刑事檢控科各律師/高級律 - Department of Justice

To : All Counsel/Senior Law Clerks/ProsecutionsAll Court Prosecutors/Magistracies致 : 刑事檢控科各律師 / 高級律政書記裁判法院各法庭檢控主任A Publication of the Prosecutions Divisionof the Department of Justice律政司刑事檢控科出版的刊物General Editor總編輯I Grenville Cross, SC江樂士資深大律師CRIMINAL APPEALS BULLETIN刑事上訴案判例簡訊July Edition/20052005 年 7 月號Associate Editors副編輯D G Saw, SC邵德煒資深大律師Patrick W S Cheung張維新Assistant Editors助理編輯Denise F S Chan陳鳳珊Lily S L Wong王詩麗Vinci W S Lam林穎茜This Bulletin summarises recent judgments which the editors consider of significance.本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。( * Denotes Government Counsel( * 代表政府律師# Denotes Appellant’s/Applicant’s/Respondent’s Counsel)# 代表上訴人 / 申請人 / 答辯人的律師 )

4Appeal No.(Date of Case SignificanceJudgment) TitleA. HONG KONG COURT OF FINAL APPEAL香港終審法院FACC 1 & 2/2005Li CJBokharyChan &Ribeiro PJJSir AnthonyMason NPJ(8.7.2005)*Gerard McCoy SCGavin Shiu &David Leung#I/P (1)Martin Lee SC &Erik Shum (2&3)(1) LEUNGKwok-hung(2) FUNGKa-keung,Christopher(3) LOWai-mingPublic Order Ordinance/Restrictions on public processionsconsisting of over 30 persons/Constitutionality of procedurefor notification and control of public processions/Severance of‘public order ’ from ‘public order (ordre public)’/Restrictionson assemblies to be necessary and proportional《公安條例》 – 對超過 30 人的公眾遊行的限制 –公眾遊行須作出通知和須受管制的程序是否合乎憲法 – 將 ‘ 公眾秩序〔public order〕 ’ 與 ‘ 公共秩序〔 public order (ordre public) 〕 ’ 分隔開來詮釋 – 對集會的限制須為必要和相稱的A1 was convicted of the offence of holding an unauthorisedassembly and A2 and A3 of the offence of assisting the holding ofsuch unauthorised assembly, contrary to s 17A(3)(b)(i) of thePublic Order Ordinance, Cap 245. The offences were in respect ofa public procession on 10 February 2002.The facts showed that in the late morning of a Sunday anumber of persons gathered at Chater Garden for a procession, toprotest against the conviction of an activist for assault andobstruction of a public officer. A2, using a loudhailer, called onthe participants to get ready. Police officers were at the scenesince there was a demonstration concerning the right of abode atChater Garden at that time. A1 was in charge of the procession,and when a police officer invited him to go through the statutorynotification procedure he refused and was warned of theconsequences of his failure to comply before the processionstarted.The procession comprising some 40 people set off fromChater Garden in the direction of Police Headquarters at ArsenalStreet proceeding along Queensway. Ignoring police advice to usethe pedestrian pavement, they used the left traffic lane of the road.As the procession proceeded, others joined in so that the numberswelled to about 96 persons.At Police Headquarters, again ignoring police advice not touse the North Gate where space was limited, the participantsproceeded to that Gate. They stayed on the pavement for about an

5hour when speeches were made. The procession was at all timespeaceful.Article 27 of the Basic Law provided:Hong Kong residents shall have freedom of speech …;freedom of association, of procession and ofdemonstration …Article 39 of the Basic Law provided:[1] The provisions of the International Covenant onCivil and Political Rights … as applied to HongKong shall remain in force and shall beimplemented through the laws of the Hong KongSpecial Administrative Region.[2] The rights and freedoms enjoyed by Hong Kongresidents shall not be restricted unless asprescribed by law. Such restrictions shall notcontravene the preceding paragraph of thisArticle.In accordance with Article 39, the Hong Kong Bill of RightsOrdinance, Cap 383 (‘BORO’), incorporated the provisions of theICCPR as applied to Hong Kong.Article 17 of BORO, which corresponded to Article 21 ofthe ICCPR, guaranteed the right of peaceful assembly as follows:The right of peaceful assembly shall be recognized.No restrictions may be placed on the exercise of thisright other than those imposed in conformity with thelaw and which are necessary in a democratic societyin the interests of national security or public safety,public order (ordre public), the protection of publichealth or morals or the protection of the rights andfreedoms of others.The offences arose out of the holding of a public processionwithout complying with the legal requirement for notification,notwithstanding a warning by the police. The focus of thechallenge on the appeal was on the contention that the statutorydiscretion of the Commissioner of Police to restrict the right ofpeaceful assembly by objecting to a notified public procession orby imposing conditions for the purpose of ‘public order (ordrepublic)’ was too wide and uncertain to satisfy the requirements ofconstitutionality.The Appeal Committee granted leave to the Appellants toappeal, certifying this question of law: is the scheme which theOrdinance lays down for notification and control of public

6processions constitutional?Held : (Bokhary PJ dissenting)(1) The freedom of peaceful assembly was a fundamentalconstitutional right. Such a right required a generousinterpretation so as to give individuals its full measure: Ng Ka-lingv Director of Immigration (1999) 2 HKCFAR 4, 28-29. Theburden was on the Government to justify any restriction. In asociety governed by the rule of law, the courts must be vigilant inthe protection of fundamental rights and must rigorously examineany restriction placed on them;(2) The right of peaceful assembly involved a positive duty onthe part of the Government to take reasonable and appropriatemeasures to enable lawful assemblies to take place peacefully.The statutory requirement to notify the Commissioner of aproposed public procession which consisted of more than 30persons on a public highway or thoroughfare or in a public parkwas constitutional. A legal requirement for notification was infact widespread in jurisdictions around the world;(3) The ICCPR, as applied to Hong Kong and implemented bythe BORO, provided for the concept of ‘public order (ordrepublic)’ as a constitutional norm. The concept was an impreciseand elusive one. Its boundaries beyond public order in the law andorder sense, namely, the maintenance of public order andprevention of public disorder, could not be clearly defined.A constitutional norm was usually and advisedly expressed inrelatively abstract terms. There was no question of challenging aconstitutional norm which must be accepted. The Court applied‘public order (ordre public)’ as a constitutional norm in holdingthat the concept included legitimate interests in the protection ofthe national and regional flags;(4) In contrast to the use of the concept at the constitutionallevel, different considerations applied to its deployment at thestatutory level. Adopting an unusual technique, the concept of‘public order (ordre public)’ used in the ICCPR had beenincorporated into the Public Order Ordinance in relation to theCommissioner’s discretion to restrict the right of peacefulassembly. Although it was important for the Commissioner tohave a considerable degree of flexibility, his statutory discretion torestrict the right of peaceful assembly for the purpose of ‘publicorder (ordre public)’ provided for in ss 14(1), 14(5) and 15(2) ofthe Ordinance did not give an adequate indication of the scope ofthat discretion. This was because of the inappropriateness of thisconcept taken from the ICCPR as the basis of the exercise of sucha discretion vested in the executive authorities. The

