public safety;(2) The starting point for the indecent assault of 2 years was too low.The victim had been threatened with a knife. She would have beenraped had she not been menstruating. The Respondent grabbed herhair. As the indecent assault was committed after the robbery wasover, there was no nexus between the offences and consecutivesentences were required;(3) The starting point of 6 years for the rape offence was too low.On not dissimilar facts, it had been held in Secretary for Justice v LauYun-leung [1999] 4 HKC 1, that an appropriate sentence was in theregion of 10 years’ imprisonment;(4) Having regard to the overall criminality of the offences, the totalsentence was manifestly inadequate and outside the reasonable range ofsentences. The total sentence should be 10 years’ imprisonment. Thestarting point for the robbery should be 8 years, reduced to 5 years and4 months for the guilty plea. The starting point for the indecent assaultshould be 3 years, reduced to 2 years for the guilty plea. Thesentences for the robbery and the indecent assault should runconsecutively. The starting point for the rape should be 8 years,reduced to 5 years and 4 months for the guilty plea. Although normally

17the sentence for rape should run consecutively to other sentences,regard to totality meant that 2 years and 8 months of that sentencewould be served consecutively, making a total sentence of 10 years’imprisonment.Result - SJ’s application allowed. Sentence of 10 years’imprisonment substituted.

18B. CRIMINAL APPEALS/AGAINST CONVICTION / CA 403/2000Stuart-Moore VPStock JALugar-Mawson J(26.10.2001)*Peter Chapman& Simon Tam#F C WhitehouseCHANSau-manRape/Recent complaint evidence/Admissibility of complaint notmade at first opportunity/Prosecutor entitled to make finalspeech notwithstanding election of accused not to testify/Comments on prosecutor offering own views - - - - The Applicant was convicted after trial of rape.The complainant, aged 26, alleged that she was raped in theNew San Diego Hotel. She had willingly gone to the hotel with theApplicant after they had spent the evening together. Consensual sexualintercourse, when the Applicant had been using a condom, had takenplace twice before the alleged rape.The complainant said that after intercourse had begun to takeplace with her consent on the second occasion, a stage was reachedwhen the Applicant removed the condom he was using. She said shehad made it plain to him throughout that she would only have sex if hewas wearing a condom. It was her concern that unprotected sex with arelative stranger, who she had only met three times before, might infecther with AIDS. She therefore resisted and struggled with theApplicant, when he attempted to have intercourse without a condom.The Applicant insisted on unprotected sex and used force and threatsto get his way. Despite her resistance, he eventually succeeded inpenetration for a short time. After that, the complainant was subjectedto threats and violence for a number of hours before being allowed toleave.As the complainant was leaving the hotel she went first to thereception counter, but made no reference to the receptionist abouthaving been raped. She explained this on the basis that she wasintending to go straight to Yaumatei police station to report the rape.That she did.Held :On appeal

19(1) Although it was submitted that the complainant’s report to apolice officer had not been made at the first opportunity which hadoffered itself after the offence, and that this should not have beenadmitted as evidence of ‘recent complaint ’, defence counsel raised noobjection to its admission at trial. Even had he done so, the judgecould not properly have excluded this evidence on the ground that itwas inadmissible or that he should have exercised a discretion toexclude it;(2) There was no rule of law which stated that for evidence of recentcomplaint to be admissible it had to relate to a complaint which hadeffectively been made at the first available opportunity: R v Cummings[1948] 1 All ER 551, R v Steven Warner [1995] 78 A Crim R 383.This was, in any event, a complaint made very soon after thecomplainant had regained her liberty from the Applicant who haddetained her for several hours following the alleged rape;(3) Although prosecuting counsel had made a final speech after theApplicant had decided not to testify, this was to be expected bearing inmind the prolonged cross-examination of the complainant.Result -Obiter -Application dismissed.It was most unfortunate that the prosecutor had, from time totime, expressed her own opinion, or views, about theevidence. That was most unfortunate and should not haveoccurred. Counsel for the prosecution was perfectly entitledto make her submissions. She was not entitled to make herpersonal views known to the jury.[See also Criminal Appeals/Against Sentence: Ed]CA 96/2000Woo &Stock JJATong J(20.11.2001)*John Reading SC&Beney WongLEUNGKai-cheungForm of immunity/Oral immunity given at trial/Practice to givewritten immunity/Oral immunity to accomplice to testify in termsof his statement objectionable/Immunity should require witnessto give full and true evidence- - - - The Applicant was convicted after trial of an offence ofconspiracy to traffic in heroin. He was sentenced to 36 years’imprisonment.

20#Andrew MacraeSCOn appeal, the key issue was whether the terms of immunitiesgranted to accomplice witnesses called by the prosecution, and the factthat, despite those immunities, they were told by the court that they hadno objection to giving answers which might incriminate them,constituted material irregularities and, if so, whether the conviction ofthe Applicant could nonetheless stand.The co-conspirators named in the indictment, each of whom gaveevidence at the Applicant’s trial, were PW1, Wong Yut-wah, PW3,Law Chong-wing, and PW4, Ko Lai-cheung. PW2, Tang Siu-mei, notnamed as a co-conspirator, was the girlfriend of PW1, and her rolewas to launder the proceeds of PW1’s drug trafficking. Each of theseaccomplice witnesses had been arrested and tried and sentenced priorto the Applicant’s trial.The first ground of appeal was that there was a materialirregularity in the conduct of the trial when prosecuting counselpurported to offer a verbal immunity from the Bar table to the fourprincipal prosecution witnesses in almost identical terms, namely:that provided the witness gives evidence in accordancewith his witness statement, he will not be prosecutedfor any further offences disclosed in those statementswith the obvious exception of perjury.Held :(1) The practice by which law officers undertook to an accomplicethat, on given conditions, he or she would not be prosecuted for anoffence committed by the accomplice, in return for evidence in the trialof a confederate for the same or an associated offence, was a practiceof long standing. It was in the public interest that criminals be broughtto justice, and the use of accomplice evidence, if necessary or helpful tothat end, was admissible. But the grant of an immunity was a seriousmatter, not to be treated lightly, or, as in this case, loosely. A decisionto grant an immunity was a decision which should be made only bythose authorised to make it, and the terms of the immunity to be grantedrequired careful attention. The person to whom it was offered wasentitled to know precisely what was properly expected of him if theimmunity was to hold good, and in respect of precisely what conductthe immunity extended, subject to the overriding consideration that whatwas expected was the full truth;(2) The long standing stated, as well as actual, policy and practice of

