Classified Criminal Appeals Bulletin 2003 Part 1 - Department of ...

CCAB 2003Appeal / ProcedureAppeal / ProcedureMA 732/2002Beeson J(24.1.2003)*I G Cross SC& Eddie Sean#CliffordSmith SC &Johnny KC MaLIMan-waiObtaining access to a computer/Assessor of Inland Revenue Departmentextracting information for his own purposes/ Whether conductdishonest/Conviction of guilty in the public interest取 用 電 腦 - 稅 務 局 評 稅 主 任 為 其 本 身 的 目 的 而 取 出 資 料 - 行 為 是 否不 誠 實 - 為 公 眾 利 益 而 將 罪 犯 定 罪The Respondent was acquitted after trial of one charge of obtainingaccess to a computer, contrary to s 161(1)(c) of the Crimes Ordinance, Cap 200.The particulars were that the Respondent had obtained access to a computer,namely, the Inland Revenue Department (‘IRD ’) on-line system, with a view todishonest gain for himself or another.Section 161 of the Crimes Ordinance, Cap 200, provided:(1) Any person who obtains access to a computer(a) with intent to commit an offence;(b) with a dishonest intent to deceive;(c) with a view to dishonest gain for himself or another; or(d) with a dishonest intent to cause loss to another,whether on the same occasion as he obtains such access or on any futureoccasion, commits an offence and is liable on conviction upon indictment toimprisonment for 5 years.(2) For the purposes of subsection (1) ‘gain’ and ‘loss’ are to beconstrued as extending not only to gain or loss in money or otherproperty, but as extending to any such gain or loss whether temporaryor permanent; and(a)(b)‘gain’ includes a gain by keeping what one has, as well asa gain by getting what one has not; and‘loss’ includes a loss by not getting what one might get, aswell as a loss by parting with what one has.The undisputed facts at trial were that the Respondent had beenemployed as an Assistant Assessor in the IRD since 1996. On 26th October1996, he signed an Affirmation of Secrecy under s 4(2) of the Inland RevenueOrdinance, Cap 112 which required him to preserve secrecy. The Respondent,as an Assessor, was given the means of obtaining access to the IRD’s computersystem and was assigned a User Identity number and a password on 28thOctober 1996.In August 1999, December 1999 and again in April 2000, theRespondent was reminded, through routine IRD office procedures, to observeofficial secrecy and to perform on-line enquiries or updating only whendischarging his official duties.On 11th July 2000, the Respondent used his User Identity number andpassword to gain access to the computer system in order to find out the identitycard number and address of the female complainant, who was a colleague of hisand also a taxpayer. It was not disputed that the Respondent had noresponsibility for the complainant’s tax affairs, nor was it disputed that heobtained access to the data without her approval, or approval given by the IRD.The Respondent used the information he obtained to fax a completedmembership application form, in the name of the complainant, to the World2

CCAB 2003Appeal / Procedurequestion could be answered. The Respondent was well aware of the need forconfidentiality in IRD work and must have known that the purpose of thepassword was to ensure client/department privacy. He must have realized thatordinary reasonable people would expect that personal information, includingaddresses and ID card numbers, which they, of necessity, had to impart to theIRD, would not be made known to other individuals or released to the generalpublic without their express permission. The importance of secrecy in respect ofa person’s ID card number in particular could not have escaped the Respondent.As an IRD employee he must have been aware of the need to maintainconfidentiality between taxpayers and the public. The Respondent’s access tothe computer was for the express purpose of obtaining information to which hewas not otherwise privy and which he used without the knowledge or consent ofthe complainant/colleague;(7) It seemed to have been of importance in the magistrate’s decision that theuse to which the information was applied was ‘friendly’ or benevolent but thatdid not dispel the dishonesty in taking and using the information. Whether theRespondent used the information obtained to enroll the complainant as amember of a subversive sect or a charitable group was irrelevant. Thedishonesty lay in extracting the information intending to use it without theknowledge or consent of the complainant, rather than whether the motivation inmaking use of it was benevolent or not. The purpose of obtaining theinformation, or the defendant’s motivation in doing so were matters relevant tomitigation. The fact that the Respondent did not, as did the accused in TsunShui-lun, remove his own identifying material from the application form, did notnegative the dishonesty, linked to the gain. An ordinary, reasonable personwould conclude the Respondent’s conduct was dishonest;(8) The second, subjective, limb of the Ghosh test was whether theRespondent himself knew or must have realized what he did was dishonest in theeyes of ordinary, reasonable and honest people. The circumstances of hisemployment, his age and his level of education were such that he must haveknown that his access was unauthorized and that his obtaining and using of suchimportant information as an ID number and an address was dishonest, albeit itwas used to obtain membership of an organization that might be regarded asinnocuous;(9) It was for the tribunal of fact to decide whether the accused wasdishonest and an appellate court did not lightly interfere with decisions of fact,but it was also the case that an erroneous decision by such tribunal might bereversed if the conclusions drawn from the determination of the facts wereunreasonable. The magistrate appeared to have concentrated too much on whatshe considered the benign aim of the Respondent in enrolling the complainant asa member of the WWF and ignored the dishonesty inherent in the Respondent’sobtaining, using and transmitting to a third party confidential information aboutthe complainant;(10) As dishonesty was established according to both limbs of the Ghosh test,the question posed by the magistrate had to be answered in the affirmative. Thecourt’s powers, as set out in s 119 of the Magistrates Ordinance, Cap 227, werewide-ranging. Although the Respondent submitted that the fairest way ofdisposing of the matter would be to make no order at all, it had been said ‘that ina just society, the conviction of the guilty is in the public interest, as is theacquittal of the innocent’: Secretary for Justice v Lam Tat-ming and Another[2000] 2 HKLRD 431, 441. In HKSAR v Tam Hei-lun [2000] 3 HKC 746,although the Court of Appeal declined to give sentencing guidelines, it indicatedthat such offences were not minor ones by saying that ‘unless there are mostunusual circumstances a non-custodial sentence would be inappropriate foroffences under s 161.’ It would be inappropriate to refrain from making any5

CCAB 2003Appeal / Procedureorder as it was in the interest of the public at large and in the interest of theAppellant and Respondent that some finality and certainty be achieved in thiscase.Result -SJ’s appeal allowed. Question posed answered in the affirmative.Case remitted to the magistrate with a direction to convict andimpose such sentence as was appropriate.CA 147/2002Stuart-MooreVPPang &Lugar-MawsonJJ(3.1.2003)*Kevin Zervos#TRW Jenkyn-JonesCHOWKai-shun,AlexanderDistrict Judge/No need for Reasons for Verdict to address matters not inissue/Counsel on appeal not to present different case to that presented attrial區 域 法 院 法 官 - 裁 決 理 由 無 須 處 理 非 爭 論 事 項 - 律 師 上 訴 時 不 應 提出 與 原 審 時 不 同 的 論 據In the course of dismissing an application for leave to appeal against twoconvictions for soliciting an advantage, contrary to s 4(2)(a) of the Prevention ofBribery Ordinance, Cap 201, Stuart-Moore VP said:A District Court Judge’s Reasons for Verdict must be casespecific. There is no need for him to deal with matters that arenot in issue and for him to do so often clouds the real issues.Further, an applicant cannot run his case in a particular way attrial and make various concessions on the evidence and thenseek to present, as (counsel) has sought to do this morning, adifferent case on appeal.MA1177/2002Beeson J(29.5.2003)*Alain Sham#Cheng HuanSC & PaulLeungLAMYick-singAppeal to High Court/No rehearing of case/Contents of Magistrate’sStatement of Findings向 高 等 法 院 提 出 上 訴 - 並 非 再 次 聆 訊 案 件 - 裁 判 官 的 裁 斷 陳 述 書 的內 容In disposing of an appeal against conviction for an offence of possessionof goods to which the Dutiable Commodities Ordinance applied, contrary to s46(3) of the Dutiable Commodities Ordinance, Cap 109, the courtHeld :(1) This was an attempt to obtain a rehearing of all the matters raised beforethe magistrate, who had heard the evidence given by the prosecution witnessesand the Appellant and who could thereafter make judgments about theircredibility;(2) An appeal to the High Court was not a rehearing of the case. The meredesire to obtain another finding on the facts was ‘not sufficient to justify theinvocation of an appellate process which treats the findings of fact by a court offirst instance as so sacrosanct as our system of criminal justice does’: R v HuiKee-fung MA 196/94, per Keith J;(3) In R v Sheik Abdul Rahman Bux and Others [1989] 1 HKLR 1, thequestion of Reasons for Verdict in the District Court was reviewed, and it wassaid:The trial judge was not required, when setting out his reasonsas required by section 80 of the District Court Ordinance, Cap336, to state precisely what evidence he accepted or rejected.Where, as in this case, a judge’s findings appeared reasonable,having regard to the whole of the evidence an appellate court6

CCAB 2003Appeal / Procedureshould be extremely reluctant to interfere.Such considerations applied also to magistrates;(4) The approach to be adopted by a trial court, and, thereafter, an appellatecourt, was suggested by Stock J in R v Kwong Kin-man and Another MA574/96:In the real world, and even with truthful witnesses, thesediscrepancies, improbabilities and omissions will occur.Indeed, if they do not, then the evidence is attacked as beingartificial or collusive. A magistrate is not expected to dealexpressly with every comporting crumb to which the defencemay be able to point. A realistic attitude must be encouraged,and the approach to such attacks is to ask whether there havebeen material and significant discrepancies, improbabilities oromissions, such as would lead a tribunal to doubt credibility orcentral facts.(5) The issues at trial were understood by the magistrate who heard extensiveevidence and submissions. He assessed the witnesses’ credibility and madefindings of fact from which he drew the inference of guilt. He considered thestatutory defences available to the Appellant, he gave himself the necessarydirections. He incorporated these matters in his Statement of Findings.Result - Appeal dismissed.Ma CJHCStuart-MooreVPJackson J(27.8.2003)*Kevin ZervosSC#J Acton-BondKhanArshedGrounds of appeal/Practice Direction/Grounds must be arguable上 訴 理 由 - 實 務 指 示 - 理 由 必 須 有 辯 論 餘 地Having dismissed an application for leave to appeal against twoconvictions for rape (q.v.), the court noted that many of the grounds of appealwere unarguable. Directions previously given in the settling of grounds ofappeal had been overlooked. Practice Direction 4.2, related to ‘CriminalAppeals to the Court of Appeal’ , stated:5. Where solicitor or counsel settles grounds of appeal, it is his duty toensure that -(a) (i) grounds are only put forward where he hassatisfied himself that they are arguable; it is not hisduty to put forward grounds merely because theappellant wishes him to do so;(ii)grounds are not put forward unless they are‘reasonable’, that is, they afford some real chanceof success.7

CCAB 2003Appeal / Proceduredishonesty. It was not a criminal matter. The charge was dismissedaccordingly.In the Stated Case, the magistrate posed this question of law:Did I err in law in finding that it was a mere unauthorizedaccess to the IRD computer, and it could not be regarded asdishonest when applying the principle in R v Ghosh.In answering that question, the judge applied the two-stage test as statedby Lord Lane CJ in R v Ghosh [1982] 1 QB 1053, to the facts of this case, andconcluded that she was satisfied that ‘there was dishonesty establishedaccording to both limbs of the Ghosh test and am satisfied that the questionposed by the magistrate must be answered in the affirmative’.Section 161(1)(c) of the Crimes Ordinance, Cap 200, provided:(1) Any person who obtains access to a computer -(c) with a view to dishonest gain for himself oranother;whether on the same occasion as he obtains suchaccess or on any future occasion, commits anoffence ...It was accepted that there was an unauthorised access by the Appellant tothe IRD’s computer system. It was further accepted that he had obtained a gainwithin the meaning of s 161(2) from the system by extracting the relevantinformation related to the complainant. The remaining issue was whether therewas dishonesty by the Appellant on the application to the facts of the Ghosh test.The Appellant submitted that there was no legal definition of dishonesty andwhether there was dishonesty in a particular case was essentially a matter of factfor the jury. The magistrate sat as both judge and jury and had concluded thatthere was no dishonesty on the part of the Appellant. What the judge did, it wassaid, was effectively to reverse the verdict of the magistrate on the facts. Thejudge was not entitled to do that unless it could be said that there was no otherconclusion except that the Appellant was dishonest, which was not the case here.Held :(1) An appeal by way of case stated under s 105, Cap 227, was not an appealby way of rehearing: Harris Simon & Co Ltd v Manchester City Council [1975]1 All ER 412. It was a review by the appellate court on the limited ground thatthere was an error of law or an excess of jurisdiction;(2) Where a magistrate came to a conclusion or finding of fact which noreasonable magistrate, applying his mind to the proper considerations and givinghimself the proper directions, could have come to, this would be regarded as anerror of law. Such a conclusion or finding was often described as ‘perverse’:Bracegirdle v Oxley [1947] 1 KB 349, R v Mildehall Magistrate’s Court, exparte Forest Heath District Council (161) JP 401. That was the case where thecourt was satisfied that the magistrate, in reaching his conclusion or finding, hadmisdirected himself on the facts or misunderstood them, or had taken intoaccount irrelevant considerations or had overlooked relevant considerations: ReDJMS (a minor) [1977] 3 All ER 582. In such a case the court was entitled tointervene and the magistrate’s conclusion or finding would not be allowed tostand;(3) It was not disputed that the Appellant did not intend to obtain and hadnot obtained any personal financial gain. On the contrary, he paid the entrance9

CCAB 2003Appeal / Procedurefee to join the WWF and he did what he did for purely personal or benevolentreasons. More significantly, he put down his own name and credit card numberin the application form for membership. It was thus clear that he never intendedto conceal his own identity or involvement in it. He did not try to cover histracks. It might well have been that he wanted the complainant (and possiblyother people as well) to know that it was he who had done it. That was conductwhich could reasonably be regarded as inconsistent with dishonesty;(4) On the evidence as a whole, a reasonable tribunal of fact could haveconcluded that the prosecution had proved that the Appellant was dishonest. Onthe other hand, such a tribunal could easily have come to the oppositeconclusion as the magistrate did in this case. Where it was sought to draw aconclusion or make a finding which was different from that of the tribunal offact, particularly a conclusion of guilt, the appellate court had to be satisfied thatthe conclusion which the court was invited to draw was the only reasonableconclusion in the circumstances. In this case it could not be said that the onlyreasonable conclusion which could have been open to a tribunal of fact was thatthe Appellant was dishonest. It could not be said that the magistrate’s findingwas perverse;(5) The type of offence punishable under s 161 was no doubt very serious - itcould be viewed as a kind of theft, very often with serious consequences butwithout the victim ever knowing what had happened and why. With thewidespread use of computers and the advancement of technology, this valuableequipment had become part of daily life. It was therefore all the more importantto protect the integrity of computers, particularly the integrity of the IRDcomputer system. But the law did not punish all kinds of unauthorised access tocomputers, it only prohibited the unauthorised and dishonest extraction and useof information. It was essentially a question of fact for the jury to decidewhether there was dishonesty in each case;(6) There had been a departure from the accepted norm. The judge was notentitled to intervene.Result - Appeal allowed.FAMC 40 &44/2003Bokhary &Chan PJJLitton NPJ(11.11.2003)*D G Saw SC&Winston Chan#A Raffell (1)F C Whitehouse(2)(1) LEUNGWai-lun(2) CHANMan-lokMurder/Proviso not to be applied if irregularity at trial not material/Norequirement for court to invite argument before applying proviso/Nosentencing principle violated謀 殺 - 如 審 訊 中 不 當 之 處 並 非 重 大 則 但 書 不 適 用 - 並 無 規 定 法 庭 須於 應 用 但 書 之 前 邀 請 答 辯 人 提 出 論 點 - 沒 有 違 反 判 刑 原 則Charged with murder, the Applicants were convicted instead ofmanslaughter. Each was sentenced to life imprisonment, with a minimum termof 20 years’ imprisonment being specified.At trial the issue as to the cause of the victim’s death was a simple one.Did she die as the result of an assault as the prosecution sought to prove beyondreasonable doubt? Or did she die as the result of a drug overdose as the defencesuggested?At trial, the judge made an unfortunate statement that could have giventhe jury the impression that the defendants could be guilty of murdering orunlawfully killing the victim even if she had died of a drug overdose. Thatstatement, however, did not stand alone, and the Court of Appeal took the viewthat the whole of what the judge said could not have left the jury with theimpression that any defendant could be guilty of homicide if the victim had diedof a drug overdose rather than an assault. So the Court of Appeal did not regard10

CCAB 2003Appeal / Procedurethe case as one of misdirection.The Court of Appeal nevertheless treated the trial judge’s unfortunatestatement as a material irregularity. On the basis that the jury could not havebeen misled, the proviso was applied and the appeals were dismissed.In seeking leave to apply to appeal, it was said that the evidence did notwarrant the use of the proviso. It was further submitted that the Applicants didnot receive a fair hearing in regard to the use of the proviso because the Court ofAppeal had not expressly invited argument thereon.Held :(1) Once, as it was entitled to do, the Court of Appeal took the view that thetrial judge’s unfortunate statement could not have misled the jury when taken inthe context of the summing-up as a whole, the irregularity ought not to havebeen regarded as material. So there was simply no need to turn to the proviso atall;(2) There was no practice, nor ought there to be any practice, under whichthe Court of Appeal was obliged expressly to invite argument on the provisobefore it could ever apply it. It was essentially a matter for the Court of Appealto judge whether everything that could usefully be said on matters relevant to theproviso had been said;(3) There was no basis for granting leave to appeal against sentence. Nosentencing principle had been violated. The facts amply justified the sentencesimposed.Result - Applications dismissed.FAMC42/2003BokharyChan &Ribeiro PJJ(19.11.2003)*Sin Pui-ha#Eric KwokFUNGYat-saiChief Judge/Refusal of leave to appeal to Court of Appeal/ Refusal not afinal decision of High Court/No basis for appeal to Appeal Committee首 席 法 官 - 向 上 訴 法 庭 提 出 上 訴 的 許 可 申 請 被 拒 - 拒 絕 許 可 並 非 高等 法 院 的 最 終 決 定 - 沒 有 基 礎 向 上 訴 委 員 會 提 出 上 訴On 10 September 2002, the Applicant pleaded guilty to two counts ofburglary, and was sentenced to 40 months’ imprisonment. In passing sentence,the judge said that since the two offences were committed on different dates, indifferent places and at different times, the sentences should be consecutive.However, he added that it was not necessary to have regard to the totalityprinciple as the case involved only two offences.On 3 October 2002, the Applicant applied for leave to appeal to theCourt of Appeal. On 31 December 2002, the application was heard by the ChiefJudge, sitting as a single judge pursuant to s 83Y of the Criminal ProcedureOrdinance, Cap 221. The Applicant was unrepresented. The Chief Judgerefused leave, saying that the total sentence of 40 months was not wrong inprinciple or manifestly excessive. He added that since the two offences werecommitted in different places and at different times, it was not wrong to passconsecutive sentences.Under s 83Y(3), Cap 221, and s 42(3) of the Criminal Appeal Rules, theApplicant was entitled to renew his application before the Court of Appealwithin 14 days. He did not do so.Eight months later, on 11 August 2003, through counsel, the Applicantapplied to the Court of Appeal to certify a point of law of great and general11

CCAB 2003Appeal / Procedureimportance for the consideration of the Court of Final Appeal. That point was:where a person was to be sentenced for two similar offences, was it necessary toconsider the totality principle?The Court of Appeal held that under s 31 of the Hong Kong Court ofFinal Appeal Ordinance, Cap 484, since no further application was made to theCourt of Appeal, the decision of the Chief Judge was a final decision, that theCourt of Appeal had no jurisdiction to reconsider his application, and that theonly course open to the Applicant was to apply to the Court of Final Appeal forleave to appeal. The Court of Appeal also held that the question sought to becertified had already been dealt with in previous Court of Appeal decisions. Onthe merits, the Court of Appeal considered that the Chief Judge had alreadytaken into account the totality principle, although that was not made clear in hisjudgment. The Court of Appeal therefore refused to grant a certificate.In allowing the Applicant leave to withdraw his application for acertificate and leave to appeal, the courtHeld :(1) The Court of Appeal erred on its interpretation of s 31 of the Hong KongCourt of Final Appeal Ordinance. That section simply did not apply in this case.The judgment of the Chief Judge was neither a final decision of the Court ofAppeal nor a final decision of the Court of First Instance and no appeal lay tothe Court of Final Appeal. The Court of Appeal was also wrong in construingwhat the Chief Judge said regarding the totality principle, which he had notmentioned, probably because the Applicant did not raise it as he was not legallyrepresented;(2) The proper procedure was for the Applicant to apply to the Court ofAppeal to renew his application for leave to appeal to that court. Without adecision of that court, the Applicant could not apply for leave to apply to theCourt of Final Appeal, whether on the point of law ground or substantial andgrave injustice ground;(3) Once the application was withdrawn, the Applicant was at liberty torenew his application for leave to appeal to that court. He would not beprejudiced by going back to the Court of Appeal because there would be ahigher hurdle for him to overcome if he applied to the Court of Final Appealthan to the Court of Appeal.Result - Application withdrawn.Assault / WoundingCA 150/2003Stuart-MooreVPStock &Yeung JJA(28.11.2003)YINGTungWounding with intent/Proof required of unlawful and maliciousact/Discretion of judge not to leave lesser alternative to jury/Counsel notseeking lesser verdict有 意 圖 而 傷 人 – 須 證 明 作 為 是 非 法 及 惡 意 的 – 法 官 行 使 酌 情 權 不讓 陪 審 團 考 慮 較 輕 微 的 交 替 控 罪 – 律 師 沒 有 尋 求 作 較 輕 微 罪 行 的 裁決The Applicant was charged with attempted robbery and, in the12

CCAB 2003Assault / Wounding*Vincent Wong#FrederickChanalternative, with causing grievous bodily harm with intent, contrary to s 17 of theOffences Against the Person Ordinance, Cap 212. He was acquitted of theformer offence, but convicted of the latter.The prosecution alleged that the Applicant attacked the victim with anobject at Fanling Railway Station. The Applicant admitted he had wounded thevictim, but said this was unintentional and that it was an attack in self-defence.He offered to plead guilty to an offence of unlawful wounding.On appeal, it was submitted, inter alia, that the judge had misdirected thejury by using ‘unlawfully or maliciously ’ instead of ‘unlawfully andmaliciously ’ when he reminded them of the elements of the offence. The judgehad, the transcript revealed, used both terms in the course of the summing up. Itwas also said that the judge erred in failing to leave to the jury the alternativecharge of unlawful wounding, contrary to s 19, Cap 212.Held :(1) Whether the reference to the element of ‘malice ’ in a charge broughtunder s 17 or s 19 was important depended on the facts of the case. If theprosecution case was that the accused actually committed acts of inflictinginjuries on the victim and the likely consequences of such acts were physicalharm and the defence was that the assault was accidental or that the accused didnot realise that it might cause some physical harm to the victim, the reference to‘malice ’ might not be necessary at all. In R v Mowatt [1968] 1 QB 421, 426,Diplock L J said:In section 18 (the English equivalent to section 17 in Hong Kong)the word “maliciously” adds nothing. The intent expresslyrequired by that section is more specific than such element offoresight of consequences as is implicit in the word ‘maliciously’and in directing a jury about an offence under this section theword ‘maliciously’ is best ignored.……There may, of course, be cases where the accused’s awareness ofthe possible consequences of his act is genuinely in issue. Reg vCunningham [1957] 2 QB 396 is a good example. But where theevidence for the prosecution, if accepted, shows that the physicalact of the accused which caused the injury to another person wasa direct assault which any ordinary person would be bound torealize was likely to cause some physical harm to the otherperson (as, for instance, an assault with a weapon or the boot orviolence with the hands) and the defence put forward on behalf ofthe accused is not that the assault was accidental or that he didnot realize that it might cause some physical harm to the victim,but is some other defence such as that he did not do the allegedact or that he did it in self-defence, it is unnecessary to dealspecifically in the summing-up with what is meant by the word‘maliciously’ in the section.(2) The Applicant admitted to have used a metal rod (albeit a hollowed one)to hit the victim on his head twice. Such act, in the absence of any lawful excuseor justification, was unlawful. Such act must be malicious. He was bound torealize that his act was likely to cause physical harm. The jury clearly rejectedthe suggestion of self-defence. The Applicant’s suggestion that he did notintend to wound the victim hardly made any difference on the facts of the case;(3) A charge of wounding with intent required the proof of an unlawful and13

CCAB 2003Assault / Woundingmalicious act. The jury should be so directed. The use of ‘unlawful andmalicious ’ and ‘unlawful or malicious ’ interchangeably was the result ofinadvertence. Judges should be vigilant and cautious not to repeat such amistake in order not to encourage what otherwise were clearly unmeritoriousappeals. On the facts of the present case, the mistake made by the judge did notmake any material difference and certainly led to no injustice;(4) The Applicant indicated that he was prepared to plead guilty to unlawfulwounding at the commencement of the trial. This was not a materialconsideration in deciding if the judge was right in not leaving such lesser chargeto the jury. It was not in dispute that whether to leave a lesser alternative to thejury was a matter of discretion for the trial judge in the interest of justice. In R vMokarata [2002] 1 NZLR 793, the Court of Appeal in New Zealand said:Whether a lesser offence was to be put to the jury was a matter ofdiscretion for the trial Judge and the question did not have to beconsidered if it did not arise in the way the case was presented tothe Court. The threshold requirement was whether there was alive issue as to whether no more than the elements of the lessercharge might be established without the additional elementsrequired for the major charge. The Judge had a duty to ensurethat the issues left to the jury fairly reflected the issues whicharose on the evidence.(5) In R v Maxwell (1989) 88 Cr App R 173, 178, the English Court ofAppeal said:… we adhere to the general observations in Fairbanks on theduties of the trial judge … The right course will vary from onecase to another, but the judge should always use his powers toensure, as far as practicable, that the issues left to the jury fairlyreflect the issues which arise on the evidence.(6) Callaway JA summed up the position in R v Kane (2001) 3 VR 542, 588:… I do not consider that every alternative verdict must be left to ajury. The answer to the question whether any such verdict shouldbe left depends on all the circumstances, including the dictates ofthe public interest, fairness to the accused, the course of the trialand the scope of forensic judgment on the part of counsel.(7) An important factor to be considered was that defence counsel had notinvited the judge to leave the less serious alternative of wounding for the jury’sconsideration. Counsel made a deliberate decision not to invite the judge to dealwith this in her summing up. He had every opportunity if had wished to do sobecause the judge had invited assistance on this very topic before summing up tothe jury;(8) No doubt there were good tactical reasons for this decision on counsel’spart, not least of them that such an option lacked reality when the real defenceadvanced had been self-defence. If self-defence failed, then the only realisticverdict open to the jury was one of guilty of the count as it stood. The judgewas entitled, in the exercise of her discretion, not to have left the s 19 alternativewounding to the jury. In any event, this would have been a proper case to applythe proviso.Result - Application dismissed.14

CCAB 2003Assault/WoundingMA 152/2002Tong J(18.12.2003)*Robert S KLee & RobertK Y Lee#Martin LeeSC & DouglasKwokLEUNGChun-wai,SunnyWilful obstruction of police/Assault on police/Mistaken belief a lawfulexcuse if honestly held/To blast another with sound in the ear constitutedbattery故 意 妨 礙 警 務 人 員 – 襲 擊 警 務 人 員 – 錯 誤 相 信 如 屬 真 誠 相 信 可 作為 合 法 辯 解 – 在 他 人 耳 邊 發 出 巨 響 構 成 毆 打 罪The Appellant was convicted after trial of the offences of wilfullyobstructing a police officer in the due execution of his duty, contrary to s 36(b),Cap 212, and assaulting a police officer in the due execution of his duty,contrary to s 36(b), Cap 212.The Appellant and a group of about forty people took part in a rally on11 August 2001. At Police Headquarters they shouted slogans.On appeal, in respect of the first charge, it was submitted that themagistrate erred in law when he applied Rice v Connolly [1996] 2 QB 414, andLewis v Cox [1985] QB 509, in that he failed to direct himself that ‘lawfulexcuse’ must be disproved by the prosecution once a prima facie case of lawfulexcuse was raised by the defence. In respect of the second charge, it wassubmitted that in his oral verdict the magistrate failed to consider whether theactus reus of battery had been established by the prosecution, and that in hisstatement of findings he said he had convicted the defendant of (psychic) assaultinstead of battery as in the oral verdict.Held :(1) The magistrate had not accepted the Appellant’s evidence that he had anhonest belief. He must have rejected it. By stating directly that he did not findthe Appellant to be an honest witness, it would be puzzling if he were to acceptthat he had made an honest mistake;(2) A mistaken belief could amount to a lawful excuse. In R v Li Wing-tatand Others [1991] 1 HKLR 731, it was confirmed that a defendant had a lawfulexcuse if he was honestly mistaken as to a fact on reasonable grounds. Recentjudicial thinking appeared to indicate that the defence need not show reasonablegrounds for the mistaken belief, but that this would be a relevant factor for thecourt to consider when such defence was raised, as to whether there was such abelief on the part of the defendant: R v Thomas (1991) 3 NZLR 141;(3) The magistrate’s failure to mention the defence of lawful excuse wasneither here nor there. He did not fail to consider the defence but the mattersimply did not arise due to his rejection of the Appellant’s evidence. There wasnothing unsafe about the conviction for wilful obstruction;(4) When a loudhailer was used as an implement to send out amplified soundat close range to someone’s ear without the consent of that person, it must bebattery. It would be wounding if actual bodily harm had occurred as a result:DPP v K [1990] 1 All ER 331, R v Ireland and Burstow [1998] AC 147, Kaye vRobertson (1991) FSR 62;(5) In his oral reasons, it seemed that the magistrate had convicted theAppellant of assault in the sense of battery. In the statement of findings, therehad been a shift of the basis of the conviction. Assault and battery were distinctoffences, and for that reason a conviction of ‘assault and battery’ or of ‘assaultor battery’ would be quashed because a person could not be convicted of morethan one offence or of alternative offences in one information.Result -Appeal dismissed on first charge, but allowed on second charge.15

CCAB 2003BailBailHCMP2577/2003V Bokhary J(20.6.2003)*VincentWong#Oliver DaviesSJv(1) WONGShu-kin(2) TINKwok-hung(3) SOChi-yuenDistrict Court/Bail pending appeal/No jurisdiction in District Court togrant bail to a person it had convicted/Application for bail to Court ofAppeal區 域 法 院 - 獲 准 保 釋 等 候 上 訴 - 區 域 法 院 沒 有 批 准 被 其 定 罪 的 人 保釋 的 司 法 管 轄 權 - 保 釋 申 請 須 向 上 訴 法 庭 提 出On 5 June 2003, in the District Court, a deputy judge convicted theRespondents of an offence of resisting police officers in the due execution oftheir duty, contrary to s 36(b) of the Offences against the Person Ordinance, Cap212. He sentenced each to 4 months’ imprisonment. The deputy judge thenadmitted the Respondents to bail pending appeal.The Applicant applied under s 9H of the Criminal Procedure Ordinance,Cap 221, to the Court of First Instance to revoke the grant of bail on the groundthat it was made without jurisdiction. The Respondents, however, submitted thatalthough there was no inherent jurisdiction in the district judge to grant bailpending appeal, this could be done under s 83Z of the Criminal ProcedureOrdinance, Cap 221. Therefore, it was said, the bail should not be revoked.Held :(1) The decision to grant bail was made without jurisdiction. The court towhich appeals lay from the District Court, namely, the Court of Appeal, hadjurisdiction to grant bail pending appeal to persons convicted and sentenced inthe District Court. But the District Court itself had no such jurisdiction;(2) In this respect, the District Court was in a different position from theMagistrates Court, on which s 119(1)(a) of the Magistrates Ordinance, Cap 227,conferred jurisdiction to grant bail pending appeal from it. Section 83Z, Cap221, merely set out the matters that a court was to take into account whendeciding whether or not to grant bail that it had jurisdiction to grant. It did notconfer any general jurisdiction to grant bail. There was no statutory provisionwhich conferred jurisdiction on the District Court to grant bail pending appealfrom it. There being no statutory jurisdiction to do so, there was no jurisdictionat all to do so. That was because it was well-established that a trial court did nothave inherent jurisdiction to grant bail pending appeal from it.Result - Bail revoked.Obiter - If the Respondents wished to seek bail pending appeal, it would not beappropriate to apply to the Court of First Instance for bail pendingappeal, as appeals from the District Court lay to the Court of Appeal.A single judge of that court could act very quickly if there were anapplication for bail pending appeal.16

