刑事檢控科各律師/高級律 - Department of Justice

4Appeal No.(Date of Case SignificanceJudgment) TitleA. CRIMINAL APPEALS/AGAINST CONVICTION/ CA 186/2003Cheung JABeeson &Lugar-MawsonJJ(3.10.2003)*Kevin Zervos SC& Edmond Lee#K M ChongJIMChong-shingDangerous driving/Accused a public figure/ Evidence of publicprofile not pointer to bad character/Legitimate use byprosecution of accused’s fame as a road racer/Professionaljudge sitting alone not influenced by irrelevant material - - - - The Applicant was convicted after trial of one offence ofdangerous driving, contrary to s 37 of the Road Traffic Ordinance,Cap 374, and one offence of damaging property being reckless asto whether life would be endangered, contrary to s 60(2) of theCrimes Ordinance, Cap 200.The prosecution case was that in the early hours of 21September 2002, officers of the New Territories Traffic Branchconducted an anti-illegal road racing operation at Tuen Mun Road,New Territories. A roadblock was set up at Tuen Mun Road, nearthe Tuen Mun town centre.Five cars approached the roadblock at high speed. Twopolice vans were then driven to act as a backstop sealing off thesouthern end of the road. All the drivers of the cars made U-turnsand travelled against the traffic flow at high speed towards thebackstop. A white Subaru was the first vehicle to drive past thebackstop and, in so doing, it hit the offside front of one police van,which in turn hit the other. The rear bumper and the rear numberplate of the white Subaru fell off. A police sergeant who was onboard one of the police vans sustained an injury to his shoulderwhen the van was pushed forward by the impact.PC 48924 (PW5), who was one of the officers at theroadblock, and who saw the group of vehicles make the U-turnsand travel towards the backstop, pursued them on his motorcycle.He also saw the white Subaru pass through the two police vansand damage them.

5The white Subaru continued to travel against the on-comingtraffic. When it got near to the junction of Tuen Hing Road andTuen Mun Heung Sze Wui Road, it suddenly stopped. PW5stopped his motorcycle alongside the driver’s seat of the car. Thedriver’s side window of the car was down and the driver, a manwearing a white T-shirt, turned his head to look at the officer.They looked at each other face-to-face for about 3 or 4 seconds ata distance of about one metre. PW5 recognised the driver assomeone he knew from the media. He used the loudspeaker on hismotorcycle to tell the driver using the name he knew him by - ‘JimChong Shing’ - to turn off the car’s engine. On hearing this, thedriver suddenly reversed his vehicle into another road. PW5continued to chase after the white Subaru but failed to catch upwith it and eventually lost sight of the car. This chase lasted formore than 10 minutes and PW5 kept the white Subaru within hissight at a distance of 10 to 20 metres. During the chase the driverof the white Subaru committed a number of traffic offences,including overtaking a taxi by crossing double white lines.About two weeks after the incident, PW5 attended anidentification parade where he positively identified the Applicantas the driver of the white Subaru.On appeal, it was submitted, inter alia, that there wereprocedural irregularities at trial, namely, that the prosecution wasallowed to adduce evidence of the Applicant’s bad character,which was said to be irrelevant and prejudicial to the Applicantand also that the judge erred in not directing himself that theevidence of the Applicant’s ‘bad character’, if admissible, couldonly be confined to credibility.The Applicant accepted that he was a public figure. He haddriven in the Macao Grand Prix. He had appeared as a stunt manin a movie and in a VCD. His photograph and articles about himhad appeared in the media. He had acquired a public persona, andmembers of the public were more likely to recognise him than theywould a person of complete anonymity.Held :(1) The fact that the prosecutor adduced evidence andcross-examined the Applicant on his public profile in Hong Kongdid not amount to revealing his ‘bad character’. Whatprosecuting counsel sought to do was to establish the fact that, bycourting publicity in the past, the Applicant was more readilyrecognisable by people whom he did not know and who did notknow him personally;(2) The prosecutor did not attempt to establish in his

6examination-in-chief of PW5 that the Applicant was on a police‘watch list’, as alleged in the grounds of appeal. The questionasked of PW5 was whether, as a traffic police officer, he wasunder a duty to become acquainted with, or to be able to recognise,people involved in car racing. Nothing was said about the policehaving a ‘watch list’ of such persons, or of the car racing beingillegal. In any event, the Applicant’s counsel objected to thequestion and, when this was rephrased, PW5 said he did notunderstand it and the prosecutor chose not to pursue it;(3) The prosecutor did not suggest to the Applicant that, byreason of his driving skills, he was more likely than not to be thedriver of the white Subaru, as alleged in the grounds of appeal.The suggestion in cross-examination was that, as the Applicantwas a very competent and highly skilled driver, who was goodenough to compete as a racing car driver at Macao, it would beeasy for a man of his driving skills to evade a policeman on amotorcycle. The Applicant, with false modesty, replied that hehad no skills;(4) Although the summary of facts stated that PW5 recognisedthe Applicant to be “an infamous street car racer nicknamed‘Mang Hang’ ”, the summary was not evidence at the trial. Aprofessional judge sitting alone would not be influenced by whatappeared in a summary of facts when determining the factualissues raised at trial;(5) The judge did not use the evidence on the matter as evidenceof the Applicant’s bad character as the Applicant contended. Theonly use that he made of it was in assessing the correctness ofPW5’s identification of the Applicant as the driver of the whiteSubaru.Result - Application dismissed.CA 336/2002Stuart-MooreACJHCBeeson &Tong JJ(31.10.2003)*John Reading SC& C DraycottHOSiu-hoiProsecutor’s final speech to jury/Reference to failure ofaccused to testify/Breach of s 54(1)(b), Cap 221/Defence casenot damaged/Standard direction given by judge- - 221 54(1)(b)- - After trial, the Applicant was convicted of seven offences ofconspiracy, contrary to common law. Each count alleged that theaccused had conspired to defraud Hang Seng Bank.On appeal, it was submitted, inter alia, that the prosecutor