21the Department of Justice had not been followed in this case. In adocument produced by the Department of Justice in 1998, it wasstated:Immunity from Prosecution32. The Director of Public Prosecutions will in appropriate casesauthorize the offering and granting of an immunity to a personwho is to assist a Law Enforcement Agency in the detection orcontrol of criminal activity, and who may thereby in the course ofso acting himself be a party to criminal offences. In general animmunity will only be offered:(i)(ii)where the criminal activity under investigation isof a serious kind or of a kind that poses a seriousthreat to law and order or public safety withinHong Kong; andwhere conventional means of detection or controlare unlikely to prove effective.The Director of Public Prosecutions and his Deputies areauthorized to grant full or partial immunity to persons suspectedor accused of offences in return for their undertaking to givetruthful evidence on behalf of the Prosecution. The immunity willbe in writing and where necessary translated. A copy of theimmunity should be provided to the Court and the Defence at trial.An examination of a standard immunity form indicated the reference,twice, to the condition that the evidence to be given was ‘full andtrue’;(2) The significance of rendering an immunity conditional upon thegiving of true and full evidence should be obvious. So, too, should thedanger of a naked condition that the accomplice give evidence inaccordance with a witness statement: R v Lai Wai-kin [1989] 2 HKC559;(3) Although it was not to be said that there could never be anacceptable form of immunity which made reference to a witnessstatement made by the immunity’s recipient, what was objectionablewas the form of immunities offered in this case which was to direct thewitnesses to stick to their statements. The assumption when animmunity in that stark form was given was that the statements to thepolice were true; an assumption which in this case was a particularlydangerous one to make given the taint which appeared to attend theaccuracy of earlier statements to the police provided by each of the

22four witnesses. The additional assumption was that the statementcontained the whole truth. Even if the statement contained the full storywhich the accomplice intended to offer, what of material which wentbeyond the boundaries of fact covered by the statement, drawn out,say, in cross-examination?(4) As the witnesses were told to stick to their statements, in looseterms, this amounted to an irregularity.Result - Appeal allowed. Re-trial ordered.

23C. CRIMINAL APPEALS/AGAINST SENTENCE/ CA 213/2001Stock JALugar-Mawson J(7.11.2001)*Peter Chapman& Simon Tam#Bernard YuenLAUChiu-kwanBurglary in domestic premises/Aggravating features justifyenhanced starting point/Consecutive sentencing for burglary andunlawful remaining- - On 20 March 2000, the Applicant was convicted on his ownpleas of one charge of burglary and one charge of remaining in HongKong without the authority of the Director of Immigration. The judgesentenced him to serve 2 years’ imprisonment on the burglary chargeand 1 year’s imprisonment on the unlawful remaining charge. Thesentences were ordered to run consecutively, making a total of 3 years’imprisonment. The Applicant abandoned his application for leave toappeal against these sentences.On 14 February 2001, the Applicant was convicted after trial ofanother burglary committed before that charged in the earlier case. Hewas sentenced to 42 months’ imprisonment, 6 months of which wereordered to run concurrently with the sentences imposed in the earliercase. That meant that he received a total sentence of 6 years’imprisonment, and it was that sentence in respect of which he soughtleave to appeal out of time.The Applicant had previous convictions of theft and unlawfulremaining, committed in 1994, for which he was sentenced toconsecutive terms of 6 months’ imprisonment for each offence.The two burglaries occurred within three days of each other, andeach involved the burglary of domestic premises at a time when theywere occupied.On appeal, it was submitted that the sentence imposed in thesecond case was too severe, as was the overall sentence of 6 years’imprisonment.Held :(1) Although the usual starting point for sentence for burglary ofdomestic premises was 3 years’ imprisonment, there were aggravatingfeatures present as the offences occurred at night when people weresleeping and the premises were ransacked: HKSAR v Tong Fuk-sing

24[1999] 3 HKC 332. The judge was justified in taking a sentence inexcess of 3 years’ imprisonment;(2) The sentence for an offence of unlawful remaining would normallyrun consecutively to the sentence imposed for a burglary offencecommitted by an illegal immigrant: HKSAR v Wong Ting-wa CrApp153/97;(3) The individual sentences for the burglaries in both cases werecorrect. Although the totality of 5½ years’ imprisonment for the twoburglaries would have been too high, it had to be remembered that theApplicant was an unlawful immigrant and his sentence for that offenceought to be wholly consecutive. The overall sentence of 6 years’imprisonment, given the facts of the two cases and the Applicant’sparticular circumstances, including his criminal record, could not be saidto be manifestly excessive.Result - Application dismissed.CA 403/2000Stuart-Moore VPStock JALugar-Mawson J(26.10.2001)*Peter Chapman& Simon Tam#F C WhitehouseCHANSau-manRape/Consent of victim to intercourse contingent upon use ofcondom/Forced and unprotected sex a serious factor/Violenceand threats after rape - - - The Applicant was convicted after trial of rape. He wassentenced to 7 years’ imprisonment.Held :[For facts of case see Criminal Appeals/Against Conviction: Ed.]On appeal(1) Although there would probably be those who might have thought,on first hearing that the Applicant received a sentence of 7 years’imprisonment for raping a woman who had willingly gone to a hotel,expressly for the purposes of having protected sex with him, before theApplicant insisted on having unprotected sex against the complainant’sconsent, that this was a severe sentence, she was subjected to lengthyand sustained violence and threats while detained in the hotel room fortwo hours after the rape. It was apparent as well that the only reasonthe Applicant desisted from raping the complainant was because shemade it impossible for him to continue, not because he merely decided

25to stop when she asked him to do so;(2) The Applicant deliberately breached his agreement with thecomplainant that he would not have unprotected sex with her. He waswell aware that the complainant’s consent to sexual intercourse waswholly conditional on this factor. With a condom there was consent,without one there was none. The Applicant deliberately removed thecondom he was wearing and had sex by force, knowing full well that itwas without the complainant’s consent. He then, by his subsequentconduct, further aggravated the situation by humiliating and frighteningthe complainant for a number of hours when he had not the slightestjustification for doing so;(3) Forced, unprotected sex in this day and age, in a case where thevictim had throughout insisted on protected sex, was a factor whichmade this case a serious one.Result - Application dismissed.CA 97/2001Stuart-Moore VPStock JA(14.11.2001)*Sin Pui-ha#Johnny J H Chan(A1 & A3)I/P (A2)(1) LAWKa-kit(2) SINKa-wah(3) NGKa-hoRobbery spree involving firearms/Effect of youth on sentence/Imprisonment of young offenders justified for serious offences/Public interest required showing of little quarter to youngsterswho committed armed robbery- - - The Applicants were arraigned on an indictment containing fivecounts. The offences covered a period of two weeks in May 2000,during which they went on a robbery spree, in the course of which areal firearm was on each occasion brandished; during which shopemployees were tied up; and during which the Applicants used tape tocover the eyes or mouths of victims; and mobile telephones to the totalvalue of about $164,000 were, in addition to other goods, stolen.Counts 1, 2 and 4 charged robbery; Count 3 was an attemptedrobbery; and Count 5, against A3 only, alleged possession of arms andammunition without a licence.A1 was aged 14½ years at the time of the offences. He pleadedguilty to Counts 1, 2 and 4. He pleaded not guilty to Count 3 whichwas left on the file.A2, who was aged 17 years, almost 18, at the time of the