7Commissioner’s discretion to restrict the right of peacefulassembly for the purpose of ‘public order (ordre public)’ did nottherefore satisfy the constitutional requirement of ‘prescribed bylaw’ which mandated the principle of legal certainty;(5) Public order in the law and order sense, namely, themaintenance of public order and prevention of public disorder wassufficiently certain. The appropriate remedy was the severance ofpublic order in the law and order sense from ‘public order (ordrepublic)’ in the relevant statutory provisions;(6) After severance, the Commissioner’s discretion in relationto public order in the law and order sense was constitutional. Itsatisfied (i) the constitutional requirement of ‘prescribed by law’and (ii) the constitutional requirement of ‘necessary in ademocratic society’ for the relevant constitutional legitimatepurpose;(7) The Commissioner, as a matter of law, had to apply theproportionality test in exercising his statutory discretion to restrictthe right of peaceful assembly. He must consider whether apotential restriction was rationally connected with one or more ofthe statutory legitimate purposes and whether it was no more thanwas necessary to accomplish such purpose. His discretion wasthus not an arbitrary one but a constrained one. The test was wellrecognised internationally as appropriate in relation to theprotection of fundamental rights. The legal requirement to apply itin this context ensured the full protection of the fundamental rightof peaceful assembly against any undue restriction.Result - Appeals dismissed.

8B. CRIMINAL APPEALS/AGAINST CONVICTION刑事上訴案件 / 針對定罪CA 526/2004Woo VPStock &Tang JJA(20.7.2005)*Gavin Shiu#Shaun KellyCHANKa-waiRape/Judge providing jury with written handout purportingto indicate the case for the prosecution and against theprosecution/Unusual and unsatisfactory step/Acceptability ofwritten directions as to law強姦 – 法官向陪審團提供文件列出對控方有利和不利的案情 – 不尋常和不理想的做法 – 就法律觀點作書面指引的可接納性The Applicant was convicted after trial of two counts ofrape. He was convicted by a 5-2 majority in respect of each count.When the judge summed-up to the jury, he gave themseveral written handouts. These related to certain aspects of thelaw and to matters of fact about which the prosecution and defenceagreed.On appeal, complaint was made of a handout which was intwo parts. One was a document entitled ‘For the prosecution ’;and the next a document entitled ‘Against the prosecution ’.Counsel’s closing submissions had concluded on a Friday and thesumming-up commenced on the Monday following. It was onlyon the Monday morning that the judge gave to counsel a copy ofthe several handouts that he proposed to provide to the jury.Counsel made no objection to the handouts and, at the request ofdefence counsel, an addition was made to one of the two parts ofthe handout of which complaint was made on appeal.Having summarised the evidence in detail, the judge said:I told you yesterday, members of the jury, that it willbe your task to decide what the facts are. And whatyou make of the facts is, of course, a matter entirely toyou. I may or may not have any views on the facts butif I express any views to you about the facts, then youare entitled to disregard them if you do not agree withme. If you agree with me, then of course you areentitled to take into account what I say.In trying to analyse the evidence and to try and assistyou, I have prepared two documents to save youhaving to write this out which my clerk will let youhave. And if we look at the first one first, Matters forthe Prosecution. These are five matters that I havelisted which you may wish to consider which, in myview, can be looked at as matters which assist the

9prosecution. That is why I have called this ‘For theProsecution’.The handouts stated:MATTERS you may wish to consider:FOR THE PROSECUTION1. Sze’s conduct after leaving defendant’s flat –immediate complaint, almost immediate report tothe Police, emotional state – crying, trembling.2. If Sze consented to the sexual intercourse andwas afraid that Wah Chai would know about it orif she was trying to win him back throughsympathy, why is it that the first persons she rangafter leaving the defendant’s flat were Kan Chunkitand Ho Suk-han and not Cheung Hon-wah?3. If she consented to the sexual intercourse and sothe phone call to Ho was just part of the pretence,why was it necessary for her to have to lie to Hothat she felt great pain in her lower parts?4. Why did Sze leave the defendant’s flat at about4.20 am if she had earlier consented to the twoacts of sexual intercourse? She knew that if sheleft then, she would have had to take a stranger’staxi whereas earlier on at 1.36 am when ChanKam-por said he was still not free, she was notprepared to take another taxi.5. If the phone calls to Kan Chun-kit and Ho Sukhanwere all part of a pretence, why did she haveto cry to try and deceive Kan, bearing in mindthat she had separated from him since aboutearly 2000 and they had been together for onlyabout one year?And then, separately:MATTERS you may wish to considerAGAINST THE PROSECUTION1. How was Sze’s T-shirt taken off if she did not cooperatewith the defendant?2. Was Sze still wearing her sports shoes when herjeans were taken off or had she or the defendantalready taken off the shoes?3. Were the jeans removed without Sze lifting herbottom and/or lifting her heels to enable the jeansto pass through the feet?

10After the 1st act of sexual intercourse4. Why did Sze not ask Chan Kam-por to come backto Sun Chui Estate to pick her up?5. Did she intend to leave the defendant’s flat and ifshe did, why did she bother to take a shower andgive the defendant further opportunities to molesther?6. After the shower, why did she not wear her ownclothes which would have enabled her to leaveimmediately if there was a chance but instead shewore T-shirt and shorts given to her by thedefendant?7. Why did she climb back onto the bed again asecond time and give the defendant furtheropportunities to molest her, given that there wereno threats, no weapons or violence used by thedefendant?The person Sze referred to was the complainant; Wah Chaithe recent boyfriend; Ho the girlfriend; Kan an earlier boyfriend;and Chan Kam-por the taxi driver.Held :The Applicant submitted:(1) that these documents suggested, by theirproduction and the way they were framed, thatthere were two versions of events and that thejury could accept one or the other and, in thecircumstances, that this undermined the earliernormal direction that had been given as to theburden and standard of proof;(2) that in producing these documents, the judgeencroached upon the fact-finding function of thejury;(3) that the document entitled For the Prosecutionconflated both recent complaint and evidence ofdistress, thereby nullifying the effect of previousdirections as to the extent to which recentcomplaint and evidence of distress was quitedifferently to be utilised by the jury; and(4) that the judge failed to tell the jury that thewritten directions were not to be taken by them asaccruing a status more important than oraldirections.