8You must not assume that he is guilty because he has notgiven evidence. The fact that he has not given evidenceproves nothing one way or the other; it does nothing toestablish his guilt. On the other hand, it means thatthere is no evidence from the defendant to undermine,contradict or explain the evidence put before you by theprosecution.It was complained on appeal that the judge did nothing toneutralize the ‘adverse effects’ of the prosecutor’s remarks. It wassaid that the judge should have departed from the standarddirections, which covered the failure of a defendant to testify, byconfining himself to informing the jury that the defendant wasentitled to ‘sit back to see whether the prosecution could prove itscase against him’.Held :(1) What the prosecutor had done, plainly intending nounfairness to the Applicant, was to pre-empt what the jury was, inany event, bound to be told by the judge about the Applicant’sright to remain silent. They were, in fact, duly told this;(2) In R v Riley and Another (1990) 91 Cr App R 208, it washeld that although the prosecutor should not have commented onthe failure of the defendant to give evidence, whether favourablyor not, the prosecutor’s words would not have done any harm. In areference to R v Naudeer (1985) 80 Cr App R 9, the court, at 213,said:.... That case makes clear that this Court is concerned tosee whether the breach has been put right by thesumming-up. We respectfully accept that approach andit is perfectly apparent to us in the present case that itwas put right. In actual fact we do not think that thecomment in the terms made by Mr. Bingham would havedone any harm to Riley’s case, but in so far as any harmmight have been done we think the assistant recordertook the right course in not mentioning what prosecutioncounsel had done, not criticising him for having done itto the jury; that would not have assisted Riley’s case.The words he used were, it seems to us, entirelyappropriate and made good any damage which mighthave been done. ....(3) The same considerations applied in this case. Nowhere inthe comments of the prosecutor was it suggested that an inferenceof guilt might arise from the Applicant’s decision not to give

10B. CRIMINAL APPEALS/AGAINST SENTENCE/ CA 228/2003Cheung JATong J(9.10.2003)*Alice Chan#Peter Duncan& JonathanKwanCHANKwong-puiUnlawful sexual intercourse and buggery/Offences committedby older man on a teenager/Sentencing considerations- - The Applicant pleaded guilty to two offences, namely,unlawful sexual intercourse with a girl under sixteen, contrary to s124(1) of the Crimes Ordinance, Cap 200 (‘USI ’ ), and buggerywith a girl under 21, contrary to s 118D of the Crimes Ordinance,Cap 200.The prosecution case derived from photographs and tapesfound by police during the search of his car. The girl in questionwas eventually located. She was the daughter of a businesspartner of the Applicant. She admitted sexual intercourse with theApplicant had occurred when she was aged 15 years and 8 months,and buggery two months after her sixteenth birthday. She said shewas a willing partner in these sexual activities. The Applicant wasaged 34 years when the offences took place, and he had known thegirl since she was very young.For the offence of unlawful sexual intercourse, themaximum sentence for which was 5 years’ imprisonment, thejudge adopted a starting point of 2½ years’ imprisonment andreduced that by one-third because of the guilty plea, resulting in asentence of 20 months’ imprisonment.For the offence of buggery, the maximum sentence forwhich was life imprisonment, the judge took a starting point of 5years’ imprisonment, and, after a discount of one-third, imposed asentence of 40 months’ imprisonment.The judge ordered 16 months out of the first 20 months to beserved consecutively to the second 40 months’ sentence resultingin a total sentence of 56 months’ imprisonment. That sentencewas imposed on the basis of a total sentence of 7 years’imprisonment before the one-third discount.On appeal, it was submitted that the starting points for theindividual offences were too high, as also was the total sentence.Held :

11(1) A distinction in cases of unlawful sexual intercourse was tobe drawn between situations where two young friends were ofsimilar age, and where an older man engaged in sexual activitieswith an underage girl. The situation was aggravated if the olderman assumed the role of a supervisor over the girl, such as aguardian or social worker: R v Taylor (1977) 64 Cr App R 182,HKSAR v Lai Yip-sing [2001] 2 HKLRD 601;(2) Section 124(1), Cap 200, was clearly enacted as a matter ofpublic policy to ensure that the law would protect those vulnerablemembers of the public who could not truly give their consentbefore they reached the age of sixteen. The age of the girl wasobviously an important consideration, and the younger the girl theless likely she could truly give her consent;(3) There was no tariff for the offence of USI, and the range wasabout 18 months: R v Leung Chun Cr App 284/86, R v Chan KinCr App 492/87;(4) The girl was nearly 16 when she had sexual intercourse withthe Applicant, and no force was used. There was, however, an agegap of 18 years and he had known her, through her mother, sinceshe was young. He had taken advantage of the relationship andhad recorded the act on video. These were aggravating factors;(5) The offence of USI should attract a starting point of 2 years’imprisonment, reduced by one-third to 16 months;(6) Buggery was obviously a very serious offence. In HKSAR vYee Yiu-sam [2002] 3 HKC 21, a 37-year-old man who committedthe offence with a 17-year-old girl was sentenced to 2 years and 8months’ imprisonment after plea, based on a starting point of 4years. The court indicated that the innocent needed to be protectedand noted the power the defendant held over the girl;(7) The legislature intended buggery to be a serious offence, andintended to protect the underaged from being taken advantage ofby others and, also, to protect the underaged, whose mental oremotional maturity was often not matched with their physicalmaturity, from themselves. The legislature regarded analintercourse with a female aged under 21 years as a more seriousoffence, and it was an aggravating factor that the Applicant, whowas far older, had engaged in this act with a girl just turned 16years;(8) A starting point of 4 years’ imprisonment for the buggeryoffence was appropriate, reduced to 2 years and 8 months;