26offences, pleaded guilty to Counts 1 to 4 inclusive.A3, who was aged 15½ years at the time of the offences, pleadedguilty to all five counts.Count 1 - robberyThe first offence was committed on the afternoon of 4 May 2000at a mobile telephone shop in King’s Road, North Point. A1, A2 andA3 suddenly entered the shop. A3 brandished a pistol and pointed it atthe two sales people there, a man and a woman, and declared robbery.The sales people were taken to a storeroom where they were tied up,blindfolded, and their mouths covered with adhesive tape. The robbersthen stole from the shop 15 mobile telephones estimated at a value ofHK$30,535 one mobile telephone box, and two SIM cards.Count 2 - robberyAt about 10:30 am on 8 May 2000, Ms Tsang, a sales lady of amobile telephone shop in Percival Street, arrived for work and, just asshe pulled up the shutters of the shop to start her day’s work, A1, A2and A3 entered, and pulled the shutters down. A3 brandished a pistoland declared ‘robbery’. D1 acted as a lookout. A1 tied Ms Tsang’shands and legs and covered her eyes with adhesive tape. 19 mobiletelephones (valued at $43,470) were stolen, as well as $500 cash, adiamond ring, a purse, and a mobile telephone belonging to the ladyvictim.Count 3 - attempted robberyOn 16 May 2000, three young men, including A2 and A3,entered a foreign currency exchange shop in Causeway Bay, onebrandishing a pistol and declaring an intention to rob. The companydirector switched on an alarm, and the robbers fled.Count 4 - robberyOn 18 May 2000, the Applicants engaged in yet another armedrobbery on a mobile telephone shop in Shau Kei Wan Road. Themodus operandi was the same as before. A3 brandished a pistol attwo sales employees and ordered them into the storeroom. A2 tiedthem up and covered their eyes with adhesive tape. The Applicantsthen stole 26 mobile telephones and 24 SIM cards valued at $89,960,as well as a handbag, a wallet, cash, a passbook, an identity card,keys, bank cards, boxes of cigarettes, and miscellaneous other items.

27Count 5 - unlicensed possession of arms and ammunitionOn 23 May 2000, the Applicants were arrested in or near ahotel in Java Road which they had been occupying. That day, A3 ledthe police to a pipe duct room on the Hing Tung Estate, Shaukeiwan.Using a key seized from A3, the police gained entry, and in a bag inthat room was found a pistol containing four rounds of ammunition, thepistol which had been used in the robberies.The pistol was a home made revolver designed for discharging0.22 calibre ammunition with a six round capacity in its cylinder. It wasin working order. The four rounds of ammunition were 0.22 LRammunition of Chinese commercial manufacture suitable for use withthe pistol.A1, the youth aged 14½, was sentenced to a total of 10 years’imprisonment.A2, the oldest of the Applicants, was sentenced to a total of 12years’ imprisonment.A3, aged 15½ years at the date of the offences, also received atotal of 12 years’ imprisonment.On appeal, A1 pointed to his plea of guilty, his clear record, and,in particular, as did A3, to his age. His age, and that of A3, wassuggested to be an exceptional circumstance which constitutedsignificant mitigation. It was said that the judge erred when he failed totreat A1 and A3 as persons of extreme youth.A2 pointed to letters of support from friends. These werereferred to in the report of the probation officer. He emphasized thathe had learnt a lesson, and that he regretted his commission of thesecrimes.Held :(1) A1 was aged 14½ at the time of the offence, 15 at the date ofsentence and, on appeal, he had recently turned 16. At the time ofsentence, he was therefore a young person as defined in the JuvenileOffenders Ordinance, Cap 226; and one started from the propositionwhich section 11 of that Ordinance stipulated that: ‘No young personshall be sentenced to imprisonment if he can suitably be dealt within any other way.’ There were cogent considerations which militatedagainst sentencing persons of that age to prison. One was naturallycognisant of the immaturity of youth (though maturity would differ

28widely from offender to offender); the pressures and influences whichcould be brought to bear, especially when one noticed a youthcommitting offences in the company or upon the direction of others whowere older; and of the desirability of rehabilitating young offenders insettings more conducive to rehabilitation than might result from longterm imprisonment;(2) It had for long been recognised that ‘youth may pale intoinsignificance because of the magnitude or prevalence of theoffence’: Re Applications for Review of Sentence [1972] HKLR370, 417. Cases of serious robbery fell within the band of cases whereyouth was not a strong mitigating factor: R v Chung Man-kit [1990] 1HKC 87. That was because in such cases ‘the public interest mustbe served over and above the individual interests of the [accused]despite their youth’: R v Chan Chi-fai Cr App 59/83; commentaryon offences by youth in Cross and Cheung ‘Sentencing in HongKong’, 3rd ed, pp 480 et seq. It was also well established thatextreme youth might, though it did not necessarily, constitute strongmitigation. Where such strong mitigation might lead depended on thecase and all the circumstances, including the circumstances of theindividual offender. What was ‘extreme youth’ was not a matter ofexact mathematics, although someone under the age of 15, as A1, fellwithin this category;(3) These offences were very serious. As stated in Secretary forJustice v Li Man-biu AR 4/2000:It has long been the policy of the courts to put offencesof the kind where firearms, real or imitation, are used inthe extremely grave category and to mark the gravityof those offences by deterrent sentences.(4) Difficult though it was to sentence youths of this age to prison andto long terms of imprisonment, there were several considerations whichdictated that in cases of such gravity, even in the case of those of theage of the younger offenders in this case, the courts must steelthemselves, unless there were particularly powerful and peculiarcontrary reasons attaching to the circumstances of the offender and hisinvolvement in the offence, to the imposition of substantial prison terms.The public interest required that an unequivocal message be deliveredto youngsters, and to those who would engage them for the purpose ofcrime, that they must expect little quarter from the courts when it cameto the commission of such serious offences, especially when guns werecarried and used in the commission of crime;(5) A group of youngsters planned a series of robberies. This wasnot a case of a single robbery suddenly conceived and executed