11(1) It was common, and could be helpful, for a judge to framedirections as to law, or to delineate the matters that had to beproved before a jury might properly convict a defendant. But whathappened in this case was most unusual and unsatisfactory;(2) Written handouts carried with them the judge's seal ofapproval and therefore the likelihood of particular weight. Theywere documents the jury took with them to their room for thepurpose of deliberation. A jury would study what was in writingbefore them. This was unobjectionable in relation to points oflaw, because points of law were the province of the judge, andbecause the law could be stated very precisely and was generallyuncontroversial. So, too, the study of written directions wasunobjectionable where they took the form of precise questions,tied to the case-specific issues of law, that the jury should seek toanswer in arriving at their verdict; such, for example, as were quiteregularly used in murder cases where a host of alternative issuesarose for determination. Yet such written directions were notjudgemental as to facts. They were precise statements of the law,and of the questions that in a particular case must be answered oneway or another. However, when a judge crossed the line intodiscussions of fact, he treaded upon the province of the jury. Thatwas acceptable in so far as he was required to present a balancedsummary of the testimony, and it was also acceptable for him toproffer, within recognised parameters, comments upon thattestimony. But for him to provide before the jury written lists offactual pointers which were stated to be a list of those factorswhich in his view in fact favoured the prosecution, and thosewhich in his view in fact favoured the defence, courted the distinctdanger of lending undue weight to his evaluation of the facts. Itwas one thing for a judge orally to put to a jury competingsubmissions and to comment upon them, but quite another to putthem forward in writing as in fact having value - for that was theeffect of a handout of this type;(3) There was no direction by the judge that the points were notintended to be an exclusive list of factors that might be taken intoaccount in favour of the defendant or against him. Such adirection would not have cured the matter, but the absence of sucha direction itself made the document all the more a list that mighttake on the hue of one that was exhaustive. At no stage did thejudge give to the jury the caution that was regularly given withwritten handouts, that such documents did not, merely becausethey were in writing, assume a status greater than that of the oraldirections;(4) The points made in the Applicant’s favour in the handoutentitled ‘Against the prosecution ’ were by no means the onlypoints in his favour worthy of consideration. The very fact that

12the judge mentioned some of these matters elsewhere in hissumming-up without including them in these written lists, itselfsuggested, or might have suggested to the jury, an evaluation bythe judge that they were not worthy of inclusion. That was thevery problem with a written list of this kind;(5) An ancillary difficulty by the text of the first point said to be‘For the Prosecution ’ was that the judge stipulated that distresswas one of the factors which in his view in fact assisted theprosecution. Yet distress could only be taken in support of theprosecution case upon satisfaction of certain conditions precedent;in particular, satisfaction that the distress was genuine and thatthere was demonstrated a causal connection between the distressand the suggested assault. The implication, therefore, was that inthe judge's view those conditions precedent had been satisfied.That was exclusively a matter for the jury;(6) The written handout in question should never have beenissued, was in any event incomplete, and carried with it all thedangers identified, and it was not possible to say that thisunsatisfactory step had no material impact upon the ultimateresult. The fact that counsel agreed to the course taken did notmollify these concerns.Result - Appeal allowed. Retrial refused.

13C. CRIMINAL APPEALS/AGAINST SENTENCE刑事上訴案件 / 針對刑罰CA 555/2003Ma CJHCStuart-Moore VPStock JA(29.6.2005)*Arthur Luk SC& Edmond Lee#K Oderberg& F Burkett (1)A Bruce SC (2)(1) PUNLuen-pan(2) LIKam-bun,PatrickForcible detention with intent to procure ransom/Professionalenterprise with firearm used/Duty of courts to provideprotection and deter others/Levels of sentencing on jointenterprise強行禁錮意圖取得贖金 – 使用火器的專業性犯罪計劃 – 法庭有責任提供保護和阻嚇其他人 – 共同犯罪的量刑等級After trial, A1 was convicted of an offence of forcibly takingaway a person with intent to procure a ransom for his liberation,contrary to s 42 of the Offences against the Person Ordinance,Cap 212. He was sentenced to 21 years’ imprisonment.After the judge had ruled his confession to the offence to beadmissible following a voire dire, A2 pleaded guilty. He wassentenced to 11 years and 8 months’ imprisonment.The facts showed that four men waited inside a 7-seatervehicle for their victim to return to his car which was parkedalongside. When he did so, his name was called out. One of theperpetrators impersonated a police officer and revealed that he wascarrying a gun. When the victim tried to attract attention byshouting out, he was struck across the forehead with the butt of thegun. He was punched and kicked as he was forced to the van.During the whole course of a journey of some considerabledistance, he was blindfolded and kidnapped.At the first destination, the victim was softened up with talkof bullets and he was allowed to see the gun again before havingadhesive tape put over his eyes and mouth. His feet were tied andknives were scraped down the sides of his upper body. Threatswere issued that his safety could not be guaranteed if it took toolong to wait for the ransom money. A ransom of $5 million waseventually demanded for his safe release and he was told that if themoney was not raised, there would be harm done to himself andmembers of his family. The victim, a married man with children,was detained some 30 hours before he was released just afterpayment of the $5 million ransom had been made. Only about$1.2 million was eventually recovered.On appealHeld :

15grounds to believe that property, namely, a total sum of$2,976,985.58, in whole or in part directly or indirectlyrepresented the proceeds of an indictable offence, dealt with theproperty.The judge stated there was no guideline because each casehad to be determined on its own facts. He adopted a starting pointof 4 years’ imprisonment as:I find this is a serious example of the offence. Nearly$3 million was involved. There is the overwhelminglikelihood that these were proceeds from the dangerousdrugs industry, and it need hardly be said that dangerousdrugs are a blot on Hong Kong’s society.On appeal, it was submitted by the Applicant that he shouldnot have been sentenced to 4 years’ imprisonment.Held :(1) As the court said in HKSAR v Mak Shing Cr App 322/2001:There are no guidelines for offences of this nature. The reason forthis being that the circumstances of each case may vary almostinfinitely;(2) In HKSAR v Xu Xia-li and Another Cr App 395/2003, thecourt came to the view that the nature of the indictable offencefrom which the money was derived should be of no particularsignificance in sentencing, save that if the defendant knew thatthe money was derived from very serious crimes, it would bean aggravating feature to be taken into account. Moreover,there should be little relevance regarding the mental culpabilityof a money launderer which was based only on reasonablebelief of the source of the money as opposed to that based onactual knowledge. The court also held that the relationshipbetween the defendant and the person who conspired with himor directed him to launder the money should normally notfeature as a mitigating factor in sentencing, unless therelationship was such that the defendant was subjected toundue influence or influence close to that;(3) Although as compared with the majority of theauthorities referred to in Xu Xia-li, with starting points ofbetween 3 and 5 years, the starting point of 4 years’imprisonment seemed slightly on the high side, the Applicant’sinvolvement in this case was quite frequent and for a relativelylong period of time, which were aggravating features.Result - Application dismissed.CA 405/2004 CHAN Rape/Series of rapes over period of time on 9-year-old