12(9) The appropriate total sentence was 4 years’ imprisonment,discounted from 6 years for the pleas, and that would be achievedby ordering the two sentences, as substituted, to run consecutively.Result - Appeal allowed. Sentences of 16 months and 2 years and8 months substituted, to run consecutively. Total sentenceof imprisonment: 4 years.CA 107/2003Stuart-Moore VPStock JA(19.9.2003)*Chan Fungshan#I/PLAIWai-yeeFraud offences/Partial restitution on day immediately prior tohearing of appeal/Credit to be given - - The Applicant pleaded guilty to four offences of obtaining apecuniary advantage by deception, four offences of obtainingproperty by deception and ten offences of theft.The facts showed that the Applicant took a friend’s identitycard which she used to open a bank savings account. Using thataccount and her friend’s identity card, she then obtained fourcredit cards. These cards were used to make purchases and towithdraw cash.After arrest, the Applicant immediately confessed to all theoffences. She had obtained cash totalling $35,700 and an amountof property the value of which was unknown. A very small sum ofcompensation of $1,310 was repaid shortly thereafter.The judge took a starting point of 2 years’ imprisonment foreach offence which he reduced to 16 months to reflect the guiltypleas. He also considered that a global overall sentence of 42months, reduced to 28 months, was appropriate in totality.In a very late attempt to ameliorate her position, theApplicant’s husband, on the day prior to the hearing of the appeal,reimbursed $20,000 as compensation towards the losses in thiscase. That left a total of $14,390 of the cash outstanding.On appealHeld :

13Whilst the fact that there had been a payment of somerestitution was not to be ignored, this was only made after trial andafter the single judge had refused leave. This was not a reflectionof any remorse, but some credit had to be given to it.Result - Appeal allowed. Overall sentence reduced from 28 to 24months’ imprisonment.CA 115/2003Stuart-Moore VPWoo &Stock JJA(25.9.2003)*Paul Madigan#JamesMcGowanYAUHok-kwanPositive good character/Offender saving life of cellmate/Laudable act deserving of credit- - The Applicant was sentenced to 5 years’ imprisonment foroffences of robbery and going equipped for stealing.On appeal, it was accepted that the term of imprisonment forthe offences was appropriate. It was said, however, that theApplicant should have received credit for his positive goodcharacter, namely, his bravery in assisting to rescue a suicidalinmate in the Lai Chi Kok Reception Centre. In fact, the trialjudge had not been informed of this.On 15 February 2003, the Applicant saved the life of hiscellmate by stopping him from committing suicide by hanging.Having been awoken in the night by a bang, he found the cellmatetrying to hang himself with a bed sheet. The Applicant got up andpressed the emergency bell. He tried to reason with his cellmate.That had no effect as the cellmate kicked away the chair he wassitting on, leaving him suspended by the neck. The Applicantpositioned himself in such a way as to keep as much as possible ofhis cellmate’s weight off his neck. Despite his efforts, thecellmate was unconscious by the time help arrived. The cellmate,however, fully recovered.Held :(1) Although it was to be hoped that it would have been anatural reaction on the part of most people to have acted in theway the Applicant did, this was undoubtedly a most laudablehumanitarian act. He acted as he did rather than turning a blindeye. If the sentencing judge had been informed of the position, hewould undoubtedly have taken the Applicant’s life saving deedinto account as a powerfully relevant factor in mitigation.Result - Appeal allowed. Sentence of 4½ years’ imprisonmentsubstituted.

14[For positive good character generally, see Sentencing inHong Kong, 3rd ed, at PP 313 - 314: Ed]CA 156/2003Cheung JALugar-Mawson J(17.10.2003)*Tam Sze-lok#M DelaneyLEUNGChun-manCorruption and drug trafficking/Offender a serving policeofficer/Consecutive sentences and totality/Status of offender anaggravating factor- - - The Applicant was convicted on his own pleas of threeoffences contrary to the Prevention of Bribery Ordinance,Cap 201.The first offence was conspiracy by a public servant tosolicit an advantage. The second and third offences involvedaccepting an advantage as a public servant. The judge took 2years’ imprisonment as the starting point for the first offence,which was reduced to 1 year. The starting points for the secondand third offences were each 1 year, reduced to 6 months.The judge ordered the second sentence to be servedconsecutively to the first. Three months of the third sentence wereto be served consecutively to the second, and the remaining 3months concurrently to the second. The total sentence was 21months’ imprisonment.The facts showed that the Applicant was a serving policeofficer. He participated in a scheme with other defendants toextort money from the victim who was under investigation by aprivate company in relation to alleged wrongdoings in somecommercial transactions. The Applicant used his police identityand told the victim that he would not be arrested if he agreed topay money to the Applicant and the co-defendants. [1st charge]The victim eventually agreed to pay $17,000. As aprecondition, he had to pay $10,000 first to the Applicant and thento another defendant. He duly paid this sum. The Applicantreceived $3,000 and the other defendant $7,000. [2nd charge]The Applicant and other defendants then collected the$17,000 from the victim. At that stage the victim had reported thematter to the ICAC. The Applicant was arrested when he receivedthe money. [3rd charge]The Applicant pleaded guilty to all three charges and gaveevidence for the prosecution against his co-defendants. He