CCAB 2003Bind OverBind OverMA 802/2002Nguyen J(17.3.2003)*Cheung Waisun#Leon TangLAUWai-woBind over/Accused acquitted after trial/Magistrate apprehending futurebreach of peace/Power to bind over in absence of consent簽 保 - 被 告 於 審 訊 後 獲 無 罪 釋 放 - 裁 判 官 意 恐 被 告 日 後 可 能 會 破 壞社 會 安 寧 - 在 沒 有 同 意 下 判 被 告 簽 保 的 權 力The Appellant was charged with common assault. At the end of the trial,the magistrate acquitted the Appellant but decided, having heard the evidence,that the Appellant should be bound over in the sum of $1,000 to keep the peacefor one year. The Appellant did not consent to the making of the binding-overorder. In her statement of findings, the magistrate said that in view of thehistory behind the incident, she feared that sooner or later the Appellant mightcause some trouble which would have the effect of disturbing the peace.Held :On appeal(1) The power of a judge or magistrate to make an order binding over adefendant to keep the peace was derived from the Justices of the Peace Act 1361and was now exercised in accordance with s 109I of the Criminal ProcedureOrdinance, Cap 221, which was in very similar terms to the wording of s 1(7) ofJustices of the Peace Act 1968. Section 109I provided:A judge, a District Judge or a magistrate shall have, as ancillaryto his jurisdiction, the power to bind over to keep the peace, andpower to bind over to be of good behaviour, a person who orwhose case is before the court, by requiring him to enter into hisown recognizances or to find sureties or both, and committing himto prison if he does not comply.(2) In R v Lincoln Crown Court ex p Jude [1998] 1 WLR 24, the DivisionalCourt in England held that the power to bind over under s 1(7) of the Justices ofthe Peace Act 1968 did not depend on the consent or conviction of the personconcerned. It also held that in the case of a convicted or acquitted defendantwho had come to court prepared to meet the case against him, the court wasunder no duty to warn him and give him an opportunity to make representationsbefore binding him over. Auld LJ, at 26, said:It is to be noted that the provision does not make the exercise of thepower dependent on the consent of the person concerned. It is apower that the court may exercise by ‘requiring’ him to enter intothe appropriate recognisance.The exercise of such a power does not depend upon a conviction.In an appropriate case, where there is evidence which reasonablymakes the court fear that, without a recognisance, there might be abreach of the peace, it may bind over a person whose case isbefore it even if he has been acquitted or if the prosecution havenot proceeded with the matter.(3) The law was as stated in Jude, and the magistrate was entitled to bindover the Appellant in the absence of his consent. (R v Lam Yat-suen [1992] 1HKCLR 1751, R v Chan Tak-shing [1996] HKLY 526, not followed.)Result - Appeal dismissed.17

CCAB 2003Bind OverMA 643/2003Jackson J(7.8.2003)*VincentWong#I/PZHANGBINGXiao Yuan,RobinBind over after acquittal/Consent not required/Accused to be givenopportunity to make representations被 裁 定 無 罪 後 的 簽 保 - 無 須 同 意 - 被 告 應 獲 給 予 機 會 申 述On 21 May 2003, the Appellant was acquitted after trial of an offence ofassault occasioning actual bodily harm. He was then ordered to be bound overin the sum of $1,000 ‘to keep the peace or to be of good behaviour for a periodof 12 months’.Before making the binding over order, the magistrate advised theAppellant’s counsel, who responded, without taking instructions, that she had nosubmissions to make on the Appellant’s behalf as to that. Once the Appellantrealised that a binding over order was in the process of being made, he sought toobject.Held :On appeal(1) Although there was an obligation, which went beyond mere courtesy orwisdom, to give an opportunity to a defendant to make submissions as to why heshould not be bound over, and to do so either directly or through his lawyerwhen he was represented, it was not necessary (or indeed desirable) to seek toobtain his consent to the making of such as order. It was not a matter for hisconsent and to suggest otherwise was ‘almost a contradiction in terms’: Veater vG [1981] 1 WLR 567, as applied in R v Lam Yat-suen [1992] 1 HKCLR 175.The making of the order was a matter for the judgment of the magistrate in thecircumstances of the case and, importantly, in the light of any submissions whichthe defendant might wish to make as to why the order should not be made. Thatwas a very different matter from seeking his consent;(2) It was a cause for concern that the Appellant was not apparently told byhis counsel before the magistrate made up his mind to make the order what itwas that the magistrate was intent upon doing and his instructions were not,there and then, sought as to why he (the Appellant) should not be bound over.His instructions should have been sought and his counsel should not have takenit upon herself in the absence of such instructions to accept what she doubtlessregarded as being inevitable. That the taking of such instructions and addressingthe magistrate upon them might well, in light of the magistrate’s view of thematter, have been a futile exercise, was not the point;(3) Although the magistrate had told counsel to take instructions after theAppellant had objected to being bound over, the decision to make the order hadin reality already been taken at that point, and it was too late to makesubmissions.Result - Appeal allowed. Binding over order set aside.MA 742/2003Beeson J(25.9.2003)*Lynda Shine#I/P(1) LAIYun-kwai(2) WUKam-yukBinding over of acquitted accused/Accused aware of circumstances ofalleged offence/Situation different to that of a witness/No obligation oncourt to seek representations before binding accused over被 裁 定 無 罪 的 被 告 簽 保 守 行 為 - 被 告 知 道 被 指 稱 所 犯 罪 行 的 情 況 -被 告 的 情 況 與 證 人 的 情 況 有 所 不 同 - 法 庭 在 下 令 被 告 簽 保 守 行 為 之前 並 無 義 務 要 求 被 告 作 出 陳 述The Appellants were charged with one offence of criminal intimidation,contrary to ss 24(b)(i) and 27 of the Crimes Ordinance, Cap 200.18

CCAB 2003Bind OverAlthough the magistrate was satisfied that the Appellants had made thethreats in question, and that the person to whom they were addressed wasalarmed, he acquitted because he could not be satisfied beyond a reasonabledoubt that at the time they made the threats they intended to cause alarm. Hecould not rule out the possibility that the threats might have been uttered inanger and exasperation, without a genuine intent to create fear.Having acquitted the Appellants, the magistrate decided that thecircumstances justified the exercise of his power under s 109I of the CriminalProcedure Ordinance, Cap 221, and he bound each Appellant over to keep thepeace and to be of good behaviour for a period of 12 months, in the sum of$3,000 for each Appellant. He explained to the Appellants the effect andmeaning of that order and assured them that it was not a conviction.The Appellants submitted on appeal that the magistrate should not havemade the orders he did, as they had not done what was alleged and their businesswould be affected by the order.Held :(1) It was quite clear that the magistrate had the power to make the order andgiven his finding that threats had been made, there was justification for makingsuch an order against each of the Appellants;(2) On the issue of whether the Appellants should have been given theopportunity to make representations, there was no obligation on the magistrateto ask for representations from a defendant before making an order, although inthe ordinary course of events it might be sensible for a magistrate to do so. Asthere was no requirement for a magistrate to obtain the consent of a defendantbefore making such an order, to permit such representations, or to read into thesection a requirement to allow representations, was otiose;(3) It was important to differentiate between the position of acquitteddefendants, as these Appellants were, who knew the circumstances andbackground of the alleged offence, and the position of a witness called to giveevidence who, thereafter, was considered a suitable subject for a binding over.In the latter case, a court should ask if the witness wished to be representedand/or to make submissions: R v Woking Justices, Ex Parte Gossage [1973] QB448.Result - Appeals dismissed.FACC 5/2003BokharyChan &Ribeiro PJJMortimer &Lord Scottof FoscoteNPJJ(19.12.2003)*Cheung Waisun&Sally YamLAUWai-woBind-over order/Nature of order/Consent not required to making oforder/Precision required in formulation of order/ Circumstances wherebinding over appropriate/Notice to person affected essential/Right to beheard/Inquiry as to means簽 保 命 令 – 命 令 的 性 質 – 作 出 命 令 無 須 獲 得 同 意 – 擬 定 命 令 必 須明 確 清 晰 – 適 合 簽 保 的 情 況 – 受 影 響 的 人 必 須 事 先 獲 得 通 知 – 陳詞 的 權 利 – 就 經 濟 狀 況 進 行 查 問The Appellant raised three issues. First, once he had been acquitted bythe magistrate of the assault upon his brother with which he had been charged,whether there was a sufficient factual foundation to justify the magistrate inordering him to be bound over in the sum of $1,000. Second, whether anindividual could be bound over without his consent. Third, whether themagistrate ought to have inquired into the Appellant’s means before binding himover in the sum of $1,000.19

CCAB 2003Bind Overagainst accordingly.(6) The bind-over could not become effective without the consent of theperson concerned. But it was not true to say that the s 109I bind-over could notbe made without the consent of the person concerned. The certified question ofwhether a person before the court could be bound over without his consentwould be answered accordingly;(7) There was no indication from the transcript of proceedings that theAppellant consented to being bound over. At most it could be said that heexpressed his understanding of the bind-over order the magistrate had made.But later, in the magistrate’s clerk’s office, he signed a written recognizance.He thereby complied with the magistrate’s order and the bind-over on the termsspecified in the written recognizance became effective. Lack of consent, on thefacts of this case, was not ground for setting aside the bind-over;(8) The principle of legal certainty required that a law must be sufficientlyprecise to enable a citizen to foresee, to a degree that was reasonable in thecircumstances, the consequences that a given action might entail. A court order,breach of which might lead to either pecuniary loss or loss of libertyconsequences or to both, must, for the same reasons, have the same quality ofprecision. A bind-over order requiring the object of the order to ‘keep thepeace ’ or to ‘be of good behaviour ’, without any additional description of whatit was that the individual must refrain from doing in order to avoid being inbreach, raised obvious questions about legal certainty. A sharp focus wasrequired on the compatibility of bind-over orders with the principle of legalcertainty;(9) In the 21st century some limit was to be placed upon the conduct thatcould be held to justify an exercise of the s 109I bind-over power, and a bindoverorder should be expressed in terms that made it clear what the bound overperson was to be prohibited from doing. As to what conduct would justify abind-over to keep the peace, the conduct must involve violence to person orproperty, or the threat of such violence, or be conduct giving rise to a reasonableapprehension that such violence would take place: Steel v United Kingdom(1998) 5 BHRC 339. In the absence of conduct of that character a bind-overorder to keep the peace should not be made;(10) Conduct to justify a bind-over to be of good behaviour must involve thecommission of the actus reus of a criminal offence, or the threat of such an act,or be conduct giving rise to a reasonable apprehension of the commission of acriminal offence. In the absence of conduct of that character a bind-over orderto be of good behaviour should not be made;(11) In some circumstances a bind-over order to keep the peace and be ofgood behaviour might be made and in other circumstances a bind-over order tobe of good behaviour might be made but not an order to keep the peace. Thetraditional use of both types of bind-over in all cases should not be continued.In the present case, the Appellant’s conduct was conduct that justified themagistrate in considering making an order binding him over to keep the peaceand be of good behaviour;(12) A bind-over order in the general form that required the personconcerned to keep the peace and be of good behaviour, without any greaterprecision, should not any longer be regarded as satisfactory. The principle oflegal certainty required that the order spelled out with precision what it was thatthe person must not do. For example, in the present case, if a bind-over was tobe made against the Appellant, it should have been an order requiring him tokeep the peace and be of good behaviour by abstaining from assaulting or21

CCAB 2003Bind Overthreatening to assault his brother or by doing anything to give rise to areasonable apprehension that he intended to assault his brother, or in some suchterms. A guide to an acceptable formulation of a bind-over order would bewhether an injunction in those terms would be acceptable;(13) The bind-over in this case was expressed by the magistrate simply as abind-over ‘to be of good behaviour and to keep the peace ’, and this lacked therequisite precision and was fairly meaningless. There was no ‘thing forbidden ’.The bind-over failed to comply with the principle of legal certainty;(14) It was essential if a witness, or a litigant in a civil case, or an acquitteddefendant, was to be made the object of a bind-over order that the personconcerned be given prior notice of the proposal: R v Lincoln Crown Court, Ex pJude [1998] 1 WLR 24, 27. The length of the notice must depend on thecircumstances but it must at least be sufficient to enable the person to take legaladvice, and to be legally represented;(15) In general, so far as bind-over proposals were concerned, the position ofan acquitted defendant had more in common with that of a witness than that of aconvicted defendant. What must be done in order to comply with therequirements of natural justice was fact sensitive and might vary from case tocase, but, in general, a failure to warn an acquitted defendant of the proposal tobind him over and to give him an opportunity to make representations wouldinvalidate the order: R v Woking Justices, Ex p Gossage [1973] 1 QB 448,explained;(16) In R v Li Wai-chu [1983] 2 HKC 219, a case where an alleged victimgave evidence for the prosecution, and where that alleged victim was bound overfor one year after the charge was dismissed, it was said that a person ought notto come to court to testify for the prosecution and to leave court subject to legalsanction unless (1) there were facts on the face of the record from which it couldproperly be inferred that there was a danger of such person assisting a breach ofthe peace, and (2) the person was apprised of those facts and given anopportunity to be heard as to why an order ought not to be made binding himover to keep the peace. That was a correct statement of the position subject toone qualification. It was not necessary for the facts found that justified themaking of the bind-over order to be part of the order or to appear on the face ofthe record provided they were set out in a judgment;(17) A judge or magistrate proposing to make a bind-over order ought not tofix the sum in which the person concerned was to be bound over without firstsatisfying himself that the sum was an amount that the person concerned couldreasonably be expected to pay. Usually this would require some inquiry into theperson’s means; but, if the amount were trivial by any standards, or if it wereobvious that the person could reasonably afford to pay the sum, an inquirywould not be necessary;(18) In the present case, the magistrate gave the Appellant no prior warningthat she had in mind to bind him over. She gave him no opportunity to takelegal advice, although his solicitor was present. She gave neither him nor hissolicitor an opportunity to make representations as to why he should not bebound over. She made no inquiry as to whether she could reasonably afford topay $1,000, a sum that, though trivial to many, would not be trivial to all. Theprocedure whereby the magistrate announced her decision to bind-over theAppellant was in breach of the requirements of natural justice as well as lackingthe requisite precision in terms.Result - Appeal allowed. Bind-over order set aside. Costs awarded.22

CCAB 2003Bribery / Corruption / ICACBribery / Corruption / ICACCA 284/2001Stuart-MooreVPStock JAJackson J(18.2.2003)*IanMcWalters &Winnie Ho#RobertWhitehead &SanjaySakhrani(1) TANGHoi-on,Barry(2) TJONGKee-mingPOBO/Conspiracy to accept advantages/Lavish entertainment not withindefinition of ‘advantage’/Provision of entertainment a favour orservice/Taking out of hostesses not entertainment as defined《 防 止 賄 賂 條 例 》- 串 謀 接 受 利 益 - 豐 盛 款 待 不 在 ‘ 利 益 ’ 的 定 義範 圍 之 內 - 提 供 款 待 是 一 種 優 待 或 服 務 - 據 定 義 所 指 舞 小 姐 外 出不 是 款 待The Applicants were employed by the Housing Department. Theirfunctions included architectural supervision of building projects undertaken bythat Department. There were three such projects. The first was at Fanling, andA1 was the project architect, and Paul Y-ITC General Contractors Ltd, (‘PaulY ’ ) the main contractor. The second project was at Tin Shui Wai, and was forthe construction of fifteen apartments, a school and a road, and A2 was theproject architect, with Paul Y the main contractor. The third was also at TinShui Wai, and A2 was the project architect, with Paul Y as main contractor.The Applicants were convicted after trial of conspiracies to acceptadvantages in the exercise of their functions as project architects. The allegationwas that each Applicant was lavishly entertained by the contractors and thesubcontractors of the projects for which he was responsible; that both of themwere the objects or targets of extensive hospitality stretched over many months,so that a pattern developed whereby it was well understood by all concerned thatthe architects were to be treated frequently to hospitality at clubs where theywould be indulged at the expense of the contractors and subcontractors. Suchindulgence included the provision of the company of hostesses both within andoutside the clubs. The pattern of indulgence, which included travel to Macau,was such that there was to be inferred, according to the prosecution, aconspiracy between the Applicants and the contractors that the Applicants wouldaccept advantages. The nature of the advantages allegedly agreed to beaccepted lay at the heart of the appeal.Save for the particulars, the first charge against A1 alone, and the secondand third charges against A2 alone, were the same. The first charge was asfollows:Statement of OffenceConspiracy to accept advantages, contrary to sections 4(2)(a)and 12(1) of the Prevention of Bribery Ordinance, Cap 201 andsections 159A and 159C of the Crimes Ordinance, Cap 200.Particulars of OffenceTang Hoi-on, Barry, being a public servant, namely anArchitect of the Housing Department, on divers days between the1st day of December, 1998 and the 17th day of August, 2000, inHong Kong, conspired with Tam Siu-ki, Gary, Siu Kin-ming, andother persons unknown to, without lawful authority or reasonableexcuse, accept advantages, namely payment, release or dischargeof the said Tang Hoi-on, Barry’s obligation or liability forexpenses incurred for meals, night-club entertainment, hostessescort services from the said Tam Siu-ki, Gary, as an inducementto or reward for or otherwise on account of the said Tang Hoi-on,Barry performing or having performed an act in his capacity as apublic servant, namely remaining favourably disposed towards thestaff members of Paul Y-ITC General Contractors Limited whowere involved in the development project Area 49A Phase 2.23

CCAB 2003Bribery / Corruption / ICACOn Charge 1, the judge found that the evidence showed that there werethree visits to nightclubs paid for by Paul Y, and that ‘on each of those visits asubstantial amount of money was spent on providing drinks, some food, singing,and the company of hostesses from all of which (A1) benefited and to none ofwhich he made any contribution ... fees were paid by whoever paid the bill thatpermitted a hostess to leave the club with a customer and in each instance (A1)left with a hostess …’On Charge 2, the judge found that the evidence showed that there werethree visits to nightclubs during which both Applicants left with hostesses, paidfor by Paul Y, and that on each occasion ‘there were substantial amounts ofmoney spent on providing drinks, some food, singing and the company ofhostesses from all of which (A2) benefited and to none of which he made anycontribution: in each instance fees were paid by whoever paid the bill thatpermitted a hostess to leave the club with a customer and in each instance (A2)left with a hostess: there were two visits, similar in nature, to Macau paid for bythe subcontractor ….’On Charge 3, the judge relied on eight visits to nightclubs where ‘verylarge amounts of money were spent on providing drinks, some food, singing,and the company of hostesses from all of which (A2) benefited and to none ofwhich he made any contribution: in three instances fees were paid by whoeverpaid the bill that permitted a hostess to leave the club with a customer and ineach of those instances (A2) left with a hostess.’Section 2(1) of the Prevention of Bribery Ordinance, Cap 201, provided:In this Ordinance, unless the context otherwise requires:“advantage” means -(a)(b)(c)(d)(e)(f)any gift, loan, fee, reward or commission consisting ofmoney or of any valuable security or of other property orinterest in property of any description;any office, employment or contract;any payment, release, discharge or liquidation of any loan,obligation or other liability, whether in whole or in part;any other service, or favour (other than entertainment),including protection from any penalty or disability incurredor apprehended or from any action or proceedings of adisciplinary, civil or criminal nature, whether or notalready instituted;the exercise or forbearance from the exercise of any rightor any power of duty; andany offer, undertaking or promise, whether conditional orunconditional, of any advantage within the meaning of anyof the preceeding paragraphs (a), (b), (c), (d) and (e),but does not include an election donation within the meaning ofthe Elections (Corrupt and Illegal Conduct) Ordinance (Cap554), particulars of which are included in an election return inaccordance with that Ordinance;….“entertainment” means the provision of food or drink, forconsumption on the occasion when it is provided, and of anyother entertainment connected with, or provided at the same timeas, such provisions.24

CCAB 2003Bribery / Corruption / ICACHeld :(1) As the prosecution conceded, the Acting Attorney General, on 16December 1970, had told the Legislative Council that it would ‘not be acriminal offence to accept entertainment, even if this is both offered andaccepted for corrupt reasons’. It was clear that even lavish entertainment wasnot intended to fall within the definition of ‘advantage ’, but that such would becovered by regulations governing the conduct of public servants;(2) It could not have been intended that, but for the current extent of thepermission granted, it was open to the prosecuting authority successfully toprosecute the public servant for accepting a meal, or a dinner theatre invitation,if the prosecutor chose to frame the charge under (c), but not if he were to frameit under (d). Nor could it have been intended that, as the judge put it, therewould ‘come a time when even the provision of the items contemplated in thatdefinition [of ‘entertainment’] may become an advantage’, so that it would be‘a question of fact and degree in each instance as to whether the acceptablelevel of social contact within a business relationship has been exceeded ’. Thatapproach flew in the face of the Ordinance’s definition of entertainment, adefinition which was not thus qualified; and it was an approach which wouldlead to uncertainty, not simply in the context of business relationships but in theordinary life of, in particular, the public servant. Nor could it have beencontemplated that payment by a host, properly so called, for entertainment of hisguest, also properly so called, was the meeting of a liability contemplated byparagraph (c), for it that were so, paragraph (c) could always be used tocircumvent paragraph (d);(3) Entertainment in paragraph (d) did not qualify ‘payment, release,discharge or liquidation of any loan, obligation or other liability’ in paragraph(c), and the draftsman must be presumed deliberately to have inserted theexception in (d) rather than as a proviso to the entire definition;(4) The sensible interpretation was one that recognised that the benefitsspecified in (a), (b) and (c) of the definition of ‘advantage ’ were not intended tobe viewed as benefits in the nature of entertainment or payment forentertainment. It was sensible and correct to describe the provision ofentertainment as the provision of a favour or, in some circumstances, of aservice, rather than, say, a gift; it was artificial to say that when a meal or otherentertainment was provided, the recipient, but for the generosity of the provider,would have to pay for the entertainment himself and that, therefore, he wasaccepting the payment or discharge of a loan or obligation. Although this wasnot exhaustive, (c) was directed primarily at situations in which the recipient ofthe benefit had incurred a debt, and a third party discharged that debt on hisbehalf, or the creditor released him from his contractual obligation. Whereentertainment was provided, there would often be incurred by the recipient guestno obligation or debt at all as between the guest and the establishment where theentertainment was to be, or had been, provided. If a host reserved a table in arestaurant for a number of guests, and the circumstances were such as to showthat as between himself and the restaurant, the host was assuming liability topay, where was the obligation or debt of his guests for which he was paying? Itwould be otherwise where, for example, X had incurred a liability for, say, abanquet which he had thrown or hosted and D paid off that liability. In such acircumstance it was artificial to say that D had entertained X. This was not sucha case;(5) The prosecutor chose, in his formulation of the charges, to catch theadvantages inappropriately as payments for obligations and liabilities. This wassignificant because it permitted him, or so he thought, to include in theparticulars of the advantages in respect of which the conspiracy developed,25

CCAB 2003Bribery / Corruption / ICACadvantages which he could not have included had he correctly applied thedefinition. That was why the words ‘meals [and] nightclub entertainment’ werein the charges. Those benefits would not have been there had the advantagesbeen described as favours or services, for counsel drafting the charges would atonce have recognised that under the umbrella of ‘favours’, they were notproscribed advantages. It appeared that paragraph (c) of the definition wasdeliberately chosen to ‘bring in’ food and entertainment;(6) It followed that in so far as the judge relied upon ferry tickets and hotelrooms as part of the object of the conspiracy, they were not alleged as such bythe charges; and in so far as he concluded that the (remaining) advantages werereceived in the form of payments of, or release from, obligations or liabilities, hewas in error. The taking out of hostesses from the clubs was not entertainmentas that was defined in the Ordinance, but there was not the evidence to supportthe finding that the Applicants had themselves incurred obligations to the club topay for these items. These were favours, or services, and should have beenframed in the charge sheet as such;(7) The fact, on its own, that an advantage had, in a charge, been framed asthe payment for a liability rather than as a favour, was not of itself fatal to aconviction. It was a matter of particularisation of the offence under s 4 of theOrdinance which, in many instances, would readily lend itself to amendment.That was not possible in this case, for had the charges been correctly framedthere was a possibility that the defence might have approached their taskdifferently by a more specific concentration on the sole alleged advantagetargeted by the conspiracy, the taking of women out of the club and, perhaps, bycalling evidence on that issue;(8) This was a case in which normally there would have been an amendmentand a re-trial. That, however, was not acceptable as A1 had served hisimprisonment, and A2 had almost done so.Result - Appeals allowed.MA 551/2003McMahon DJ(3.7.2003)*Kevin ZervosSC#Andrew LamY Corruption investigation/Criteria for return of seized traveldocuments/Test of unreasonable hardship貪 污 案 調 查 - 發 還 被 檢 取 旅 行 證 件 的 準 則 - 不 合 理 困 苦 的 判 斷 標 準This was an appeal against a magistrate’s refusal to order the return ofthe Appellant’s travel documents pursuant to an application made by theAppellant under s 17B(1) of the Prevention of Bribery Ordinance, Cap. 201(‘the Ordinance’).The documents had been originally surrendered by the Appellant incompliance with an order obtained by the ICAC under the provisions of s 17Aof the Ordinance on 10th February 2003 following his arrest on 8th February2003. The Appellant had made two unsuccessful applications under s 17B forthe return of these documents. The first was on 23rd April 2003 and the second,the subject of this appeal, was on 16th May 2003.The application made to the magistrate for the return of the Appellant’stravel documents under the provisions of s 17B of the Ordinance required theapplicant to establish that a refusal to grant the application would cause himunreasonable hardship. Section 17B stated:(1) A person who has surrendered a travel document undersection 17A may at any time make application in writing,either to the Commissioner or to a magistrate or both for its26

CCAB 2003Bribery / Corruption / ICACreturn, and every such application shall contain a statement ofthe grounds on which it is made.(2) A magistrate shall not consider an application made undersubsection (1) unless he is satisfied that reasonable notice inwriting of it has been given to the Commissioner.(3) The Commissioner or a magistrate shall only grant anapplication made under subsection (1) where theCommissioner or the magistrate, as the case may be, issatisfied that having regard to all the circumstances, includingthe interests of the investigation referred to in section 17A(1),a refusal to grant the application would cause unreasonablehardship to the applicant.The Appellant contended that there were meetings outside Hong Kongwhich required his personal attendance, and to be prevented from doing soamounted to an unreasonable hardship.Held :(1) In deciding upon an application under the provisions of section 17B, thefollowing steps would generally be taken by the court:(1) It would decide whether the applicant had demonstratedhardship. If not, that was the end of the matter;(2) If hardship was demonstrated the court would need toconsider whether the applicant had demonstrated that it wasunreasonable;(3) In doing that the court would need to consider thecircumstances of the case including the interests of theinvestigation;(4) There should, therefore, be some material before the court toallow it to decide what those interests are, i.e. materialallowing the court to determine what weight to attach tothose investigatory interest. In the event there was no suchmaterial it may well be that little weight could be attached tothe investigatory interests in that regard by the court andthat accordingly, even a low level of hardship may beconsidered unreasonable;(5) After balancing the interests of the applicant and theinvestigation, given all the circumstances of the case thecourt must then decide whether to refuse the return of theapplicant’s passport would impose unreasonable hardshipupon him.(2) The Appellant had not established any hardship whatsoever;(3) Although the Appellant submitted that he suspected that the ICACinvestigation might be directed at non-bribery offences and that the traveldocuments were therefore held on a wrong principle, it was quite apparent fromthe background of the investigation that there must be real and genuinesuspicions of corruption: R v T [1995] 1 HKCLR 174 considered.27

CCAB 2003Bribery / Corruption / ICACResult - Appeal dismissed.Obiter - (1)It was the practice to hear appeals of this type in chambers.Applications by the ICAC for the surrender of a suspectedperson’s travel documents were originally dealt with unders 17A of the Ordinance in chambers: see s 17A(7), and anysubsequent application by that person for the return of thesetravel documents pursuant to s 17B of the Ordinance wasalso dealt with in chambers: see s 17B(8)(a). It wasobviously the intention of the legislature that proceedingsassociated with the surrender and return of an arrestedperson’s travel documents were dealt with in chambers topreserve the secrecy of the circumstances of an ICACinvestigation into a corruption suspect. That intention wasnot a one-way street simply so as to benefit the investigatorsby not having the details of their investigation revealed soas to compromise it, but it was also intended to benefit thesuspect by ensuring the fact that an investigation was takingplace into his suspected involvement in a bribery offencedid not get released prematurely and unnecessarily into thepublic arena and thereby prejudice his personal andworking life;(2) Although there was no express enactment requiring appealsfrom unsuccessful s 17B applications to be heard inchambers, it would make no sense at all if such appealswere heard in open court. To do so would immediatelyundermine and defeat the legislative intent that a magistratedeal with s 17A and s 17B matters in chambers.CharacterCA 186/2003Cheung JABeeson &Lugar-MawsonJJ(3.10.2003)*Kevin ZervosSC& EdmondLee#K M ChongJIMChong-shingDangerous driving/Accused a public figure/ Evidence of public profile notpointer to bad character/Legitimate use by prosecution of accused’s fameas a road racer/Professional judge sitting alone not influenced by irrelevantmaterial危 險 駕 駛 - 被 告 是 公 眾 人 物 - 被 告 在 公 眾 形 象 方 面 的 證 據 並 不 表 示他 的 品 格頴 差韤 劣 - 控 方 合 法 地 利 用 被 告 賽 車 手 的 名 氣頾 - 單 獨 主 審 的 專業 法 官 不 受 非 相 關 資 料頔 所 影 響The Applicant was convicted after trial of one offence of dangerousdriving, contrary to s 37 of the Road Traffic Ordinance, Cap 374, and oneoffence of damaging property being reckless as to whether life would beendangered, contrary to s 60(2) of the Crimes Ordinance, Cap 200.The prosecution case was that in the early hours of 21 September 2002,officers of the New Territories Traffic Branch conducted an anti-illegal roadracing operation at Tuen Mun Road, New Territories. A roadblock was set up atTuen Mun Road, near the Tuen Mun town centre.Five cars approached the roadblock at high speed. Two police vans werethen driven to act as a backstop sealing off the southern end of the road. All thedrivers of the cars made U-turns and travelled against the traffic flow at high28