16Stuart-Moore VPBurrell J(22.6.2005)*Kevin Zervos SC& Alice Chan#Giles SurmanKim-kwanvictim/Breach of trust/Sentence of 15 years’ imprisonmentappropriate強姦 – 在一段期間內多次強姦 9 歲受害人 – 破壞誠信 – 判處 15 年監禁屬恰當The Applicant was convicted after trial of 13 counts of rape,and sentenced to 12 years’ imprisonment on each count. Thejudge ordered that counts 3 to 13, which were concurrent to eachother, should run 3 years after the commencement of theconcurrent 12-year sentences on counts 1 and 2, making a total of15 years in all.The 13 offences occurred between 1 January 2003 and 18August 2003 when the victim was 9 years old. They took place onsix different days, sometimes in the Applicant’s own flat and onother occasions in his parents’ flat.The Applicant, a married man with a daughter the same ageas the victim, had a clear record. The two girls were known toeach other, and the Applicant’s wife became the victim’s tutor.The Applicant was fond of the victim and, with the consent of hermother, became her sworn father. The Applicant made up excusesso that he could take the victim by herself to one of the twoaddresses where he raped her. On each occasion, there were twoacts of rape save once when there were three. The victim was toldnot to mention his activities, although she eventually told hermother.In sentencing, the judge had regard to the age of the victim,the abuse of trust, the lack of remorse, and that this was intendedby the Applicant to be a longstanding relationship rather than acasual encounter.On appeal, the sole submission was directed at the 3-yearconsecutive element in the sentence as it was conceded that 12years’ imprisonment could not, on the facts of this case, becriticised.Held :The judge was entitled to take the view that 15 years’imprisonment was appropriate in its totality for a series of rapesover this period of time, on a victim as young as this and incircumstances where the Applicant, as a paedophile, regardedwhat he was doing as ‘ natural’ . The sentence was at the top endof the range for offences of this kind committed by a first offenderbut it was not manifestly excessive: R v Millberry and Others[2003] 2 All ER 939, HKSAR v Kwan Hoi Cr App 415/2002.

17Result - Application dismissed.CA 430/2004Stuart-MooreACJHCSuffiad &Lugar-MawsonJJ(1.6.2005)*Simon Tam#Kevin Chan(1) YIPWai-leung(2) WUTak-chau(3) WONGKwok-wingConspiracy to steal/Gang of pickpockets operating in anorganised way/Considerable menace to society/Sentencingdistinctions between thieves, robbers and burglars/Levels ofsentence for pickpockets串謀偷竊罪 – 扒手黨有組織地行動 – 對社會構成頗大威脅 – 賊匪、劫匪和竊匪的判刑區別 – 扒手的量刑等級The Applicants were convicted after trial of an offence ofconspiracy to steal, contrary to s 9 of the Theft Ordinance, Cap210, and ss 159A and 159C of the Crimes Ordinance, Cap 200.They were alleged to have conspired together and with othersunknown to steal between 30 May 2002 and 27 June 2002.The prosecution case was that the Applicants, with others,were part of a gang of pickpockets. Their activities became thesubject of police surveillance, in particular at Mongkok KCRStation (the station) although not exclusively at that location.Some of the police who were engaged in this exercise posed astravellers and themselves became the target of the gang’sactivities. The police also had the use of tapes taken from thesurveillance cameras mounted in various parts of the station.Police observations took place on 4 days.The evidence showed that the gang carried out theiractivities in a highly organised and practised way.A1 had 15 previous convictions, most for theft or attemptedtheft. He had undergone DATC treatment and, on elevenoccasions, he had been imprisoned for terms which ranged from 9to 15 months. When sentenced, he was aged 42 years.A2, aged 50, had five convictions for theft or attempted theftand had undergone DATC treatment on one occasion. He hadreceived three prison sentences of between 5 and 15 months.A3, aged 47, had three previous convictions between 1982and 1984 when, on each occasion, he was imprisoned for termswhich ranged from 6 to 9 months. His last two offences were forpickpocketing. The judge noted that A3’s absence from the courtsfor 20 years and the fact that he had been involved in only oneincident of dishonesty set him apart to some extent from A1 andA2 for sentencing purposes.

18The judge took into account that said in R v Vy Van Kienand Another [1991] 1 HKLR 422, where the usual starting point,in the absence of aggravating factors, for an offender of full agewas held to be 12 to 15 months after trial. He also had regard to Rv Saldana Alca Jose and Another Cr App 655/1996, where astarting point of 4 years was upheld and P Chan J said:We take this opportunity to indicate that in our view,because of their seriousness, organised crimes of thisnature including group pickpocketing, even withoutinternational ramifications, might in future properlyattract a starting point of at least 2½ years’imprisonment.The judge declined a prosecution request to consider anapplication under s 27 of the Organized and Serious CrimesOrdinance, Cap 455 (‘OSCO ’ ), for the enhancement of sentenceson the basis that this was a prevalent crime. He decided he wasable to deal with the matter ‘by reference to ordinary principles ofsentencing ’.Having taken a basic starting point of 4 years’imprisonment, he enhanced that by 9 months for A1 and A2because of their persistent offending: HKSAR v Chan Pui-chi[1999] 2 HKLRD 830. A3, who was not subject to the sameconsideration, was sentenced to 4 years’ imprisonment.On appeal, it was submitted that a basic starting point of 4years before enhancement for persistence (in the cases of A1 andA2) was manifestly excessive. In particular, it was said that thismust be so in light of the guidelines for sentencing in cases of thiskind contained in HKSAR v Ngo Van Huy Cr App 107/2004,where Ma CJHC indicated that a guideline sentence of 12 to 15months after trial was appropriate for a first offender.Held :(1) The guidelines in Ngo Van Huy were given after sentencehad been imposed in the present case. In that case a starting pointof 15 months was considered to be appropriate. The court wasconcerned with a single offence of theft by pickpocketing wherethe appellant was operating alone. Nine months was then addedfor the appellant’s ‘appalling previous record ’ and a further threemonths added because the offence was committed in a ‘verycrowded part of Hong Kong ’. This made 27 months before theone-third discount for plea, and with an increase of one-third onthe resulting 18 months for prevalence, this left 24 months in all.Ma CJHC said:if the accused commits the offence in conjunction with

19another the sentence should be higher. Where he ispart of an organised and professional ring of thieves asubstantial increase in sentence may be called for …where professional pickpockets from overseas(whether an individual or in a group) come to HongKong to carry out this type of activity … an increase insentence can be imposed.(2) In the slightly later decision in HKSAR v Fung Chi-man andAnother Cr App 226/2004, followed also in HKSAR v Liao Meiand Others Cr App 432/2004, the court approved 30-monthstarting points where the circumstances were similar to Ngo VanHuy, but in these cases the applicants were acting as part of a‘team’. All the aggravating features which were present in allthree cases were also present in this case;(3) The Court of Appeal in Ngo Van Huy, Fung Chi-man andLiao Mei was concerned in each case with an approach to sentenceinvolving an element of enhancement for ‘prevalence ’ underOSCO. The judge in this case adopted normal sentencingconsiderations without considering it necessary to resort to OSCOalthough he had been provided with evidence of the prevalence ofthis type of offence. It was important that by whatever route ajudge arrived at his sentence in such cases, the offender was notleft worse off than he would have been had the alternative routebeen taken. In Fung Chi-man and Liao Mei, where in each case a30-month starting point was not criticised for pickpocketingoffences and where a ‘team’ was at work, these were pleas ofguilty where the normal discount of a third was given, bringing thesentences down to 20 months before enhancement by a third wasapplied. If these cases had been contested trials, the one-thirdenhancement would have been added to the 30-month startingpoints taken in each case leaving the 40 months which, theApplicants argued, was more in line with the appropriate startingpoint for this case;(4) From the three appellate cases, decided after sentence in thepresent case was imposed, the basic starting point of 48 monthsselected by the judge represented a higher starting point than theCourt of Appeal had contemplated for this kind of offence. Thequestion remained, however, where A1 and A2 were seen to havebeen operating on more than one occasion, whether their sentencesshould in any event be longer than in those cases where only oneact of theft was observed, bearing in mind also that this was aconspiracy charge which plainly reflected greater overallcriminality;(5) Although the Applicants were very properly dealt with as asophisticated team of thieves, the judge’s sentence on A1 and A2