29without a firearm. The robberies were carried out by gangs, itself anaggravating feature. On each occasion the Applicants used a firearm,not imitation but real, to effect their crime. This was the most seriousaggravating feature of all in this case. It was not known whether at thetime of the robberies the firearm was loaded, as it was when it wasdiscovered after the arrest of the Applicants. There was a course ofconduct showing that it was planned to rob shops selling mobiletelephones, and substantial quantities of goods were stolen. On eachoccasion, the shop assistants were tied up and blindfolded, save in thecase of Count 3 with which A1 was not concerned. It was A1 who didthe tying up. It was he who tied the victims up and placed tape overtheir mouths or eyes or both. Whilst it could be accepted that someoneof his age might well have been under the influence of older boys, andthat there was an older boy present, A2, who was aged 17, almost 18,there appeared by A1’s conduct an apparent willingness to engage fullthrottle in the offences;(6) When the judge said that in the light of the circumstances of thecase none of the defendants was of extreme youth, he did err, ifwhat he said was to be read literally. It could not be gainsaid that aperson of 14 years was a person of extreme youth for presentpurposes. However, the degree to which that impacted upon sentencedepended upon the case and on the offender. One offender aged 14might be considerably more mature and hardened than the next of thesame age. An offender aged 14 might in some cases be more of aleader and more cunning and street wise than an accomplice aged, say,17 years; and, indeed, in this case, it seemed that A3 was no lessmature than A2;(7) In this case the question of extreme youth, which applied, in anyevent, only to A1, was a matter to be given some, but not much,weight. That in fact was what the judge did, for he so arranged thesentences on the different counts as to reduce the totality whichotherwise would have been appropriate to one of 10 years, instead of12 years’ imprisonment. He said in terms that he was doing so becauseof A1’s age. A further reduction was not warranted. The report in thecase of A1 revealed circumstances which were not extraordinary andprovided very little in the way of mitigation. The picture painted was ofa youngster whose behaviour at school was aggressive anduncooperative and impolite, a youngster who had fallen under theinfluence of triads;(8) A2 was almost 18 years at the date of the offence, and theoldest, and whilst he did not carry the gun nor engage in tying anybodyup, he was nonetheless a full participant. D1, who featured only inCount 2, was aged 21 years. It might well be said that because of

30A2’s age he must have been in a position of influence over the othertwo, but, since calendar age was not always conclusive of trueinfluence, he should not be treated as a leader. His report disclosed ayoungster who was described as a simple-minded person. There was,apart from his plea and previous good character, no real mitigation andthe sentence imposed upon him was unobjectionable;(9) A3 pleaded guilty to more charges than did the others. He wasthe one who had possession of the gun. He was the one who carried itand who wielded it in threats against the shop assistants. He was theone who ordered victims to go into storerooms where they were thentied up. The only reason that he had not received a totality greater thanthat of A2 was, again, because of his age. The report in relation to A3made depressing reading. He too appeared to have fallen under theinfluence of triads. It was revealed in the report that this Applicant saidthat about $200,000 was obtained by sale of the stolen mobiletelephones and that the proceeds all went to D1. The reportemphasized the likelihood of influence on A3 by triad elements and saidthat he was not as antisocial a personality as these crimes suggested.Unlike the other two Applicants, A3 could not pray in aid previousgood character. In June 1999 he was placed under a care andprotection order in respect of four offences of assault occasioningactual bodily harm. In October 1999, A3 was sentenced to a detentioncentre for assault with intent to rob.Result - Applications dismissed.CA 220/2001Woo JALugar-Mawson J(29.11.2001)*Jackson Poon#I/P(1) CHEUNGKwanching(2) WONGKin-yingConspiracy to defraud/Enhancement of sentence due toprevalence of offence/Approach to prevalence/Effect of suddenenhancement due to prevalence - - - The Appellants were women in their thirties and they faced twocharges of conspiracy to defraud, contrary to common law andpunishable under s 159C(6) of the Crimes Ordinance. A1 wasconvicted on her own pleas of both offences, and A2 on her own pleaof the second only. A1 was sentenced to 3 years and 4 months’imprisonment, and A2 to 2 years and 8 months.The victim of each charge was an elderly lady, and each wasapproached by A1 in the street. A1 asked the victim if she knew thewhereabouts of a ‘fung shui’ master, said to be over 100 years of ageand located locally. Conversation between A1 and the victim woulddevelop and shortly thereafter the other conspirator would join in the

31conversation. These conversations were to impress upon the victimthat the ‘fung shui’ master possessed supernatural powers and wasable to change the fate or luck of a person. After a while, a thirddefendant (D3) would appear and claim to be the grandson of the‘fung shui’ master. D3 would then be asked if his grandfather wasagreeable to seeing A1 who was working for him. D3 would checkand then tell the victim that his grandfather would be able to change thebad fate or luck of the victim’s family members by blessing hervaluables. As a result, the victim of the first charge handed D3property worth $16,273, while the victim of the second charge handedover property worth $718,005, each on the understanding that theproperty would be returned after the blessing ritual. D3 then told thevictims to go home and burn a joss stick. After they complied, theywould return to the meeting place where D3 and the other coconspiratorswere not to be found.All three defendants were two-way permit holders from theMainland. They committed the crimes during their sojourn in HongKong.In passing sentence, the judge said:Simple-minded, elderly people need to be protectedfrom people like you. Just think of the consequences ofthese two elderly ladies had their savings been strippedand their ornaments been taken away and they becamedestitute. What are they going to do? Who can theyresort to if they need money should they become ill?For the 2nd defendant, if you say that you need moneyto buy medicine for your father, have you ever thoughtthat if the old lady were in need of money to buymedicine in due course, what is she going to do? Losingmoney in mahjong is not an excuse for you to embarkon such enterprise.Deception crimes have become too prevalent thesedays. For other sort of deceptions, like buyingelectronic parts, pills and all these, the victims arepartly to blame because of their greed. But for this sortof spiritual deception, you played on the kind heart ofthese elderly ladies who really have the interest of theirchildren and grandchildren in mind. This isunforgivable.…Crimes of this sort are becoming too prevalent and adeterrent sentence is necessary. Normally for cases of