CCAB 2003Characterspeed towards the backstop. A white Subaru was the first vehicle to drive pastthe backstop and, in so doing, it hit the offside front of one police van, which inturn hit the other. The rear bumper and the rear number plate of the whiteSubaru fell off. A police sergeant who was on board one of the police vanssustained an injury to his shoulder when the van was pushed forward by theimpact.PC 48924 (PW5), who was one of the officers at the roadblock, and whosaw the group of vehicles make the U-turns and travel towards the backstop,pursued them on his motorcycle. He also saw the white Subaru pass through thetwo police vans and damage them.The white Subaru continued to travel against the on-coming traffic.When it got near to the junction of Tuen Hing Road and Tuen Mun Heung SzeWui Road, it suddenly stopped. PW5 stopped his motorcycle alongside thedriver’s seat of the car. The driver’s side window of the car was down and thedriver, a man wearing 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 at a distance ofabout one metre. PW5 recognised the driver as someone he knew from themedia. He used the loudspeaker on his motorcycle to tell the driver using thename he knew him by - ‘Jim Chong Shing’ - to turn off the car’s engine. Onhearing this, the driver suddenly reversed his vehicle into another road. PW5continued to chase after the white Subaru but failed to catch up with it andeventually lost sight of the car. This chase lasted for more than 10 minutes andPW5 kept the white Subaru within his sight at a distance of 10 to 20 metres.During the chase the driver of the white Subaru committed a number of trafficoffences, including overtaking a taxi by crossing double white lines.About two weeks after the incident, PW5 attended an identificationparade where he positively identified the Applicant as the driver of the whiteSubaru.On appeal, it was submitted, inter alia, that there were proceduralirregularities at trial, namely, that the prosecution was allowed to adduceevidence of the Applicant’s bad character, which was said to be irrelevant andprejudicial to the Applicant and also that the judge erred in not directing himselfthat the evidence of the Applicant’s ‘bad character’, if admissible, could only beconfined to credibility.The Applicant accepted that he was a public figure. He had driven in theMacao Grand Prix. He had appeared as a stunt man in a movie and in a VCD.His photograph and articles about him had appeared in the media. He hadacquired a public persona, and members of the public were more likely torecognise him than they would a person of complete anonymity.Held :(1) The fact that the prosecutor adduced evidence and cross-examined theApplicant on his public profile in Hong Kong did not amount to revealing his‘bad character’. What prosecuting counsel sought to do was to establish the factthat, by courting publicity in the past, the Applicant was more readilyrecognisable by people whom he did not know and who did not know himpersonally;(2) The prosecutor did not attempt to establish in his examination-in-chief ofPW5 that the Applicant was on a police ‘watch list’, as alleged in the grounds ofappeal. The question asked of PW5 was whether, as a traffic police officer, hewas under a duty to become acquainted with, or to be able to recognise, peopleinvolved in car racing. Nothing was said about the police having a ‘watch list’29

CCAB 2003Characterof such persons, or of the car racing being illegal. In any event, the Applicant’scounsel objected to the question and, when this was rephrased, PW5 said he didnot understand it and the prosecutor chose not to pursue it;(3) The prosecutor did not suggest to the Applicant that, by reason of hisdriving skills, he was more likely than not to be the driver of the white Subaru,as alleged in the grounds of appeal. The suggestion in cross-examination wasthat, as the Applicant was a very competent and highly skilled driver, who wasgood enough to compete as a racing car driver at Macao, it would be easy for aman of his driving skills to evade a policeman on a motorcycle. The Applicant,with false modesty, replied that he had no skills;(4) Although the summary of facts stated that PW5 recognised the Applicantto be “an infamous street car racer nicknamed ‘Mang Hang’ ”, the summary wasnot evidence at the trial. A professional judge sitting alone would not beinfluenced by what appeared in a summary of facts when determining the factualissues raised at trial;(5) The judge did not use the evidence on the matter as evidence of theApplicant’s bad character as the Applicant contended. The only use that hemade of it was in assessing the correctness of PW5’s identification of theApplicant as the driver of the white Subaru.Result - Application dismissed.Computer CrimeMA 732/2002Beeson J(24.1.2003)*I G Cross SC& Eddie Sean#CliffordSmith SC &Johnny KC MaLIMan-waiObtaining access to a computer/Assessor of Inland Revenue Departmentextracting information for his own purposes/ Whether conductdishonest/Conviction of guilty in the public interest取 用 電 腦 - 稅 務 局 評 稅 主 任 為 其 本 身 的 目 的 而 取 出 資 料頔 - 行 為 是 否不 誠 實 - 為 公 眾 利 益 而 將 罪 犯 定 罪The Respondent was acquitted after trial of one charge of obtainingaccess to a computer, contrary to s 161(1)(c) of the Crimes Ordinance, Cap 200.The particulars were that the Respondent had obtained access to a computer,namely, the Inland Revenue Department (‘IRD ’) on-line system, with a view todishonest gain for himself or another.Section 161 of the Crimes Ordinance, Cap 200, provided:(1) Any person who obtains access to a computer(a) with intent to commit an offence;(b) with a dishonest intent to deceive;(c) with a view to dishonest gain for himself or another; or(d) with a dishonest intent to cause loss to another,whether on the same occasion as he obtains such access or on any futureoccasion, commits an offence and is liable on conviction upon indictment toimprisonment for 5 years.(2) For the purposes of subsection (1) ‘gain’ and ‘loss’ are to beconstrued as extending not only to gain or loss in money or otherproperty, but as extending to any such gain or loss whether temporary30

CCAB 2003Computer Crimeor permanent; and(a)(b)‘gain’ includes a gain by keeping what one has, as well asa gain by getting what one has not; and‘loss’ includes a loss by not getting what one might get, aswell as a loss by parting with what one has.The undisputed facts at trial were that the Respondent had beenemployed as an Assistant Assessor in the IRD since 1996. On 26th October1996, he signed an Affirmation of Secrecy under s 4(2) of the Inland RevenueOrdinance, Cap 112 which required him to preserve secrecy. The Respondent,as an Assessor, was given the means of obtaining access to the IRD’s computersystem and was assigned a User Identity number and a password on 28thOctober 1996.In August 1999, December 1999 and again in April 2000, theRespondent was reminded, through routine IRD office procedures, to observeofficial secrecy and to perform on-line enquiries or updating only whendischarging his official duties.On 11th July 2000, the Respondent used his User Identity number andpassword to gain access to the computer system in order to find out the identitycard number and address of the female complainant, who was a colleague of hisand also a taxpayer. It was not disputed that the Respondent had noresponsibility for the complainant’s tax affairs, nor was it disputed that heobtained access to the data without her approval, or approval given by the IRD.The Respondent used the information he obtained to fax a completedmembership application form, in the name of the complainant, to the WorldWide Fund for Nature (‘WWF ’). That application form included the name,identity card number and address of the complainant. The Respondent used hisown name and Visa credit card number to pay the fee the complainant wouldotherwise have had to pay for the membership application to be accepted. Thecomplainant had never asked the Respondent to make such an application on herbehalf; it was made without her authority or knowledge.The magistrate found as a fact that the Respondent had gained access tothe computer system of the IRD which was a serious breach of procedure.However, she concluded eventually that no dishonesty was involved and thatthis was not in fact a criminal matter at all. She found:(1) that the Respondent did obtain access to the computer systemof the Inland Revenue Department;(2) this was a serious breach. However there was no dishonestintent or gain in this matter. I was satisfied that there was nodishonesty. Accordingly, I dismissed the charge andacquitted the Respondent;(3) I found that it was not a criminal matter as there was noevidence of dishonest intent or dishonest gain;(4) the Respondent had been dealt with by the Inland RevenueDepartment for the breach. He was still employed by theInland Revenue Department.The question of law posed by the magistrate for the Court of FirstInstance was:31

CCAB 2003Computer Crimethere will be no doubt about it. It will be obvious that thedefendant himself knew that he was acting dishonestly. It isdishonest for a defendant to act in a way which he knowsordinary people consider to be dishonest, even if he asserts orgenuinely believes that he is morally justified in acting as he did.Cases which might be described as borderline would depend upon the viewtaken by the tribunal of fact as to whether the defendant might have believedwhat he did was in accordance with the ordinary man’s idea of honesty;(4) Certain parallels could be drawn between this case and Tsun Shui-lun. Ineach case, the defendant had a password which enabled him to gain access to asecure computer system for a limited purpose. In each case any ordinaryreasonable person would realize the importance of privacy to the person affectedby the computer information and that the person would not agree to theauthorized release of personal data to a third party. (Tsun Shui-lun concernedthe release, by a hospital employee, of sensitive medical records of a patient tothe press). In each case, it would be clear to any ordinary or reasonable personworking in those institutions, that it was important to maintain confidentiality,whether of the patient in a hospital, or, as here, of the taxpayer;(5) In both Tsun Shui-lun and this case, the person in a position of trust usedthe password to gain confidential information, used that information for his ownpurposes and passed it to third parties without obtaining the authority of theperson concerned, or the owner of the computer, and that was done for thepurpose of furthering a personal scheme;(6) Under the first limb of the Ghosh test it was necessary to decide whetherordinary, reasonable and honest people would regard the Respondent’sbehaviour as dishonest. Various factors had to be considered before thatquestion could be answered. The Respondent was well aware of the need forconfidentiality in IRD work and must have known that the purpose of thepassword was to ensure client/department privacy. He must have realized thatordinary reasonable people would expect that personal information, includingaddresses and ID card numbers, which they, of necessity, had to impart to theIRD, would not be made known to other individuals or released to the generalpublic without their express permission. The importance of secrecy in respect ofa person’s ID card number in particular could not have escaped the Respondent.As an IRD employee he must have been aware of the need to maintainconfidentiality between taxpayers and the public. The Respondent’s access tothe computer was for the express purpose of obtaining information to which hewas not otherwise privy and which he used without the knowledge or consent ofthe complainant/colleague;(7) It seemed to have been of importance in the magistrate’s decision that theuse to which the information was applied was ‘friendly’ or benevolent but thatdid not dispel the dishonesty in taking and using the information. Whether theRespondent used the information obtained to enroll the complainant as amember of a subversive sect or a charitable group was irrelevant. Thedishonesty lay in extracting the information intending to use it without theknowledge or consent of the complainant, rather than whether the motivation inmaking use of it was benevolent or not. The purpose of obtaining theinformation, or the defendant’s motivation in doing so were matters relevant tomitigation. The fact that the Respondent did not, as did the accused in TsunShui-lun, remove his own identifying material from the application form, did notnegative the dishonesty, linked to the gain. An ordinary, reasonable personwould conclude the Respondent’s conduct was dishonest;(8) The second, subjective, limb of the Ghosh test was whether the33

CCAB 2003Computer CrimeRespondent himself knew or must have realized what he did was dishonest in theeyes of ordinary, reasonable and honest people. The circumstances of hisemployment, his age and his level of education were such that he must haveknown that his access was unauthorized and that his obtaining and using of suchimportant information as an ID number and an address was dishonest, albeit itwas used to obtain membership of an organization that might be regarded asinnocuous;(9) It was for the tribunal of fact to decide whether the accused wasdishonest and an appellate court did not lightly interfere with decisions of fact,but it was also the case that an erroneous decision by such tribunal might bereversed if the conclusions drawn from the determination of the facts wereunreasonable. The magistrate appeared to have concentrated too much on whatshe considered the benign aim of the Respondent in enrolling the complainant asa member of the WWF and ignored the dishonesty inherent in the Respondent’sobtaining, using and transmitting to a third party confidential information aboutthe complainant;(10) As dishonesty was established according to both limbs of the Ghosh test,the question posed by the magistrate had to be answered in the affirmative. Thecourt’s powers, as set out in s 119 of the Magistrates Ordinance, Cap 227, werewide-ranging. Although the Respondent submitted that the fairest way ofdisposing of the matter would be to make no order at all, it had been said ‘that ina just society, the conviction of the guilty is in the public interest, as is theacquittal of the innocent’: Secretary for Justice v Lam Tat-ming and Another[2000] 2 HKLRD 431, 441. In HKSAR v Tam Hei-lun [2000] 3 HKC 746,although the Court of Appeal declined to give sentencing guidelines, it indicatedthat such offences were not minor ones by saying that ‘unless there are mostunusual circumstances a non-custodial sentence would be inappropriate foroffences under s 161.’ It would be inappropriate to refrain from making anyorder as it was in the interest of the public at large and in the interest of theAppellant and Respondent that some finality and certainty be achieved in thiscase.Result -SJ’s appeal allowed. Question posed answered in the affirmative.Case remitted to the magistrate with a direction to convict andimpose such sentence as was appropriate.MA 898/2002Barnes DJ(13.2.2003)*Hayson Tse#Henry MaYUMei-kingAccess to computer with dishonest intent/Nature of ‘gain ’/ Sufficient toprove access with intent to gain/No need to prove actual gain/Liesindicating dishonesty有 不 誠 實 意 圖 而 取 用 電 腦 - ‘ 獲 益 ’ 的 性 質 - 證 明 意 圖 獲 益 而 取 用 電腦 已 經 足 夠 - 無 須 證 明 實 際 獲 益 - 謊 言 顯 示 不 誠 實The Appellant was convicted after trial of 23 offences of access to acomputer with dishonest intent, contrary to s 161(1)(c) of the Crimes Ordinance,Cap 200.The Appellant, at all material times, was a clerical assistant in the InlandRevenue Department (‘IRD’). She worked in the unit responsible for handlingtax matters concerning persons leaving Hong Kong, bankrupts and companies inliquidation. The Appellant was authorised to use the IRD system, and wasprovided with a user identity number. The extent of the authorisation was toperform on-line processing (enquiry and/or updating) in the course of duty. Shewas responsible for all on-line transactions she performed. On 16 October 1997and 10 December 1999 the Appellant was issued with reminders as to the scopeof her authorisation.34

CCAB 2003Computer CrimeIn circumstances not connected with her duties, the Appellant searchedthe IRD system for information on various persons. This she explained on thebases that she• was bored, playful or curious;• wanted to know how their names were written in English and Chinese;• wanted to know her friends’ correct addresses in English;• wanted to look up the information of a particular person, but in-putted awrong name;• had been asked by friends or relatives to assist in dealing with mattersrelated to business registration or tax.The magistrate found that the Appellant’s conduct was dishonest, and herejected her explanations as a pack of lies. He found that she obtained access tothe IRD’s computer system for the purpose of enabling her to dishonestly obtainthe information stored in the computer system for gain.On appeal, it was submitted, inter alia, that there was no or no sufficientevidence to prove what ‘gain’ the Appellant had dishonestly obtained. It wassaid that under s 161(2)(a) of the Crimes Ordinance, ‘gain’ included a gain bykeeping what one had, as well as getting what one had not. On that basis, thething must be in existence, before it could be retained or obtained. If the thingwas non-existent, it could not be said there was a gain obtained. Since theprosecution failed to prove what information would appear on the screen whenthe Appellant opened the file, it followed that the prosecution also failed toprove the said information ever existed. No gain had been proved.Held :(1) That said by Chan CJHC in HKSAR v Tsun Shui-lun [1999] 2 HKC 547,556, as to what was meant by ‘gain’ was correct. He said:‘Gain’ includes obtaining information which one did not have prior tohis access to a computer. The information may be transient if it is readon the screen or permanent if it is printed out or copied onto anotherdiskette. By the same analogy, if the screen displays information which isreadable, the person who has obtained access to the computer will have again in obtaining such information. If such information is not there in thefiles in the computer, then even though the person who has obtained accessto the computer could have access to the files, the person will attain no gainfrom obtaining access to the computer, because such information neverexists there either transiently or permanently.(2) The Appellant had been convicted under s 161(c) of the CrimesOrdinance, which referred to access to a computer ‘with a view to dishonest gainfor himself or another’. The prosecution was not required to prove that theAppellant actually obtained any gain. It sufficed for the prosecution to prove thatwhen the Appellant obtained access to a computer, she did so ‘with a view todishonest gain’ for herself;(3) Although the prosecution had not adduced substantive evidence to showwhether any information appeared on the screen when the Appellant obtainedaccess to a computer under the circumstances as set out in the 23 charges, therewas ample evidence to prove that the Appellant had searched for and looked atthe information;(4) The magistrate found that the Appellant had lied, and that the reason forthis was that she knew or must have realised what she was doing was dishonestaccording to the standards adopted by ordinary reasonable and honest people: R35

CCAB 2003Computer Crimev Ghosh [1982] 1 QB 1053. The magistrate had not erred.Result - Appeal dismissed.FACC 6/2003Li CJBokharyChan &Ribeiro PJJLitton NPJ(6.11.2003)*I G Cross SCCheung Waisun& EddieSean#CliffordSmith SCLIMan-waivSJComputer crime/Access to computer system with a view to dishonestgain/Judge reversing magistrate’s finding on dishonesty/Test forintervention on case stated appeal/ Unauthorised and dishonest extractionand use of information prohibited/Dishonesty a question of fact for jury電 腦 罪 行 - 目 的 在 於 不 誠 實 地 獲 益 而 取 用 電 腦 - 法 官 推 翻 裁 判 官 就不 誠 實 一 事 所 作 的 裁 斷 - 驗 證 是 否 有 權 干 預 以 案 件 呈 述 方 式 提 出 的上 訴 的 標 準 - 禁 止 在 未 經 授 權 和 不 誠 實 的 情 況 下 取 出 和 使 用 資 料 -不 誠 實 與 否 是 有 待 陪 審 團 判 斷 的 事 實 問 題The Appellant was charged with obtaining access to a computer, namely,the Inland Revenue Department’s (‘IRD’) computer system, with a view todishonest gain for himself or another, contrary to s 161(1)(c) of the CrimesOrdinance, Cap 200. He was acquitted by the magistrate after trial.Upon an application by the prosecution pursuant to s 105 of theMagistrates Ordinance, Cap 227, the magistrate stated a case for the opinion of ajudge of the Court of First Instance. The judge, having heard submissions,ordered the case to be remitted to the magistrate with a direction that she convictthe Appellant and pass sentence.As directed, the magistrate convicted the Appellant and fined him$1,000.The Appellant appealed to the Court of Final Appeal on the ground ofsubstantial and grave injustice.The facts showed that the Appellant had been employed since 1996 as anAssistant Assessor of the IRD. He made an Affirmation of Secrecy, under s 4(2)of the Inland Revenue Ordinance, Cap 112, stating that he would at all timespreserve and aid in preserving secrecy with respect to all matters that mightcome to his knowledge in the performance of his duties under that Ordinance.To gain access to the IRD’s computer system, the Appellant was assigneda user identity and a password which he used in the performance of his duties.All staff of the IRD, including the Appellant, received regular reminders of theimportance of observing the official secrecy provisions.On 11 July 2000, using his user identity and password, the Appellantgained access to the IRD computer system and obtained the identity cardnumber and address of the complainant who was one of his colleagues andwhose record as a taxpayer was kept in that system. He had no business inhandling the complainant’s tax matters and he obtained such informationwithout the authority of the IRD or the complainant’s consent.The Appellant then made use of such information in applying formembership of the World Wide Fund for Nature Hong Kong (‘WWF’) on behalfof the complainant. In the application form, he also included his own name andcredit card number to enable payment of the entrance fee and he signed toauthorise payment through his credit card. The complainant had not requestedthe Appellant to make the application on her behalf.At the end of the prosecution case, the defence did not submit there wasno case to answer. But after an exchange with counsel for the parties on what36

CCAB 2003Computer Crimewas considered the dishonest gain in this case, the magistrate ruled there was acase to answer. Thereafter the Appellant neither gave nor called evidence.Having heard final submissions, the magistrate dismissed the charge andacquitted the Appellant. In so doing, the magistrate found that although therehad been a serious breach, there was no dishonest intent or gain. There was nodishonesty. It was not a criminal matter. The charge was dismissedaccordingly.In the Stated Case, the magistrate posed this question of law:Did I err in law in finding that it was a mere unauthorizedaccess to the IRD computer, and it could not be regarded asdishonest when applying the principle in R v Ghosh.In answering that question, the judge applied the two-stage test as statedby Lord Lane CJ in R v Ghosh [1982] 1 QB 1053, to the facts of this case, andconcluded that she was satisfied that ‘there was dishonesty establishedaccording to both limbs of the Ghosh test and am satisfied that the questionposed by the magistrate must be answered in the affirmative’.Section 161(1)(c) of the Crimes Ordinance, Cap 200, provided:(1) Any person who obtains access to a computer -(c) with a view to dishonest gain for himself oranother;whether on the same occasion as he obtains suchaccess or on any future occasion, commits anoffence ...It was accepted that there was an unauthorised access by the Appellant tothe IRD’s computer system. It was further accepted that he had obtained a gainwithin the meaning of s 161(2) from the system by extracting the relevantinformation related to the complainant. The remaining issue was whether therewas dishonesty by the Appellant on the application to the facts of the Ghosh test.The Appellant submitted that there was no legal definition of dishonesty andwhether there was dishonesty in a particular case was essentially a matter of factfor the jury. The magistrate sat as both judge and jury and had concluded thatthere was no dishonesty on the part of the Appellant. What the judge did, it wassaid, was effectively to reverse the verdict of the magistrate on the facts. Thejudge was not entitled to do that unless it could be said that there was no otherconclusion except that the Appellant was dishonest, which was not the case here.Held :(1) An appeal by way of case stated under s 105, Cap 227, was not an appealby way of rehearing: Harris Simon & Co Ltd v Manchester City Council [1975]1 All ER 412. It was a review by the appellate court on the limited ground thatthere was an error of law or an excess of jurisdiction;(2) Where a magistrate came to a conclusion or finding of fact which noreasonable magistrate, applying his mind to the proper considerations and givinghimself the proper directions, could have come to, this would be regarded as anerror of law. Such a conclusion or finding was often described as ‘perverse’:Bracegirdle v Oxley [1947] 1 KB 349, R v Mildehall Magistrate’s Court, exparte Forest Heath District Council (161) JP 401. That was the case where thecourt was satisfied that the magistrate, in reaching his conclusion or finding, hadmisdirected himself on the facts or misunderstood them, or had taken intoaccount irrelevant considerations or had overlooked relevant considerations: ReDJMS (a minor) [1977] 3 All ER 582. In such a case the court was entitled to37

CCAB 2003Computer Crimeintervene and the magistrate’s conclusion or finding would not be allowed tostand;(3) It was not disputed that the Appellant did not intend to obtain and hadnot obtained any personal financial gain. On the contrary, he paid the entrancefee to join the WWF and he did what he did for purely personal or benevolentreasons. More significantly, he put down his own name and credit card numberin the application form for membership. It was thus clear that he never intendedto conceal his own identity or involvement in it. He did not try to cover histracks. It might well have been that he wanted the complainant (and possiblyother people as well) to know that it was he who had done it. That was conductwhich could reasonably be regarded as inconsistent with dishonesty;(4) On the evidence as a whole, a reasonable tribunal of fact could haveconcluded that the prosecution had proved that the Appellant was dishonest. Onthe other hand, such a tribunal could easily have come to the oppositeconclusion as the magistrate did in this case. Where it was sought to draw aconclusion or make a finding which was different from that of the tribunal offact, particularly a conclusion of guilt, the appellate court had to be satisfied thatthe conclusion which the court was invited to draw was the only reasonableconclusion in the circumstances. In this case it could not be said that the onlyreasonable conclusion which could have been open to a tribunal of fact was thatthe Appellant was dishonest. It could not be said that the magistrate’s findingwas perverse;(5) The type of offence punishable under s 161 was no doubt very serious - itcould be viewed as a kind of theft, very often with serious consequences butwithout the victim ever knowing what had happened and why. With thewidespread use of computers and the advancement of technology, this valuableequipment had become part of daily life. It was therefore all the more importantto protect the integrity of computers, particularly the integrity of the IRDcomputer system. But the law did not punish all kinds of unauthorised access tocomputers, it only prohibited the unauthorised and dishonest extraction and useof information. It was essentially a question of fact for the jury to decidewhether there was dishonesty in each case;(6) There had been a departure from the accepted norm. The judge was notentitled to intervene.Result - Appeal allowed.ConspiracyCA 223/2001Stock &Yeung JJASuffiad J(17.9.2003)*John ReadingSC &Peter CahillCHENGSui-waConspiracy/Judge not jury to determine whether evidence of acts anddeclarations of others in absence of accused is admissible to prove hisparticipation in the conspiracy/Issue to be decided upon a prima facie basis串 謀 - 有 關 其 他 人 於 被 告 不 在 場 時頗 所 作 的 作 為 及 宣 稱 的 證 據 是 否 可被 接 納 以 證 明 他 曾 參 與 串 謀 , 應 由 法 官 而 非 陪 審 團 決 定 - 爭 論 點 須根頨 據 表 面 證 據 而 定The Applicant was convicted of eleven counts of conspiracy to defraud,and three counts of knowingly dealing in the proceeds of an indictable offence.He was sentenced to 9 years’ imprisonment.38

CCAB 2003Conspiracy#MartinWilson QC &Catherine K KWongThe prosecution alleged that banks had been induced to issue letters ofcredit when the underlying transactions, which had been presented as the basisfor their issue, were bogus; that the banks had, on the presentation of bogusdocuments, paid sums allegedly due under the letters of credit; and that the sumsthus paid out were then transmitted, almost forthwith, by the beneficiaries of theletters of credit to those who had applied for their issue. In the case of counts 1,6, 8, 9 and 10, Createx International Ltd (‘Createx ’), of which the applicant wasa director and shareholder, was the beneficiary, with Guangnan Holdings Ltd(‘Guangnan ’), a Mainland company, the Applicant for the letter of credit onbehalf of its subsidiary Asian Honour International Ltd (‘Asian Honour ’). Inthe case of counts 11-16, Createx was the applicant, and a company calledFountain Datacom (‘FDC ’) the beneficiary. The prosecution case was thatletters of credit subsequent to the first in each group were created and utilised toprovide funds for meeting the liabilities occasioned by the issue of the precedingdocumentary credit.On appeal, it was submitted, inter alia, that the judge failed to deliver anadequate direction to the jury in relation to acts done and things said by others insuggested furtherance of the conspiracy. In particular, it was said that the judgeshould have directed the jury that they could only have regard, as against theApplicant, to evidence of things said or done outside the Applicant’s presenceonce satisfied that there was other evidence proving his part in the conspiracy.The Applicant suggested that the form of direction might, broadly, have runalong these lines:Held:Things said in the absence of a defendant are not normallyhearsay. They may however be admissible in a charge ofconspiracy, but you should not consider them unless satisfied thatthere was a conspiracy to which the defendant was a party.(1) A direction along the lines suggested seemed to import an artificialexercise, for once a jury was satisfied by other evidence that a conspiracy wasproved against a defendant, there was hardly a need to look to the evidence ofthings said and done in the Applicant’s absence: Ahern v R (1988) 165 CLR 87,95. Yet that objection to such a formula did not deal with the point in issue, forit went really to the question of the standard of proof of the evidence from theindependent source, and not to the question, which had to be addressed, ofwhether it was for the trial judge or for the jury to decide whether proof of therequisite standard existed;(2) The point in issue was directly addressed by the High Court of Australiain Ahern v R (1988) 165 CLR 87, 100:The question remains whether the trial judge or the jury shouldultimately determine the existence or otherwise of reasonableindependent evidence of the participation of an alleged conspiratoras a ground for the use against him of evidence of the acts anddeclarations of other conspirators which took place in his absence.Obviously the matter must be one for the determination of the trialjudge in the first instance, for the evidence of acts and declarationsought not to be admitted at all for that purpose if no basis can beshown for its admission. But controversy exists over whether, evenafter the evidence has been admitted, the jury should be instructedthat it is for them to determine whether there is reasonableindependent evidence of participation and that if there is not, theyought not to use the evidence of the acts and declarations of theother conspirators for the purpose of deciding that issue.39

CCAB 2003Conspiracy(3) The Court in Ahern reviewed the approach in other jurisdictions andconcluded, at 103, that:The preferable view is that the trial judge alone should determinethe sufficiency of the independent evidence. The question isinitially one of the admissibility of evidence of acts anddeclarations occurring outside the presence of an individualaccused and for that reason a question for the trial judge. If hedetermines that the evidence of the acts and declarations of othersis admissible to prove the participation of the accused, it isanomalous that the jury should, in effect, be required to determinethe same question for themselves. To require them to do sonecessitates a direction which is of unacceptable complexity.(4) The conclusion in Ahern was buttressed by reference to the type ofdifficulties into which judges and, more particularly, juries would be led bydirections to a jury to adopt a staged approach, as must a judge, and a stagedapproach, to boot, importing different standards of proof;(5) The matter was summarised thus in Cross & Tapper on Evidence, 9thedition, pp 561-562:Since there is little difference here between the preliminaryquestion and the final issue, namely whether the accused was partyto the conspiracy, it would be futile to require the preliminary issueto be decided upon proof beyond reasonable doubt. The betterview is that the judge should decide the preliminary issue on aprima facie basis. It is submitted that since the evidence has beenadmitted upon such a basis it is unnecessarily confusing for thejury to be given an opportunity to reject it upon the application ofa different standard of proof from that which they will have to beinstructed to apply to the ultimate question of guilt or innocence ofparticipation in the conspiracy, although at that stage it will beappropriate to warn the jury of the dangers posed by anyadmissible hearsay.(6) The approach adopted in Ahern was also the law in Hong Kong: R v AuShui-yuen, Alick [1993] 2 HKC 219.Result - Application dismissed.CostsMA1134/2002To DJ(2.1.2003)*Wong Sze-lai#Chan Manhon,EdwardMiddleIndustrialLimitedProsecution offering no evidence/Refusal of costs/Magistrate undermisapprehension as to pleas/Conduct of defendant relevant/Mistake notadversely affecting exercise of discretion/Defendant choosing not to correctprosecution claim of positive reasons控 方 不 提 出 證 據 - 拒 絕 判 給 訟 費 - 裁 判 官 對 答 辯 有 誤 會 - 被 告 人 的行 為 是 相 關 因 素 - 錯 誤 並 無 對 酌 情 權 的 行 使 造 成 不 利 影 響 - 控 方 聲稱 具 有 確 實 理 由 而 被 告 人 選 擇 不 予 糾 正The Appellant and his forwarder each faced eight summonses forimporting textiles without licence, contrary to s 6C(1) and 6C(2) of the Import40

CCAB 2003Costsand Export Ordinance, Cap 60. The forwarder pleaded guilty while theAppellant entered pleas of not guilty. The case against the Appellant was setdown before another magistrate. Two days before the hearing, the prosecutioninformed the Appellant’s solicitors that no evidence would be offered against theAppellant. At the hearing, after the magistrate had dismissed the summonses,the Appellant’s solicitor applied for costs. The magistrate refused costs as (1)the Appellant had brought suspicion on itself for not having applied for thelicences; (2) the Appellant had pleaded guilty to 8 other charges and (3) insubsequently applying for the licences, which were granted, the Appellant hadacknowledged that the grant of the licences should not constitute a defence to acharge of importing without licence.On appeal, it was pointed out that the magistrate mistook the guilty pleasentered by the forwarder as if they were the Appellant’s. It was submitted thatthis mistaken belief clouded the magistrate’s mind and misled him to assumethat the common foundation on which these 16 charges were laid was provedand that the Appellant had only been acquitted of 8 out of 16 charges. Becauseof the mistake, so it was said, the magistrate effectively accepted the case of theprosecution at face value and that there were no other defences open to theAppellant.Held :(1) The real question was how did the mistake of the magistrate affect hisdecision. As his reasons for decision showed, the important consideration wasthe conduct of the Appellant, and the mistake did not adversely affect theexercise of the discretion;(2) Section 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap 492, gavethe magistrate the discretion to award costs to an acquitted defendant. Thatdiscretion, although wide, had to be exercised in accordance with legalprinciples. The prosecution decided to bring a defendant to court, and, ingeneral, a successful defendant should be awarded his costs except where therewere positive reasons otherwise. In R v Kwok Moon-yan and Another [1989] 2HKLR 396, the Court of Appeal held that positive reasons existed where theAppellant’s own conduct had brought suspicion on himself and had misled theprosecution into thinking that the case against him was stronger than it was;(3) At the hearing it was submitted to the magistrate by the prosecutor thatsubsequent to the event, the Appellant successfully applied for a supplementalimport licence. A copy of the licence was shown to the magistrate. Theselicences were issued as an administrative measure under the discretion of theDirector General of Trade and Industry in cases where the applicant hadneglected to apply for the licence. The application stated clearly that the grantof the licence was for the convenience of the applicant and should not constitutea defence to prosecution for importing without licence. When asked to submiton the issue of the supplemental licence, the Appellant’s solicitor replied that hedid not wish to address that issue but to argue as a matter of general principlethat costs should follow the event. As he chose not to respond, the Appellantcould not complain that the magistrate accepted, as he did, that the Appellanthad neglected to apply for import licences which necessitated the subsequentapplication for supplemental licences. Nor could the Appellant complain if themagistrate found, as he did, that it was the Appellant’s own neglect whichbrought suspicion on itself and led to its prosecution;(4) The approach to costs was the same whether the defendant was acquittedafter trial or upon the prosecution offering no evidence. In deciding whetherthere were positive reasons to deprive an acquitted defendant of his costs, themore important consideration was the conduct of the defendant himself i.e.,41