15received a discount of 50% in consequence.The Applicant had been sentenced on 19 November 2002 to8 years and 6 months’ imprisonment for an offence of traffickingin dangerous drugs. The facts showed that after he received the$17,000, he was arrested by the ICAC while he was in a car.Drugs were found in the car. He was charged with the offence oftrafficking in a dangerous drug, namely, 76.63 grammes of heroinhydrochloride.The judge refused to order that the sentences for thecorruption offences be served concurrently with the drug sentence.On appeal, the issue was whether the 21 months’imprisonment was too long, having regard to the 8 years and 6months’ imprisonment to which he had already been sentenced.Held :(1) The principle was that the sentencing court must have regardto the totality of all the sentences to which the defendant would besubject, including those to which he had been recently sentenced:R v Tong Hoi-fung [1988] 1 HKLR 610, R v Ng Chun-keung[1993] 2 HKC 171, HKSAR v Chan Ho-yin Cr App 257/2000,HKSAR v Lo Chung-yin Cr App 155/2003;(2) The question was whether the sentence was sodisproportionate to the criminality of the offences that it amountedto a crushing sentence. The total sentence was not manifestlyexcessive. The sentence for the drug offence was imposed byreference to the tariff. The Applicant’s remorse and assistance tothe ICAC in respect of the corruption offences were dulyconsidered by the judge and reflected in the sentences imposed;(3) The Applicant was a serving police officer when hecommitted these two sets of offences. He had been in the policeforce for 14 years. For a public servant responsible for theenforcement of law and order to become involved in seriousoffences of this type was an aggravating factor. Trafficking indangerous drugs and corruption by public servants were offenceswhich eroded the very foundation of Hong Kong as a clean andlaw observing city.Result - Application dismissed.CA 186/2003Cheung JAJIMChong-shingDangerous driving and criminal damage by offender withbad record/Appalling case of its type/Potential for damage/Deliberate attack on police vans/Totality of sentence

16Beeson &Lugar-MawsonJJ(3.10.2003)*Kevin Zervos SC& Edmond Lee#K M Chong- - - - The Applicant was convicted after trial of one offence ofdangerous driving, contrary to s 37 of the Road Traffic Ordinance,Cap 374, and one offence of damaging property being reckless asto whether life would be endangered, contrary to s 60(2) of theCrimes Ordinance, Cap 200.[The facts of the case fully appear in CriminalAppeals/Against Conviction]The Applicant was sentenced to 2½ years’ imprisonment forthe first offence, and to 3 years’ imprisonment for the secondoffence. Two years of the sentence for the second offence weremade concurrent to the sentence for the first offence. The totalsentence was 3½ years’ imprisonment.Held :On appeal(1) This was an appalling case of dangerous driving. The judgein sentencing considered all the relevant circumstances, includingthe disobeying of police commands to stop, the driving at highspeed against the flow of on-coming traffic, the speeding at up to80 kph in excess of the speed limit for a period of 10 minutes andthe overtaking of a vehicle by crossing double white lines;(2) The judge was aware of the Applicant’s previousconvictions. These were many and, in particular, they containedtwo charges of dangerous driving in 1979, one charge ofdangerous driving in 1981, one charge of reckless driving in 1988,charges of motor racing and reckless driving in 1994, and chargesof speeding and dangerous driving in 2003;(3) The judge did not equate this case with Secretary for Justicev Ko Wai-kit [2001] 3 HKLRD 751, in which, for a similar seriesof offences, a starting point of 3 years’ imprisonment was taken.The Applicant in that case had committed his offences at a busytime of day, 5:30 pm, and had damaged a number of other vehiclesand caused injuries to a number of people. In this case theoffences were committed at night when the roads were not busyand the damage was limited to 2 police vehicles. However, thepotential for damage on a scale approaching that in Ko Wai-kitwas there and the Applicant demonstrated exactly the samedisregard for the safety of other road users and the sanctity ofother peoples’ property as the offender in Ko Wai-kit did. The

17judge adequately reflected the factual difference between the twocases by taking a lower starting point of 2½ years’ imprisonmentfor the dangerous driving offence;(4) The judge was correct to treat the offences of dangerousdriving and criminal damage as two separate matters. Thecriminal damage charge dealt with the deliberate attack on thepolice vans in forcing a way through them. The dangerous drivingcharge dealt with the atrocious driving incidents, including the U-turn; the driving against the flow of on-coming traffic, causingother drivers to swerve to avoid collision; speeding to avoidapprehension by the police; overtaking another vehicle by crossingdouble white lines and so on;(5) The judge took proper account of the totality principle inadjusting the sentences by ordering that two years of the sentenceon the criminal damage charge would run concurrently with thesentence on the dangerous driving charge, making a total sentenceof 3½ years’ imprisonment.Result - Application dismissed.