20of 4 years and 9 months was approaching the sort of sentence arobber armed with a knife or a serial burglar might expect. Whilstpickpockets represented a considerable menace to society,pickpockets did not use or threaten violence or invade the privacyof the home or other buildings in the commission of their crimes.To that extent, some distinction should be drawn between thosewhose dishonesty was confined to theft by pickpocketing andthose who resorted to some form of violence or invasion ofprivacy;(6) A basic 36-month starting point was appropriate for A3, whoonly engaged in one theft in the context of this conspiracy andwhose criminal record was far less serious than the others. For A1and A2, a higher starting point of 42 months was merited to reflectthe fact that each of them was actively involved in more than onetheft.Result - Appeals allowed. Sentences of A1 and A2 reduced by 15months to 3½ years’ imprisonment, and the sentence ofA3 reduced by 12 months to 3 years.香港特別行政區訴郭卓文HKSAR v KWOK Cheuk-man高等法院上訴法庭 – 高院刑事上訴 2005 年第 7 號* 冼佩霞Sin Pui-ha# 余承章Selwyn Yu高等法院上訴法庭法官楊振權高等法院上訴法庭法官袁家寧高等法院原訟法庭法官朱芬齡耹訊日期 : 二零零五年五月三十一日宣判日期 : 二零零五年五月三十一日COURT OF APPEAL OF THE HIGH COURTCRIMINAL APPEAL NO. 7 OF 2005YeungYuen JJA &Chu JDate of Hearing: 31 May 2005Date of Judgment: 31 May 2005

21搶劫 – 涉及使用假汽油彈及打火機 – 此類持械搶劫案的嚴重性 – 判處 8 年監禁為適當的量刑起點申請人在高等法院原訟法庭承認搶劫及抗拒警員罪 , 分別被判入獄 5 年 4 個月和兩個月 , 同期執行。2004 年 7 月 22 日凌晨約 3 時 , 申請人頭戴棒球帽 , 面蓋手術口罩 , 左、右手分別持有類似汽油彈物體及打火機 , 走入中環一便利店 , 並向收銀員聲稱打劫。在威嚇下 , 收銀員聽命於申請人 , 將共182 元的紙幣和硬幣放入申請人帶來的背囊內。其後 , 申請人乘坐的的士被警員截停 , 申請人突然打開的士車門 , 試圖逃走 , 但被警員捕獲。被捕後 , 申請人不聽從警告 , 更和警員糾纏 , 但最終被制服。警員在申請人攜帶的背囊內發現載有水溶性液體的啤酒樽、打火機、手術口罩、棒球帽和便利店被劫走的 182 元。申請人指因欠債而被迫搶劫 , 因想逃避拘捕而和警員糾纏。事件中有一名警員受輕傷。申請人 38 歲 , 無犯罪記錄。他一直有穩定及正當的職業 , 但因失業和投資失利而負重債 , 更被追數公司上門追數以致一時糊塗 , 走上不歸之路。原審法官指出申請人的罪行是經過一番準備後才進行 , 而申請人使用假汽油彈更會令受害人極度惶恐。原審法官援引 R v Wong Wai-keung [2003]3 HKLR 39 一案 , 支持其論點。就搶劫控罪 , 原審法官以 8 年為量刑基準 , 並因申請人認罪而將刑期扣減三份一至 5 年 4 個月。

22申請人不服這判刑 , 向上訴法庭提出上訴許可申請。上訴理由有三 :(1) 原審法官錯誤詮譯 Wong Wai-keung 一案而未有適當及正確地考慮本案的嚴重性。而原審法官亦沒有適當地採納茆廣生訴女皇 [1981] HKLR 610案所定下的量刑指引 , 導致搶劫罪的判刑明顯過重 ;(2) 申請人援引 HKSAR v On Ling Cr App386/2004 指出他手持的假汽油彈 , 不會對受害人造成傷害 , 亦不會導致持械的保安人員或執法人員以武力還擊 , 因此嚴重性較持假槍搶劫案為低 ;(3) 申請人手持假汽油彈的行為不構成武裝搶劫。裁決 :(1) 手持假汽油彈不構成武裝搶劫的說法絕對不能成立。申請人手持類似汽油彈物體及打火機進行搶劫 , 目的是威嚇受害人 , 令他們誤認汽油彈物體有破壞性及傷害性 , 而不敢反抗 ;(2) 汽油彈物體及打火機作為行劫工具和 On Ling案中的手捲報紙不可同日而喻。事實上 , 除了不能對任何人造成身體傷亡外 , 手持汽油彈物體及打火機和手持其他武器 , 例如槍械、利刀等物體沒有分別。兩者都會對受害人造成極大恐慌。該等恐慌亦是申請人預見及故意造成的 ;(3) 法庭不同意假汽油彈不可能令持械的保安人員或執法人員作出反擊行為 , 故對公眾不會造成任何無辜傷亡。須知除了申請人自己外 , 其他人士都不可能知悉其手持的汽油彈物體沒有殺傷力。一名持械的保安人員或執法人員有可能因目睹劫匪手持汽油彈物體及打火機而在危急及避免造成重大傷亡的情況下而認為有需要對劫匪作出還擊行為 , 結果亦

23可能會對公眾造成無辜傷亡 ;(4) 事實上 , 一般情況下正常的旁觀者都必會認為劫匪手持的汽油彈物體有殺傷力 , 並且殺傷力甚強。有案例顯示用汽油彈搶劫曾造成多人傷亡 , 事件亦因傳媒的報導而廣為人知 ;(5) 劫匪持汽油彈物體在公眾地方行劫較持刀行劫更為嚴重 ;(6) 本案的嚴重性較 Wong Wai-keung 案的嚴重性為低。但在 Wong Wai-keung 案 , 上訴庭裁定15 年量刑基準並非過重。本案原審法官採納的 8 年量刑基準 , 不屬輕判 , 但較 Wong Wai-keung 案所採納的為低 , 亦絕非明顯過重 ;(7) 便利店、油站等通宵或長時間營業的店舖 , 極易受劫匪視為搶劫對象 , 故需受保護。搶劫該等店舖的行為亦需阻嚇 ;(8) 申請人犯案時已 38 歲 , 但沒有任何刑事記錄。他犯案亦是因個人財政困難 , 造成極大的困苦和壓力所導致。申請人犯案時夜闌人靜 , 手持的武器亦不會對任何人造成任何傷亡。法庭因此破例對申請人處以憐恤的判刑。結果 .. 上訴得直。判刑減至 4 年 6 個月和抗拒警員罪的判刑同期執行。[English digestof CA 7 of 2005,above]Yeung &KWOKCheuk-manRobbery/Use of hoax petrol bomb and lighter/Gravity ofarmed robbery of this type/8 years’ imprisonment anappropriate starting pointThe Applicant, after pleading guilty in the Court of FirstInstance of the High Court to a count of robbery and a count of