CCAB 2003Costswhether he had brought suspicion on himself and not whether he was successfulin his defence or whether he had a defence. While the prosecution bore theburden of proving positive reasons and, hence, misconduct of the Appellant, ifhe chose not to contest the prosecution’s claim of positive reasons, he could notcomplain if the court was indeed satisfied that there were positive reasons todeprive him of his costs. The points sought to have been made by the Appellantought to have been raised before the magistrate to enable him to consider how toexercise his discretion. As this was not done, the magistrate could only exercisehis discretion in their absence;(5) Although a magistrate had to exercise his discretion judicially, if he actedon facts connected with or leading up to the proceedings which had been provedbefore him or which he had observed during the progress of the case, anappellate court, although it might deem his reasons insufficient and might evendisagree with his conclusion, was prohibited from entertaining an appeal from it.An appellate court could not take into consideration other matters not placedbefore the magistrate and then put itself into his shoes and wonder how he wouldhave exercised his discretion;(6) The magistrate applied the correct legal principles and exercised hisdiscretion judicially on the facts placed before him. The mistake about theAppellant’s pleas of guilty would not have adversely affected his decision.Result - Appeal dismissed.MA 288/2003Line DJ(30.4.2003)*Peggy Lo#I/PHOKit-lingRefusal of costs after acquittal/Defective charge could have been amendedby prosecution/Positive reason to refuse costs裁 定 無 罪 後 拒 絕 判 給 訟 費 – 欠 妥 的 控 罪 本 應 已 由 控 方 修 訂 – 有 確實 理 由 拒 絕 判 給 訟 費The Appellant was refused her costs after she was acquitted of an offenceof possession for the purposes of publication of indecent articles in respect ofwhich a requirement of s 24 of the Control of Obscene and Indecent ArticlesOrdinance, Cap 390 was contravened.Although the magistrate considered the charge as laid to be wrong, hefound out, having examined the items, that there were other matters about whichthe prosecution had valid cause for complaint, but which were not charged. Asthe prosecution declined to amend the provision, the magistrate dismissed it.Although the Appellant was legally represented at trial, the magistratedeclined to award the costs.Held :On appeal against that refusal(1) The magistrate had a discretion, and his reason revealed that he knew onwhich basis to exercise it. He was fully aware that costs usually followed theevent unless there was a good reason for them not to. He found that since theAppellant could have been convicted for breaching s 24 on two bases had theprosecution gone about the matter in the right way, this was a positive reasonnot to award costs. In that the magistrate was right;(2) There could have been no dispute over the matters the magistrateresolved against the Appellant. There was no room for error on his part.Result - Appeal dismissed.42

CCAB 2003CostsMA 383/2003Beeson J(10.7.2003)*Simon Tso#M PanesarSINGHBhagtCosts/Case dismissed due to unreliability of witnesses/Criteria regulatingaward of costs/Normal practice to award costs to acquitted defendantunless positive reasons exist for not so doing訟 費 - 由 於 證 人 不 可 靠 致 案 件 遭 撤 銷 - 規 管 訟 費 判 給 的 準 則 - 除 非具 有 確 實 理 由 , 否 則 須 依 慣 常 做 法 向 被 裁 定 無 罪 的 被 告 人 判 給 訟 費The Appellant was charged with fighting in a public place, contrary to s25 of the Public Order Ordinance, Cap 245, with, in the alternative at trial, acharge of common assault, contrary to s 40 of the Offences against the PersonOrdinance, Cap 212.The Appellant was acquitted of both offences. Although the magistrateruled there was a case to answer, he dismissed the case before the Appellantcould give or call witnesses.The Appellant applied for costs but his application was refused on thebasis that he had brought suspicion on himself. In his reasons, the magistratestated:Held :After considering the PW’s evidence, it’s clear that there wassome kind of scuffle between PW1 and the Appellant but Icouldn’t say for sure whether it was a one-way attack of PW1by the Appellant, as described by PW1, or if it was a fight, asdescribed by PW3. Therefore the Appellant was acquitted.However, it’s clear that this incident started with the Appellanttrying to park his motor cycle in a place other than anauthorized parking space. It’s also clear that the Appellant didtake part in the scuffle. Both he and PW1 were injured, albeitslightly, in this incident. I found that his conduct, as revealedby evidence, did bring suspicion upon himself. Therefore hisapplication for costs was refused.On appeal(1) The exercise of the power to award costs was in the unfettered discretionof the court, but was to be exercised according to the facts of each case.Normally an award should be made unless positive reasons for not making suchan order existed. Positive reasons would exist if the Appellant’s own conducthad brought suspicion on himself, or if he had misled the prosecution intothinking that the case against him was stronger than it was. Similarly wherethere was ample evidence to support a conviction but the charge was quashed ona technicality which had no merit, that would be a positive reason for notmaking an order;(2) At the close of the prosecution case, the magistrate found that he was notable to rely on the evidence of PW1, PW2 or PW3. For that reason, rather thanfor any technicality, he dismissed the charges. The Appellant had noopportunity to put his account to the magistrate, nor call his supporting witnessto give evidence. The Appellant’s position had been consistent throughout sincethe time he was first spoken to by police;(3) Given his view of the prosecution witnesses, there did not appear to beany reliable evidence to support the magistrate’s conclusion that the Appellantwas attempting to park in a place other than an authorized parking space, or thatthe Appellant was acting other than in self-defence. The ‘normal practice’should have been followed and costs awarded.43

CCAB 2003CostsResult - Appeal allowed. Costs of appeal and costs of trial awarded, to betaxed if not agreed.MA 421/2003MA 461/2003MA 462/2003Barnes DJ(1.8.2003)*David Leung#Eric Kwok(1) TANGOi-chun(2) WONGSau-ling(3) KAMCheungtinAppeal succeeding as offence not known to law/Entitlement to costsactually and reasonably incurred/Taxing authority resolving doubtsagainst claimant/Burden on claimant上 訴 得 直 是 由 於 上 訴 人 所 承 認 者 並 非 法 律 上 的 罪 行 - 有 權 獲 得 確 實且 合 理 地 招 致 的 訟 費 - 訟 費 評 定 當 局 以 不 利 申 索 人 為 原 則 解 決 疑 問- 責 任 須 由 申 索 人 承 擔The appeals of all three Appellants were allowed on the basis that whatthey had admitted to did not, in law, amount to any offence.Section 15(a) of the Costs in Criminal Cases Ordinance, Cap 492,provided that costs were designed to compensate a party to the proceedings forany expenses ‘properly incurred by him in the course of those proceedings’.Rule 7(3) of the Costs in Criminal Cases Rules provided that ‘any doubts whichthe taxing authority may have as to whether the costs were actually andreasonably incurred or were reasonably sufficient in amount must be resolvedagainst the claimant’.Held :On the issue of costs(1) As the appeals succeeded on the basis that what the Appellants admittedto did not in law amount to an offence they were entitled to costs properlyincurred by them;(2) A2 and A3 were entitled to the costs incurred in the appeal to the extentof their respective contributions to the Legal Aid Department;(3) There was no evidence from either A1 or A2 that even though a thirdparty was liable to pay the costs to the solicitors, they were also liable for thesecosts. Under Rule 7(3) (above), if there was doubt whether the costs wereactually and reasonably incurred the taxing authority might resolve the matteragainst the claimant;(4) It was up to the Appellants to satisfy the taxing authority that the sum of$50,000 was ‘actually and reasonably incurred by them’. Costs to be taxed, ifnot agreed.Result - (1) A1 to have costs in the sum of $1,000, being her contribution tothe Legal Aid Department;(2) A2 to have costs in the sum of $2,000, being her contribution tothe Legal Aid Department. Her claim for costs in the sum of$25,000 to be taxed by the Registrar of the High Court pursuantto s 20 of the Ordinance;(3) A3 to have costs in the sum of $2,000 being her contribution tothe Legal Aid Department. Her claim for costs in the sum of$25,000 to be taxed by the Registrar of the High Court.44

CCAB 2003CostsFAMC41/2003Bokhary &Chan PJJLitton NPJ(10.11.2003)*D G Saw SC&David Leung#Lawrence LokSC& Edwin ChoyLIUSik-keungCosts/Refusal of application for leave to appeal/Application not previouslyfiltered out/Something out of ordinary required to justifycosts/Applications for leave not to be deterred訟 費 - 上 訴 許 可 申 請 被 拒 - 申 請 事 前 未 經 過 濾 - 須 有 不 尋 常 的 情 況才 有 充 分 理 由 判 給 訟 費 - 上 訴 許 可 申 請 不 應 受 阻After the Appeal Committee refused the Applicant leave to appealagainst his convictions for indecent assault and common assault, on the basisthat there was no room for a defence based on genuine but mistaken belief thatthe complainant consented to the intimacies taking place, the Respondentinvoked s 43(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484,and sought for the Respondent the costs of and occasioned by the application.Held :Section 43(2), Cap 484, provided:Where the Appeal Committee refuses an application for leave toappeal, the costs of and occasioned by the application shall be paidby such party or person as the Appeal Committee shall order, andsuch costs shall be taxed by the Registrar, or some other officer ofthe Court to whom the Registrar may delegate this function.Rule 7 of the Hong Kong Court of Final Appeal Rules provided that:(1) Where the Registrar is of the opinion either on the applicationof the Respondent or of his own motion that an applicationdiscloses no reasonable grounds for leave to appeal, or isfrivolous or fails to comply with these Rules, he may issue asummons to the applicant calling upon him to show causebefore the Appeal Committee why the application should notbe dismissed.(2) The Appeal Committee may, after considering the matter,order that the application be dismissed or give such otherdirections as the justice of the case may require.(1) If a leave application proceeded to an oral hearing that meant that theapplication had not been filtered out under Rule 7. That had to be borne in mindeven though an order for costs could be made against an unsuccessful leaveapplicant notwithstanding that the application had proceeded to an oral hearing.Something sufficiently out of the ordinary was needed such as to justify such anorder as to costs. Moreover, in a criminal case it was necessary to ensure thatthe Appeal Committee’s jurisdiction to order costs against an unsuccessful leaveapplicant was not exercised in such a way as to give rise to undue deterrenceagainst seeking leave to appeal;(2) There was nothing sufficiently out of the ordinary to justify orderingcosts against the Applicant.Result - No order as to costs. Each side to bear its own costs.45

CCAB 2003CostsCA 400/2002Stuart-MooreVPStock JATong J(6.11.2003)*John ReadingSC & TimothyTso#KeithOderbergYEUNGKin-sunWasted costs/Counsel advising court at hearing that appealunarguable/Inadequacy of legislation/Efficacy of English regime/Effect onpublic purse虛 耗 訟 費 - 律 師 於 聆 訊 時 告 知 法 庭 不 就 上 訴 爭 辯 - 法 例 不 足 - 英 國制 度 的 效 用 - 對 庫 房 的 影 響This was an application for leave to appeal against conviction formurder. Grounds were drawn by counsel, now deceased. On 20 June 2003,fresh counsel was assigned to represent the Applicant and received instructionsshortly thereafter.At the hearing, counsel advised the court that some three weeks prior tothe date for the hearing of the application he formed the view that the originalgrounds were not arguable, or were barely arguable, and that in consonance withhis professional obligations he could not argue the case.Held :(1) This was yet another case which illustrated the affront to the publicpurse, and, indeed, to common sense, that was represented by the extraordinaryprovisions of the Costs in Criminal Cases Ordinance, Cap 492, in so far as theyrelated to wasted costs;(2) It was not acceptable for counsel not to have informed the client or thecourt, prior to the hearing, of his view. The result, inevitably, was anadjournment so that the Applicant, to whom this must have come as aparticularly rude surprise, could see if he could secure other representation;(3) Although counsel’s apology was noted, the Applicant was entitled toreceive timely advice, and there had been a signal waste of public funds, of thetime of the court in preparing the appeal, and of the time of the Respondent’scounsel in preparing the appeal. Had there been the power, a wasted costs orderwould have been made;(4) In the United Kingdom, there was legislation which provided forprecisely this type of situation. Yet in Hong Kong the legislation was soemasculated as to be meaningless. It provided only for wasted costs to be paidby a legal representative where he failed to appear in court or was late. Theworthlessness of this sanction, directed at a situation which was unlikely ever tohappen, was alluded to in HKSAR v David Ho and Others Cr App 269/2000,and had been referred to again in later cases. Why the legislation had beendenuded of any true force, and represented itself as an exercise in purecosmetics, was a matter which could only be known to these privy to the debatesand policy decisions at the time. The failure to follow the English legislationwas a matter for wonder by the court. It was not a piece of legislation whichreflected any realistic concern for the public purse.Result - Case adjourned. No order as to costs.46

CCAB 2003CostsFACC 1/2003Li CJBokhary &Chan PJJClough &Sir AnthonyMason NPJJ(25.11.2003)*MichaelThomas SCRogerBeresford& GrahamGoodman#GJX McCoySC& A S Kingfor theRespondent(1)John GriffithsSC& Adrian Bellfor the SFC(theintervener) (2)(1) LEEMing-teeand(2) The SFCCourt of Final Appeal/Successful prosecution appeal/Costs to followevent/Costs to intervener/Trial costs not appropriate終 審 法 院 - 控 方 上 訴 成 功 - 訟 費 隨 結 果 而 定 - 訟 費 予 介 入 者 - 判 處審 訊 的 訟 費 並 不 恰 當On 22 August 2003, the court unanimously allowed the appeal, set asidethe permanent stay ordered by Seagroatt J, remitted the matter to the Court ofFirst Instance for the Respondent to be tried, and directed the parties to lodgewritten submissions as to costs. Submissions were lodged.[For facts of case, see Criminal Appeals Bulletin, August 2003, pp 4 to10:Ed]Held :(1) The Appellant succeeded in obtaining the setting aside of the stay and theremittal of the matter to the Court of First Instance for the Respondent to betried. There was no reason why costs should not follow the event. TheAppellant was entitled to its costs of the stay application before Seagroatt J, itscosts of the applications for a certificate before Seagroatt J, its costs before theAppeal Committee, and its costs before the court, to be paid by the Respondent;(2) The intervener had come before Seagroatt J at the judge’s request. Thatrequest was the result of allegations made by the Respondent. The intervenerwas before the judge to defend itself against the very serious allegation made bythe Respondent, namely, that the intervener had terminated its enquiry intoMeocre Li’s conduct in the Kin Don placement in order to protest his status andstanding as an expert. The intervener went to the Appeal Committee and then tothe court in order to exonerate itself from the judge’s finding that that allegationhad been made out against it. It was true that the intervener was at fault in that itought to have disclosed the fact of the Kin Don enquiry to the prosecution sothat the prosecution could disclose it to the defence as a matter that might lead toa train of enquiry that might have unearthed material for challenging MeocreLi’s reliability. But that did not alter the fact that the intervener faced a veryserious allegation, levelled at it by the Respondent, which it had come to court tomeet, and which it had successfully met. The intervener was entitled to its costsbefore Seagroatt J, before the Appeal Committee and before the court, to be paidby the Respondent;(3) There was no need to come to a conclusion as to whether there was apower in this appeal to order the Respondent to pay the Appellant’s costs of theaborted trial before Seagroatt J. Even if there was such a power, it ought not tobe exercised in present circumstances. Although the judge had aborted the trialfor reasons which were unsustainable, there was a countervailing consideration.If the Respondent had been convicted, the absence of disclosure of the fact ofthe Kin Don enquiry would have provided a basis on which such convictionmight successfully have been challenged. No order was appropriate for thecosts of the aborted trial;(4) As to the costs of the written submissions, the parties would be left tobear their own costs.Result - Orders in terms.47

CCAB 2003CounselCounselCA 206/2002Stuart-MooreVPStock &Yeung JJA(21.1.2003)*PeterChapman#JimmyKwongPAUKai-mingCounsel’s conduct/Applicant alleging failure of counsel to indicatedesirability of testifying/Applicant seeking on appeal to reverse stanceadopted at trial律 師 的 行 為 - 申 請 人 指 稱 律 師 沒 有 表 示 宜 於 作 供 - 申 請 人 尋 求 上 訴推 翻 原 審 時 所 採 取 的 立 場After trial, the Applicant was convicted of theft in the District Court andsentenced to 3 years’ imprisonment.On appeal, it was submitted that the conviction was unsafe orunsatisfactory because counsel who represented the Applicant at trial had ‘failedto advise the Applicant sufficiently if at all ... (that) it was highly desirable for(him) to give evidence’.In his affirmation, the Applicant asserted that counsel had explained tohim that he was free to elect to give evidence or to remain silent, and that hisadvice was there was no need to give evidence. He relied upon this affirmation,and chose not to give evidence. Counsel himself, in an affidavit, indicated thathe had sought to persuade the Applicant to testify, but that he had refused.Counsel also gave evidence to that effect.Held :(1) It was apparent that the Applicant would not have been able at trial toanswer many crucially material questions, and this was undoubtedly a factorwhich might have caused his decision to avoid going into the witness box;(2) It was clear from all the evidence that when the Applicant signed the noteindicating that he did not intend to give evidence he did so with full knowledgeof the seriousness of his position after this had been explained to him bycounsel. The Applicant had, before he signed the note, considered the matter inthe round and made a decision which he plainly thought at the time would be inhis best interests. His tactics having failed, it seemed he was now attempting toreverse the stance he adopted in the trial court by seeking to put forward hisdefence by a route which he had decided against when he opted not to giveevidence at his trial. The application was bereft of merit.Result - Application dismissed. Three months loss of time ordered.CA 423/2002Stuart-MooreVPStock &Yeung JJA(22.1.2003)*Kevin Zervos& Alex Lee#AndrewMacrae SC &Michael LeungCHENGMan-toCounsel’s duty/Forensic strength not inconsistent with courtesy/Duty oftribunal to prevent unseemly bickering and sniping of counsel律 師 的 責 任 - 在 法 庭 上 辯 論 既 要 有 力 也 要 有 禮 - 法 庭 有 責 任 阻 止 律師 之 間 不 得 體 的 爭 吵 和 中 傷After dismissing the application for leave to appeal against a convictionfor conspiracy to defraud, the court considered ‘Counsel’s duty ’ . Stock JAsaid:We have read with concern the transcript in this case.Contending arguments will take place in many a trial, and thereis no reason why counsel should be precluded from making hispoints forcefully. Yet we would remind counsel that there is noinconsistency between, on the one hand, strength in forensicbattle and, on the other, courtesy. This case was marked byunseemly bickering and sniping between two counsel who48

CCAB 2003Counselappeared at trial, at the provocation, it seems to us, by leadingcounsel for this Applicant, who adopted a sarcastic and stridenttone which permeates too much of that part of the evidence whichwe have read. Quite whom conduct of this kind is intended toimpress we know not. If it is intended to impress the judge, it willnot, certainly should not, work; and it is emphatically the duty oftribunals to prevent it. It achieves nothing, save to demeancounsel who engage upon it, as well as the profession as a whole.From experienced counsel, especially, it is a poor lesson to newpractitioners.CA 365/2002Cheung &Ma JJABeeson J(31.3.2003)*VincentWong#John HaynesCHANKwok-choiCounsel using strong language on appeal in relation to judge’s conduct ofcase/Allegations of bias and lack of judicial neutrality/Submissions must bejustified/Not acceptable to use such words to support argument thatevidence not properly analysed律 師 在 上 訴 中 以 強 烈 的 措 詞 批 評 法 官 處 理 案 件 的 方 式 - 指 稱 法 官 偏見 和 未 能 保 持 司 法 中 立 - 陳 詞 須 有 充 分 理 據 支 持 - 以 此 類 字 眼 支 持證 據 未 經 妥 善 分 析 的 論 點 是 不 可 接 受 的Having dismissed an application for leave to appeal against conviction,the Court commented:We would like to draw attention to certain comments contained inthe Applicant’s skeleton submissions criticising the judge for notmaintaining ‘a position of judicial neutrality’ or being ‘biased’.These are strong words to use in relation to a judge’s conduct of acase. Where there is material to justify such submission, counsel isof course expected to advance his client’s case accordingly.Where, as in the present case, they are not justified and merelyused to support arguments that the judge did not correctly analysethe evidence, we find their use unacceptable.CA 522/2000Stuart-MooreVPStock JASeagroatt J(2.5.2003)*DG Saw SC &Winston Chan#F Whitehouse(1)R Donald (2)A Raffell (3)(1) CHANMan-lok(2) LEUNGShing-cho(3) LEUNGWai-lunJudge canvassing issues with counsel before final speeches/ Emotivestatements by prosecutor/Careful consideration required before onecounsel impugns integrity of another法 官 與 律 師 在 最 後 陳 詞 前 詳 細 討 論 問 題 – 檢 控 人 員 作 出 情 緒 化 的 陳詞 – 律 師 指 責 另 一 方 律 師 的 誠 信 前 須 予 審 慎 考 慮said:In disposing of appeals against conviction for manslaughter, the court(1) Judges should, particularly in complex cases, identify issueswhich it would be prudent to canvass with counsel before thesumming up. To take two common examples, such mattersmight include whether to leave a particular issue to the jurywhich might be controversial, or a discussion as to how it wasintended to direct the jury on a legal topic of some difficulty.When such questions were canvassed, it was generallyimportant that this was done prior to counsel’s speeches so thatcounsel would know how the judge proposed to approach thoseissues and so that they would have the opportunity to commenton them should they think fit to do so. It was said in R vWhitfield (1984) 79 Cr App R 36, 40:It is often convenient before counsel address thejury for the judge to hear legal argument in the49

CCAB 2003Counselabsence of the jury and to indicate to counsel theway in which he will direct the jury upon the law.But this is better done at the conclusion of the casefor the defence when all the evidence has been led.(2) It was somewhat disturbing that a number of highly emotivestatements had been made by the prosecutor at trial both incross-examination and in his final speech. In an emotionallycharged trial such as this such comments were more thanusually out of place;(3) When counsel saw fit to make an allegation which was likely toreflect on the integrity of other counsel, even when doneinferentially, this should only be done after the most carefulconsideration based upon a proper investigation of all thecircumstances.Defendant’s Right to Remain SilentCA 336/2002Stuart-MooreACJHCBeeson &Tong JJ(31.10.2003)*John ReadingSC& C Draycott#LawrenceLok SC& Edwin ChoyHOSiu-hoiProsecutor’s final speech to jury/Reference to failure of accused totestify/Breach of s 54(1)(b), Cap 221/Defence case not damaged/Standarddirection given by judge檢 控 人 員 向 陪 審 團 作 出 的 最 後 陳 詞 - 被 告 沒 有 作 證 的 提 述 - 違 反 香港 法 例 第 221 章 第 54(1)(b) 條 - 沒 有 對 辯 方 不 利 - 法 官 作 出 標 準 的指 引After trial, the Applicant was convicted of seven offences of conspiracy,contrary to common law. Each count alleged that the accused had conspired todefraud Hang Seng Bank.On appeal, it was submitted, inter alia, that the prosecutor hadcommented in her final speech to the jury on the Applicant’s failure to giveevidence, and that this amounted to a material irregularity which had not beenadequately corrected by the judge in the summing-up. This derived from theterms of s 54(1)(b) of the Criminal Procedure Ordinance, Cap 221, whichprovided that the failure of a person who was charged with an offence to giveevidence ‘shall not be made the subject of any comment by the prosecution’.The offending words which were accepted by the prosecution to betechnically in breach of the statutory prohibition contained in s 54(1)(b), were asfollows:.... If he knew, when he signed, he agreed with his father. If hedidn't know, then that’s the end of it for him. But if he agreedwith his father and knew what was going on then the nextquestion is, was he dishonest in what he was doing? Do youthink he was dishonest, and applying that standard, do you thinkhe did? You don’t have the benefit of hearing his explanationeither in an interview to the ICAC or in evidence, but youmustn’t hold that against him, that’s his right. But it doesmean that the fact that he signed these false documents isunexplained.50

CCAB 2003Defendant’s Right to Remain SilentSoon afterwards, counsel continued by saying:But there is evidence that he knew what was going on, andwithout explanation you may think that the irresistibleinference is that in signing the documents, so manydocuments, documents which on the face of them weredishonest, that he was dishonest and he was dishonest.Dishonest by your standards and that he knew it.The Applicant submitted that these comments could only have led thejury to conclude that they were being invited to draw the inference that theApplicant had acted dishonestly because he had provided no explanation for hisactions.After the prosecution’s closing speech, the judge was addressed bycounsel, in the jury’s absence, about the situation which had arisen. Counselasked the judge to ‘correct’ the position. In due course, the judge had directedthe jury in what was more or less the usual way:.... Now, in relation to the 1st accused, members of the jury,as I mentioned to you yesterday, he chose not to give evidenceand he chose not to call any witnesses and that is perfectlywithin his legal rights. He does not have to give evidence andhe is entitled to sit in the dock and require the prosecution toprove its case.You must not assume that he is guilty because he has notgiven evidence. The fact that he has not given evidence provesnothing one way or the other; it does nothing to establish hisguilt. On the other hand, it means that there is no evidencefrom the defendant to undermine, contradict or explain theevidence put before you by the prosecution.It was complained on appeal that the judge did nothing to neutralize the‘adverse effects’ of the prosecutor’s remarks. It was said that the judge shouldhave departed from the standard directions, which covered the failure of adefendant to testify, by confining himself to informing the jury that thedefendant was entitled to ‘sit back to see whether the prosecution could prove itscase against him’.Held :(1) What the prosecutor had done, plainly intending no unfairness to theApplicant, was to pre-empt what the jury was, in any event, bound to be told bythe judge about the Applicant’s right to remain silent. They were, in fact, dulytold this;(2) In R v Riley and Another (1990) 91 Cr App R 208, it was held thatalthough the prosecutor should not have commented on the failure of thedefendant to give evidence, whether favourably or not, the prosecutor’s wordswould not have done any harm. In a reference to R v Naudeer (1985) 80 Cr AppR 9, the court, at 213, said:.... That case makes clear that this Court is concerned to seewhether the breach has been put right by the summing-up. Werespectfully accept that approach and it is perfectly apparentto us in the present case that it was put right. In actual fact wedo not think that the comment in the terms made by Mr.Bingham would have done any harm to Riley’s case, but in so51

CCAB 2003Defendant’s Right to Remain Silentfar as any harm might have been done we think the assistantrecorder took the right course in not mentioning whatprosecution counsel had done, not criticising him for havingdone it to the jury; that would not have assisted Riley’s case.The words he used were, it seems to us, entirely appropriateand made good any damage which might have been done. ....(3) The same considerations applied in this case. Nowhere in the commentsof the prosecutor was it suggested that an inference of guilt might arise from theApplicant’s decision not to give evidence. Equally, nothing was said by herwhich contradicted any of the judge’s later directions in the course of thesumming-up. There was, therefore, nothing which required correction and therewas no purpose to be served by castigating the prosecutor for what was acceptedto be an inadvertent breach of the terms of s 54(1)(b). All that such a coursecould have achieved would have been to highlight the very passages in theprosecutor’s speech a week earlier to which strong exception was taken. Theprosecutor’s speech had lasted over an hour and the impugned passages werevery brief;(4) The fact that the Applicant had chosen not to give evidence was knownto the jury and for the prosecutor to state it, albeit contrary to the provisions ofs 54(1)(b), was to state the obvious. There was, however, nothing said by theprosecutor about the Applicant’s failure to testify which might have damaged thedefence case and there was, therefore, nothing which the judge could or shouldhave said, either immediately after the speech for the prosecution or later in hissumming-up, which might have been beneficial to the Applicant on the point;(5) The judge adopted the correct course by providing the standard directiongiven to juries in cases where the defendant had chosen not to testify.Result - Application dismissed.DisclosureMA 779/2002McMahon DJ(17.1.2003)*DG Saw SC &Wong Sze-lai#RaymondFongGAOHejiaSummary trial of unrepresented defendant/Duty of disclosure ofprosecution material/Form of disclosure not important無 法 律 代 表 的 被 告 人 接 受 簡 易 程 序 審 訊 - 披 露 檢 控 資 料 的 責 任 - 披露 的 形 式 不 重 要The Appellant was convicted after trial of an offence of careless driving,contrary to s 38(1) of the Road Traffic Ordinance, Cap 374.The Appellant was not represented at trial. On appeal, he complainedthat the brief facts of the case, the statements of the prosecution witnesses, thesketches and photographs and the criminal record of PW1 had not beendisclosed to him at trial.Held :(1) The duty of disclosure of prosecution materials in Hong Kong wasgoverned by common law. The common law principles regarding disclosurewere general and without jurisdictional distinction. They applied uniformlythrough the range of courts in Hong Kong where criminal trials were conducted;52

CCAB 2003Disclosure(2) The common law rules of disclosure had evolved over the years. In R vWard (Judith) (1993) 96 Cr App R 1, Glidewell LJ said that the obligation todisclose ‘only arises in relation to evidence which is or may be material inrelation to the issues which are expected to arise or which unexpectedly doarise in the course of the trial. If the evidence is or may be material in thissense then its non-disclosure is likely to constitute a material irregularly ’ ;(3) As to what was ‘material ’ and requiring of disclosure, this wouldembrace matters which, on a sensible appraisal of the prosecution case, (1) wasrelevant or possibly relevant to an issue in the case; (2) raised or possibly raiseda new issue whose existence was not apparent from the evidence the prosecutionproposed to use; (3) held out a real (as opposed to a fanciful) prospect ofproviding a lead on evidence which went to (1) or (2): R v Keane [1994] 1WLR 746;(4) In the normal prosecution in Hong Kong the witness statement of asubstantive witness should be disclosed to the defence before that witness gaveevidence, before trial;(5) In relation to statements of persons not called as witnesses, the duty ofdisclosure would normally be performed by supplying copies of the witnessstatements to the defence or allowing them to inspect the statements and makecopies. Where there were good reasons for not supplying copies of thestatements, the duty to disclose could be performed by supplying the name andaddress of the witness to the defence: R v Ward (above);(6) It was wrong to allow the Appellant’s trial to proceed in the absence ofany witness statements. There was a positive duty upon the prosecution todisclose such material and all witness statements, including diagrams or sketchesprepared by the witnesses, to the Appellant. That was a basic procedure adoptedwithout question in the District Court and the Court of First Instance, and therewas no reason in principle as to why it could be ignored in the MagistratesCourt;(7) The previous traffic conviction of PW1 should have been disclosed to theAppellant. It was something which might have been material to the issue of thenature of PW1’s driving at the time of the offence. If it might have tended toassist the Appellant in the preparation and conduct of his defence, it should havebeen disclosed ;(8) The brief facts of the case, as with any other document provided to thecourt sitting as a tribunal of fact during a criminal trial, should have beendisclosed to the Appellant;(9) The form of the disclosure which should take place was not in itselfimportant. It could be done in a number of ways, from providing copydocuments to simply allowing the defence to view the document. Whetherinformation had been adequately disclosed was a question of fact in thecircumstances of a particular case;(10) Where a defendant was unrepresented in the conduct of his defence itwould be desirable for the court to take some initiative to ensure that theprosecution had taken adequate steps to properly disclose the materials in theirpossession to the defendant. That might mean no more than reminding theprosecution of their duty in this regard;(11) In Ward’s case a distinction was drawn between the failure of theprosecution to disclose material which should have been properly disclosed to53