18C. MAGISTRACY APPEALS/AGAINST SENTENCE/ MA 115/2003McMahon DJ(15.7.2003)*Peggy Lo#G A Mackay(1)Raymond Yu (2)(1) CHANChi-ming(2) KWANPo-dipConspiracy to defraud/First offender/Deterrent sentence aslast resort/Suitability of community service order - - - The Appellants were convicted on a joint charge ofconspiracy to defraud, contrary to common law and s 159C(6) ofthe Crimes Ordinance, Cap 200.The facts showed that A1, a 47-year-old electrician, wishedto obtain a bank loan of $20,000. That he could not do because ofhis self-employed status. He approached A2, a 48-year-oldfemale, for help. She had a male friend who operated a cleaningcompany and in some way obtained three blank employee payslipsfrom that company. Those payslips were then falsified by A2 withthe knowledge of A1 so as to appear to show that A1 was anemployee of that company.The Appellants then went to the Dah Sing Bank branch inAberdeen, and A1 made an application for a cash loan andsubmitted the three falsified payslips in support of that application.After the bank asked A1 to submit a letter from the companycertifying his employment, he forged such a letter with theknowledge of A2. A false chop was prepared by A1 and appliedto the letter which was then submitted to the bank. In due course,the application was rejected, and the bank lost no money.The magistrate treated A1 and A2 as equally culpable, andaccepted that A2 acted out of friendship and had no financialinterest in the granting of any loan monies. In respect of eachAppellant, he took a starting point for sentence of 6 months’imprisonment and reduced that to 4 months to reflect the guiltypleas and clear records.Held :On appeal(1) The offence involved considerable planning and endeavour.In endeavouring to carry out the conspiracy, the Appellantsdisplayed a considerable degree of persistence. The plan waseffectively completed and it was apparently for its own reasonsthat the bank rejected the application causing the conspiracy not toreach fruition;

19(2) The magistrate was right to describe this as a blatant anddishonest scheme. He was right also to consider the falsificationand outright forgery of the documentation presented to the bank asbeing something which aggravated offence seriousness. Theforgery of documents, particularly of those used in commercialtransactions, was rightly considered serious;(3) Both Appellants, however, had previous good character andA2 might have been a person of positive good character. Bothwere mature adults and had lived in Hong Kong for someconsiderable time. It was generally true that wherever possible acourt would strive to avoid imposing a deterrent sentence upon afirst offender. That was because it could be said of many firstoffenders particularly that their transgressions went against thegrain of their previous lives;(4) The magistrate might not have given sufficient weight to thegood character of both Appellants. Although true that he hadimposed a relatively brief sentence of imprisonment, in AttorneyGeneral v Ng Sai-man [1994] 1 HKCLR 1, Bokhary JA had saidthat if it was ‘not necessary to send a man to prison for very long,it may not be necessary to send him to prison at all’;(5) The magistrate should have obtained a report as to thesuitability of the Appellants for community service. There was nodoubt that each Appellant fitted the profile of an offender suitablefor consideration for such an order, as set out in R v Barrick(1981) 3 Cr App R 294.Result - Appeals allowed. Orders of community service, each of140 hours, substituted for prison terms.[For Community Service Orders generally, see Sentencingin Hong Kong, 3rd ed, at pp 70-79: Ed]MA 653/2003Toh DJ(15.10.2003)*Agnes Chan#Wong Hin-lee& David ChanWONGChung-kiFalsely pretending to be a public officer/Range ofsentence/Offence more serious if committed by an accused ofposition/Public service negated by betrayal of trust/Focus onappeal upon sentence actually imposed- - - - The Appellant and his co-accused were jointly charged withone offence of falsely pretending to be a public officer, contrary tos 22 of the Summary Offences Ordinance, Cap 228. Bothdefendants pleaded guilty, and the co-accused was sentenced to aterm of imprisonment of two months, suspended for four months.

20The Appellant was originally sentenced to imprisonment for 4months, suspended for 18 months. As a result of an application bythe Appellant to review his sentence, his sentence was reduced to14 weeks, but also suspended for 18 months. The Appellant alsohad to pay costs of $10,000, whilst his co-accused was ordered topay costs of $5,000.At the time of the offence, the Appellant was an editor of themagazine ‘Eastweek’. The co-accused was a photographer for thesame magazine. At the time of the offence, the Appellantaccompanied by his co-accused went to premises in Kwun Tongand claimed to be from the Housing Department and wished tocheck the plumbing. They duly inspected the flat and took somephotographs.The occupier of the flat was an assistant to a districtcouncillor in Kwun Tong. Two days after the visit, she read anarticle in ‘Eastweek’ which contained a report concerning herrelationship with the district councillor and was accompanied by aphotograph of her flat. After police were notified, the Appellantwas arrested.The Appellant was aged 37 years, and had a clear record. Inmitigation, it was said that he had received no personal gain forthis offence, and that he was acting on instructions. At the review,the magistrate was further advised that the Appellant had been adistrict councillor since 1991. In sentencing the Appellant, themagistrate said there had been a gross abuse of his position in thepress, and that there was no truth to the story. The magistrate said:I took the view as a result of that admission that theAppellant had intruded into the home of another personwithout authority and by impersonating a public officerin pursuit of a speculative and, in the end, false story.The magistrate considered it was the Appellant’s decision tocarry out the deception and that he had directed the co-accused.He took a starting point of 6 months and reduced that to 4 monthsbecause of the plea and mitigating circumstances and suspendedthe 4 months by a period of 18 months on the basis that no forcehad been used and the Appellant was in the flat for only a shorttime and there was no likelihood of repetition.At the review hearing, the magistrate was reminded of thestatutory maximum of 6 months for the offence and it was said thesentence imposed would disqualify the Appellant from holdingpublic office as a district councillor. The magistrate did notconsider it appropriate for him to consider his disqualificationfrom public service in sentencing the Appellant, but he reducedthe sentence as the offence did not warrant the statutory maximum.