32Held :this sort the starting point will be 3 years, but in view ofits prevalence I adopt a starting point of 4 years. Andin particular you deceived elderly ladies. So I give youa one-third reduction for your plea and for each chargeeach of you will serve 2 years and 8 months’imprisonment.In respect of the 1st and the 3rd defendants, thesentence on the 2nd charge will start to run afteryou’ve served 8 months in respect of the 1st charge,making a total of 3 years and 4 months.’On appeal(1) The 3-year starting point adopted by the judge was on the highside. A starting point of about 2½ years would have been appropriate,as over three quarters of a million dollars was involved. The caseneeded to be viewed against cases where deception was practised onjob seekers: HKSAR v Chiang Chon-wai and Another Cr App11/2001, HKSAR v Lau Chung-yee and Another Cr App 420/2000;(2) HKSAR v Ma Suet-chun Cr App 1/2001 was authority for thecourt to accept evidence adduced by the prosecution to show theprevalence of the offence with which the court had to deal, and suchevidence was not confined to the evidence admissible by rules ofevidence in the trial of the issue of guilt or innocence of the defendant.Although in that case the adduction of evidence was pursuant to s 27 ofthe Organised and Serious Crimes Ordinance, the prosecution was notalways required to produce evidence to demonstrate how prevalent theoffence was, as this might be a matter of public knowledge - appellatecourts might defer to the firsthand knowledge acquired by trial courtsthrough past experience of sentencing patterns. Although a court might,through its judicial notice, be well aware that an offence was indeed onthe increase, it was perhaps the safer course for it to act only upon hardand specific evidence to that effect: see Cross & Cheung, Sentencingin Hong Kong, 3rd ed., p 340;(3) As indicated in Ma Suet-chung (above), if the sentence were tobe suddenly enhanced by 50% defendants would feel a sense ofunfairness, and that applied here. The proper enhancement imposedshould have been in the region of 25%, instead of the one-thirdadopted by the judge. Although that enhancement was not wrong inprinciple or inappropriate, but for the absence of notice, it was on thehigh side. However, the starting point of 4 years for each offence,inclusive of enhancement, was manifestly excessive. A proper starting

33point of about 2½ years for each offence, and a proper enhancement of25% instead of the 33%, would have produced an appropriate startingpoint of about 37 months, before a discount of one-third for the guiltyplea.Result - Appeals allowed. Sentences of 2 years substituted for A1,and 2 years and 8 months for A2.HKSAR v FLH – 2000 426Sin Pui-haRoderick WuCOURT OF APPEAL OF THE HIGH COURTCRIMINAL APPEAL NO. 426 OF 2000Woo JATong JDate of Hearing: 23 August 2001Date of Judgment: 23 August 2001 - - 18 - 420047(1) 4 4 134185 13 4412

34(a) (b) 13(c) 26(1) [1991] 2 HKLR 150 1986 10 19899(2) 1989 1[1989] 1 WLR1117 112313 6 (3) [1992] 1 HKC 62 84

353 39(4) [1999] 3 HKLRD4523 35(5) 9(6) 1812(7) (8) 138 8[English digest ofCA 426 of 2000,above]FLHIncest/Victim’s pregnancy an aggravating factor/Starting pointof 18 years too high/Sentences in similar cases considered

36Woo JATong J(23.8.2001)*Sin Pui-ha#Roderick WuThe Appellant was charged with four counts of incest, contraryto s 47(1) of the Crimes Ordinance, Cap 200. It was alleged in thefour counts that the Appellant had sexual intercourse with a girl underthe age of 13 years, who was to his knowledge his daughter (‘thevictim’). He pleaded guilty to all these counts. A starting point of 18years’ imprisonment was adopted for each count. The sentence wasreduced by 5 years to reflect the Appellant’s guilty pleas. He wassentenced to 13 years’ imprisonment on each count, all sentences torun concurrently.The facts showed that the victim had just turned 12 at the time ofthe alleged offences which occurred inside the victim’s bedroom whenshe was asleep.In sentencing, the judge paid particular attention to the following:(a)(b)(c)Every time after the sexual intercourse, the Appellantwould remind the victim not to tell anyone. As a resultthe offence was committed repeatedly;The victim was a girl under 13. The Appellant had anobligation to protect her, but, instead, he did greatharm to her; andThe victim became pregnant as a result of the incident.By the time she was brought by her mother for medicalcheck-up, she was already in the 26th week ofpregnancy, and it was then too late for receive anabortion. She was in great distress both duringpregnancy and after delivery. The incident hadscarred her for life.On appeal, it was submitted, inter alia, that the starting pointadopted was too high. Besides, the judge erred in deviating from thenormal practice of giving the Appellant one-third discount of sentencefor his guilty pleas.Held :(1) In R v Hui Yee-chun [1991] 2 HKLR 150, the appellantpleaded guilty to two counts of incest. The daughter was only 10 yearsold when the first incestuous act occurred in 1986. She becamepregnant in January 1989, but this ended with a miscarriage in June1989. The Court of Appeal considered, in the circumstances of thatcase, that a starting point of 9 years after trial was appropriate;(2) In Attorney General’s Reference (No 1 of 1989) [1989] 1

37WLR 1117, the English Court of Appeal said that :If the girl is not far short of her 13 th birthday and therewere no particularly adverse or favorable features on anot guilty plea, a term of about 6 years on theauthorities would seem to be appropriate. It scarcelyneeds to be stated that the younger the girl when thesexual approach is started, the more likely it will be thatthe girl’s will was overborne and accordingly the moreserious would be the crime.(3) In R v Yeung Kam-fat [1992] 1 HKC 62, the defendantpleaded guilty to eight counts of incest, two of them involving his eldestdaughter, four involving his second daughter and two involving hisyoungest daughter. There were aggravating factors in this case, namely,first, the offences had continued for a prolonged period; second, one ofthe daughters had become pregnant; and third, the defendant hadcommitted similar offences against more than one girl. The Court ofAppeal considered that the sentences relating to each of the threedaughters should be 3 years, each sentence to run consecutively to thesentences passed in respect of other daughter, thus making a total of 9years;(4) In HKSAR v Li Kin-ho [1999] 3 HKLRD 452, the appellantwas convicted of 3 counts of incest. The Court of Appeal noted thatthere were very grave aggravating circumstances which made one ofthe offences committed the equivalent of rape. Although the Court ofAppeal had quashed two of the three convictions, the sentence of 5years for the remaining one was regarded proper;(5) The offence in this case was much more serious than the others,and the aggravating factors were pointed out by the judge. Theseaggravating factors did not differ too much even the circumstances inother incest cases mentioned. A starting point of 9 years wasappropriate;(6) The victim’s pregnancy and the giving of birth had graveconsequences on the victim physically and psychologically and hadscarred her for life. This was an aggravating factor. However, astarting point of 18 years’ imprisonment was completely out of line withother sentences passed on offences of this kind and was manifestlyexcessive. The appropriate starting point should be 12 years;(7) The usual practice of the courts of allowing a one-third discountto the defendant for his remorse and early pleas should be followed;