CCAB 2003Disclosurethe defence before trial and the effect of such non-disclosure. Not all nondisclosureof material evidence resulted in an unfair trial. Before any breach bythe prosecution of its duty to disclose information in its possession to thedefence which might be material rebounded against a conviction it had to beshown that the non-disclosure resulted in some unfairness or injustice to thedefendant’s case, and did so within the terms of the s 119(1)(d) of theMagistrates Ordinance, Cap 227.Result - Appeal allowed.MA 369/2002McMahon DJ(16.5.2003)*Cheung Waisun#AndrewMacrae SCOHJae-hoon,EugeneDuty of disclosure/Test to be applied/Disclosure upon request of materialdeemed to be non-disclosable/Non-disclosure to be relevant must bematerial/No duty to gather material forming no part of investigation orprosecution materials披 露 資 料 的 責 任 - 所 須 應 用 的 驗 證 標 準 - 按 要 求 披 露 被 認 為 不 可 披露 的 資 料 - 不 披 露 的 資 料 必 須 具 關 鍵 性 方 與 案 件 相 關 - 檢 控 官 沒 有責 任 蒐 集 不 屬 調 查 資 料 或 檢 控 資 料 部 分 的 資 料The Appellant was convicted after trial of the offences of commonassault and criminal damage.On appeal, it was submitted, inter alia, that there was significant nondisclosureof materials. That arose, so it was said, after the Appellant, two daysprior to trial, had requested the prosecution to provide certain material. Thesematerials were voluminous. In large part these materials were in fact providedbefore or during the trial, but some were not.Held :(1) The duty of disclosure placed upon the prosecution was an onerous one.It was not for the prosecution to determine what in its materials collected duringthe investigation of the case was relevant to the defence case or not and sodisclosable or not. The test was set out in R v Keane [1994] 1 WLR 746, wherethe following statement of the law was approved:-I would judge to be material in the realm of disclosure thatwhich can be seen on a sensible appraisal by the prosecution:(1) to be relevant or possibly relevant to an issue in the case;(2) to raise or possibly raise a new issue whose existence is notapparent from the evidence the prosecution proposes to use; (3)to hold out a real (as opposed to fanciful) prospect of providinga lead on evidence which goes to (1) or (2).(2) Even where, in compliance with that test of disclosure, the prosecutiondecided some material did not require disclosure to the defence and did not doso, if subsequently the defence, for its own genuine case preparation reasons,decided that it required that material and requested it, then the prosecutionshould provide it. That was because they had been put on specific notice thatthe material might possibly be relevant to an issue in the case. That did notmean that the prosecution had to laboriously photocopy or duplicate thematerial. It simply meant the defence, in the circumstances of the case, had tobe given some reasonable view of, or access to, the material;(3) Even if there was non-disclosure of a sort that breached the rule inKeane’s case, that was not the end of the matter. Before that non-disclosure hadthe effect of rendering a conviction defective in any way, there had to besomething to suggest that non-disclosure was in fact material in the sense thatthe non-disclosure might in some practical way have prejudiced the conduct of54

CCAB 2003Disclosurethe defence;(4) The duty of the prosecutor to disclose to a defendant materials gatheredduring the course of an investigation was an onerous one. But it did not meanthat a prosecutor had to become an errand boy in gathering materials whichformed no part of the investigation or prosecution materials, for the purpose ofthe preparation of the defence case;(5) The magistrate had been right to refuse a permanent stay of proceedingsas requested by the defence at trial because of non-disclosure. She took theview that substantial disclosure had been made and what was not disclosed wasof a nature that the defence was not in any way prejudiced. In that view she wasright.Result - Appeal dismissed.FACC 1/2003Li CJBokhary &Chan PJJClough &Sir AnthonyMason NPJJ(22.8.2003)*MichaelThomas SCRogerBeresford& GrahamGoodman#GJX McCoySC & A SKingfor theRespondent(1)John GriffithsSC& Adrian Bellfor the SFC(theintervener) (2)HKSARand(1) LEEMing-teeand(2) The SFCDisclosure/Principles based on common law right to fair trial/Distinctionbetween ‘prosecution ’ and ‘investigation ’ / Duty upon prosecutionalone/Relevant material and information disclosable/Extent of duty todisclose/No basis for permanent stay of proceedings披 露 資 料 - 原 則 基 於 普 通 法 中 可 獲 得 公 平 審 訊 的 權 利 - ‘ 控 方 ’ 與 ‘ 調查 當 局 ’ 的 區 別 - 責 任 由 控 方 獨 力 承 擔 - 相 關 資 料 及 信 息 可 予 披 露 -披 露 資 料 責 任 的 範 圍 - 缺 乏 永 久 擱 置 法 律 程 序 的 理 據This was an appeal by the Secretary for Justice from an order dated 13December 2002 by Seagroatt J, to stay permanently criminal proceedingsagainst the Respondent on the ground of abuse of the court’s process.On 11 February 2003, the Appeal Committee granted leave to appeal onthe grounds that points of law of great and general importance were involved inthe decision and that it was reasonably arguable that substantial and graveinjustice had been done. At the same time the Appeal Committee granted theSecurities and Futures Commission (‘SFC’) leave to intervene in the appeal.The Respondent had been charged with two counts of conspiracy todefraud, and four counts of publishing a false statement of account, contrary to s21(1) of the Theft Ordinance, Cap 210.The prosecution case depended, inter alia, upon Meocre Li, the expertaccountant, who had prepared a written report into the affairs of the AlliedGroup Ltd of which the Respondent had been chairman.Seagroatt J stayed the trial on the ground of abuse of process for tworeasons. The first was the failure of Meocre Li to disclose to the Department ofJustice (‘DOJ’) and to the court his connection with a company calledGuangdong Kelon, a listed company which had been suspended, and to acompany called Kin Don, a listed public company, of which he was chiefexecutive officer, and which in 1999 had been investigated by the SFC. Thesecond was the termination by the SFC of the inquiry under s 56(1) of theSecurities Ordinance, Cap 333, into Meocre Li’s conduct in relation to the KinDon matter in order to protect his status and standing as an expert witness forthe prosecution in the pending trial. The judge found that the SFC improperlyclosed the inquiry in order to avoid disclosure before the forthcoming trial ofpossible misconduct on the part of Meocre Li.Having concluded that the findings of fact made by Seagroatt J,especially particular inferences which he drew, could not be sustained, and thatthe judge, in material instances, had proceeded on a misapprehension of the55

CCAB 2003Disclosureeffect of the evidence, the Court of Final Appeal turned its attention to the dutyof disclosure, and to the nature and scope of the duty. The questions whicharose for consideration were:(1) What was meant by the expression ‘the prosecution’ in theformulation of the duty?(2) Was the duty confined to the prosecutor or did it extend also towitnesses and to bodies such as the SFC in the present case?(3) To what material and information did the duty relate?Held :(1) The principles related to disclosure articulated by English courts werebased on the defendant’s common law right to a fair trial and on the principle ofopenness. It was therefore appropriate to have regard to them in ascertaining thecommon law of Hong Kong. The principles recognised that the prosecution wasunder a duty of disclosure to the defence which extended to material in thepossession or control of the prosecution which might undermine its case oradvance the defence case;(2) An additional foundation for the application of these principles wasprovided by arts 39 and 87 of the Basic Law and by art 11(2) of the Hong KongBill of Rights Ordinance, Cap 383. Article 39 provided that the ICCPR shouldremain in force and should be implemented through the laws of the HKSAR as ithad been by the Bill of Rights. Article 87 preserved the principles previouslyapplied in criminal proceedings and the rights previously enjoyed by parties toproceedings in Hong Kong. Article 87 also guaranteed the right to a fair trial;(3) Article 11(2) of the Bill of Rights, which implemented art 14(3) of theICCPR, provided in ‘the determination of any criminal charge … everyone shallbe entitled to the following minimal guarantees, in full equality … (b) to haveadequate time and facilities for the preparation of his defence …’ That articleentitled the defendant, where practicable, to the provision of copies ofstatements of witnesses on which the prosecution intended to rely (Vincent v R[1993] 1 WLR 862, 867, R v Deputy District Judge Lee, exp Chow Po-bor[1993] 3 HKPLR 101). It was, however, acknowledged by the Appellant thatthe Basic Law and the Bill of Rights did not take the duty of disclosure furtherthan it was taken by the common law;(4) A distinction was often drawn between the prosecution (which consistedof those persons who presented and prepared the case for the prosecution) andthe investigation (which consisted of those persons who investigated thecommission of the alleged offence). In some cases this distinction might not beeasy to draw. That was often the case in summary proceedings. In judicialreview of convictions entered in summary proceedings, persons standing outsidethe prosecution had been identified with the prosecution (see, for example, R vLiverpool Crown Court, exp Roberts [1986] Crim LR 622, where a policeofficer was held to have been part of ‘the total apparatus of the prosecution’).However, in the context of trials on indictment the distinction between theprosecuting authority and the investigating authority had generally beenobserved. In this case the distinction was between on the one hand the DPP, thelegal officers of the CCU of the Prosecutions Division who prepared andpresented the case and briefed counsel and counsel and, on the other, theCommercial Crime Bureau of the Hong Kong Police;(5) The duty rested with the prosecution or prosecuting counsel. The dutyshould be considered as one imposed upon the prosecution generally (in this56

CCAB 2003Disclosurecase the DOJ), though it was generally performed by counsel who was briefedand conducted the prosecution. It would be unduly restrictive to say that theduty was confined to prosecuting counsel;(6) There was no suggestion in the English authorities that, in the case oftrials on indictment, the duty of disclosure to the defence was imposed onanyone other than the prosecution. There were powerful reasons for confiningto the prosecution the duty of disclosure. First, it was for prosecuting counsel inthe first instance to make a careful assessment of the materials in the possessionof the prosecution, in the light of the issues and the circumstances of the case,with a view to ascertaining whether there was relevant material which mightassist the defence in advancing its case or undermining the prosecution case.Should a dispute arise for the trial judge to determine, he in effect reviewed theprosecutor’s assessment. Secondly, it was unrealistic to impose a duty ofdisclosure on anyone other than the prosecution. The witness ordinarily lackedthe professional skill and experience and the knowledge of the issues andcircumstances of the case which were essential to the making of a judgment ofwhether it was necessary or not to make a disclosure. Thirdly, it would only addto the complexity of conducting a trial if witnesses and other strangers to theproceedings were expected of their own motion to volunteer to the courtinformation which they conceived to be material to the proceedings. Theorderly conduct of the trial would be set at risk if the duty to disclose were notconfined to the prosecution;(7) The prosecution duty was to disclose to the defence material (includinginformation) in its possession or control. That would ordinarily includematerials that had been gathered by the investigating agency (the police) and itwas the responsibility of the prosecution to make the investigating agency awareof the need to make available all relevant materials. In that sense, theprosecutor’s duty was to disclose to the defence all relevant material in itspossession or control and in the possession or control of the investigatingagency;(8) In order to ensure that all disclosable material was provided to thedefence, prosecuting counsel should instruct investigating officers and, whereappropriate, witnesses to bring to counsel’s attention any material that might bedisclosable. In other words, disclosable material known to a witness, includingan expert witness, should be channelled through prosecuting counsel who shouldtake appropriate steps to facilitate that happening;(9) The prosecution had a duty to ascertain and disclose to the defencerelevant material (including information) in its possession or control and in thepossession or control of the investigating agency (including the police), subjectto relevance, privilege and public interest immunity. The prosecution’s dutyextended to material in the possession or control of any other governmentdepartment or agency if there were particular circumstances suggesting that itmight have such material. In Kyles v Whitley 514 US 419 (1995), Souter J, inthe context of the constitutional requirement of due process, said:This in turn means that the individual prosecutor has a duty to learnof any favorable evidence known to the other acting on thegovernment’s behalf in the case, including the police. But whetherthe prosecutor succeeds or fails in meeting this obligation (whether,that is, a failure to disclose is in good faith or bad faith …), theprosecution’s responsibility for failing to disclose known, favorableevidence rising to a material level of importance is inescapable.(9) As the duty of disclosure rested with the prosecution, it followed that57

CCAB 2003Disclosureneither Meocre Li nor the SFC were under a direct duty of disclosure to thecourt, as the judge seemed to suggest;(10) The prosecution’s duty was to disclose to the defence relevant material(including information) which might undermine its case or advance the defencecase. The duty was not limited to the disclosure of admissible evidence.Information not itself admissible might lead by a train of inquiry to evidencewhich was admissible. And material which was not admissible might berelevant and useful for cross-examination of a prosecution witness on credit;(11) In R v Keane [1994] 1 WLR 746, 752, Lord Taylor of Gosforth CJadopted a test which had been suggested earlier by Jowitt J in R v Melvin,unreported, 20 December 1993, where Jowitt J said ‘I would judge to bematerial in the realm of disclosure that which can be seen on a sensibleappraisal by the prosecution (1) to be relevant or possibly relevant to an issuein the case; (2) to raise or possibly raise a new issue whose existence is notapparent from the evidence the prosecution proposes to use; (3) to hold out areal (as opposed to a fanciful) prospect of providing a lead on evidence whichgoes to (1) and (2) ’. The Melvin categories might be accepted as a broadstatement of what, on a sensible appraisal by the prosecutor, was subject todisclosure. The Melvin formulation and the recognition that the credibility of aprosecution witness was relevant for the purpose of the Melvin categories hadthe consequence that disclosable material relevant to the cross-examination of aprosecution witness could not be restricted to the three instances of disclosablematerial relevant to the credibility of a prosecution witness sanctioned byauthority and referred to by Steyn LJ in R v Brown [1994] 1 WLR 1607. Itextended to other significant material which a reasonable jury could regard astending to shake confidence in the credibility of the witness;(12) As to whether the prosecution had a duty to disclose to the defence theexistence of the SFC inquiry into Mecore Li, had he or the SFC informed theprosecution of the inquiry, it was correct to say that in the usual run of things toestablish that a witness was the subject of a disciplinary inquiry and no morewould not reflect adversely on the credibility of the witness. But crossexaminationon the facts underlying the inquiry could reflect adversely on thecredibility of the witness, depending on what the circumstances and answersmight be. If the witness was called as an expert witness and the inquiry wasconducted by the relevant professional body in response to concerns about theprofessional competence of the witness, this would raise a doubt about theprofessional standing and competence of the witness: R v Brooks [2002] EWCACrim 2107. Also, in some circumstances, there would be the possibility thatdisclosure of the existence of the inquiry would enable the defence to pursue atrain of inquiry which would lead to material which would be of advantage tothe defence. The proposition that the fact a prosecution witness was the subjectof a disciplinary inquiry was not disclosable could not be accepted as a universaland all-embracing proposition. Every case had to be judged according to itsown particular circumstances. On credit, only significant material that areasonable jury or tribunal of fact could regard as tending to shake confidence inthe reliability of the witness was disclosable and the answers of the witness incross-examination on credibility alone could not generally be rebutted byevidence: Hobbs v Tinling [1929] 2 KB 1, HKSAR v Wong Sau-ming [2003] 2HKLRD 90;(13) In the context of the prosecution’s duty of disclosure there were twoaspects in relation to the existence of a pending inquiry into the conduct of aprosecution witness. The first was the possible use of the inquiry or the factswhich underlay it as a basis for attacking the credibility of the witness. Thesecond was the use of the inquiry to launch a train of inquiry which might assistthe defendant in advancing his or her case by ultimately ascertaining admissible58

CCAB 2003Disclosureevidence or material which could be used to damage the credibility of thewitness;(14) There was no basis for the grant of a permanent stay. It was not a casewhere the Respondent could not get a fair trial. It was for the judge to weighcountervailing considerations of policy and justice and then, in the exercise ofthe discretion, to decide whether there was an abuse of process which required astay. Although the judge carried out this exercise, he did so having arrived attwo important conclusions which could not be sustained. One was the findingthat the SFC improperly terminated the inquiry into Meocre Li in order to avoidcompromising his status and standing as a witness. The other was that MeocreLi had a duty to disclose the Guangdong Kelon matter to the prosecution,entailing a consequential duty on the prosecution to make disclosure to thedefence;(15) A re-trial would not occasion an affront to the public conscience.Indeed, it was more likely that public confidence in the administration of justicewould be shaken if the Respondent was not brought to a second trial simplybecause the SFC and Meocre Li failed to inform the prosecution of the inquiry,thereby putting the prosecution in breach of its duty of disclosure to the defence.Result - Appeal allowed. Order of permanent stay set aside. Case remitted fortrial to Court of First Instance.DishonestyCA 571/2001Stuart-MooreVPStock JASeagroatt J(7.8.2003)*R G Turnbull& Hayson Tse#John GriffithsSC& A KingCHANBoon-ningLies direction/Mere assertion by prosecutor that defendant lied insufficientto trigger lies direction/Defence of claim of right not undermined by Ghoshdirection/Claim of right required direction that an unreasonable beliefmight be an honest one謊 言 指 引 - 僅 因 檢 控 人 員 聲 稱 被 告 人 說 謊 不 足 以 引 用 謊 言 指 引 - 以享 有 權 利 為 抗 辯 理 由 不 因 Ghosh 一 案 的 指 引 而 被 削 弱 - 辯 方 聲 稱 享有 權 利 時 法 官 須 作 出 ‘ 不 合 理 地 相 信 也 可 能 是 誠 實 地 相 信 ’ 的 指 引The Applicant was convicted after trial of three counts of theft and fourof false accounting. He was sentenced to 6 years imprisonment.On appeal, two grounds were advanced. First, it was said that the trialjudge failed to provide the jury with a direction as to lies allegedly told by theApplicant in his oral testimony at trial. It was said that such a direction wascalled for because the prosecutor in his closing address had ‘placedconsiderable emphasis on the alleged lies of the Applicant, suggesting byimplication that these lies would support an inference of guilt’.Second, it was submitted that the judge gave a Ghosh direction (R vGhosh [1982] 1 QB 1053), when no such direction should have been given andthat to do so gave rise to a danger of confusing the jury as to the test to beapplied. The perfected ground of appeal asserted that the ‘judge misdirected thejury by directing them to apply the test of dishonesty as expounded in R vGhosh … The issue of dishonesty in this particular case was not the ordinaryperson’s idea of dishonesty but rather the genuineness of the Applicant’s beliefas to the factual situation’. It was argued that since the real issue was a claim ofright under s 3(1)(a) of the Theft Ordinance, Cap 210, ‘the inclusion of the59

CCAB 2003DishonestyGhosh direction in the summing up could have confused the jury and led themto apply a convoluted and inappropriate test in determining whether theApplicant was dishonest’. Section 3(1)(a) and (b) of that Ordinance provided:Held :(1) A person’s appropriation of property belonging to another is notto be regarded as dishonest:-(a)(b)if he appropriates the property in the beliefthat he has in law the right to deprive theother of it, on behalf of himself or of a thirdperson; orif he appropriates the property in the beliefthat he would have the other’s consent if theother knew of the appropriation and thecircumstances of it; or …(1) The need, or the absence of a need, for a lies direction had been thesubject of many appeals, and there was now a tendency to raise the issue invirtually every appeal case in which it was discovered from post trial scrutiniesof the summing-up that a lies direction had or had not been given. It seemedstill not to be appreciated that a lies direction was reserved for the limitedcircumstances in which a lie was used not merely to undermine the credibility ofthe defence, but as in itself constituting a separate item of evidence or conduct insupport of the case against the defendant, or where there was a danger that thejury might use a lie, not merely as undermining the credibility of a defence, butas proof positive of guilt;(2) In Archbold 2003 at para 4-402, it was stated, in light of R v Goodway(1994) 98 Cr App R 11, that a lies direction should be given ‘whenever lies arerelied on by the prosecution, or might be used by the jury, to support evidenceof guilt as opposed to merely reflecting on the defendant’s credibility’;(3) A mere assertion by counsel for the prosecution that a defendant had liedwas of itself far from the automatic trigger for a lies direction which so manyapplications for leave to appeal against conviction seemed to assume. That saidby the prosecutor in this case was concerned solely with credibility, and therewas no need for a lies direction;(4) Although the judge directed the jury in terms of Ghosh, before he did sohe directed them as to the terms or effect of s 3(1)(a) as well as s 3(1)(b); anddirected them as well that if in relation to the theft counts the Applicant’saccount that he believed he was entitled to take the money was true, or might betrue, then he was not acting dishonestly and that he must be acquitted;(5) There had been debate whether a Ghosh direction in itself covered allsituations in which a s 3(1)(a) defence was raised. It was suggested in R vWoolven 77 Cr App R 231, that:… a direction based on Ghosh seems likely to us to cover alloccasions when a section 2(1)(a) type direction might otherwisehave been desirable.(Section 2(1)(a) of the Theft Act to which reference was there made, was in thesame terms as section 3(1)(a) of the Theft Ordinance.)(6) The editors of Archbold 2003, para 21-28, said on this issue:As to the importance of referring to section 2(1)(a) where a claimof right is raised see R v Falconer-Atlee, 58 Cr App R 348, CA. In60

CCAB 2003DishonestyR v Woolven, 77 Cr App R 231, CA, it was said that a direction ondishonesty based on Ghosh would be likely to cover all occasionswhere a section 2(1)(a) type direction might otherwise have beendesirable. Woolven, however, was a case on section 15 of the Actto which section 2 does not apply. In cases involving an allegationof theft simpliciter, burglary or robbery, it is submitted that itwould still be necessary to give a section 2(1)(a) direction because,if the case comes within that provision, the jury must as a matter oflaw determine the first of the two questions in Ghosh in thedefendant’s favour. See also R v Wootton [1990] Crim L R 201,CA, and R v Wood [1999] 5 Archbold News 2, CA.(7) R v Falconer-Atlee was referred to in Woolven at 236:Our attention was drawn to Falconer-Atlee (1973) 58 Cr App R348 – a case of theft to which section 2(1)(a) therefore applied. Aclaim of right was raised by the evidence. The learned judgedirected the jury as to the elements which the prosecution had toprove in order to establish the offence. In dealing with the elementof dishonesty he said: “The all important word … in those fourelements is ‘dishonestly’, but of course, it may well be that youmay not have much difficulty in deciding that if somebody incircumstances such as are alleged here appropriated propertybelonging to another with the intention of permanently deprivingthe other of it, then it was done dishonestly, but that is a matter foryou. It is for you to decide whether whatever was done was donedishonestly. If you are not satisfied that it was, then you could notconvict …”;In delivering the judgment of this Court, Roskill L J (as he thenwas) said at p 359: ‘To give the jury the limited direction which thelearned judge gave, impeccable so far as it went in relation to‘dishonestly’, but on the facts of this case not to go on to tell themwhat section 2(1)(a) expressly provided was not to be regarded as‘dishonest’ was to omit what was an extremely importantdirection.’;In contrast, the summing up in the present case clearly broughthome to the jury that they must consider the appellant’s ownaccount of events and what he said about his state of knowledgeand if, on that basis, they thought he might have regarded hisactions as honest, they must acquit.(8) There was a material fact which distinguished Falconer-Atlee, as well asWood, from the present case; and it was that in the present case the judge didgive a s 3(1)(a) direction, and did so in clear terms. A significant aspect ofWood was that whilst the judge gave a Ghosh direction, ‘… he nowhere told thejury that if they thought that the defendant either did have a genuine belief ormight have had a genuine belief then they would have to acquit him’. So, too, itwas noted from the passage in Woolven that, compared to the summing up inFalconer-Atlee, the position in Woolven was that:In contrast, the summing up in the present case clearly broughthome to the jury that they must consider the appellant’s ownaccount of events and what he said about his state of knowledgeand if, on that basis, they thought he might have regarded hisactions as honest, they must acquit.(9) In the present case there was an express reference by the judge to theapproach to be adopted in relation to the three theft counts and to the defencethat the Applicant believed he was entitled to take the money. It was true that61

CCAB 2003Dishonestythe judge gave no direction that the reasonableness of such a belief wasimmaterial; but he told this jury in terms that if the Applicant was or might betelling the truth, then he was entitled to be acquitted;(10) It could not be said, therefore, as it could in Wood and Falconer-Atlee,that there was no specific s 3(1)(a) or (b) direction. That was why thecomplaint on this ground had to retreat to the position that the Ghosh direction(which had, it was conceded, in any event to be given in respect of the remainingcounts) undermined the s 3 direction, and gave rise to a real risk of confusion;(11) It was not demonstrated that the Ghosh direction undermined the s 3direction or that it gave rise to a real risk of confusion; and the suggestion thatthe Ghosh direction had or might have had that effect was made for the first timeupon this appeal, a relevant factor in assessing the impact upon a particular juryof central directions. Leading counsel at trial was, as his closing addressdemonstrated, well attuned to the importance of the s 3 defence or defences. Hemade no suggestion at trial that the summing-up was less than clear or fair onthat point, and when the judge asked specifically whether there were any pointscounsel wished to raise, no complaint was advanced. In any event, the s 3direction having been given, the Ghosh direction could not detract from itsimpact since a proper application of Ghosh would, if the Applicant’s suggestionof a claim of right was or might have been true, have determined the Ghoshquestions in the Applicant’s favour;(12) It was noted that the judge did not tell the jury that even an unreasonablebelief might be an honest one. It was desirable that when a claim of rightdefence was run, such a direction should be given. But in the light of thejudge’s very clear directions that if the Applicant’s account was or might betrue, no dishonesty was proved, the failure to do so in this case was not material.Result - Leave to appeal granted, but appeal dismissed.Obiter - It was not strictly necessary to deal with the arguments advanced onthe application of the proviso to s 83(1) of the Criminal ProcedureOrdinance, Cap 221. But if, contrary to the assessment made, thedirections on dishonesty were not as complete or ascompartmentalized as was required, this would be a clear case inwhich to conclude that no miscarriage of justice had occurred inconsequence thereof. Not only did the judge leave the jury in nodoubt but that the Applicant was to be acquitted if his account was ormight be true, but the case against him was quite overwhelming.Disorderly ConductMA 619/2003Beeson J(5.9.2003)*Cheung Waisun#Fu Chong-CHENGSiu-wingDisorderly conduct/Ingredients of breach of the peace/ Meaning of‘disorderly conduct’/Behaviour conducive to breach of the peace擾 亂 秩 序 的 行 為 - 破 壞 社 會 安 寧 的 要 件 -‘ 擾 亂 秩 序 的 行 為 ’ 的 涵 義 -導 致 破 壞 社 會 安 寧 的 行 徑The Appellant was convicted after trial of disorderly conduct in a publicplace, whereby a breach of the peace was likely to be caused, contrary to s17(B)(2) of the Public Order Ordinance, Cap 245. The particulars alleged thatin a public place, being the footbridge linking Kai Tin Shopping Centre, the62

CCAB 2003Disorderly ConductsangAppellant behaved in a disorderly manner, whereby a breach of the peace waslikely to be caused.The facts were that the Appellant had followed a mother (PW1) and herdaughter (PW2) up the public staircase leading to a footbridge. He had a digitalcamera in his possession and, holding it in his palm, reached under the skirt ofthe daughter with the hand in which he held the camera. The mother saw whathe was doing and stopped him. The Appellant tried to leave the scene but wasphysically restrained by PW1 and three men and then arrested. He admitted thathe did have a camera in his possession, but said he was going to use it tophotograph buses. He denied he had attempted to photograph under PW2’sskirt.The magistrate noted that PW1 said she was scared, but had raised a hueand cry when the Appellant managed to escape her grip. Other members of thepublic had come to assist her. The magistrate believed that if he accepted theprosecution evidence, there was an actual breach of the peace, because membersof the public took hold of the Appellant and a struggle ensued in which theAppellant was injured. The magistrate held that the violence that did occur neednot necessarily have been visited by the Appellant on others.On appeal, it was submitted, inter alia, that there was no evidence that abreach of the peace had been, or was likely to be, occasioned by the action ofthe Appellant.Held :(1) In R v Howell [1982] QB 416, Watkins LJ stated that the power of arrestlay not only in cases where a breach of the peace occurred in the presence of thepotential arresting officer, but also where a breach of the peace was reasonablyapprehended in the immediate future, even though the person arrested had notyet committed any breach. He said there was ‘a breach of the peace wheneverharm is actually done or is likely to be done to a person or in his presence to hisproperty or a person is in fear of being so harmed through an assault, anaffray, a riot, unlawful assembly or other disturbance’. In Percy v DPP [1995]1 WLR 1382, the court stated that breach of the peace was limited to violence orthreats of violence as set out in Howell. Professor Sir John Smith, in theCriminal Law Review [1995] Crim L R 714, commented on Percy:The slightly confusing thing about the terminology of the law isthat the person responsible for a breach of the peace, and who maybe arrested and bound over to keep the peace, is not necessarily,or usually, the actual breaker or apprehended breaker of thepeace, but the person who has provoked or may provoke, theviolent response of others by his improper, though not necessarilyunlawful conduct.(2) ‘Disorderly conduct’ was not defined in the Public Order Ordinance, sothe words were to be treated as ones in every day use and given their normalmeaning. In The New Shorter Oxford Dictionary, the entry for ‘disorderly’referred to ‘unruly or offensive behaviour’ or ‘violating public order ormorality’. It must be a question of fact for the trial court as to whether conductwas characterised as disorderly;(3) The case of Chambers and Edwards (unreported) was discussed in[1995] Crim L R 896, as to what disorderly conduct meant in s 5(1) of the PubicOrder Act 1986. The section referred to disorderly behaviour in the hearing orsight of a person likely to be caused harassment, alarm or distress thereby.There need be no element of violence whether present or threatened; it covered63

CCAB 2003Disorderly Conductconduct which was not necessarily threatening, abusive or insulting;(4) The conduct of the Appellant in attempting to or photographing under theskirt of PW2 was properly categorised as ‘disorderly conduct’. There was nodispute that the place where the incident occurred was a public place. As themagistrate remarked, ‘the average Hong Kong citizen is likely to be outraged bysuch behaviour and it is entirely predictable that a hue and cry would be raisedand that concerned citizens would endeavour to detain an alleged miscreant. Inso acting, it is entirely predictable that both the members of the citizenry andthe alleged miscreant would be likely to commit a breach of the peace … thebehaviour alleged against the Appellant is entirely capable of being the sort ofbehaviour that would make it likely that a breach of the peace would becaused.’Result - Appeal dismissed.Evidence / HearsayCA 18/2002Woo JAPang &Tong JJ(15.1.2003)*Philip Wong#PeterChapman& Ho May-yu(1) LIChi-hung(2) PANGSai-sau,Brenda(3) WONGKam-faiProsecution evidence rejected in voire dire/Defence not raising rejectionbefore jury/Basis of rejection/Judge not required to canvass rejection withjury for purposes of assessing credibility控 方 證 據 在 案 中 案 程 序 中 不 被 接 納 - 辯 方 沒 有 向 陪 審 團 指 出 控 方 證據 不 被 接 納 - 拒 絕 接 納 的 理 據 - 法 官 無 須 為 評 估 可 信 程 度 而 與 陪 審團 討 論 控 方 證 據 不 被 接 納 一 事The three Applicants were convicted after trial of three counts oftrafficking in a dangerous drug, contrary to s 4(1)(a) and (3) of the DangerousDrugs Ordinance, Cap 134.On appeal, it was submitted, inter alia, that the judge failed to direct thejury that the evidence of prosecution witnesses who testified before the judge inthe voire dire had been rejected, thus amounting to a non-direction on thecredibility of the prosecution witnesses and depriving the Applicants of theirright to a fair trial. The factual basis for this ground was that there was a voiredire regarding the admissibility of an oral admission of D1 at the scene of thearrest and four written records of interview taken from D1 when he was placedunder police custody. The voire dire lasted more than 10 days. Variousprosecution witnesses who took part in the arrest, including the statement-takingofficer, gave evidence. At the end of the voire dire the judge rejected theprosecution case and ruled against the admissibility of the five confessionalstatements. Neither during the trial proper nor in the judge’s summing-up wasthe fact that the judge had rejected the police witnesses’ testimony canvassed.Held :(1) The fact that the five confessional statements made by D1 had been ruledinadmissible by the judge was not mentioned before the jury by counsel for theApplicants. That must have been the reason why the judge did not mention iteither in his summing-up. It was quite obvious why counsel did not canvassbefore the jury the fact of the exclusion of the confessional statements in thevoire dire. The judge did not specifically state that he did not believe any of theprosecution witnesses regarding their conduct at the taking of confessionalstatements. He was merely not satisfied beyond a reasonable doubt that the64