21The sentence was therefore reduced to a starting point of 21weeks, reduced to 14 weeks, suspended for 18 months.Held :On appeal(1) Although it was true that the Appellant was instructed by hissuperior to take over this story, it was he who instructed the coaccusedto go with him to the premises and concocted the lie inorder to gain entry into the premises. It was appropriate thereforefor the magistrate to impose a more severe sentence on theAppellant than on the co-accused;(2) Although it was complained that the magistrate should nothave taken into account the truthfulness of the story and theresponsibilities of the media because the offence was one ofimpersonating a public officer, the reason behind the Appellantusing a false pretence to gain entry was in order to get photographsto lend credence to his story. It was relevant for the magistrate toconsider the truthfulness of the story and the responsibilities of themedia in such a situation. Members of the press held an importantposition in a free society because they were guardians of truth and,like the Hippocratic oath for doctors, journalists held to the beliefthat the truth must be known. It was a serious matter when amember of the press, in pursuit of a false story, gained entry, undera false pretence, into the home of his victim. A sentencing courthad to look at all the surrounding circumstances of an offence andshould not wear blinkers when assessing the culpability of adefendant;(3) Whilst there was some merit in the Appellant’s submissionthat the magistrate ought to have taken into account his manyyears of public service as mitigation, the actual weight to be givento that was minimal because he had betrayed the trust of those whohad elected him into office;(4) The magistrate could not be faulted for taking a very seriousview of this offence. It would set a dangerous precedent in theprevailing climate of ‘publish and be damned’ if the magistratehad taken a lenient view in the circumstances. The Appellant washighly educated, and, as editor of the magazine, had control overits articles and content. It could rightly be said that for a man inhis position to commit such an offence must be viewed with moreseverity than if the same action had been committed by a lowlycub reporter. He not only abused his position as a member of thepress, but also the trust of those who had voted for him for manyyears;

22(5) In HKSAR v Au Kam-ming & Another Cr App 531/97, theCourt of Appeal said:The primary focus of this court in an appeal againstsentence is upon the sentence actually imposed. If thesentence is within the correct range of sentencesproperly passed for that type of offence by the judge, sothat it is neither wrong in principle nor manifestlyexcessive, this court will not interfere. Of course, thejudge’s starting point and his reasons were always beingexamined with care but even if the court does not agreewith either the starting point or the reasons, thesentences will not be interfered with if, otherwise, it is anappropriate sentence.(6) For this type of offence, the appropriate range would be 3 to6 months’ imprisonment after trial. The sentence imposed wasneither wrong in principle nor manifestly excessive.Result - Appeal dismissed.MA 773/2003Beeson J(21.10.2003)* Cheung Wai-sun#I/PFUNGYim-kongPossession of obscene articles/Large quantity of articles anaggravating factor/Admission of obscenity no basis fordiscount additional to customary one-third/Appropriateness offine for repeat offender- -- The Appellant was convicted of one charge of possession ofobscene articles for the purpose of publication, contrary to s21(1)(b) of the Control of Obscene and Indecent ArticlesOrdinance, Cap 390. He admitted possession of 2,175 such items.In sentencing, the magistrate said this was a prevalentoffence and that a starting point of 12 months and a fine for aperson of clear record were appropriate sentences after plea.Repeat offenders would receive higher sentences and a fine.The magistrate sentenced the Appellant as a persistentoffender. Apart from drugs offences between 1991 and 2000, hewas charged in 2001 with publishing obscene articles and wassentenced to 8 months’ imprisonment. In January 2002, he wassentenced to 10 months for possession of obscene articles forpublication; in September 2002, he was given a further 8 monthsfor each of three charges of possession of obscene articles for the

23purpose of publication, and no fines were imposed.Having taken a starting point for sentence of 15 months, themagistrate reduced this to 10 months for the guilty plea. A furtherreduction of 2 months was given as the Appellant had admitted theobscenity of the discs, and not required them to be examined bythe Obscene Articles Tribunal. He was also fined $20,000, whichhe agreed could be paid from his bail money.On appeal, complaint was made only of the fine. TheAppellant said he should not be fined, or that the fine should beless.Held :(1) That the Appellant was in possession of a large number ofitems was an aggravating feature;(2) That the Appellant had admitted the obscenity of the discs,thereby avoiding an examination of them by the Obscene ArticlesTribunal, was not a proper ground for a reduction. That matterwas taken account of in the discount for a plea of guilty;(3) The fine of $20,000 was not excessive, given thecircumstances of the offence and the Appellant’s record.Result - Appeal allowed. Sentence increased from 8 to 10 months’imprisonment. Fine unchanged.Simon TsoI/PHKSAR v LAM Man-wo–2003 831COURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 831 OF 2003Barnes DJDate of Hearing: 23 September 2003Date of Judgment: 23 September 2003

24- - 13481(1)(a)(2) 375 1978 66A(1)(a)4(2)2 12 6 (1) R v Lau Chi MA 1583/1990AG v To Ka-shing [1987] HKLR 69R v YeungTak-sing Cr App 2174/1980 HKSAR v LamMee-fat MA 1104/2002To Ka-shing“We think that there

25was no jurisdiction to direct that the period ofdetention in the drug addiction treatment centreshould run from a future date, but we agreethat the sentence would have been wrong inprinciple even if within the jurisdiction of theCourt.” Lau Chi(2) 244 6A(1)9 9 (3) 5 9 1/3 6 66[English digestof MA 831 of2003, above]Barnes DJ(29.9.2003)*Simon Tso#I/PLAMMan-woWrong in principle to order DATC and term of imprisonmentsimultaneously/Possession of drugs in prison/Starting pointThe Appellant pleaded guilty to three charges of possessionof dangerous drugs, contrary to s 8(1)(a) and (2) of the DangerousDrugs Ordinance, Cap 134, and was sentenced to detention in aDrug Addiction treatment Centre (‘DATC’).The facts showed that the CSD officers in the Lai Chi KokReception Centre had on three different occasions found heroin inthe Appellant’s excrement.