24Yuen JJAChu J(31.5.2005)*Sin Pui-ha#Selwyn Yuresisting a police officer, was sentenced to terms of imprisonmentof 5 years 4 months and 2 months, respectively, which wereordered to run concurrently.At around 3 am on 22 July 2004, the Applicant, wearing abaseball cap and a surgical mask, and holding an object similar toa petrol bomb in his left hand and a lighter in his right hand,walked into a convenience store in Central, approached the cashierand declared robbery. Under the threat of the Applicant, thecashier obeyed and put banknotes and coins totalling $182 into theApplicant’s rucksack.After that, the Applicant went away in a taxi but wasintercepted by police officers. All of a sudden, the Applicantopened the taxi door and attempted to run away, but was latercaught by the police officers. Upon arrest, the Applicant ignoredthe warnings and put up a struggle with the police officers. Hewas eventually subdued.In the rucksack carried by the Applicant, the police officersfound a beer bottle containing water soluble liquid, a lighter, asurgical mask, a baseball cap and the $182 robbed from theconvenience store.The Applicant claimed that his indebtedness had driven himto rob, and that he put up a struggle with the police officersbecause he hoped to run away from arrest.A police officer was slightly injured in the incident.The Applicant aged 38 was of clear record. He used to havea stable and respectable job. But after he lost his job and sufferedlosses in his investments, he became heavily in debt. When debtcollection companies pressed for repayment at his doorstep, he losthis head, went astray and came to a point of no return.The trial judge pointed out that the Applicant’s offence wascommitted with a certain degree of planning, and that his use of ahoax petrol bomb had put the victims in extreme fear: R v WongWai-keung [2003] 3 HKLRD 39.The trial judge took 8 years’ imprisonment as the startingpoint for the offence of robbery. After giving a one-third discountfor his guilty plea, the sentence arrived at was 5 years 4 months.The Applicant applied to the Court of Appeal for leave toappeal against this sentence. Three grounds of appeal wereadvanced:(1) The trial judge erred in the interpretation of Wong

25Held :Wai-keung and failed to give due and properconsideration to the gravity of the presentoffence. The trial judge also failed to properlyadopt the starting point laid down in Mo Kwongsangv R [1981] HKLR 610, and thus thesentence for robbery was manifestly excessive;(2) The Applicant cited HKSAR v On Ling Cr App386/2004, and submitted that as the hoax petrolbomb in his hand would not have caused anyinjury to the victims, nor would it have causedany armed security staff or law enforcementofficers to strike back with force, the gravity ofthis offence was much lower than that of arobbery involving imitation firearms;(3) The Applicant’s act of carrying a hoax petrolbomb did not constitute an armed robbery.(1) The argument that carrying a hoax petrol bomb did notconstitute an armed robbery simply could not stand. It was theintention of the Applicant to threaten the victims by holding anobject similar to a petrol bomb with a lighter in the course of therobbery. As the victims would be misled into thinking that thebomb-like object would bring damages and injuries, they wouldnot dare to resist;(2) The use of a bomb-like object with a lighter in robberies wasnot comparable to the case in On Ling where a newspaper roll wasused. In fact, apart from not being able to cause personal injuriesand death, a bomb-like object with a lighter was not muchdifferent from other weapons like guns and sharp knives. Bothwould cause extreme fear to victims, which was foreseeable to theApplicant and was brought about by him wilfully;(3) The court did not agree that a hoax petrol bomb would notcause the armed security staff or law enforcement officers to strikeback and so the innocent public would not suffer from any deathor injury. It must be noted that, apart from the Applicant himself,nobody could have known that the bomb-like object was notlethal. When an armed security guard or a law enforcementofficer saw a robber holding a bomb-like object with a lighter inhand, he might have considered it as an emergency case andbelieved that in order to avoid causing more casualties it wasnecessary to strike back. As a result of this, some members of theinnocent public might have been killed or injured;(4) In fact, under normal circumstances, an ordinary bystanderwould certainly regard a bomb-like object in a robber’s hand as

26lethal, and capable to kill and injure. There had been cases ofusing petrol bombs in robberies which resulted in great numbers ofcasualties. These incidents, covered by the media, must be wellknown to the public;(5) The offence of robbery in a public place involving a bomblikeobject was more serious than one involving a knife;(6) The gravity of the present case was less serious than that ofWong Wai-keung. In Wong Wai-keung, however, the Court ofAppeal ruled that a starting point of 15 years’ imprisonment wasnot manifestly excessive. Although the starting point of 8 years’imprisonment adopted by the trial judge in the present case couldnot be said to be on the low side, it was lower than that of WongWai-keung, and was certainly not manifestly excessive;(7) Shops like convenience stores and oil stations, whichoperated for long hours or even round the clock, easily became thetarget of robberies and must be protected. Robberies of this kindof shop warranted a deterrent sentence;(8) The Applicant was aged 38 at the material time and had aclear record. At the time of the commission of the offence, he wassuffering from extreme hardship and was under great pressure dueto his financial difficulties. The Applicant committed the offencein the still of night, and as the weapon he was carrying could nothave caused any injury or death, the court considered this anexceptional case and exercised mercy in sentencing.Result - Appeal allowed. Sentence reduced to 4 years 6 months, torun concurrently with the sentence of resisting a policeofficer.

27D. MAGISTRACY APPEALS/AGAINST CONVICTION裁判法院上訴案件 / 針對定罪MA 265/2005V Bokhary J(18.7.2005)*Cheung Wai-sun#Edwin ChoyCHONGWai-moon, JoeObtaining pecuniary advantage by deception/Defence witnessrefusing to answer questions to avoid self-incrimination/Magistrate not required to speculate upon what witness mighthave said以欺騙手段取得金錢利益 – 辯方證人拒絕回答問題以免使自己入罪 – 裁判官無須揣測證人本來可能會說甚麼The Appellant was convicted after trial of an offence ofobtaining a pecuniary advantage by deception, contrary to s 18(1)of the Theft Ordinance, Cap 210.The case against the Appellant was that he had deceived VCCEF Brokerage Ltd into believing that he was his elder brother,that he did so in order to get a job with that company, and that thedeception worked so that he got a job and received remunerationfrom the company.At trial, the Appellant took out a witness summons to securethe attendance of DW2, Adrian Wong. When asked questions,Mr. Wong refused to answer on the basis that the answers couldincriminate him. He was the subject of a criminal prosecution inrespect of the same matter.On appeal, it was submitted, inter alia, that the magistrateerred in having failed to direct her mind as to how theunavailability of Adrian Wong’s evidence affected the issues shehad to decide, and this rendered the conviction unsafe andunsatisfactory. Reliance was placed upon R v Holgate (No 1)[1996] 3 HKC 318.Held :(1) There were material differences between the present caseand Holgate. That case was an unusual one. It was a case of agovernment servant maintaining a standard of living above thatwhich was commensurate with his official emoluments, contraryto s 10(1)(a) of the Prevention of Bribery Ordinance, Cap 201,which was an unusual sort of offence. Then the particularcircumstances too were unusual. Mr Holgate’s explanation of howhis expenditure during the charge period, 1 January 1989 to 6 July1993, came to exceed his official emoluments for that period wasthat he had received large sums from his wife. But she had