CCAB 2003Evidence / Hearsayconfessional statements had been freely and voluntarily made and without undueinfluence. The judge’s ruling did not indicate that he disbelieved police, andthere was no basis for defence counsel to cross-examine police on the judge’sruling;(2) Even assuming that the judge did disbelieve the statement-taker in rulingthe confessional statements inadmissible, such ruling would have had no bearingon the credibility of the undercover officer whose evidence in the voire dire wasas to his knowledge of what D1 had allegedly stated to the statement-taker.Even had defence counsel at trial attempted to cross-examine the undercoverofficer on the effect of the judge’s ruling that would have been disallowed. In Rv Edwards [1991] 1 WLR 207, 217, Lord Lane CJ said:The acquittal of a defendant in case A, where the prosecutioncase depended largely or entirely upon the evidence of a policeofficer, does not normally render that officer liable to crossexaminationas to credit in case B. But where a police officerwho has allegedly fabricated an admission in case B, has alsogiven evidence of an admission in case A, where there was anacquittal by virtue of which his evidence is demonstrated to havebeen disbelieved, it is proper that the jury in case B should bemade aware of that fact. However, where the acquittal in case Adoes not necessarily indicate that the jury disbelieved the officer,such cross-examination should not be allowed. In such a casethe verdict of not guilty may mean no more than that the juryentertained some doubt about the prosecution case, notnecessarily that they believed any witness was lying.(3) Although the Applicants maintained that the judge should havecanvassed his ruling in the voire dire before the jury or otherwise the trial wouldnot be fair to them, it was accepted that no authority could be found on thesubject and it was conceded that there was no duty on the judge to do so.Result - Applications dismissed.FAMC15/2003Li CJBokhary &Chan PJJ(5.5.2003)*BM Ryan#GaryPlowman SCCHEUNGWai-mingPrison informer/Little room left for practice of judge warning jury ofdanger of convicting on the uncorroborated evidence of such awitness/Judge warning jury of need to approach evidence with care獄 中 的 告 發 人 – 無 甚 基 礎 要 求 法 官 須 就 根 據 這 類 證 人 的 無 佐 證 證據 定 罪 的 危 險 性 而 向 陪 審 團 提 出 警 告 – 法 官 警 告 陪 審 團 須 小 心 處理 證 據The Applicant sought leave to appeal to the Court of Final Appeal on thebasis that he had suffered grave and substantial injustice as the trial judge:Held :(i)(ii)failed to direct the jury generally as to the inherent dangersof acting upon the evidence of prison informers; andfailed to direct the jury as to the particular dangers involvedin acting upon such evidence in this case where the makingof the prison confession was not supported by otherindependent evidence.(1) The application involved the contention that it was an accepted norm inHong Kong to direct juries along these lines. The position in Hong Kong wasthat by s 60 of the Criminal Procedure Ordinance, Cap 221, the rule whereby a65

CCAB 2003Evidence / Hearsayjudge was obliged to warn the jury or himself of the danger of convicting on theuncorroborated evidence of an accomplice was abrogated. By s 4B of theEvidence Ordinance, Cap 8, the rule whereby a judge was obliged to warn thejury or himself of the danger of convicting on the uncorroborated evidence ofthe complainant in a sexual case was abrogated. It would be surprising if thatleft any room for a practice under which a judge normally warned the jury orhimself of the danger of convicting on the uncorroborated or unsupportedevidence of a prison informer;(2) Whether corroborated or uncorroborated and whether supported orunsupported, the evidence of a witness like the one here in question had to beapproached with particular care. In that regard, the judge had directed the jury’sattention to the care necessitated by (i) this witness’s criminal record, (ii) hispersonal interest to serve in becoming a prosecution witness, (iii) his failure totell the police about the Applicant’s alleged confession, only telling the ICACabout it later, (iv) his grudge against the Applicant who had assaulted him, and(v) the discrepancies between what he had told the ICAC and his evidence inCourt.Result - Application refused.CA 179/2002Stock &Yeung JJABurrell J(17.4.2003)*DG Saw SC& Alice Chan#Duncan PercyLEUNGHung-onHearsay/Declarations of accused’s agent admissible as declarations ofaccused/False imprisonment傳 聞 證 據 – 代 表 被 告 的 宣 稱 可 被 接 納 為 屬 被 告 的 宣 稱 – 非 法 禁 錮The Applicant was convicted after trial of false imprisonment andburglary.The charge of false imprisonment alleged that on 26 June 2001, at Flat3A of Good View Court in Tai Ping Shan Street in Central, the Applicant andLai Ka-man (‘Lai’) (D2 at trial) together with a person unknown, unlawfully andinjuriously imprisoned a Miss Toothill and detained her against her will.The prosecution case was that in the afternoon of 26 June 2001 policeofficers saw the Applicant and Lai on the rooftop of Good View Court. Themen were then seen inside Flat 28A looking out, and then the two of themclimbed out of the window there and made their way down the drainpipe. Ontheir way down the police shouted out to them to stop. They did not do so butclimbed into a flat on the 18th Floor, Flat 18A. This gave rise to a charge ofburglary of Flat 28A in respect of which the Applicant was convicted; and theburglary of Flat 18A of which he was acquitted because the judge could not besatisfied that he was there and intended to steal.The Applicant and Lai then made their way down the building to thethird floor. In Flat 3A resided Miss Toothill. The police by then had alertedresidents of the block of flats, and had already been to Miss Toothill’s place andhad told her to secure her windows and her door. They departed, but a shortwhile later the door bell rang again and there were the two men, the burglars,whom Miss Toothill had first thought to be plainclothes policemen. TheApplicant merely said: ‘No problem ’, and she closed the door again. A fewminutes later the door bell rang once more and she opened the door. Herevidence was: ‘The defendant pushed the door and they both came in and thesmaller guy - Defendant 2 - locked the door behind him.’ She said nothing toencourage them to enter. She had not invited them to enter. They signalled toher to calm down, and the Applicant indicated that he wished to use hertelephone. He gestured and spoke to her in broken English. He then told herthat he needed a change of clothing, and she went to fetch a t-shirt whichbelonged to her boyfriend. She sat on the sofa and the men sat on either side of66

CCAB 2003Evidence / Hearsayher. They made more telephone calls.One telephone call was made by the Applicant to a man to whom hespoke and who was put on to Miss Toothill by the Applicant; in other words, theApplicant made a telephone call, spoke, and then handed her the receiver andasked her to speak to the person on the other end, who turned out to be a manwho spoke very good English. That man told her to remain calm and that shehad to wait there until around 7, until it was dark; she then had to leave thebuilding, with the two men and pretend, if asked, that she was their friend.Defence counsel at trial objected to the admissibility of that telephoneconversation on the basis that there was no evidence that the two defendantswere present and able to hear the conversation that this man said to the lady.Whatever he might have said might or might not be what they wanted him tosay, or in fact that it was true. The objection was to the effect that the evidencewas hearsay and was therefore inadmissible.Then, according to the evidence, the Applicant asked Miss Toothill whather mobile telephone number was, and she supplied it. Her evidence was thatshe was scared and she was then asked this question:Q. Did you think you could leave the flat?A. No, not after the conversation with the gentleman on thephone and the fact that they’d locked the door when theycame in.Miss Toothill was asked whether she had a boyfriend and she said ‘Yes’and she said that he would be coming home at around 6 or 6.30 pm. TheApplicant then said that they wanted her to telephone him to tell him not tocome home. So she made a telephone call, not to her boyfriend, but to heremployer, a Mr Higgins, and she spoke to his personal assistant, and he thentelephoned back.According to this evidence, Miss Toothill was asked whether she wasOK and she answered ‘No’, and he asked her if she could leave the house andshe said she could not, and he asked if she was being held against her will andshe said that she was. That is what, according to her evidence, she believed.Cross-examination of Miss Toothill suggested that the men did notbehave aggressively; that neither said to her that she could not leave; and thatshe was not compelled to do anything. The point which the cross-examinationsought to make was that she was not in the flat under compulsion. It was thenput to her that:Q: Neither man told you at any time that you could not leavethe flat.A. Verbally, no.Q. Nor did you try and leave the flat and were physicallystopped.A. They locked the door behind them when they came in,which suggested to me I couldn’t leave.In her Reasons for Verdict, the judge said that whereas counsel submittedthat the defendants’ wish was only to escape the police and not to restrain MissToothill; that she was free to move about her home; that she had never asked toleave; she, the judge, was satisfied that:... Miss Toothill was a necessary hostage to their plan to escape.They could not risk her leaving or using the phone to alert the67

CCAB 2003Evidence / Hearsaypolice of the presence of the two strangers in her flat.Although Mr Percy objected to the admissibility of the phoneconversation, this is admissible as part of the res gestae. D1’sfriends could not have known Miss Toothill’s telephone number.I infer from the evidence D1 had called round to find a friendwho could communicate to Miss Toothill what he intended sheshould do, that is to say, that she should stay calm and at 7 pmwhen the police may have departed, she was to accompany themout of the building.However, if they were stopped, she was to say they were herfriends.Later, alarmed that her boyfriend would turn up, he made hercall to dissuade him. I am satisfied she was not at liberty to leaveher flat.On appeal, it was submitted, first, that the judge was wrong to haveadmitted into evidence the contents of a telephone conversation which MissToothill had with a stranger, as evidence of the true intentions of the Applicant.Second, it was said that the judge was wrong to have concluded that MissToothill was a hostage and not at liberty to leave the premises. Reliance wasplaced upon R v Cheung Wan-ing and Another [1990] 1 HKLR 655, in supportof a suggestion that in the absence of physical restraint a court required, in thecase of false imprisonment, cogent evidence of a real danger threatened by thealleged offender and fear by the victim. That point was said to assist theApplicant in this case because Miss Toothill might not have felt restrained butfor the telephone call.Held :(1) The person to whom Miss Toothill spoke was, according to theunchallenged evidence, a person introduced by the Applicant to speak to her;and to speak to her specifically about the situation in which the Applicant hadplaced her. It was for the judge to determine whether that person was speakingto Miss Toothill on the Applicant’s behalf. In the circumstances in which hewas introduced to speak to her, the only reasonable inference was that he wasdoing so on behalf of the Applicant and that was what the judge found. Thatbeing so, he was speaking to her as the Applicant’s agent in the course of theattempts by the Applicant and Lai to escape capture by the police. Hisdeclarations as agent for the Applicant were therefore admissible as declarationsof the Applicant, whether or not it was the intention of the prosecution to rely onthe truth of any assertion of fact expressed or implied in them;(2) All that the court was saying in Cheung Wan-ing and Another was thatwhere someone was not physically restrained, some other form of restraint uponthe victim’s freedom to leave, which was also intended to have that effect, mustbe shown. That case was, in any event, wholly different from this. That was acase in which the complainant’s evidence was that the door of her room was notlocked and that she could have come and gone as she wished; but that she wasreluctant to leave her hotel room because she feared being followed about by themen who were there to persuade her to pay a gambling debt; and that she feltintimidated;(3) In this case, deliberate blockage of the complainant’s freedom ofmovement was obvious from a variety of factors. The two men in MissToothill’s private residence had shortly before committed a burglary and to theirknowledge were being hunted by police who at that very time were in the same68

CCAB 2003Evidence / Hearsaybuilding; and the burglars wished to take cover until dark. They entered the flatwithout any permission to do so; and they locked the door, with Miss Toothillinside. The circumstances reeked of compulsion. Miss Toothill was told interms by someone acting on behalf of the Applicant and Lai that she had to waituntil 7 p.m. and that she had to leave with the two men. She was told by theApplicant so to arrange matters that her boyfriend did not return to the premisesuntil that hour; until the time, that is, for their escape at dark. There was in thecircumstances no need for the Applicant or for Lai to tell Miss Toothill that shewas not free to come and go as she pleased. The idea that she could leave - asno doubt she would at once have done unless it was obvious that she was beingconfined - and that she could leave to report the matter, as no doubt she would atonce have done, to whomsoever she wished, but most particularly to the policewho were in her building searching for the men was fanciful. How it couldseriously be suggested that in these circumstances she was a free agent wasdifficult to comprehend. There was no other reasonable conclusion which thetrial judge could have reached.Result -Application dismissed. Loss of time ordered.CA 211/2002Stuart-MooreVPStock JASeogroatt J(28.5.2003)*Darryl Saw,SC & AliceChan#RobertAndrews(1) HABIBAHSAN(2) SHAHAMTIYAZHUSSAINRape/Evidence of witness prejudicial and not probative/Judge directingjury to ignore the evidence/Test whether jury might beprejudiced/Preferable for judge to advise jury of reason forexclusion/Counsel endorsing course adopted強 姦 - 證 人 證 供 帶 偏 見 且 無 證 案 價 值 - 法 官 指 示 陪 審 團 無 須 理 會 該證 供 - 驗 證 陪 審 團 是 否 可 能 已 產 生 偏 見 的 標 準 - 較 可 取 的 做 法 是 法官 告 知 陪 審 團 豁 除 該 證 供 的 理 由 - 律 師 贊 同 所 採 取 的 做 法The Applicants were convicted after trial of rape (and other offences)upon a 21-year-old Indonesian. A third man pleaded guilty to rape, andtestified for the prosecution.Having forcibly abducted the victim, the defendants took her to a villa inKam Tin where rooms had been rented. She was stripped by the men and rapedfirst by A2, and then by A1. The third defendant then forced his penis into thevictim’s mouth and also raped her.The victim was eventually allowed to leave, but the defendants kept hermobile phone. When medically examined, bruises were found on her body.At trial, apart from the victim, her friend, her employer, a taxi driver, andthe receptionist at the guest house, the second defendant, (‘Atif ’ ), gave evidencefor the prosecution.After Atif had testified, and after discussion with counsel, the judge,having decided that the evidence was not probative but prejudicial, directed thejury:The direction which I am going to give you is one of law and youmust follow it. Now, I direct you to totally ignore the whole of theevidence given by the witness, Mirza Atif. As a matter of law, hehad given no evidence fit for your consideration. Some of theevidence which he gave, if taken into account would beprejudicial to the two accused men, so I direct you ... to totallyignore the whole of the evidence given by that witness ...That direction was repeated in almost identical terms when the judgesummed-up to the jury:69

CCAB 2003Evidence / HearsayIn relation to the witness (Atif’s) evidence, I have already givenyou [a] certain direction which I said I will repeat to you when Isum up the case ... The direction is one of law. You must followit. I direct you to totally ignore the whole of the evidence givenby the witness ... As a matter of law, he has given no evidence fitfor your consideration. Some of the evidence which he gave, iftaken into account, would be prejudicial to the two accused men.So I direct you as I have said to totally ignore the whole of theevidence given by Atif.On appeal, the Applicants submitted that not only were the directions inrelation to Atif inadequate, but that, instead of so directing, the judge ought tohave discharged the jury and ordered a retrial. It was said that notwithstandingthe judge’s direction to ignore all the evidence ‘as a matter of law ’ , the jurywould in any event have had regard to the prejudicial material because havingheard it all, they could not realistically be expected to exclude it from theirminds. It was also contended that the jury would have been confused becausethey had not been given an explanation as to why they should ignore it. The juryshould have been told of all the defects in his evidence and in his character.Held :(1) On the issue of whether the judge had been correct to give the directionshe did, Lord Mackay, in DPP v P [1991] 2 AC 447, had said: ‘whether theevidence has sufficient probative value to outweigh its prejudicial effect must ineach case be a question of degree’. In R v Docherty [1999] 1 Cr App R 274,Roch LJ had said: ‘we would add that for a judge having to decide whether ornot to discharge a jury, the question is whether there is a real danger ofinjustice occurring because the jury, having heard the prejudicial matter, maybe biased ’ . In Docherty that said by Lord Goff in R v Gough [1993] AC 646,as to the test to be applied by a trial judge, namely, whether there was or was nota real danger that the jury might be prejudiced by the evidence, was adopted.Lord Goff had said:In conclusion, I wish to express my understanding of the law asfollows. I think it possible, and desirable, that the same testshould be applicable in all cases of apparent bias, whetherconcerned with justices or members of other inferior tribunals, orwith jurors, or with arbitrators. Likewise I consider that, in casesconcerned with jurors, the same test should be applied by a judgeto whose attention the possibility of bias on the part of a jurorhas been drawn in the course of a trial, and by the Court ofAppeal when it considers such a question on appeal.Furthermore, I think it unnecessary, in formulating theappropriate test, to require that the court should look at thematter through the eyes of a reasonable man, because the courtin cases such as these personifies the reasonable man; and in anyevent the court has first to ascertain the relevant circumstancesfrom the available evidence, knowledge of which would notnecessarily be available to an observer in court at the relevanttime. Finally, for the avoidance of doubt, I prefer to state the testin terms of real danger rather than real likelihood, to ensure thatthe court is thinking in terms of possibility rather than probabilityof bias.(2) The evidence of Atif, though having a prejudicial element, wasadmissible as clearly probative, and the judge erred in directing the jury toignore the totality of it;70

CCAB 2003Evidence / Hearsay(3) It would have been better if the judge had told the jury why she wasexcluding Atif’s evidence; to make it easier for the jury to put the evidence outof their minds. A suitable formula could have been found. Merely to tell thejury that it was being excluded because it was prejudicial was not somethingwhich a jury was likely to understand;(4) Although there was concern as to whether if the jury did not understandthe reason the evidence was being excluded they were likely to take the evidenceinto account despite the direction, considerable weight had to be given to thestance of counsel at trial who had the best sense of the impact which a directionto which they had consented was likely to have, as against the risk that the jurymight have difficulty in excluding the evidence from their minds. Counsel tooka deliberate tactical decision that the interests of their clients were better servedby the windfall which the judge had presented than by a retrial; and theyendorsed the course proposed. They evidently took the view that the directionwould on balance serve the purpose which it was designed to serve and thatdecision having been taken no further reference was made to Atif’s evidence inany of the speeches. Neither counsel applied to the judge to discharge the jury.In those circumstances and given the particular force of the direction there couldbe no justifiable complaint.Result - Applications dismissed.FACC 2/2003Li CJBokhary &Chan PJJClough &Sir AnthonyMason NPJJ(27.6.2003)*John ReadingSC &Vincent Wong#JamesMcGowanZABEDAliMurder/Admissibility of evidence/Relevance the cardinal rule/ Exclusion ofevidence as to mere propensity/Evidence of no probative value謀 殺 - 證 據 的 可 接 納 性 – 證 據 是 否 相 關 屬 基 本 準 則 - 摒 除 有 關 純粹 傾 向 性 的 證 據 - 有 關 無 證 案 價 值 的 證 據The Appellant was convicted after trial of the murder of RazzackMohammad Abdur, ‘the deceased’, and sentenced to life imprisonment.The body of the deceased was found in a guest house in Tsim Sha Tsui in1999. The likely cause of death was suffocation. The deceased’s face had beencovered with multiple layers of adhesive tape, and his body and hands were tied.At trial, the prosecution relied upon the testimony of a man nicknamed‘Omar’ as to his conversation with the Appellant some ten days before themurder. The admissibility of his evidence was the crucial issue in the appeal.Both Omar and the Appellant came from Bangladesh and they wereacquaintances. Omar’s evidence was that during their conversation some tendays before the murder, the Appellant said that his father had been killed whenhe was a child by the Sharbahara Party in Bangladesh, that he was going to killsomeone in revenge and that he had a fixed target whom the Appellant had notnamed.At trial, the prosecution invited the jury to consider the case as one ofmurder committed in the course of robbery. At no stage was the jury asked toconsider it as one of revenge killing. After the defence objected to theadmissibility of Omar’s evidence and said it was ‘entirely prejudicial and nonprobative’,the judge ruled that it was admissible. That was after theprosecution had submitted that the evidence was relevant to the Appellant’s stateof mind as to whether he was ‘capable of forming the intent to kill’. The judgewas satisfied that Omar’s evidence was relevant to the prosecution’s case and hewas not satisfied that its prejudicial effect outweighed its probative value.The Court of Appeal, by a majority, upheld the conviction. They heldthat Omar’s evidence was admissible. That was on the basis that it showed that71

CCAB 2003Evidence / Hearsayin certain circumstances, the Appellant was prepared to form an intent to killanother person. Even though, as the majority put it, ‘the killer or killers werecommitting the offence for financial gain, it was a relevant factor that theremight be evidence that the [appellant] would be prepared to kill for some othermotive’. Stock JA, dissenting, considered that Omar’s evidence wasinadmissible as it was mere propensity evidence. The Appellant’s comments toOmar only evidenced a potential propensity to kill.Held :The Appeal Committee granted the Appellant leave to appeal.(1) The relevance of the evidence to the issues in the case should first beconsidered. Relevance was the cardinal test in the law of evidence. Theexclusionary rule should then be applied to bar evidence which was merepropensity evidence. On this approach, the question of admissibility should beconsidered along these lines:(a)(b)(c)(d)The matters in issue which the prosecution had to prove toestablish guilt, having regard to the charge, had first to beidentified. For that purpose, the defences open to and anyspecific defence raised by the accused would be taken intoaccount. However, in the words of Lord Sumner in R vThompson [1918] AC 221, 232:The prosecution cannot credit the accused withfancy defences in order to rebut them at the outsetwith some damning piece of prejudice.If a fact which the prosecution had to prove was accepted bythe defence, it would, obviously, not be an issue;The evidence the admissibility of which was in questionshould be focused on;The following questions should then be asked: what was thematter in issue to which the evidence was said to be relevantand why, that is, what was the reason for saying that theevidence was probative of that matter in issue;If in answer to those questions, it was concluded that theevidence was relevant to a matter in issue for reasons otherthan to show mere propensity on the part of the accused tocommit the crime in question, by which was meant it was notmere propensity evidence, then the test in DPP v P [1991] 2AC 447 had to be applied in deciding whether it wasadmissible: whether its probative force in support of anallegation against the accused was sufficiently great to makeit just to admit it, notwithstanding that it was prejudicial tothe accused. It was only where the test was satisfied that theevidence would be ruled admissible as a matter of law. If itwas not satisfied, the evidence would be ruled inadmissible.But if in answer to these questions, it was concluded that itwas mere propensity evidence, then it would be inadmissibleon the basis of the exclusionary rule.(2) If the evidence of bad character or propensity was admitted inaccordance with these principles, it would be necessary for the judge to give anadequate direction to the jury as to how to approach the evidence. The juryshould be directed as to the matter in issue to which such evidence might berelevant and how it might be relevant. The jury should be told that the fact thatthe accused had a bad character or the propensity as shown by such evidence did72

CCAB 2003Evidence / Hearsaynot mean he was guilty of the offence charged;(3) The motive alleged by the prosecution was robbery and the prosecutioncase was that this was a murder committed in the course of robbery. Revengewas disavowed by the prosecution during opening when the possibility of arevenge attack was adverted to but immediately dismissed with the statementthat there was simply no evidence as to that. The statements made by theAppellant to Omar that he was going to kill in revenge were simply not relevantto motive. The motive on the prosecution’s case was robbery and thesestatements concerning revenge were not probative of the motive of robbery;(4) Even if the prosecution had alleged revenge as a motive for the murder,either instead of robbery or on the assumption that it was properly open to theprosecution, as an alternative to robbery, it was doubtful whether on theevidence presented at trial Omar’s evidence of the Appellant’s statements that hewas going to kill in revenge would have any probative value in relation to themotive of revenge. There was no evidence to indicate that the deceased was apossible target or within a class of person who were possible targets. Forexample, there was no evidence that the deceased had any connection withpolitics, let alone with the Sharbahara Party;(5) Although the prosecution submitted that the Appellant’s statements thathe was going to kill made it more likely that he had the intent to kill and did killthe deceased as charged, and that this was relevant, the only purpose ofadmitting the evidence was to show propensity. This was mere propensitywhich must be excluded as inadmissible by the exclusionary rule.Result - Appeal allowed. Retrial ordered.CA 508/2002Yeung &Ma JJAJackson J(11.6.2003)*Kevin ZervosSC#DanielMarash SC(1) TARAZONAEdgar Henry(2) NAKAMORIShinriDocumentary evidence/Confusion as to what material admitted/Prerogativeof prosecution to adduce evidence/Need to identify documents admitted toassist accused文 件 證 據 - 有 關 哪 些 資 料 獲 得 接 納 一 點 引 起 混 淆 - 控 方 具 有 援 引 證據 的 特 權 - 必 須 識 別 獲 得 接 納 的 文 件 以 協 助 被 告The Applicants were convicted after trial of possession of falseinstruments with the intention that they would be used to induce someone toaccept them as genuine to the prejudice of that person.On appeal, it was submitted, inter alia, that the judge had relied ondocuments that had not been properly admitted as evidence.Held :(1) In criminal proceedings, it was primarily the prerogative of theprosecution to decide what evidence to present to court. The defence couldintroduce matters from the ‘unused materials ’ should it be considered necessaryor beneficial to the defence;(2) The trial judge might not always be bound by the decision of the parties,but in our adversarial system the judge should not, save in exceptionalcircumstances, take the initiative in deciding what evidence should be presentedand how the case should be run. The judge should keep in mind that therewould be information known to counsel which would not be apparent to him;(3) When it came to documentary evidence, the documents intended to beadduced had to be properly identified and marked. Parties had to be given asuitable opportunity to properly appraise their contents and implication. Any73

CCAB 2003Evidence / Hearsayobjection had to be properly formulated, argued and adjudicated upon. Thedecision of the judge must then be clear and unequivocal;(4) Counsel and the judge could disagree on the interpretation andimplication of the evidence, but they must be ad idem as to what evidence hadbeen admitted. Everyone in court had to know exactly what was before thecourt in evidence and their significance in relation to particularly the prosecutioncase;(5) How an accused conducted his defence would depend on the prosecutionevidence against him. Counsel’s addresses and the judge’s decision restedentirely on the evidence that had been admitted against him. Counsel’s addressand the judge’s decision rested entirely on the evidence that had been admitted;(6) There had been clear misunderstanding as to what evidence could andshould be admitted. No attempt had been made to sort out themisunderstanding. It was highly undesirable to adopt the practice that‘everything goes in ’ first and the objections could then be dealt with later at onetime. This would have the effect of unnecessarily burdening the court withirrelevant evidence and could lead to misunderstanding as to the relevanceand/or importance of the evidence. As the admission of documents had not beenproperly dealt with, it could not be said the Applicants had a fair trial or that theverdict was safe and satisfactory.Result - Appeals allowed. Convictions quashed. Retrials ordered.CA 99/2002Stuart-MooreVPStock JAPang J(21.7.2003)*Gavin Shiu &David Leung#AndrewMacrae SC &JamesChandler (1)Cheng HuanSC& KeithOderberg (2)& (3)(1) LEEChi-fai(2) WONGYu-lun(3) AUYEUNGYuAdmissibility of evidence/Videotape admitted as prima facie original andauthentic/Approach to admissibility/Establishing proof of authenticity證 據 的 可 接 納 性 - 錄 影 帶 獲 得 接 納 為 表 面 上 原鞝 裝 和 真 確 的 影 帶 - 處理 錄 影 帶 可 否 獲 接 納 的 方 法 - 證 明 錄 影 帶 的 真 確 性The Applicants were convicted after trial on three closely connectedcharges alleging against each Applicant individually that he had done an acttending and intended to pervert the course of public justice, contrary to commonlaw. A1 was additionally convicted of common assault.The Applicants were serving police officers attached to an anti-triadsquad stationed in Yuen Long. In the course of their duties they visited theCatwalk Fantasy Disco on 12 January 2001 where Tai Hiu-tung (‘Tai ’) was themanager. They met Tai and spoke to him in the lane at the back of the Disco.Tai alleged that A1 assaulted him there and that following this incident he wasfalsely charged at Yuen Long Police Station with obstructing A1 in the course ofhis duty.Each Applicant made a statement on 13 January 2001 which incriminatedTai on the charge of obstruction. It was these statements which led to theindividual charge of doing an act tending and intended to pervert the course ofpublic justice being laid against each of the Applicants.The Disco had video cameras placed in strategic positions and one ofthese monitored the back lane and allegedly recorded all the events as theyhappened. The videotape showed A1 kicking and punching Tai before he wasforced into the rear doorway of the Disco where he was kept, out of sight fromthe lens of the camera, for about seven minutes. During that time, A1 and A2were with Tai while A3 stood in front of them in the lane. When Tai emerged,apparently dazed by his experience, he was taken away by police without anyvisible act on his part which could have given rise to a charge of obstruction.74

CCAB 2003Evidence / HearsayTai was taken to hospital and then to Yuen Long Police Station, fromwhere he was released on 13 January 2001. Meanwhile, the Applicants hadeach made a statement as a result of which, on 17 January 2001, Tai wascharged with obstruction.Two days prior to being charged, Tai made a complaint to CAPO bytelephone about the alleged assault. A week later, on 22 January 2001, Taiprovided CAPO with two abbreviated copies of the relevant part of thevideotape taken from the video cassette recorder (‘VCR ’) at the disco which hadrecorded these events. As a result, the Applicants were arrested.At trial, the prosecution produced an abbreviated copy of the originalvideotape (Exhibit P11) as well as the original tape (Exhibit P10). Tai testifiedthat he had activated the CCTV system at sometime after 4pm on 12 January2001 and that when he was able to view the contents of the tape, he could seethat it had recorded the assault by A1 in the presence of A2 and A3. He thenmade abbreviated copies. The original tape lasted ten hours, and just over sevenhours had been recorded by the time the VCR had been switched off. He said hehad made copies of the relevant portions of the tape because he did not trust thepolice. Tai eventually handed the original tape to CAPO on 24 April 2001. Hesaid he had kept it at his home from the time he had been handed it by someone(who he did not name) on or about 13 January 2001. By this time he had madeseveral more abbreviated copies.Tai said he had not tampered with the original tape. That was confirmedby Inspector Lo Wing-kai who testified as an expert witness of videotapes. Hefound no signs of fabrication following detailed examination of both the originaltape (Ex P10) and the copy (Ex P11).It was the prosecution’s case that Tai had not been able to gain custodyover the videotape (Ex P10) until his release from the police station on or abouta day after the events recorded on the videotape.The defence at trial alleged that the videotape was not authentic in thatthe material parts of it had been altered in a way which produced a false pictureof what occurred in the case.The judge stated that in convicting the Applicants he relied on thecontents of the tape together with Tai’s evidence when arriving at the conclusionthat the Applicants were guilty of the charges they faced.On appeal, it was submitted that the judge ought to have placed noreliance upon the video recording at all. It was said, firstly, that it ought not tohave been admitted in evidence and, secondly, that even if it had been properlyadmitted, the judge should have attached no weight to it. It was submitted that‘there was a vital and incurable breach in the chain of evidence ’ as theprosecution had been unable to prove who had obtained the tape on 12 January2001 and what had happened to it before it was handed to Tai on either 13 or 14January 2001. The prosecution, so it was said, was unable to prove that thevideotape had not been fabricated and, in any event, even if it was strictlyadmissible, it should have been accorded no weight. The submission was alsomade that the evidence of the expert, Inspector Lo, had been wrongly admittedas the result of the judge’s failure to exercise his discretion properly, followingthe prosecution’s non-compliance with s 65DA of the Criminal ProcedureOrdinance, Cap 221. That arose because the prosecution had not provided thedefence with copies of all the expert’s records and other documents showing thebasis upon which he had formed his opinion that the videotape had not in someway been fabricated, as required by s 65DA(1)(b) of that Ordinance. As to this,the judge at trial had accepted that there had not been full compliance with the75