26Held :In the Reasons for Sentence, the magistrate said:The Appellant has 37 previous convictions, 5 of whichare related to dangerous drugs and the rest are mostlytheft offences. In 1978, he was sent to a drug addictiontreatment centre for treatment. The Appellant does notwant to be sentenced to detention in a drug addictiontreatment centre as he is currently serving a term of 6months for another theft offence.Under s 6A(1)(a) of the Drug Addiction TreatmentCentres Ordinance, the Appellant has to be furtherdetained in a drug addiction treatment centre fortreatment upon the expiration of his term ofimprisonment, and s 4(2) of the Ordinance empowers theCommissioner of Correctional Services to, having regardto the circumstances of the Appellant, determine theperiod of detention, which is not less than 2 months andnot more than 12 months. If the Appellant has curedhimself of his drug habit upon serving his term ofimprisonment, the period of his treatment in the drugaddict treatment centre will be reduced accordingly. Inview of this, I opine that the overall sentence would notbe excessive as a result of his detention in a drugaddiction treatment centre even if he has to serve the 6-month sentence prior to the detention. Moreover, thesentences should be made consecutive given the fact thatthe theft offence for which the Appellant is serving histerm and the offence of possession of dangerous drugs ...were committed in obviously different circumstances. Inow sentence him to detention in a drug addictiontreatment centre on each charge and the sentences are torun concurrently.On appeal(1) In R v Lau Chi MA 1583/1990, the court, having referred toAG v To Ka-shing [1987] HKLR 69, R v Yeung Tak-shing Cr App2174/1980 and HKSAR v Lam Mee-fat MA 1104/2002, held thatthe magistrate had erred in principle in ordering the defendant tobe detained in a DATC which took effect after the defendant hadserved a term of 9 months’ imprisonment. In To Ka-shing (supra),Sir Alan Huggins VP said: ‘We think that there was no jurisdictionto direct that the period of detention in the drug addictiontreatment centre should run from a future date, but we agree thatthe sentence would have been wrong in principle even if within thejurisdiction of the Court’. Although the circumstances in thepresent case were not wholly identical with those in Lau Chi, the

27basic principle remained the same: that the magistrate should nothave sentenced the offender to a term of imprisonment and todetention in a DATC simultaneously;(2) Under s 6A(1) of the Drug Addiction Treatment CentresOrdinance, Cap 244, if an offender, after being sentenced todetention in a DATC, was further sentenced to imprisonment for aterm of 9 months or less, the DATC order should be suspendeduntil the expiration of his term of imprisonment; and if he wassentenced to imprisonment for a term of more than 9 months, theDATC order should cease to have effect;(3) In considering the appropriate starting point, reference hadto be made to the Appellant’s previous convictions, five of whichrelated to drugs. The fact that the Appellant brought drugs to theprison for consumption rendered the present case more seriousthan the usual possession of drugs for self-consumption. Havingconsidered all the circumstances of the case, a starting point of 9months was appropriate. The overall aggregate sentence shouldhave been 6 months after giving a one-third discount for theAppellant’s guilty pleas. In other words, the Appellant wassentenced to 2 months’ imprisonment for each charge to runwholly consecutive to each other and to the 6-month sentencepreviously imposed on him for the theft offence.Result - Appeal allowed. Sentence of 6 months’ imprisonmentsubstituted to run consecutively to the sentence previouslyimposed.Robert KY LeeI/PHKSAR v NGUYEN The Trong–2003 529COURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 529 OF 2003Barnes DJDate of Hearing: 12 August 2003Date of Judgment: 12 August 2003

28- 10 HKSAR Gamini Pahalawatta MA 1133/1999 15(1) R v Vy Van Kien and Another[1991] 1 HKLR 422- (2) 5 3 $1,0006 1/344[English digestof MA 529 of2003, above]NGUYENThe TrongTheft to be distinguished from pickpocketing/Magistratewrong in adopting sentencing guideline for pickpocketingThe Appellant pleaded guilty to a charge of theft and was

29Barnes DJ(12.8.2003)*Robert KY Lee#I/Psentenced to 10 months’ imprisonment. The facts showed that theAppellant was seen taking away a mobile phone which was placednear the steering wheel of a light goods vehicle.In sentencing, the magistrate pointed out that what theAppellant did at the time of the offence was pickpocketing. Hethen referred to HKSAR v Gamini Pahalawatta MA 1133/1999,and adopted a starting point of 15 months’ imprisonment. He thengave a one-third discount for the Appellant’s guilty plea andsentenced him to 10 months’ imprisonment.Held :On appeal(1) In R v Vy Van Kien and Another [1991] 1 HKLR 422, thecourt laid down a sentencing guideline for the offence ofpickpocketing. The guideline related to the act of pickpocketing,that was, to steal from a person property which was being carriedby that person, for example, from his pocket or from his rucksack.The way the Appellant committed the offence, however, could nothave become pickpocketing. The magistrate erred in principle byadopting the sentencing guideline for pickpocketing in sentencingthe Appellant;(2) The Appellant was not a first offender: he had five previousconvictions, three of which were similar in nature. Havingconsidered the facts of this case, the Appellant’s background andthe value of the mobile phone which was worth $1,000, theappropriate starting point should have been 6 months’imprisonment. With the one-third discount given for theAppellant’s guilty plea, he should have been sentenced to 4months’ imprisonment.Result - Appeal allowed. Sentence of 4 months’ imprisonmentsubstituted.HKSAR v LI Zhiqiang