38(8) The original sentence of 13 years’ imprisonment should be setaside and substituted by 8 years.Result -Appeal allowed. Sentence of 8 years’ imprisonmentsubstituted.CA 188/2001Woo JALugar-Mawson J(29.11.2001)*Jackson Poon#I/PTSESun-wongTrafficking in heroin/Massive quantity/No evidence of foreignelement or manufacturing/Offender not hardened drugtrafficker/Small reward - - - - The Applicant was convicted on his own plea of a count oftrafficking in a dangerous drug, namely, 1,114.75 grammes of a mixturecontaining 985.31 grammes of heroin hydrochloride. The judgeadopted a starting point of 25 years’ imprisonment and granted adiscount of one-third to 16 years and 8 months.In sentencing, the judge said:The defendant is aged 48 and has a clear record. Ithas been said time and time again by the court that thebackground of a defendant involved in drugtrafficking offences pales into insignificance whencompared to the evil of the offence. The only way thatthe courts can help instead to stamp out this insidioustrade, is to punish people who are caught carryingthese drugs severely, so that it may act as a deterrentfor other people who are tempted to engage in thissort of nefarious activity ….Of course, in sentencing the defendant, I will give hima lower starting point than I would have givensomeone who has a bad record. The guidelines laiddown in Lau Tak-ming recognise that for quantities ofthe heroin hydrochloride over 600 grammes, thosefound trafficking in them - of over 600 grammes - willbe punished with sentences of 20 years or over.In this case, taking all the circumstances into account,I consider that an appropriate starting point is 25years’ imprisonment. In giving the full one-thirddiscount for the defendant’s plea, the sentence isreduced to one of 16 years and 8 months’

39imprisonment.On appeal, the issue was whether the starting point of 25 yearswas manifestly excessive for the narcotic content of 985.31 grammes ofheroin hydrochloride.Held :There was no evidence that any foreign or manufacturingelement was involved. The Applicant said in a video-recordedinterview that he had been requested by an acquaintance to collect thedrugs that were found on him in a rubbish bin in the railway station for areward of $700. The Applicant had a clear record, which should bedistinguished from the case of a hardened drug trafficker. Theappropriate starting point for sentence should have been 22 years’imprisonment.Result -Appeal allowed. Sentence of 14 years and 8 months’imprisonment substituted.

40D. MAGISTRACY APPEALS/AGAINST CONVICTION/ MA 621/2001McMahon DJ(12.10.2001)*Paul Madigan#ChristopherCoghlanLILap-sunTheft/Possession of recently stolen property/Defendant sayingnothing to police upon interception/Constraint upon commenton exercise of right to silence - - -The Appellant was convicted after trial of theft.Shortly after the bag of the victim was taken, the Appellantwas intercepted and found to have on him a mobile phone and acoin purse from the bag.When first questioned by the police, the Appellant saidnothing. When later questioned at the police station, he said he‘had not deliberately taken the items.’ Of the Appellant’s initialsilence, the magistrate said:The defendant had not been cautioned at that stagebut he still had the right to remain silence.However, in the circumstances of this case hisinnocent possession of PW1’s property screamedout for an explanation. After all, he says he wasgoing out because he had seen the police and waswalking out to see if they were involved with themissing bag. A spontaneous explanation, even if itwas, ‘sorry, this is just a joke’, would be expectedand the phone and the coin bag would have been inhis hands, not out of right in a pocket, or tuckedinto his trousers.On appeal, it was complained that the magistrate wentfurther than permitted in his comments on the Appellant’s silencewhen first questioned.Held :(1) Although it might well be thought that the magistrate’s commentswere simply a reflection of solid common sense, the law was such thatadverse comment on a defendant’s exercise of his right to silence wasconstrained: HKSAR v Del Carnan [2000] 3 HKC 431, HKSARCheng Chun-ming Cr App 356/2000, R v Lau Siu-wah Cr App

411174/82;(2) The magistrate’s comments went too far in law. He took theAppellant’s silence into account in concluding his version of events‘held no water’. That was a material finding.Result - Appeal allowed. Retrial ordered.MA 929/2001McMahon DJ(23.10.2001)*Gary Lam#Andrew BruceSCLIHiu-lingOffering advantage to public servant/Capacity arising as part ofmens rea of offeror/Actual capacity need not beestablished/Belief of offeror that offeree had necessary capacity- - - After trial, the Appellant was convicted of an offence of offeringan advantage to a public servant, contrary to s 4(1)(a) of the Preventionof Bribery Ordinance, Cap 201. The particulars were that he:on 5 February 2001 in Hong Kong without lawfulauthority or reasonable excuse, offered an advantage,namely sexual service to Lam Wai-hung, a publicservant, namely PC 52923 of the Hong Kong PoliceForce as an inducement to or reward for or otherwiseon account of his abstaining from performing andacting in his capacity as a public servant, namely takingaction against the said appellant in respect of herworking as a prostitute.The evidence showed that the Appellant operated a one womanbrothel in a flat in a building in Tai Po. Police officers PW3 and PW4went to investigate after a report from the building administration to thepolice. Whilst PW3 was speaking about these matters to theAppellant, she offered to make love with him, if he did not evict her.On that basis the magistrate convicted the Appellant.On appeal, it was submitted, inter alia, that the magistratemisapplied Leonard J’s test in Kong Pui v R [1973] HKLR 120, tothe facts of this case and should have found that the ‘proviso’ orsecond limb of that test applied. It was argued that as the operating ofa one woman brothel was not an offence, the officers could not haveevicted her and therefore they, so far as capacity was concerned, hadno greater powers of eviction than any other member of the public. InKong Pui (above) Leonard J stated the test as follows:

42Held :‘Would that gift have been given or could it have beeneffectively solicited if the person in question were notthe kind of public servant he in fact was?’ If theanswer is ‘of course not’ … then the gift has beensolicited or given to him in his capacity as a publicservant and is a corrupt one … The present Ordinanceaims at the mischief of a police officer obtaining a giftfrom a member of the public for forbearing to act in amanner which would be embarrassing to that memberof the public whether or not he be entitled virtute officito do the act forborne …The ‘proviso’ or second limb of that test consisted of the words:provided of course that the embarrassment sought to beavoided by the gift could not equally easily have beencaused by the police officer had he not been a policeofficer.(1) The test had withstood the march of time and was an elegant andincisive pathway to the heart of otherwise perhaps troubling questionsof whether an offer or solicitation was made on account of a civilservant doing an act in his capacity as a civil servant. It was approvedby the Privy Council in Attorney General v Ip Chiu & Another[1980] HKLR 120;(2) The test, however, was a tool, albeit historically an effective tool,for the determination as to whether an offer or solicitation was maderelating to an act in the capacity of the civil servant. The proviso orsecond limb of the test was no more than an illustration ofcircumstances where the test itself would provide an answer to theeffect that the offer or solicitation could not be said to be in the civilservant’s capacity. It did not add to or change the terms or effect ofthe test which preceded it. It merely illustrated a general instancewhere the offer or solicitation would not relate to the civil servant’scapacity;(3) The offer was made to the officer an account of his abstainingfrom performing an act in his capacity as a police officer. The questionof capacity arose not as part of the actus reus but as a part of themens rea of, in this case, the offeror: Woo Main-wai v R Cr App655/75;(4) Subsection (2) of section 11 rendered it no defence to an offeror

43of an advantage that the offeree had no power, right or opportunity todo any act which represented the quid pro quo to the offer, so long asthe offeree believed or suspected or had reason to believe or suspectthat he did. In the terms of s 11(2), it did not avail the Appellant thatthe officers had no power to evict her. What mattered was that shemade her offer to PW3 thinking they had. It was not an actual capacitythat had to be established in proving the offence. What had to beproved was that the offeror believed, in the terms of s 11, the civilservant offeree to have had such capacity;(5) Although Leonard J’s test was couched in objective rather thansubjective language, that was because it was a test which assisted atribunal of fact in determining whether or not, on the evidence, therelevant intention of the alleged offender had been made out. It did notsubstitute itself for the legislation. In this case it would not be sufficientfor the prosecution to have established that the offer was made becausethe Appellant believed or suspected in terms of s 11(2) that the officershad the ability as police officers to take steps leading to her eviction andthat by making the offer she hoped to have them abstain from takingthese steps;(6) The magistrate correctly approached the question of the capacityof the police officer from the point of view of the Appellant’s mens rea.He correctly applied s 11(2). He made a finding of fact whereby heinferred from what was said and done by the Appellant and the officersthat she intended her offer to be made to the police because she wishedthem to abstain, as police, from performing some act leading to hereviction.Result -Appeal dismissed.HKSAR v LEE Tak-lun –2001 326Virginia LauAlex NgCOURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 326 OF 2001

44To DJDate of Hearing: 31 August 2001Date of Judgment: 31 August 2001 - - -19- 374 37(1) $5,000 6 (1) R v Au Yeung Tat-shingCr App 19/8519(1)19(2)19(2)(2)

45(3) [English digest ofMA 326/2001,above]To DJ(31.8.2001)*Virginia Lau#Alex NgLEETak-lunDangerous driving/Appellant not testifying at trial/Defence madeno closing speech/Statutory right to make a closing speech unders 19 of the Magistrates’ Ordinance/Duty on magistrate toremind counsel to make closing speechThe Appellant was convicted after trial of dangerous driving,contrary to s 37(1) of the Road Traffic Ordinance, Cap 374. Thefacts showed that it was a very serious offence of dangerous driving.The Appellant might be vying with PW1 in using the road, and he haddeliberately driven in a dangerous and reckless manner, thereby causingshock and slight injury to a child-passenger inside PW1’s car.At trial, counsel for the Appellant indicated that the Appellantelected not to testify and he then closed the defence case. Themagistrate then paused for about 30 seconds. Counsel representingboth parties made no further submissions, and the magistrate retiredinto his chambers to consider the case without inviting the defence tomake a closing speech. The Appellant was subsequently convicted andfined $5,000 and disqualified from holding a driving licence for 6months.On appeal, it was submitted that there was a procedural error inlaw. The Respondent contended that the Appellant was legallyrepresented at trial, and his counsel had neither been forbidden nordisallowed to make a closing speech.Held:(1) In R v Au Yeung Tat-shing Cr App 19/1985, the Court ofAppeal held that ss 19(1) and (2) of the Magistrates Ordinance, Cap227 made a clear distinction between ‘evidence on oath’ and whateach party had to say. Section 19(2) gave each party the right to make

46a closing speech, and in no way limited this right to cases where adefendant himself gave evidence and called witnesses;(2) A defendant had the statutory right to make his closing speechwhilst a magistrate had the duty to ensure that the defendant had a fairtrial. A magistrate should not treat this duty lightly. If counselrepresenting the defendant had not indicated that he would make aclosing speech, then the magistrate had the duty to make enquiries ofhim. This was to remind him of the defendant’s right or to confirm thatthe defendant had given up his right. If the defendant wasunrepresented, the magistrate should even invite the defendant to makehis closing speech;(3) Apparently, the magistrate had overlooked the statutory right ofthe Appellant. This was unfair to him. For this reason, the Appellant’sconviction and the order of his disqualification from holding a drivinglicence should be set aside.Result - Appeal allowed.

47E. MAGISTRACY APPEALS/AGAINST SENTENCE/ MA 1001/2001McMahon DJ(24.10.2001)*Poon Oi-lin#J N KarbhariTarafder JALILUsing a forged travel document/Making false representation toimmigration officer/Pre-existing humanitarian factors notmitigation/Illness of close relative not usually a basis forreduction in sentence/Need for higher sentences for transitoffenders- - - - The Appellant pleaded guilty to an offence of using a forgedtravel document, a passport, for the purpose of Part II of theImmigration Ordinance, contrary to s 42(2)(b) of that Ordinance, andto an offence of making a false representation to an ImmigrationAssistant lawfully acting under or in the execution of Part II of thatOrdinance, contrary to s 42(1)(a) thereof. He was sentenced toconcurrent terms of imprisonment of, respectively, 6 months and 4months.On appeal, humanitarian grounds were urged. It was said thatthe Appellant suffered from a mental illness which would be bettertreated in his native Bangladesh. It was also submitted that he hadsuffered a heart attack since learning of the Appellant’s imprisonment.That the mother had died before the Appellant came to Hong Kongwas prayed in aid as exacerbating the effect of the two primary groundsof appeal.Held :(1) Each of the matters was pre-existing at the time of the offences,with the possible exception of the worsening of the father’s cardiaccondition. But that was apparently brought about by these offencesand the imprisonment of the Appellant. The illness of the father was notan unexpected disaster warranting a significant humanitarian reduction insentence. That an offender had a seriously ill close relative in hishomeland was not normally regarded as a sufficient humanitarian basisfor the reduction of sentence: R v Lam Sai-ying MA 811/1991;(2) Sentences of 6 months’ imprisonment after plea for personsconsidered to be ‘in transit’ in respect of such offences seemedwholly disproportionate to the sentences of 18 months’ imprisonment