CCAB 2003Evidence / Hearsayterms of the section, but in the exercise of his discretion under s 65DA(5) he hadallowed the expert evidence to be adduced and ordered that the defence besupplied with all the documents they requested.Held :(1) The judge admitted the videotape on the basis that it had been shown tobe prima facie original and authentic. He relied upon R v Robson and Another[1972] 1 WLR 651, a case concerned with the admissibility of audio tapes,where, at 653, Shaw J ruled that ‘the judge is required to do no more than tosatisfy himself that a prima facie case of originality has been made out byevidence which defines and describes the provenance and history of therecordings up to the moment of production in court ’. That test was applied inChoi Kit-kau v R [1980] HKLR 433, a case concerned with the admissibility oftape recordings, where, at 438, Roberts CJ said:Shaw J was of the view that it was necessary for the court to besatisfied, on the balance of probabilities, that the recording wasauthentic, by evidence of the history of the recording up to itsproduction in court.The best method of proving that a tape recording produced incourt is authentic is to show that it has been, since the time it wasrecorded, continuously in the custody of persons who assert that itwas not tampered with. This is a course which should be followedif the authenticity of a tape is challenged and is desirable even if itis not.(2) In R v Murphy and Another [1990] NI 306, the Court of Appeal ofNorthern Ireland reviewed cases concerned with the approach taken to theadmissibility of filmed recordings. The facts showed that the appellants werecharged with the murder of two soldiers on waste ground off the AnderstownRoad, Bedfast, on 19 March 1988. The soldiers were driving to Lisburn whentheir car by chance came face to face with the cortege of an IRA style funeral.The approach and presence of the car with the soldiers in civilian clothesattracted hostile notice from some of the mourners and spectators. Groups ofthem ran to the car, surrounded it and smashed at it and eventually dragged thesoldiers from it. The soldiers were beaten, overpowered and taken by taxi towaste ground where they were shot dead by two gunmen who were not theappellants. The appellants were seen and apprehended by an RUC patrol nearthe waste ground a short time after the incident. The appellant Murphy’sclothing was bloodstained. The appellant Maguire was not wearing a shirt andblood was seen on his chest and hands. The prosecution adduced in evidencefilms which were alleged to show the appellants’ participation in the murder.The first was a ‘heli-tele’ film, capturing the whole incident continuously froman airborne army helicopter. In this film, two persons, alleged to be theappellants, were seen to assist others in restraining and beating the soldiers andassisting the two gunmen. The second film was a copy of a ‘European’ film,taken by a European cameraman, which was alleged to show Maguire as thefront seat passenger in the abducting taxi and a person like Murphy as the backseat passenger. Other ‘commercial’ film from British and Irish televisionshowed the two appellants together in the funeral cortege before the incident. Inaddition, forensic evidence was adduced that established that the appellants hadbeen in contact with the soldiers and in the taxi in which the soldiers wereabducted. The trial judge convicted both appellants, holding that each had beena party to a joint enterprise to murder the soldiers and that each was guilty as anaider and abettor. It was submitted on appeal that the trial judge had erred inadmitting the evidence of this film clip. In dismissing the appeals, the courtsaid:76

CCAB 2003Evidence / Hearsay… the European film being relevant, once it was shown to be primafacie authentic, it was admissible. Any attack thereafter could onlygo to weight. The issue of weight could embrace many things -further inquiries into its authenticity, its provenance and historyand whether it was an original and if not how it came to be copied.Authenticity, in our view, like most facts may be provedcircumstantially. In the case of a video film, the direct way is tocall the cameraman who took it and the court will normally expecthim to be called. But if he is not available, he need not be called;other evidence will suffice if it is logically probative that the videowas authentic. That evidence may be adduced in other ways andfrom other sources. The film may be proved authentic bycomparing it with films taken by others of the same event, taken atthe same time or even at a different time. Or, as in the instant caseof the heli-tele film, by comparing it with a film of the same eventsthat is authentic beyond doubt. In the case of a tape recording theevidence of its authenticity will, in almost all cases, be that it is theoriginal recording made at the time. In the context of taperecordings, the word ‘original’ will invariably be a synonym for‘authentic’ as we consider it was in the context of the three casesrelied upon by Mr Treacy and not ‘original’ in contrast to‘secondary’. If the original tape is not available, then the‘provenance and history’ of the copy will be a necessaryrequirement to prove authenticity. In all these three cases theessential contest was the authenticity of the tape recordings, andwe repeat that no such issue was raised in the instant case.So, in our opinion, in the case of video recordings, the issue for thejudge is, is it relevant? If it is, is it prima facie authentic? If it is,then it is admissible and it is left then to the jury or the Diplockjudge to decide whether its authenticity is beyond doubt and if itscontents prove or add to the proof of guilt beyond reasonabledoubt.We think that the foregoing accords with these passages fromcurrent text-books. Cross on Evidence at 43 states:‘At a trial by jury the party relying on a recording or a filmmust satisfy the judge that there is a prima facie case that itis authentic, and it must be sufficiently intelligible to beplaced before the jury. The evidence must define anddescribe the provenance and history of the recording up tothe moment of its production in court. There is no need toaccount for the absence of the original if the copy is shownto be authentic.’And Murphy in A Practical Approach to Evidence at 92, 93writes:‘Questions of admissibility properly so called are thosecases in which the judge has to decide whether a professedpiece of evidence is admissible as a matter of law, havingregard to the rules of evidence. In order to decide this, thejudge may have to receive evidence of secondary facts …Questions of authenticity and originality, on the otherhand, are those cases in which there is no question that theevidence tendered is admissible from a legal standpoint,but there is a question whether the piece of evidencetendered is what it purports to be, that it is an originalpiece of evidence and that it has not been tampered with.77

CCAB 2003Evidence / HearsayThese cases concern tangible exhibits, such as photographsand tape recordings. There is no doubt that such evidencemay be admitted, but there must be some foundationalshowing that the actual exhibit proffered is what it isrepresented to be.’That authenticity completes the requirements of proof of theadmissibility of a relevant tape recording and that authenticity maybe proved in a number of ways, are sufficient grounds, in ouropinion, for upholding the trial judge’s ruling that the Europeanfilm was admissible. He came to his ruling by a route which hasmuch in common in principle and which equally commends itself tothis court. It was that the defence objection to admissibility wasbased on the best evidence rule which in almost all cases ofevidential proof has petered out and undoubtedly has done so inthe proof of video recordings since the decision in Kajala v Noble[1982] 75 Cr App R 149.In Kajala the video cassette recording of the BBC newsprogramme produced to show the defendant and others throwingmissiles at the police was not the original film but the court wassatisfied it was an authentic copy. The original was not availableas it was the BBC’s policy not to allow the originals of their filmsto leave the premises. The defence submitted that as the originalfilm existed it should have been produced and the prosecution wasnot entitled to rely on the recording since it was secondaryevidence. This was rejected by the Divisional Court. Ackner LJ(as he then was) said, in what has become a well known passage,at 152:‘The old rule, that a party must produce the best evidencethat the nature of the case will allow, and that any lessgood evidence is to be excluded, has gone by the boardlong ago. The only remaining instance of it is that, if anoriginal document is available in one’s hands, one mustproduce it; that one cannot give secondary evidence byproducing a copy. Nowadays we do not confine ourselvesto the best evidence. We admit all relevant evidence. Thegoodness or badness goes only to weight, and not toadmissibility: Garton v Hunter [1969] 1 All ER 451 perLord Denning MR at p 1001. In our judgment, the old ruleis limited and confined to written documents in the strictsense of the term, and has no relevance to tapes or films.’He added at 153, and this is equally pertinent to the instant case:‘Mr Wiggs complains that, because the cameraman was notcalled, the justices could not be satisfied that the incidentalleged took place on July 3. We cannot agree. Thejustices were fully entitled, from an examination of thematerial to which we have referred, to be satisfied as to thedate. Mr Wiggs further complains that no doubt the filmhad been edited, in the sense that material had been cut outof the original film, in order to reduce it to an appropriatelength, and that in the absence of the cameraman it was notpossible to tell whether the film showed the events in theirtrue sequence. However, no attack was made upon theintegrity of the film in the sense that it had, by cutting,distorted the activities of the appellant. In suchcircumstances it is irrelevant that the film might not haveshown the events in their true sequence, so long as the film78

CCAB 2003Evidence / Hearsayaccurately showed the activities of the defendant.’(3) The approach adopted by the Northern Ireland Court of Appeal inMurphy was wholly correct. In the present case, where there had been anattempt by the defence to attack the authenticity of the videotape, the judgecarefully analysed the evidence he had heard before deciding that the film wasprima facie admissible. In particular, he had rightly observed, with regard to thefilm’s authenticity, that the prosecution’s expert, Inspector Lo, had found nosigns of fabrication and that the evidence of the defence expert had largelyconsisted of ‘criticisms about the methodology ’ used by him;(4) The videotape showed the actions described by Tai in his evidence withvivid clarity. Of equal importance was what the film failed to show whencompared to the allegations made by each of the Applicants in their witnessstatements. These were made at a time well before they had been alerted to thepossibility that their actions had been recorded on videotape. It was especiallynoteworthy that there was no sign of Tai pulling at A1’s sleeve and refusing tolet go which was the basis of the obstruction charge arising from thosestatements. Also, if the Applicants’ statements were to be believed, it mustfollow that the actions of A1 kicking Tai and punching him, as depicted on thefilm, were false images which had somehow been incorporated into thevideotape.Result - Applications dismissed.CA 304/2001Stuart-MooreVPStock JATong J(19.11.2003)*Sin Pui-ha#AndrewMacrae SC &JamesMcGowanLIUHsiu-hsiangDangerous drugs/Trafficking/Direction on demeanour/Travel record ofaccused relevant under rule in Makin危 險 藥 物 - 販 運 - 就 言 行 舉 止 作 出 指 引 - 根 據 Makin 一 案 的 規 則 被告 的 出 入 境 紀 錄 屬 相 關 因 素The Applicant was convicted after trial by jury of an offence oftrafficking in a crystalline solid containing just under 4.2 kilos ofmethamphetamine hydrochloride (‘ice’).The evidence showed that the Applicant was intercepted as she enteredthe Customs Arrival Hall at Lo Wu Control Point, on her way into Hong Kongfrom the Mainland. In one hand, she carried a red carrier bag and, with herother hand, she was dragging a small suitcase. When these items were searched,the officers found a total of six Ferrero Rocher chocolate boxes containing whatappeared to be 180 individually wrapped chocolates together with two boxes ofwhat, at first sight, were Japanese-style cakes containing a total of 100individually wrapped cakes. The chocolates and cakes were a mere subterfugefor the ice, valued at approximately $1.4 million, which was discovered insidethem.The Applicant gave evidence that she had not realised she was carryingdangerous drugs. According to her, Chan Ching, a friend, had asked her to takethe chocolates and cakes as a favour and to give them to Chan’s boy friend inHong Kong.On appeal, it was submitted, inter alia, that the judge’s direction as todemeanour was unhelpful to the jury. The judge had said:Members of the jury, you will remember the crossexaminationof the accused by Mr Delaney for theprosecution. He cross-examined her with a view toundermining her account and denial. You saw all thewitnesses’ demeanour under cross-examination and you79

CCAB 2003Evidence / Hearsaymay take that into account as you see fit.The Applicant contended that the judge should have added further adviceto make sense of that somewhat blunt statement. It was said there were anumber of relevant considerations which could be taken into account by the jurywhen considering questions related to demeanour, including the fact that theApplicant was a stranger to the courts and, as a Mandarin speaker, to theCantonese language.The Applicant, in a separate ground of appeal, alleged that theintroduction of the travel record, showing that she had been a frequent travellerduring the year 2000 between Taiwan, Japan, the Mainland and Hong Kong,was more prejudicial than probative and should not have been admitted. Hesubmitted, alternatively, that as the introduction of this evidence amounted to a‘killer’ blow to the defence, even if the judge had been right to admit theevidence, the directions she gave on this aspect of the case had been inadequate.Held :(1) It had correctly been said that demeanour was a notoriously uncertainguide to the truth: R v Ng Wing-ming [1995] 1 HKCLR 65. A simple andunqualified statement that the jury was entitled to have regard to the demeanourof witnesses was generally to be avoided, as it ran the danger of being ameaningless mantra, and there were cases, if demeanour was to be referred to,where justice would require the type of qualification suggested. Judges wouldsometimes remind a jury that those not used to giving evidence would benervous or that some people were unskilled in expressing themselves and thatthese natural weaknesses should be recognised. However, all that was a far cryfrom saying that a bare comment about demeanour provided, in itself, a groundfor concluding that there had been a misdirection. In this case, the commentcame in the context of a specific reference to cross-examination of theApplicant, and the Applicant might have so conducted herself during crossexamination,by evasion and pauses pregnant with meaning, as to havewarranted the comment;(2) It was plainly the fact that the Applicant was a seasoned internationaltraveller. Against that background the prosecution applied, in the face ofobjection from the defence, to introduce this evidence on the basis, it was said,that it demonstrated that the Applicant was not a person who might naivelyaccept a request to carry someone else’s goods across the border and that itshowed she was well aware of the penalty notices regarding dangerous drugswhere were frequently exhibited in places where Customs’ checks were carriedout. This evidence was admissible for the reason given in Makin v Attorney-General for New South Wales [1894] AC 57, 65:It is undoubtedly not competent for the prosecution to adduceevidence tending to show that the accused has been found guiltyof criminal acts other than those covered by the indictment forthe purpose of leading to the conclusion that the accused is aperson likely from his criminal conduct or character to havecommitted the offence for which he is being tried. On the otherhand, the mere fact that the evidence adduced tends to show thecommission of other crimes does not render it inadmissible if itbe relevant to an issue before the jury, and it may be so relevantif it bears upon the question whether the acts alleged toconstitute the crime charged in the indictment were designed oraccidental, or to rebut a defence which would otherwise beopen to the accused.80

CCAB 2003Evidence / Hearsay(3) Whether or not the Applicant gave evidence, the jury were entitled toknow more about the Applicant’s lifestyle than was likely to emerge from simplybeing told she was a ‘seasoned’ traveller. Had the Applicant not givenevidence, the jury would have been entitled to consider whether an unemployedperson from Taiwan, in the light of the numerous international flights she hadbeen making in the short space of time after losing her job in July, could reallyhave found herself innocently delivering chocolates and cakes to someone shebarely knew in Hong Kong. As it happened, the Applicant gave evidence andaccounted for her movements by saying that she had become, by July 2000, adealer in jade jewellery although the first journey in February 2000 was said tohave been for ‘ fun’ in Beijing. The prosecution was entitled to seek toundermine the Applicant’s story about being in business to sell jade by takingher through her route to see what possible relevance it might have to such abusiness bearing in mind the cost of this round trip to someone with limitedfinancial resources and the apparent haste in which each of the journeys wascompleted.Result - Application dismissed.CA 405/2002Stuart-MooreVPStock JALunn J(19.12.2003)*John ReadingSC& Gavin Shiu#WNC Stirling& ChanChung-mingTSOIChak-faiConspiracy to defraud/Co-conspirators testifying for prosecution underimmunity/Witnesses speculating about state of mind of accused/Test foradmissibility of parol evidence串 謀 詐 騙 罪 – 共 同 串 謀 者 在 獲 豁 免 起 訴 下 為 控 方 作 供 – 證 人 就 被告 的 心 態 作 出 揣 測 – 口 頭 證 據 可 否 獲 接 納 的 驗 證 標 準The Applicant was convicted by a jury of 12 counts of conspiracy todefraud, contrary to common law and s 159C(6) of the Crimes Ordinance, Cap200.Two named co-conspirators, Poon Yuk-lan (‘Poon’) and Tam Shui-yee(‘Tam’) gave evidence as immunised witnesses for the prosecution. They gavemost of the circumstantial evidence which the prosecution relied upon toestablish the Applicant’s involvement in the conspiracies in evidence. Eachgave opinions about the Applicant’s state of knowledge in relation to fraudulentinvoices and fraudulent letters of credit.On appeal, it was submitted that the opinions of Poon and Tam wereinadmissible. The jury should have been directed to disregard them. Thejudge’s failure to do that left a danger that the jury might have drawn aninference based on these opinions.Held :(1) The judge should not have allowed the witnesses to give replies toquestions calling for expressions of opinion or guesswork on their part;(2) Although the witnesses undoubtedly had every reason to have strongsuspicions that the Applicant was a knowing party to the publication ofnumerous documents over many months, this did not justify the introduction ofspeculation on their part, however overwhelming the inference might have beenwhich they seemed to have drawn;(3) In Archbold 2003, at para 10-64, the test of admissibility in respect ofopinion evidence was said in general to be that:Parol evidence is not admissible with regard to anything notimmediately within the knowledge of the witness; he must speak offacts which happened in his presence, or within his hearing. This81

CCAB 2003Evidence / Hearsayrule excludes both hearsay and the expression of opinion orbelief.(4) The failure of the judge to warn the jury that expressions of belief byPoon and Tam about the Applicant’s state of knowledge amounted to merespeculation and should be ignored, when this was the central issue in the case,was a material irregularity. However, in view of the strength of the evidenceagainst the Applicant, no miscarriage of justice had actually occurred.Result - Leave to appeal granted. Appeal dismissed, upon application of theproviso under s 83 of the Criminal Procedure Ordinance, Cap 221.Expert EvidenceCA 152/2001Stuart-MooreVPStock JABurrell J(24.1.2003)*B M Ryan& JohnnyChan#A Macrae SC (1)J Haynes (2)(1) MOSze-lung,Thomson(2) YEUNGChin-tat,AileyExpert evidence/Not invariably admissible on the ultimate question/Facts ofeach case to be examined專 家韑 證 據 - 關 於 基 本 問 題 的 專 家韑 證 據 並 非 必 定 獲 接 納 - 須 考 慮 每 宗案頥 件 的 案頥 情The Applicants were convicted after trial of an offence of blackmail.At trial, A1 introduced evidence that at the time of the offence hesuffered from bipolar 2 disorder or manic depression, one phase of which washypomania. Hypomania was a condition of abnormally elevated and expansivemood where self-esteem was high and where the individual was grandiose in hisideas and conduct. The condition was not a psychosis and was not, as the judgefound, a condition by reason of which the individual was precluded fromforming a criminal intent. The judge accepted that this was the condition underwhich A1 laboured at the material time.On appeal, it was submitted, inter alia, on behalf of A1, that crossexaminationof Dr Yuen, a government psychiatrist, should have been permittedwith a view to the admission of expert evidence on what was called ‘the ultimateissue’. The ultimate issue was whether the Applicants intended to take thevictim’s money, for if they did not, or that was not proved against them, thenthere was not proved a view to gain or an intention to cause loss and the offencewas not made out. The trial judge indicated that this issue ‘should bedetermined by the court ’.Held :(1) Whatever sea-change there might have been in recent years to theadmission of expert evidence on the ultimate question, that change did notamount to a proposition that expert evidence was always admissible on theultimate question. Whether or not it was admissible depended on the facts of thecase; upon the expertise, whether that expertise was relevant to the ultimatequestion; whether the expert’s opinion on the ultimate question was a conclusionwhich depended upon his expertise or was professed in some other capacity; andwhether the court required the assistance of an expert upon the ultimatequestion. R v Stockwell (1993) 97 Cr App R 260, was an example of a case inwhich the Court of Appeal in England held that a facial mapping expert oughtnot to have been precluded from providing his opinion as to whether the accusedwas the person whose photograph had been taken in the course of two separate82

CCAB 2003Expert Evidencerobberies, in circumstances when it was suggested that the accused had beenwearing facial disguise. At 264, it was said that ‘in each case it must be for thejudge to decide whether the issue is one on which the jury could be assisted byexpert evidence, and whether the expert tendered has the expertise to providethe evidence’;(2) The judge at trial took the view that on the issue of A1’s mentalcondition at the time of the offence he could be assisted by the expert’stestimony; that it was but one factor to take into account in deciding a muchbroader issue, which was whether A1 in fact intended, despite his condition, totake the victim’s money; and that on this latter issue he required no furtherassistance from the psychiatrist. He took the view too that Dr Yuen, in offeringan impression of the truth of A1’s story, himself recognised the distinctionbetween the narrower expert issue and the broader issue for the court; that as tothe latter, in so far as it went further than the former, Dr Yuen was, in effect,doing no more than offering a layman’s view; and, further, that the ultimateissue was, in the event, not a matter which he was impeded from determininghimself without the assistance of Dr Yuen;(3) In R v Ugoh (14 June 2001, unreported), the English Court of Appealsaid that (expert) evidence was not objectionable on the ground that it went tothe ultimate issue. That comment, however, was a general truism, and it did notsuggest that expert evidence was permissible on all ultimate issues. That said inR v Turner (1974) 60 Cr App R 80, 83, still held good, namely:An expert opinion is admissible to furnish the Court with scientificinformation which is likely to be outside the experience andknowledge of a judge or jury. If on the proof and facts a judge orjury can form their own conclusions without help, then the opinionof an expert is unnecessary.(4) The judge made no error in his approach to the law. He did not assumethat because the question was the ultimate one, the evidence was, for that reason,inadmissible.Result - Applications dismissed.False ImprisonmentCA 179/2002Stock &Yeung JJABurrell J(17.4.2003)*DG Saw SC& Alice Chan#Duncan PercyLEUNGHung-onHearsay/Declarations of accused’s agent admissible as declarations ofaccused/False imprisonment傳 聞 證 據 – 代 表 被 告 的 宣 稱 可 被 接 納 為 屬 被 告 的 宣 稱 – 非 法 禁 錮The Applicant was convicted after trial of false imprisonment andburglary.The charge of false imprisonment alleged that on 26 June 2001, at Flat3A of Good View Court in Tai Ping Shan Street in Central, the Applicant andLai Ka-man (‘Lai’) (D2 at trial) together with a person unknown, unlawfully andinjuriously imprisoned a Miss Toothill and detained her against her will.The prosecution case was that in the afternoon of 26 June 2001 policeofficers saw the Applicant and Lai on the rooftop of Good View Court. Themen were then seen inside Flat 28A looking out, and then the two of them83

CCAB 2003False Imprisonmentclimbed out of the window there and made their way down the drainpipe. Ontheir way down the police shouted out to them to stop. They did not do so butclimbed into a flat on the 18th Floor, Flat 18A. This gave rise to a charge ofburglary of Flat 28A in respect of which the Applicant was convicted; and theburglary of Flat 18A of which he was acquitted because the judge could not besatisfied that he was there and intended to steal.The Applicant and Lai then made their way down the building to thethird floor. In Flat 3A resided Miss Toothill. The police by then had alertedresidents of the block of flats, and had already been to Miss Toothill’s place andhad told her to secure her windows and her door. They departed, but a shortwhile later the door bell rang again and there were the two men, the burglars,whom Miss Toothill had first thought to be plainclothes policemen. TheApplicant merely said: ‘No problem ’, and she closed the door again. A fewminutes later the door bell rang once more and she opened the door. Herevidence was: ‘The defendant pushed the door and they both came in and thesmaller guy - Defendant 2 - locked the door behind him.’ She said nothing toencourage them to enter. She had not invited them to enter. They signalled toher to calm down, and the Applicant indicated that he wished to use hertelephone. He gestured and spoke to her in broken English. He then told herthat he needed a change of clothing, and she went to fetch a t-shirt whichbelonged to her boyfriend. She sat on the sofa and the men sat on either side ofher. They made more telephone calls.One telephone call was made by the Applicant to a man to whom hespoke and who was put on to Miss Toothill by the Applicant; in other words, theApplicant made a telephone call, spoke, and then handed her the receiver andasked her to speak to the person on the other end, who turned out to be a manwho spoke very good English. That man told her to remain calm and that shehad to wait there until around 7, until it was dark; she then had to leave thebuilding, with the two men and pretend, if asked, that she was their friend.Defence counsel at trial objected to the admissibility of that telephoneconversation on the basis that there was no evidence that the two defendantswere present and able to hear the conversation that this man said to the lady.Whatever he might have said might or might not be what they wanted him tosay, or in fact that it was true. The objection was to the effect that the evidencewas hearsay and was therefore inadmissible.Then, according to the evidence, the Applicant asked Miss Toothill whather mobile telephone number was, and she supplied it. Her evidence was thatshe was scared and she was then asked this question:Q. Did you think you could leave the flat?A. No, not after the conversation with the gentleman on thephone and the fact that they’d locked the door when theycame in.Miss Toothill was asked whether she had a boyfriend and she said ‘Yes’and she said that he would be coming home at around 6 or 6.30 pm. TheApplicant then said that they wanted her to telephone him to tell him not tocome home. So she made a telephone call, not to her boyfriend, but to heremployer, a Mr Higgins, and she spoke to his personal assistant, and he thentelephoned back.According to this evidence, Miss Toothill was asked whether she wasOK and she answered ‘No’, and he asked her if she could leave the house andshe said she could not, and he asked if she was being held against her will andshe said that she was. That is what, according to her evidence, she believed.84

CCAB 2003False ImprisonmentCross-examination of Miss Toothill suggested that the men did notbehave aggressively; that neither said to her that she could not leave; and thatshe was not compelled to do anything. The point which the cross-examinationsought to make was that she was not in the flat under compulsion. It was thenput to her that:Q: Neither man told you at any time that you could not leavethe flat.A. Verbally, no.Q. Nor did you try and leave the flat and were physicallystopped.A. They locked the door behind them when they came in,which suggested to me I couldn’t leave.In her Reasons for Verdict, the judge said that whereas counsel submittedthat the defendants’ wish was only to escape the police and not to restrain MissToothill; that she was free to move about her home; that she had never asked toleave; she, the judge, was satisfied that:... Miss Toothill was a necessary hostage to their plan to escape.They could not risk her leaving or using the phone to alert thepolice of the presence of the two strangers in her flat.Although Mr Percy objected to the admissibility of the phoneconversation, this is admissible as part of the res gestae. D1’sfriends could not have known Miss Toothill’s telephone number.I infer from the evidence D1 had called round to find a friendwho could communicate to Miss Toothill what he intended sheshould do, that is to say, that she should stay calm and at 7 pmwhen the police may have departed, she was to accompany themout of the building.However, if they were stopped, she was to say they were herfriends.Later, alarmed that her boyfriend would turn up, he made hercall to dissuade him. I am satisfied she was not at liberty to leaveher flat.On appeal, it was submitted, first, that the judge was wrong to haveadmitted into evidence the contents of a telephone conversation which MissToothill had with a stranger, as evidence of the true intentions of the Applicant.Second, it was said that the judge was wrong to have concluded that MissToothill was a hostage and not at liberty to leave the premises. Reliance wasplaced upon R v Cheung Wan-ing and Another [1990] 1 HKLR 655, in supportof a suggestion that in the absence of physical restraint a court required, in thecase of false imprisonment, cogent evidence of a real danger threatened by thealleged offender and fear by the victim. That point was said to assist theApplicant in this case because Miss Toothill might not have felt restrained butfor the telephone call.Held :(1) The person to whom Miss Toothill spoke was, according to theunchallenged evidence, a person introduced by the Applicant to speak to her;and to speak to her specifically about the situation in which the Applicant hadplaced her. It was for the judge to determine whether that person was speakingto Miss Toothill on the Applicant’s behalf. In the circumstances in which he85

CCAB 2003False Imprisonmentwas introduced to speak to her, the only reasonable inference was that he wasdoing so on behalf of the Applicant and that was what the judge found. Thatbeing so, he was speaking to her as the Applicant’s agent in the course of theattempts by the Applicant and Lai to escape capture by the police. Hisdeclarations as agent for the Applicant were therefore admissible as declarationsof the Applicant, whether or not it was the intention of the prosecution to rely onthe truth of any assertion of fact expressed or implied in them;(2) All that the court was saying in Cheung Wan-ing and Another was thatwhere someone was not physically restrained, some other form of restraint uponthe victim’s freedom to leave, which was also intended to have that effect, mustbe shown. That case was, in any event, wholly different from this. That was acase in which the complainant’s evidence was that the door of her room was notlocked and that she could have come and gone as she wished; but that she wasreluctant to leave her hotel room because she feared being followed about by themen who were there to persuade her to pay a gambling debt; and that she feltintimidated;(3) In this case, deliberate blockage of the complainant’s freedom ofmovement was obvious from a variety of factors. The two men in MissToothill’s private residence had shortly before committed a burglary and to theirknowledge were being hunted by police who at that very time were in the samebuilding; and the burglars wished to take cover until dark. They entered the flatwithout any permission to do so; and they locked the door, with Miss Toothillinside. The circumstances reeked of compulsion. Miss Toothill was told interms by someone acting on behalf of the Applicant and Lai that she had to waituntil 7 p.m. and that she had to leave with the two men. She was told by theApplicant so to arrange matters that her boyfriend did not return to the premisesuntil that hour; until the time, that is, for their escape at dark. There was in thecircumstances no need for the Applicant or for Lai to tell Miss Toothill that shewas not free to come and go as she pleased. The idea that she could leave - asno doubt she would at once have done unless it was obvious that she was beingconfined - and that she could leave to report the matter, as no doubt she would atonce have done, to whomsoever she wished, but most particularly to the policewho were in her building searching for the men was fanciful. How it couldseriously be suggested that in these circumstances she was a free agent wasdifficult to comprehend. There was no other reasonable conclusion which thetrial judge could have reached.Result -Application dismissed. Loss of time ordered.IdentificationCA 186/2003Cheung JABeeson &Lugar-MawsonJJ(3.10.2003)*Kevin ZervosSCJIMChong-shingDangerous driving/Accused a public figure/ Evidence of public profile notpointer to bad character/Legitimate use by prosecution of accused’s fameas a road racer/Professional judge sitting alone not influenced by irrelevantmaterial危 險 駕 駛 - 被 告 是 公 眾 人 物 - 被 告 在 公 眾 形 象 方 面 的 證 據 並 不 表 示他 的 品 格頴 差韤 劣 - 控 方 合 法 地 利 用 被 告 賽 車 手 的 名 氣頾 - 單 獨 主 審 的 專業 法 官 不 受 非 相 關 資 料頔 所 影 響The Applicant was convicted after trial of one offence of dangerousdriving, contrary to s 37 of the Road Traffic Ordinance, Cap 374, and one86