28disappeared in 1992, and was therefore unavailable to giveevidence for him at his trial;(2) Mr Holgate asked the District Court Judge to stay theprosecution on the ground that he could not have a fair trialwithout his wife as a defence witness. The judge refused a stay.The trial proceeded and Mr Holgate was convicted. The Court ofAppeal held that the judge was right to refuse a stay. But theCourt of Appeal quashed Mr Holgate’s conviction on the groundthat it was unsafe and unsatisfactory. Yang CJ said that the judgeshould have, but had not, given some indication that he haddirected his mind to how the unavailability of the wife as adefence witness affected the issues which he had to decide;(3) It was argued on behalf of the Appellant in the present casethat the magistrate should have given some indication that she hadconsidered the extent to which Adrian Wong’s exercise of his rightagainst self-incrimination might have handicapped the defence.But what should the magistrate have done? A tribunal of factcould not speculate as to what a witness who exercised his rightagainst self-incrimination would have testified if he had chosen totestify. It could not speculate as to whether he would testify alongthe lines of an out-of-court statement which he had made;(4) The present case differed from Holgate in material ways. Tobegin with, the difficulty in which Mr Holgate had been placed bythe unavailability of his wife as a defence witness had beenstressed to the point of an application for a stay. Nothing of thatkind happened in the court below in the present case. So the factthat the magistrate did not refer to Adrian Wong’s unavailabilitywas, for that reason as well as other reasons, more readilyunderstandable than the District Court Judge’s failure to indicatethat he had directed his mind to how the unavailability ofMr Holgate’s wife as a defence witness affected the position;(5) Beyond all of the foregoing, the most important differencebetween the present case and Holgate was that in that case theDistrict Court Judge treated Mr Holgate as if he had chosen not tocall his wife even though she was available as a defence witness.It was hardly surprising therefore that Mr Holgate’s convictionwas quashed.Result - Appeal dismissed.

29E. MAGISTRACY APPEALS/AGAINST SENTENCE裁判法院上訴案件 / 針對刑罰MA 471/2005Poon DJ(29.6.2005)*Thomas Law#I/PKWANChung-waDriving while disqualified and without insurance/Bad case ofits type/PLB driver in breach of trust/Imprisonment appropriate於取消駕駛資格期間沒有保險而駕駛汽車 – 屬同類案件中差劣的情況 – 公共小巴司機違反誠信 –判處監禁是恰當的The Appellant pleaded guilty to three offences, namely,(1) driving whilst disqualified; (2) using a vehicle without thirdparty insurance; and (3) picking up passengers in a restricted zone.He was sentenced to 6 months’ imprisonment on Charge 1 plus 12months’ disqualification; to 2 months’ imprisonment and 18months’ disqualification on Charge 2; and to an absolute dischargeon Charge 3. The sentence of imprisonment and disqualificationwere ordered to run concurrently.The facts showed that the Appellant was driving a publiclight bus, picking up and alighting passengers in a restricted zone.He was stopped by a police officer who discovered that he hadbeen disqualified from driving three weeks previously under thepoints system. The Appellant claimed to be a relief driver, andhad driven for some seven hours prior to being stopped.On appeal, it was submitted that the sentences ofimprisonment on Charges 1 and 2 were too severe.The Respondent submitted that given the aggravatingcircumstances and the maximum term of imprisonment on Charge1 of 12 months, the overall 6 months on a plea for two charges wasjustified. However, the Respondent pointed out that s 12(2)(b) ofthe Road Traffic (Driving Offence Points) Ordinance did notempower a court to make a disqualification order, so the ordermade on Charge 1 was wrong in principle. The Appellant hadthree previous convictions, one of which was similar to Charges 1and 2. His driving record was described by the magistrate as‘appalling’.Held :(1) This was a bad case of driving while disqualified as theAppellant, driving a public light bus when he knew he wasdisqualified, demonstrated that he turned a blind eye to the factthat passengers were left without any protection of insuranceshould an accident occur, the risk of which, given his appalling

30driving record, could not be said to be negligible. Therefore, apartfrom a flagrant disregard of the disqualification order, he was inbreach of the trust which the passengers reposed in him and indeedexpected from him as a competent and insured driver;(2) It was correct for the Respondent to point out that sentencesof imprisonment for cases of this sort were the norm, and were,indeed, inevitable: HKSAR v Lui Wing-han MA 502/1997, HKSARv Liu Yim-hung MA 267/1998, HKSAR v Ng Suen-wai MA375/2003, considered. In most of these cases a starting point of 3months was adopted and reduced to 2 months on a plea of guilty;(3) In HKSAR v Chan Wai-bun MA 1174/2004, a taxi driverwas charged for stopping in a restricted zone and it was discoveredthat he drove whilst disqualified and thus without third partyinsurance. It was held on appeal that a starting point of 3 months’imprisonment reduced to 2 months on a plea for driving whiledisqualified was appropriate;(4) An immediate custodial sentence for the first two chargeswas not wrong in principle. However, the starting point of 9months’ imprisonment for Charge 1 seemed to be out of line withauthority. A starting point of 3 months was justified, reduced to2 months on a guilty plea. Furthermore, Charge 1 did not entitlethe magistrate to order disqualification.Result - Appeal allowed on Charge 1. Sentence of imprisonmentsubstituted with 2 months’ imprisonment. Appeal onCharge 2 dismissed. Terms of imprisonment to runconcurrently.MA 95/2005Carlson DJ(8.7.2005)*Sin Pui-ha#G HarrisYANKai-yip,RaymondCriminal intimidation/Appropriateness of custodial sentence/Remand in custody pending background report/When remandin custody or on bail appropriate刑事恐嚇 – 判處監禁是否恰當 – 予以羈押等候背景報告 – 在何種情況下才適合予以羈押或適合准予保釋The Appellant was convicted of an offence of criminalintimidation.The evidence showed that the Appellant was in the habit ofcomplaining about the standard of work of the security staff andmanagement where he lived. On the date of the offence, hebrought a Pakistani to the complainant (PW3) and indicated thatthe man would beat up PW3, a member of the building