30Wong Sze-laiAndy Hung–2003 511COURT OF FIRST INSTANCE OF THE HIGH COURTMAGISTRACY APPEAL NO. 511 OF 2003Barnes DJDate of Hearing: 17 July 2003Date of Judgment: 29 July 2003- - - 10917(1)46(3)( ) 11541( ) 48着 100着 20$200206

31(1) MA 1065/20006 (2) MA474/200159596 6(3) 8 [English digestof MA 511 of2003, above]Barnes DJ(29.7.2003)*Wong Sze-lai#Andy HungLIZhiqiangPossession of motor spirit and breach of condition ofstay/Quantity of motor spirit not determining factor forsentence/Offences committed out of the same activity butdifferent in nature/Consecutive sentences justifiedThe Appellant pleaded guilty to an offence of possession ofgoods to which the Dutiable Commodities Ordinance applied,contrary to s 17(1) as read with s 46(3) of the DutiableCommodities Ordinance, Cap 109 (1 st charge), and anotheroffence of breach of condition of stay, contrary to s 41 of theImmigration Ordinance, Cap 115 and pursuant to regulation 2 ofthe Immigration Regulations (2 nd charge). He was sentenced to 4

32months’ imprisonment for each offence, and the sentences were torun consecutively, making a total of 8 months’ imprisonment.The facts showed that a team of Customs Officers wereconducting an anti-illicit fuel operation by driving a light goodsvehicle inside the Ming Kee Carpark. The carpark was about 100metres away from the residential area. The Appellant approachedthe Customs vehicle and asked the driver to park the vehicle nextto a stone hut. He then brought some fuel filling equipment and ajerry can containing 20 litres of motor spirit from the stone hut tothe vehicle and asked the driver to open the fuel tank. Followingthat, he inserted the nozzle into the fuel tank and intended to refuelthe vehicle. He was immediately arrested. Under caution, headmitted he knew that he was not permitted to work in Hong Kongand that he was paid $200 per day as remuneration for hisemployment on that site.On appeal, it was submitted, inter alia, that the starting pointof 6 months’ imprisonment for each of the offences was manifestlyexcessive bearing in mind that only 20 litres of motor spirit wasinvolved, and that the employment period of the Appellant wasextremely short.Held :(1) The quantity of illicit fuel was just one of the factors insentencing. In passing sentence, the magistrate had considered theworking condition of the illegal fuel filling station, its distancefrom the residents, whether it was easily accessible to othercarpark users, the loss of government revenue, the pollution toenvironment and the hazard to life etc. He had taken into accountthe fact that illegal fuel filling activities in Tuen Mun and YuenLong area were extremely prevalent and had considered theauthority of HKSAR v Lo Shu-fai MA 1065/2000, before headopted a starting point of 6 months’ imprisonment;(2) Although the court in HKSAR v Ma Shing-chee MA474/2001, reduced the starting point for sentence from 9 months to6 months for the offence of dealing with and possession of 595litres of diesel oil, that should not be taken to mean that the courtshould adopt a starting point of 6 months or less whenever thequantity of the illicit fuel involved was less than that of the saidcase;(3) Although the first and second offences were committed outof the same illegal activity, the magistrate was correct in sayingthat they were different types of offences, and the sentences shouldtherefore be made consecutive. The magistrate had considered thetotality of sentence and did not consider that the sentence of 8

33months’ imprisonment was too severe in view of the overallcriminality. There was nothing indicating that the sentences werewrong in principle or manifestly excessive.Result - Appeal dismissed.

34D. PRACTICE AND PROCEDUREMA 742/2003Beeson J(25.9.2003)*Lynda Shine#I/P(1) LAIYun-kwai(2) WUKam-yukBinding over of acquitted accused/Accused aware ofcircumstances of alleged offence/Situation different to that of awitness/No obligation on court to seek representations beforebinding accused over- - - The Appellants were charged with one offence of criminalintimidation, contrary to ss 24(b)(i) and 27 of the CrimesOrdinance, Cap 200.Although the magistrate was satisfied that the Appellantshad made the threats in question, and that the person to whom theywere addressed was alarmed, he acquitted because he could not besatisfied beyond a reasonable doubt that at the time they made thethreats they intended to cause alarm. He could not rule out thepossibility that the threats might have been uttered in anger andexasperation, without a genuine intent to create fear.Having acquitted the Appellants, the magistrate decided thatthe circumstances justified the exercise of his power under s 109Iof the Criminal Procedure Ordinance, Cap 221, and he bound eachAppellant over to keep the peace and to be of good behaviour for aperiod of 12 months, in the sum of $3,000 for each Appellant. Heexplained to the Appellants the effect and meaning of that orderand assured them that it was not a conviction.The Appellants submitted on appeal that the magistrateshould not have made the orders he did, as they had not done whatwas alleged and their business would be affected by the order.Held :(1) It was quite clear that the magistrate had the power to makethe order and given his finding that threats had been made, therewas justification for making such an order against each of theAppellants;(2) On the issue of whether the Appellants should have beengiven the opportunity to make representations, there was noobligation on the magistrate to ask for representations from adefendant before making an order, although in the ordinary course

35of events it might be sensible for a magistrate to do so. As therewas no requirement for a magistrate to obtain the consent of adefendant before making such an order, to permit suchrepresentations, or to read into the section a requirement to allowrepresentations, was otiose;(3) It was important to differentiate between the position ofacquitted defendants, as these Appellants were, who knew thecircumstances and background of the alleged offence, and theposition of a witness called to give evidence who, thereafter, wasconsidered a suitable subject for a binding over. In the latter case,a court should ask if the witness wished to be represented and/or tomake submissions: R v Woking Justices, Ex Parte Gossage [1973]QB 448.Result - Appeals dismissed.