48after plea for persons who committed the same offences but were not‘in transit’ in Hong Kong: HKSAR v Ng Kai-kin MA 1002/98. Thissentencing practice apparently stemmed from suggested categorisationsof sentences in case law dating from the mid-1980s;(3) Since the mid-1980s, the use of false passports had increasedsignificantly. It seemed that higher sentences were justified so far as thecategory of transit offenders was concerned. That was particularly soas it had become apparent in recent times that part of the manyschemes used for transporting people illegally into other countries usingforged passports often involved the distribution of those passports intransit areas of airports;(4) As the Appellant attempted to go through the immigration controlpoint at the International Airport using the passport and was not foundin the transit area, it was only in the broadest sense that he could beconsidered a transit offender and he had already been sentencedleniently.Result - Appeal dismissed.MA 873/2001McMahon DJ(26.10.2001)*KwokWing-lung#MahinderPanesarDOThi HueBreach of deportation order and unlawful remaining/Nexusbetween offences made wholly consecutive sentencesinappropriate/Breach more serious than remaining/Approach tocalculation of sentence- - - The Appellant pleaded guilty to an offence of breaching adeportation order made on 23 April 1993 prohibiting her presence inHong Kong and to an offence of unlawfully landing and remaining inHong Kong.The facts of the two cases were similar. After the deportationorder in 1993, the Appellant left Hong Kong. She breached that orderwhen she returned to Hong Kong on the occasion which resulted in thesecond charged offence. She had been in Hong Kong unlawfully forover a year when arrested for that offence. The magistrate imposed asentence of 10 months’ imprisonment for breach of the deportationorder and a sentence of 15 months’ imprisonment for the offence ofunlawfully entering and remaining in Hong Kong. The sentences weremade consecutive, making a sentence of 25 months.

49The reason for the consecutive sentences was that the magistratefelt that if the sentences were concurrent the Appellant would escapewith no real penalty for the additional criminality represented by thebreach of a deportation order.On appeal, it was submitted, inter alia, that the totality ofsentence was too severe and that the sentences should have been madeconcurrent.Held :(1) When a person unlawfully in Hong Kong was sentenced foroffences which arose out of and were directed towards his unlawfulpresence, sentencing should be approached on the basis that theunderlying criminality was his unlawful presence in Hong Kong: R v SoMan-king and Others [1989] 1 HKLR 142, R v Lam Ping-chun[1989] 1 HKLR 161;(2) As the Appellant was made subject to a life-long deportationorder in 1993, any subsequent offence of unlawfully landing andremaining in Hong Kong would necessarily and automatically carry withit an offence of breaching that deportation order. She could not beunlawfully present in Hong Kong without offending against the terms ofthat order;(3) As both offences arose out of the same factual circumstances,the sentences should not have been wholly consecutive. There shouldhave been an acknowledgement that the nexus of the two offencesrequired some element at least of concurrence to reflect their commonunderlying culpability, namely, the Appellant’s unlawful presence inHong Kong;(4) Although the magistrate’s concerns were well founded, heshould, instead of ignoring the nexus between the two offences, haveconsidered the overall culpability of the Appellant in terms ofdetermining to what extent the sentences should have been ordered torun concurrently;(5) That the legislature intended the offence of breach of adeportation order to be the more serious offence was evident from themaximum penalty of 7 years’ imprisonment, whereas the maximum foran offence of unlawfully landing and remaining was 3 years’imprisonment. A magistrate could not be criticised for sentencing an

50offender who was in breach of a deportation order to a period inexcess of 15 months’ imprisonment after plea;(6) The magistrate’s justifiable concern that the Appellant was inflagrant breach of a deportation order should have been reflected in asentence, so far as that offence was concerned, of 15 months’imprisonment after plea. His further justified concern that sentencesimposed should distinguish between those who had merely enteredHong Kong unlawfully and those who positively disobeyed aninjunction not to return to Hong Kong, and that ‘if concurrentsentences are passed the service of deportation orders is renderedan empty exercise and the intention of the legislature andexecutive rendered nugatory’, would be met by ordering that thesentences be served partly consecutively: HKSAR v Nguyen DuyTrinh MA 1111/99.Result -Appeal allowed. Sentence of 15 months’ imprisonmentsubstituted for the sentence of 10 months imposed for thefirst charged offence. Three months of the sentence for thesecond charged offence would be served consecutively to thesentence imposed in respect of the first charged offence. Thenew totality would be 18 months’ imprisonment.

51F. PRACTICE AND PROCEDURECACV 353/2001Rogers VPWoo &Le Pichon JJA(23.11.2001)John Bleach SC &MohanBharwaney (for1st Defendant/Respondent)John Griffiths SC& Liza JaneCruden (for 3rdDefendant/Appellant)TSENgai-heungandThe Ritz-Carlton LtdLOSin-takThe Ming AnInsurance Co(HK) LtdSkeleton arguments/Prompt and due attention to the properpreposition of skeleton arguments - This judgment concerned a dispute between two insurancecompanies as to which would ultimately bear damages in a civil action.At the conclusion of its judgment, the Court made certainobservations, as follows, upon the need for prompt and due attention tothe proper preposition of skeleton arguments:(1) Although skeleton arguments were filed well prior tothe hearing, the date before the hearing there wasproduced a document entitled ‘Notes of Appellant’slegal argument ’. When it came to the oral argumentit became quite clear that the document was essentiallya substitution for the earlier skeleton argument;(2) That manner of producing skeleton arguments was ofno assistance in reaching a proper, and speedyresolution of the dispute. Appeals were conducted onthe basis that the court’s and the parties’ attention wasdrawn to the relevant points prior to the hearing. Inthat way, attention could be given to those points sothat the argument could become focused. Latesubstitution of skeleton arguments was simply counterproductive.[These dicta would seem to be equally applicable to appeals incriminal cases: Ed]