31management staff about whose standard of work the Appellantwas dissatisfied.The magistrate remanded the Appellant in custody for 21days for a background report. He said that he considered a prisonsentence was inevitable. On the return day the magistrate imposeda 21-day prison sentence, which enabled the Appellant to beimmediately released.On appeal, it was submitted that a prison sentence shouldnever have been imposed or contemplated. That being so, theremand in custody was to be strongly deprecated because itamounted to a misuse and an abuse of the remand to produce aresult whereby the Appellant was given a 3-week taste of custodyonly to be immediately released by virtue of a short term ofimprisonment which he had served whilst on remand for abackground report. The report was never going to make themagistrate any the wiser about the Appellant, because themagistrate already knew much about him having regard to theevidence he had been given about his good character, hisemployment and police commendations.Held :(1) If offences of criminal intimidation had a triad-linkedflavour, a custodial sentence would be very much in contemplationand a remand in custody, if a court so wished, would be perfectlycorrect;(2) This case concerned a man of good character who hadreceived police commendations but who, by virtue of some defectin his personality, was prepared to be a nuisance by habituallycomplaining about the security staff. A prison sentence waswrong in principle, and the magistrate should have first consideredother sentencing options;(3) The case called for either a substantial fine or, alternatively,a community service order. That order would have requiredreports which could have been obtained by a remand on bail. Thiswas not a case where it was suggested that the Appellant wouldabscond before sentence;(4) As regards the remand, the Appellant could not havecomplained had the 21-day sentence been imposed immediatelyafter the conviction, because, inevitably, the Appellant would havebeen bailed pending his appeal having regard to the shortness ofthe sentence. Whilst it was possible to get bail from the HighCourt following a remand in custody for reports, experienceshowed it was more difficult to achieve as the High Court would

32be less ready to interfere where the sentencing process was not yetcomplete, save in the clearest of cases;(5) Whilst it was not to be said that the magistrate had misusedthe process of remand, a remand in custody should not be madebefore sentence unless it was very much on the cards that someform of custodial sentence was to be imposed, particularly in thecase of someone of good character. If a remand in custody wasordered in cases where a custodial sentence was not likely, itmight give the impression that the court wanted to punish adefendant on an ‘interlocutory ’ basis, without ever intending toultimately impose a custodial sentence;(6) In some classes of case it was appreciated that certainreports could only be obtained by a remand in custody, such as fora DATC suitability report or, for younger offenders, when thecourt wished to call for detention centre or training centresuitability reports. In most such cases the calling for reports wasamply justified;(7) These observations related to the category of case where acustodial sentence was unlikely. If a report was called for then theaccused should usually be on bail. When the report was received,and the court decided that a more severe sentence was appropriatethen such a sentence could be imposed on the return day for thereport or further reports might be needed, which, based on thechange in circumstances disclosed by the first report following theremand on bail, could properly result in a remand in custody.Result - Appeal allowed. Conditional discharge ordersubstituted.MA 1237/2004Carlson DJ(4.7.2005)*Gavin Shiu#Trevor Beel (1)I/P (2)(1) TANGLam-piu(2) CHENGHon-chungConspiracy to defraud/Well-planned fraud on insurancecompany/Need to protect company and customers/Test onappeal against sentence串謀詐騙 – 精心策劃詐騙保險公司 – 有必要保障公司及顧客 – 判刑上訴的判斷標準The Appellants were convicted after trial of an offence ofconspiracy to defraud. The particulars of offence alleged thatthey, together with Wong Yiu-tong, who gave evidence for theprosecution as PW5, and with other persons unknown, conspiredtogether to defraud an insurance company, MassMutual AsiaLimited, by dishonestly and falsely representing that one of itsinsured, a woman called Wong Oi-lin, had been struck bylightning at Guazhou PRC on 19 August 2002 and killed.

33Held :Each Appellant was sentenced to 15 months’ imprisonment.On appeal(1) The sentence was a severe one, but it needed to be shownnot that it was too severe but that it was one which was wrong inprinciple or manifestly excessive;(2) The offence involved a very well-planned enterprise with anumber of arrangements that needed to be made both here andover the border. It drew in a number of people, some corrupt andguilty, others innocent tools of the Appellants and of PW5. Thereward was to be substantial;(3) Insurance companies were vulnerable to such frauds, andneeded to be protected. If they suffered losses in this way, theywould need to recoup these by raising premiums so all wouldsuffer;(4) Given the premeditation and planning, the sentences werenot manifestly excessive. It was not wrong in principle to imposesuch a sentence for something on this scale, even on persons ofgood character.Result - Appeals dismissed.

34F. PRACTICE AND PROCEDURE常規與程序CACV 341/04Ma CJHCStock &Yeung JJA(21.7.2005)*Kevin Zervos SC& Cecilia Chan (2)#Hectar Pun (1)Paul Harris(HKBA)(1) INGLISOwen John(Applicant)(2) LOHLai-kuen,Eda(Respondent)Magistrates Court/Accused appearing only by counsel inrespect of summary offence/Circumstances in which accusednot required to appear in person裁判法院 – 被告只由律師代表出庭就簡易程序罪行應訊 – 在何種情況下被告無須親自出庭應訊The appeal of the Respondent raised the question whether, inrelation to a summary offence, an accused person could appear inthe magistrates’ court only by counsel and not personally, and ifthere was such an entitlement, the limits to this.The case arose out of the prosecution of the Applicant for aspeeding offence. When his case was called on at court, only hissolicitor was present. While the prosecutor was agreeable toproceed, the magistrate (the Respondent) was not. She took theview that even though the Applicant intended to plead guiltythrough his solicitor, he had to be present in person. The case wasthen adjourned, as the magistrate considered that the case couldnot proceed in the absence of the Applicant.This led the Applicant to institute judicial reviewproceedings, as a result of which Hartmann J granted an order ofcertiorari to quash the decision of the magistrate to refuse to hearand determine the summons issued to the Applicant without himappearing in person despite the fact that he was represented by hissolicitor.Held :The Respondent appealed against the decision of Hartmann J.(1) Section 18(1) of the Magistrates Ordinance, Cap 227,enabled a defendant who was not subject to any bail conditionsrequiring his attendance or who had not been remanded incustody, to appear at the hearing of a complaint or information byhis counsel. His physical attendance in such circumstances wasnot required. This, of course, was subject to any statutoryprovisions that required his actual appearance but none of theprovisions of Part II of the Ordinance, which concerned procedurein respect of summary offences, required this;(2) The authorities, both from Hong Kong and the UnitedKingdom, supported this conclusion on the meaning and effect of s18. In Chain Chi-woo, David v Polly Lo (Special Magistrate)[1996] 4 HKC 466, Sears J held, by reference to s 18, that absent

35the applicability of the proviso to that section, a person could berepresented by counsel at the hearing of an information orcomplaint and need not himself appear. That decision was bindingon the Respondent, even if it was decided per incuriam, which itwas not;(3) In The King v Thompson [1909] 2 KB 614, the Court ofAppeal in England, in considering provisions almost identical tothose in Hong Kong, held that it was not necessary for a defendantto appear personally at the hearing of an information or complaint.Result - Appeal dismissed.

刑事檢控科各律師/高級律 - Department of Justice

Create successful ePaper yourself

Delete template?

Save as template ?