CCAB 2003Identification& EdmondLee#K M Chongoffence of damaging property being reckless as to whether life would beendangered, contrary to s 60(2) of the Crimes Ordinance, Cap 200.The prosecution case was that in the early hours of 21 September 2002,officers of the New Territories Traffic Branch conducted an anti-illegal roadracing operation at Tuen Mun Road, New Territories. A roadblock was set up atTuen Mun Road, near the Tuen Mun town centre.Five cars approached the roadblock at high speed. Two police vans werethen driven to act as a backstop sealing off the southern end of the road. All thedrivers of the cars made U-turns and travelled against the traffic flow at highspeed towards the backstop. A white Subaru was the first vehicle to drive pastthe backstop and, in so doing, it hit the offside front of one police van, which inturn hit the other. The rear bumper and the rear number plate of the whiteSubaru fell off. A police sergeant who was on board one of the police vanssustained an injury to his shoulder when the van was pushed forward by theimpact.PC 48924 (PW5), who was one of the officers at the roadblock, and whosaw the group of vehicles make the U-turns and travel towards the backstop,pursued them on his motorcycle. He also saw the white Subaru pass through thetwo police vans and damage them.The white Subaru continued to travel against the on-coming traffic.When it got near to the junction of Tuen Hing Road and Tuen Mun Heung SzeWui Road, it suddenly stopped. PW5 stopped his motorcycle alongside thedriver’s seat of the car. The driver’s side window of the car was down and thedriver, a man wearing 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 at a distance ofabout one metre. PW5 recognised the driver as someone he knew from themedia. He used the loudspeaker on his motorcycle to tell the driver using thename he knew him by - ‘Jim Chong Shing’ - to turn off the car’s engine. Onhearing this, the driver suddenly reversed his vehicle into another road. PW5continued to chase after the white Subaru but failed to catch up with it andeventually lost sight of the car. This chase lasted for more than 10 minutes andPW5 kept the white Subaru within his sight at a distance of 10 to 20 metres.During the chase the driver of the white Subaru committed a number of trafficoffences, including overtaking a taxi by crossing double white lines.About two weeks after the incident, PW5 attended an identificationparade where he positively identified the Applicant as the driver of the whiteSubaru.On appeal, it was submitted, inter alia, that there were proceduralirregularities at trial, namely, that the prosecution was allowed to adduceevidence of the Applicant’s bad character, which was said to be irrelevant andprejudicial to the Applicant and also that the judge erred in not directing himselfthat the evidence of the Applicant’s ‘bad character’, if admissible, could only beconfined to credibility.The Applicant accepted that he was a public figure. He had driven in theMacao Grand Prix. He had appeared as a stunt man in a movie and in a VCD.His photograph and articles about him had appeared in the media. He hadacquired a public persona, and members of the public were more likely torecognise him than they would a person of complete anonymity.Held :(1) The fact that the prosecutor adduced evidence and cross-examined the87

CCAB 2003IdentificationApplicant on his public profile in Hong Kong did not amount to revealing his‘bad character’. What prosecuting counsel sought to do was to establish the factthat, by courting publicity in the past, the Applicant was more readilyrecognisable by people whom he did not know and who did not know himpersonally;(2) The prosecutor did not attempt to establish in his examination-in-chief ofPW5 that the Applicant was on a police ‘watch list’, as alleged in the grounds ofappeal. The question asked of PW5 was whether, as a traffic police officer, hewas under a duty to become acquainted with, or to be able to recognise, peopleinvolved in car racing. Nothing was said about the police having a ‘watch list’of such persons, or of the car racing being illegal. In any event, the Applicant’scounsel objected to the question and, when this was rephrased, PW5 said he didnot understand it and the prosecutor chose not to pursue it;(3) The prosecutor did not suggest to the Applicant that, by reason of hisdriving skills, he was more likely than not to be the driver of the white Subaru,as alleged in the grounds of appeal. The suggestion in cross-examination wasthat, as the Applicant was a very competent and highly skilled driver, who wasgood enough to compete as a racing car driver at Macao, it would be easy for aman of his driving skills to evade a policeman on a motorcycle. The Applicant,with false modesty, replied that he had no skills;(4) Although the summary of facts stated that PW5 recognised the Applicantto be “an infamous street car racer nicknamed ‘Mang Hang’ ”, the summary wasnot evidence at the trial. A professional judge sitting alone would not beinfluenced by what appeared in a summary of facts when determining the factualissues raised at trial;(5) The judge did not use the evidence on the matter as evidence of theApplicant’s bad character as the Applicant contended. The only use that hemade of it was in assessing the correctness of PW5’s identification of theApplicant as the driver of the white Subaru.Result - Application dismissed.Industrial SafetyMA 38/2003Day DJ(28.4.2003)*VincentWong#A J Halkes(1)Edwin Choy(2)(1) GammonSkanskaLimited(2) NishimatsuConstructionCompanyLimitedJoint venture/Companies performing work at site through agency of jointventure/Whether joint venture could be prosecuted/Companies properlyprosecuted for failure to ensure site safety聯 營 – 兩 公 司 藉 聯 營 經 辦 地 盤 工 程 – 聯 營 可 否 被 檢 控 – 兩 公 司 被控 以 沒 有 確 保 地 盤 安 全 屬 恰 當Each Appellant was convicted after trial of an offence contrary toregulations 10(2)(a) and 17(4) of the Electricity Supply Lines (Protection)Regulations, made under s 59 of the Electricity Ordinance, Cap 406. Theparticulars of offence alleged:On 14 September 2001 at the location of a construction site nearWing On Plaza, Salisbury Road, Kowloon, Hong Kong, carriedout or caused or permitted another to carry out in the vicinity ofan underground electricity cable works which were below ground88

CCAB 2003Industrial Safetylevel, and failed to ensure that all reasonable measures weretaken to prevent the occurrence of an electrical accident or aninterruption to the supply of electricity arising from those works.The Appellants were participants in the joint venture, the GammonNishimatsu Joint Venture, undertaking work at the East Rail ExtensionConstruction Site at Salisbury Road in Tsimshatsui. On 4 September 2001,there was an interruption to the electricity supply in the area because twounderground cables lying approximately 1.6 metres below ground level weredamaged by a worker as he was demolishing a concrete drainpipe. Regulation10(2)(a) provided that:(2) A person who –(a)carries out or causes or permits another to carry out in thevicinity of an underground electricity cable any workswhich are below ground level; or…..shall ensure that all reasonable measures are taken toprevent the occurrence of an electrical accident or aninterruption to the supply of electricity arising from thoseworks.On appeal, it was submitted, inter alia, that the joint venture itself shouldhave been prosecuted, not the individual companies.Held :(1) The joint venture set up in this case was not one recognised by thecriminal law. In Jiang Enzhu v Lau Wai Hing Emily [1999] 3 HKC 8 Stock Jsaid:It is said that the fact of the unincorporated status of Xinhuaposed a problem for the informant: Xinhua could not beprosecuted and therefore ‘an individual had to be named as adefendant’. Mr Hoo suggests that the first premise, namely, thatan unincorporated association cannot be a defendant to criminalproceedings, is flawed, in support of which argument he drawsmy attention to the definition of ‘person’ in section 3 of theInterpretation and General Clauses Ordinance as including ‘anypublic body and any body of persons, corporate orunincorporate, and this definition shall apply notwithstandingthat the word ‘person’ occurs in a provision creating or relatingto an offence …’. I do not think that the position therebybecomes clear cut. A similar provision in the New ZealandCrimes Act 1961 has drawn the comment that the provisionrenders it possible ‘to charge two or more accused with anoffence … of conspiracy to defraud ‘the public, or any person’where the ‘person’ was an unincorporated association.However, it would not be possible to charge an unincorporatedassociation with an offence, whether on indictment or summarily.To convict an unincorporated association would be a legalnonsense, so, in that situation the context is inconsistent withsuch an interpretation. But of course, individual members ofsuch a body can be prosecuted in their own names in respect oftheir own acts or omissions as members.(2) In AG v Able [1984] 1 All ER 277, 286, Lord Woolf said:It must be remembered that the society is an unincorporated body89

CCAB 2003Industrial Safetyand there can be no question of the society committing anoffence.(3) Whilst it was true that the definition of ‘person’ in the Interpretation Actof the UK was narrower than in the Interpretation and General ClausesOrdinance in Hong Kong, Stock J was aware of the local definition and referredto it in the Jiang Enzhu case. Halsbury’s Laws of Hong Kong, Vol. 20, said ofjoint ventures at paragraph 290.220:There is no generally accepted definition of a joint venture.However, a joint venture may be defined for present purposes asany arrangement whereby two or more parties co-operate inorder to run a business or to achieve a commercial objective.This co-operation may take various forms, and may involve therunning of a business on a long-term basis or the realization of aparticular project. The business may be entirely new or it may bean existing business which it is believed will benefit from theintroduction of a further participant. A joint venture is,therefore, a highly flexible concept, and the nature of aparticular joint venture will depend to a very large extent on itsown facts and on the resources and wishes of the parties.(4) Joint ventures were, on occasion, set up for a particular project as wasthe one in this case. They might well have a short life. If the Appellants’argument was correct, it would enable those responsible for such sites tointerpose a barrier between the offences and those ultimately liable for them. Abarrier which could be dismantled so soon as the joint venture finished its work,leaving no responsibility and worthless legislation. That was neither right at lawor in justice;(5) This was a strict liability offence. The two companies engaged in theworks at the site and did so through the agency of the joint venture, and theywere required to ‘ensure’ that all reasonable measures were taken. Themagistrate was entitled to hold on the evidence that they did not do so.Result - Appeals dismissed.Judge / Direction / Discretion / Summing UpCA 340/2001Stuart-MooreVPStock JALugar-MawsonJ(1.4.2003)*D G Saw SCJonathan Man#Michael PollLUITsi-faiHomicide/Judge directing jury that only verdicts open were murder ormanslaughter/Judge required to leave verdict of acquittal notwithstandingno prospect of such save in wholly exceptional circumstances殺 人 罪 - 法 官 指 引 陪 審 團 可 供 選 擇 的 裁 決 只 有 謀 殺 或 誤 殺 - 即 使 被告 人 沒 有 機 會 獲 裁 定 無 罪 , 法 官 仍 須 容 許 有 可 能 如 此 裁 定 , 情 況 完全 例 外 者 則 作 別 論The Appellant was convicted after trial of murder.On appeal, it was submitted that the judge had erred in law in directingthe jury that it was only open to them to convict of murder or of manslaughter.It was said that as the Appellant had entered a plea of ‘Not Guilty’, a thirdoption should have been left open to the jury, entitling them to acquit altogether.The passage of which complaint was made was this:90

CCAB 2003Judge / Direction / Discretion / Summing UpBefore I finish, let me tell you something about the verdict. Thiscase is unlike the ordinary case because of the course it has taken.The only possible verdicts that you can return in this case is eithera verdict of guilty of murder or a verdict of guilty of manslaughter.There is no other verdict that you can return in this case.The Appellant contended that this was a direction to convict, albeit thatthe jury were left to decide between murder and manslaughter. The Respondentsubmitted that as no issue had ever arisen on the facts of this case that theAppellant was at least guilty of manslaughter, the directions given by the judgewere entirely appropriate.Held :(1) In R v Gent (1989) 89 Cr App R 247, the trial judge had summed up tothe jury with a direction to convict based upon the Appellant’s evidence whichwas said by the judge to have amounted to an admission that he had agreed witha co-conspirator to supply amphetamines to another. The English Court ofAppeal said, at 250:Whether or not there is still a category of rare cases where thejudge is justified in directing a conviction, it is perhapsunnecessary to decide. There is no reference to any such categoryin the speeches of the majority in Director of Public Prosecutions vStonehouse (1977) 65 Cr App R 192, [1978] AC 55; and theexistence of such a category is inconsistent with the thrust of LordKeith’s speech at p. 232 and p. 94 respectively.Our own view would be that, if such a category exists at all, it mustbe confined to wholly exceptional cases where, for example, therehas been something in the nature of a formal admission of guilt.The fact that on the evidence, including the evidence of thedefendant himself, only one verdict is possible, does not justify thejudge in directing the jury to convict. If the judge takes the viewthat the defendant has, in the course of his evidence, admitted hisguilt, then it is always open to him to give the defendant anopportunity, in the absence of the jury, to change his plea. But ifhe maintains his plea, the defendant is entitled to the verdict of ajury, even though in the view of the judge, an acquittal would beperverse.Thus it is the function of the jury to assess the evidence and fromthat evidence to determine the facts. If the evidence isoverwhelmingly one way, then their task will be easy, but itremains their task. The confusion seems to arise from equatingoverwhelming evidence with the existence of the facts necessary tofound a conviction; but the two are not the same. Overwhelmingevidence is likely in the nature of things to lead to the jurydetermining that the necessary facts for a conviction exist, but thatdetermination is a matter for them, not the judge.Of course the judge may make his view clear. He may use the sortof language that was suggested by Lord Salmon in Director ofPublic Prosecutions v Stonehouse at p. 219 and p. 80. But hislanguage, however strong, must fall short of a direction to convict.He must, in the words of Lord Edmund-Davies at p. 226 and p. 88,‘trust the jury to play their constitutional part in the criminalprocess.’91

CCAB 2003Judge / Direction / Discretion / Summing Up(2) The judgment in R v Gent made plain that in such a case as the presentone, where there was nothing ‘in the nature of a formal admission of guilt’ , adirection to convict should not be given, whatever the strength of the evidenceagainst the defendant. The court expressed the strength of this sentiment thus:One would have thought that Director of Public Prosecutions vStonehouse (supra) was clear enough. But the message has not yetgot home. Cases continue to arise where judges are directingjuries to convict. Challinor (1985) 80 Cr App R 253 was such acase. Thompson (1984) 79 Cr App R 191, [1984] 1 W L R 962was another. Gordon, The Times, May 11, 1987, was a third. Inall these cases it was held that the direction to convict was amaterial irregularity. The present is another case in the sameseries.The appellant’s evidence in the witness box may have been thestrongest possible evidence on which the jury could find that hewas a party to the conspiracies with which he was charged. But itwas still only evidence of guilt. The appellant was entitled to havethe verdict of the jury on the evidence, not the view of the judge.Accordingly there was a material irregularity in respect of allthree counts.(3) If there was a category of case in which the judge was entitled to direct ajury to convict, it had to be confined to wholly exceptional cases where, forexample, there had been something in the nature of a formal admission of guilt.There were sometimes cases where the jury was made aware of a plea of guiltyto an alternative offence which the prosecution had declined to accept. Inmurder trials, it was not unusual for a defendant who had pleaded guilty tomanslaughter on his arraignment for murder to make the fact that he hadformally accepted his guilt to manslaughter known to the jury. Provided nothingwas said during the trial which suggested that the plea might have beenequivocal, the judge would in such circumstances be entitled to leave to the jurythe simple choice of convicting the defendant of either murder or manslaughter.The same would equally apply in other cases involving an alternative plea beingentered to the main allegation on the indictment, for example, where the jurywas informed that a defendant had pleaded guilty to handling in the alternativeto theft, or theft in the alternative to robbery or burglary, or indecent assault inthe alternative to rape;(4) Anything short of a plea of guilty to a less serious alternative offencewhich the prosecution had not accepted or a formal admission under s 65C ofthe Criminal Procedure Ordinance which removed any vestige of a defence,would invariably mean that issues of fact, however clear-cut they might seem tobe, must be left to the jury to decide. Even where the evidence had been all oneway, it nevertheless remained the task of the jury to decide whether theprosecution had proved the facts which must be established before they couldconvict. The function of the judge, by contrast, was to direct the jury on the law,including the ingredients which constituted the offences set out on theindictment, and as to the facts which must be proved to establish them;(5) It was open to a judge in appropriate circumstances to instruct a jury thata defence which had been advanced was not a defence in law, or to suggest to ajury that there was no dispute as to an element of an offence. What a judge mustnot do was to make a deduction from the evidence that a defendant was in effectadmitting guilt and, on that basis, direct a jury to convict. Conclusions arrivedat from the evidence, no matter how strong that evidence might have been, werematters for the jury to decide. In this sense, it was vital that evidence which92

CCAB 2003Judge / Direction / Discretion / Summing Upmight well be described as ‘all one way’ should not be confused with a formaladmission of guilt;(6) Taking the facts of the present case, there had been no formal admissionof guilt. There was an evidential admission in which the Appellant had made nopretence that he bore responsibility for the killing and the manner in which itwas carried out. There was no express admission that the killing was‘unlawful’ . The judge was not entitled to direct the jury in terms which did notleave open the possibility, however theoretical, of acquitting the Appellantaltogether. As such, there had been a material misdirection. There was,however, no prospect of an acquittal even had the jury been properly directed,and the proviso in s 83(1) of the Criminal Procedure Ordinance, Cap 221, wouldbe applied.Result - Appeal dismissed, on the application of the proviso.CA 522/2000Stuart-MooreVPStock JASeagroatt J(2.5.2003)*DG Saw SC &Winston Chan#F Whitehouse(1)R Donald (2)A Raffell (3)(1) CHANMan-lok(2) LEUNGShing-cho(3) LEUNGWai-lunJudge canvassing issues with counsel before final speeches/ Emotivestatements by prosecutor/Careful consideration required before onecounsel impugns integrity of another法 官 與 律 師 在 最 後 陳 詞 前 詳 細 討 論 問 題 – 檢 控 人 員 作 出 情 緒 化 的 陳詞 – 律 師 指 責 另 一 方 律 師 的 誠 信 前 須 予 審 慎 考 慮said:In disposing of appeals against conviction for manslaughter, the court(1) Judges should, particularly in complex cases, identify issueswhich it would be prudent to canvass with counsel before thesumming up. To take two common examples, such mattersmight include whether to leave a particular issue to the jurywhich might be controversial, or a discussion as to how it wasintended to direct the jury on a legal topic of some difficulty.When such questions were canvassed, it was generallyimportant that this was done prior to counsel’s speeches so thatcounsel would know how the judge proposed to approach thoseissues and so that they would have the opportunity to commenton them should they think fit to do so. It was said in R vWhitfield (1984) 79 Cr App R 36, 40:It is often convenient before counsel address thejury for the judge to hear legal argument in theabsence of the jury and to indicate to counsel theway in which he will direct the jury upon the law.But this is better done at the conclusion of the casefor the defence when all the evidence has been led.(2) It was somewhat disturbing that a number of highly emotivestatements had been made by the prosecutor at trial both incross-examination and in his final speech. In an emotionallycharged trial such as this such comments were more thanusually out of place;(3) When counsel saw fit to make an allegation which was likely toreflect on the integrity of other counsel, even when doneinferentially, this should only be done after the most carefulconsideration based upon a proper investigation of all thecircumstances.93

CCAB 2003Judge / Direction / Discretion / Summing UpCA 459/2001Stuart-MooreVP Yeung &Ma JJA(25.7.2003)*D G Saw SC& Simon Tso#K Oderberg(1)P Ross (2)R Donald (3)(1) WONGWai-man(2) HAUKingyeung(3) LEE KaryeungDirections to jury/Jury to consider defence evidence that might betrue/Assessment of defence evidence/Jury in need of clear directions onburden and standard of proof向 陪 審 團 作 出 的 指 引 - 陪 審 團 須 考 慮 可 能 屬 實 的 辯 方 證 據 - 辯 方 證據 的 評 估 - 須 就 舉 證 責 任 及 舉 證 準 則 給 予 陪 審 團 清 晰 的 指 引The Applicants were convicted after trial of murder.The main ground of appeal of all Applicants concerned the answer whichthe judge gave to a question from the jury. He said:Any evidence from either the prosecution witnesses or theaccused or the defence witness which you are not sure is true,you disregard for all purposes.Those words echoed similar utterances the judge had made earlier insumming-up, namely, ‘you either believe a piece of evidence as true so that youare sure or you disregard it’, and ‘if, for whatever reason, you are not sure thatany part of a statement is true, you must disregard that part’.It was submitted that by such directions the judge effectively invited thejury to treat the prosecution and defence evidence in an identical manner. Giventhe burden and standard of proof, this was not a proper direction. The jury weretold that, just like the evidence from prosecution witnesses, if they were not‘sure ’ that what the Applicants or their witnesses were saying was true, thenthey had to disregard such evidence ‘for all purposes ’. It was said the judgeerred in leaving no room for the jury to take into account any of the defenceevidence which it thought might be true (as opposed to the jury being satisfiedthat it was actually true).Held :(1) A jury should not be told in such absolute terms that if it were not sure(that is, not satisfied) that what the defence witnesses were saying was actuallytrue, then it had to disregard such evidence for all purposes. The proper (andusual) direction was that members of the jury were required to take into accountnot only those parts of the defence evidence that they were satisfied were true,but also to take into consideration those parts of the defence evidence that mightbe true: HKSAR v Sze Kwan-lung and Others Cr App 92/2002;(2) There was no burden on the defence to prove or disprove anything. Thatburden was placed upon the prosecution. Obviously a fact raised by thedefence, if believed by the jury, would be duly taken into account. However,even where a fact raised by the defence was not established to the satisfaction ofthe jury, if they considered it might be true or had a ring of truth about it, thejury should take it into account in deciding whether or not the prosecution haddischarged the requisite burden of proof;(3) The proper treatment of the defence evidence was particularly acute insituations, like the present, where the jury had to deal with conflicts between theevidence adduced by the prosecution and that of the defence. A commondilemma faced by juries involved the issues, as between the prosecution anddefence evidence, of which should be believed and what was the properapproach. In R v Liberato (1985) 159 CLR 507, 515, Brennan J said:When a case turns on a conflict between the evidence of aprosecution witness and the evidence of a defence witness, it iscommonplace for a judge to invite a jury to consider thequestion: who is to be believed? But it is essential to ensure, bysuitable direction, that the answer to that question (which the94

CCAB 2003Judge / Direction / Discretion / Summing Upjury would doubtless ask themselves in any event) if adverse tothe defence, is not taken as concluding the issue whether theprosecution has proved beyond reasonable doubt the issueswhich it bears the onus of proving. The jury must be told that,even if they prefer the evidence for the prosecution, they shouldnot convict unless they are satisfied beyond reasonable doubt ofthe truth of that evidence. The jury must be told that, even if theydo not positively believe the evidence from the defence, theycannot find an issue against the accused contrary to thatevidence if that evidence gives rise to a reasonable doubt as tothat issue.(4) While in many cases the standard directions as to burden and standard ofproof might be enough, where a jury, as in the present case, was in any difficultyrelated to a matter as fundamental as the burden and standard of proof, it wasincumbent on the trial judge to ensure that they were clearly and properlydirected.Result - Appeals allowed. Retrials ordered.CA 509/2001Stuart-MooreVPYeung JAJackson J(1.8.2003)*Louisa Lai#PY Lo (1)I/P (2)(1) SUENYungyung(2) RIDWANKusnadiDirections to jury/Extent of duty to remind jury of evidence/ No obligationon judge to advance a possible defence for an accused who neither callednor gave evidence向 陪 審 團 作 出 的 指 引 - 就 證 據 向 陪 審 團 發 出 提 示 的 責 任 - 法 官 沒 有義 務 為 不 傳 喚 證 據 亦 不 作 證 的 被 告 提 出 可 能 的 抗 辯 理 由The Applicants were indicted on a count of conspiracy to traffic in adangerous drug, namely, 60,167 tablets containing 9.75 kg of ecstasy. A1 wasconvicted after trial, and sentenced to 19 years and 6 months’ imprisonment.A2 pleaded guilty and was sentenced to 13 years and 4 months’ imprisonment.A1 appealed against conviction. It was submitted, inter alia, that thedirections given by the judge to the jury on the evidence were inadequate.Held :(1) In a trial by jury, the trial judge should properly direct the jury onquestions of law and remind them of the important evidence from both theprosecution and the defence. There was no obligation on the part of the judge toremind the jury on the facts in a way most favourable to the defence. There wascertainly no part of a judge’s duty to put forward a possible defence for adefendant who chose not to give or call any evidence. In R v Cheng Pak-chang[1977-1979] HKC 132, 142, Roberts CJ said:We do not think that more can be required of a judge, in thecourse of his summing-up, than that he should remind the jury ofthe principal issues faced by them in reaching their verdict anddraw their attention in a fairly balanced manner to the mainfeatures of the defendant’s case. It must not be assumed that ajury is composed of idiots. They have heard the evidence, andhave been told that they are the judges of fact. If they have beencorrectly directed as to the law, the judge is not obliged toremind them of every piece of evidence which is capable of aninterpretation favourable to the defence. If such an obligationwere conceded, judges would play safe by reading out largepieces of evidence and leave the weighing of it to the jury,virtually unaided.95

CCAB 2003Judge / Direction / Discretion / Summing UpEvery year, courts of appeal place heavier burdens on judges.Summing-ups are picked to pieces by courts and counsel likevultures gnawing at a carcass. There is a danger that thesumming-up which is of most help to the jury, because the judgesummarises and guides, is the most likely to be upset. But if thejudge takes no chances and leads the jury again through all theevidence, a process unlikely to help the jury much in theirdifficult role, he is less likely to be upset on appeal.We would like to make it clear that we do not favour a minutedissection of a summing-up in an effort to identify failures by thejudge to deal with minor inconsistencies or to put constructionsfavourable to the accused on every item of testimony. It must notbe forgotten that facts are for the jury, and remain so in spite ofany view which the judge may have advanced as to the facts andwhether or not he has referred to particular pieces of evidence inhis summing-up.(2) The judge had properly and adequately analysed and collated theevidence to assist the jury to reach a verdict.Result- Application dismissed. [see also Criminal Appeals/ AgainstSentence: Ed]CA 365/2000Ma CJHCStuart-MooreVPStock JA(11.9.2003)*MBlanchflowerSC &Vinci Lam#Martin LeeSCMargaret Ng&Jeremy Chan(1)WNC Stirling(2)(1) WUWai-fung(2) CHEUNGChi-keungMurder/Unrepresented defendant/Legal aid refused by DLA/ Judgerefusing to exempt defendant from requirement to contribute to legal aidcosts/Judge’s assistance no substitute for legal representation/Defendantnot receiving a fair trial謀 殺 - 無 法 律 代 表 的 被 告 人 - 法 律 援 助 署 署 長 拒 絕 給 予 法 律 援 助 -法 官 拒 絕 豁 免 被 告 人 遵 從 分 擔 法 律 援 助 費 用 的 規 定 - 法 官 的 協 助 不能 取 代 法 律 代 表 的 作 用 - 被 告 人 沒 有 獲 得 公 平 審 訊The Applicants, after a 26-day trial, preceded by an additional 13-dayvoire dire which resulted in the evidence of confessions being ruled admissible,were convicted by the jury of the murder of a 13-year-old boy. A1 wasadditionally convicted of forcibly taking away the victim on 21 April 1999 withintent to procure a ransom for his liberation, contrary to s 42 of the Offencesagainst the Person Ordinance, Cap 212; A2 had previously pleaded guilty to thatcount.A1 appealed against his convictions mainly on the basis of the unfairnesswhich it was alleged resulted from the fact that he had no legal representative toact on his behalf throughout the trial.The trial involved the prosecution calling a total of 43 witnesses andreading approximately 25 statements related to evidence of a relatively formalnature.The judge gave as much assistance to A1 throughout the trial as he felt hewas able to do by seeking to find out, after each of the prosecution witnesses hadbeen called, whether they had said anything with which A1 disagreed. Onalmost every occasion A1 said words to the effect that without a lawyer he didnot know how to put questions. On some occasions, frequently againstobjection by the prosecutor that A1 was testifying from the dock, A1 providedhis version which the judge then used as the basis for asking the witnessquestions. A similar procedure was adopted after A2 had himself givenevidence.96

CCAB 2003Judge / Direction / Discretion / Summing UpA1 attempted to make a final speech but, after uttering a few sentenceswhich effectively amounted to an attempt to give evidence from the dock, A2’scounsel objected. A1, having been reminded of what he was permitted to do,apologised and said he had nothing more to say.A1 stated on appeal that the judge had denied him a fair trial by notpermitting him to be legally aided ‘without … a requirement that he should paya contribution towards his legal aid’.Although A1 had applied for legal aid after his committal for trial, theDirector of Legal Aid determined that, as he had a credit balance of about$480,000 in his bank account, he would grant legal aid provided A1 contributed$329,000 towards the cost of his representation. A1 was told of this decisionand, after hearing it, he wrote a cheque in a sum which was more or less thesame as his credit balance in repayment of an outstanding debt. He was, as aresult, left with insufficient funds to make the contribution the Director hadrequired of him. The Director, as the judge was informed, insisted that heshould make a financial contribution to his legal aid. A1 told the judge he hadno money to instruct lawyers privately. He nonetheless stated that he wished tobe legally represented but that, without sufficient funds of his own to brieflawyers privately, he would require legal aid.The judge stated there had been money available to meet the Director’srequirement of a financial contribution but it had been paid to an ‘allegedcreditor’ and had now ‘gone’. It was in those circumstances that the judge chosenot to exempt A1, as he was entitled to do under the Legal Aid in CriminalCases Rules, Cap 221D, from the requirement to make a contribution.Held :(1) There was no right given to every person facing criminal proceedings tohave legal representation at public expense: McInnis v R (1979) 143 CLR 575,579. Where a defendant desired to be represented at his trial, the decision as towhether or not legal aid would be granted was generally dependent on thedefendant’s inability to afford the services, in whole or in part, of legalrepresentatives;(2) To have allowed A1 to go to trial without representation was a falseeconomy. What the public purse might have saved, on the one hand, by thejudge’s refusal to let A1 off the payment of his assessed contribution would, onthe other, have been lost by the substantial lengthening of the proceedings byreason of the prosecution being put to strict proof on every issue in the trial;(3) No precedent in this jurisdiction for the situation which had arisen wasknown. This was a case of the utmost gravity in which a highly unusualsituation had developed. For legal representation to be denied, truly compellingcircumstances were required as a justification for taking this course: Robinson vR [1985] 1 AC 956;(4) The judge had expressed his unwillingness to interfere with the ‘verycarefully considered decision’ of the Director of Legal Aid. The judge had nodoubt taken the view that a seemingly rational conclusion had been reached bythe department responsible for deciding whether and, if so, on what conditions,legal aid should be given, and it seemed he was not prepared to contemplatechanging the order which had been made;(5) Amongst the factors which no doubt influenced the Director was thethought that to award legal aid to A1, without attaching a condition that heshould contribute towards the cost of legal representation, was contrary to the97

CCAB 2003Judge / Direction / Discretion / Summing Upspirit of the legislation. A1’s ample funds in his bank account plainly justifiedthe decision. Once these funds were removed by him from his account, and A1was effectively left with no funds at all, the Director would, in all probability,have considered that to remove the contribution order might be seen by others insimilar circumstances as an encouragement to do the same. However, thediscretionary power given to the judge to override the decision had to be lookedat in a wholly different context. Leaving aside financial considerations, a trial ofthis kind, with an unrepresented defendant, would inevitably give rise to manyprocedural difficulties affecting the fairness of the proceedings which wouldoutweigh the factors to which the Director seemed to have given soleconsideration: R v Marr (1990) 90 Cr App R 154 considered;(6) The judge was aware that the award to A1 of legal aid was correct inprinciple. All that was stopping A1 receiving representation at his trial was asum of money over which it was accepted he no longer had control. There hadbeen no suggestion that the debt which A1 paid with the funds in his bankaccount was anything other than a genuine one. A1 was being made to suffer afundamental disadvantage at his trial having deliberately chosen to divert hisfinancial resources in a way which prevented them from being utilised towardshis legal aid;(7) Whether or not the Director was justified, bearing in mind the interests ofjustice, in deciding as he did on this basis was beside the point. The judge wasnot sitting on appeal from the Director’s decision. He had to exercise a quiteseparate jurisdiction under the Legal Aid in Criminal Cases Rules. While, nodoubt, the decision of the Director was a factor to be considered, there wereother cogent factors that the judge had to take into account in the exercise of hisdiscretion, not least a critical assessment of the accused’s right to a fair trial,particularly given the seriousness of the crime, the penalty for it and, from thelayman’s perspective, the procedural complexities of the case. The importanceof persons accused of serious crimes having the advantage of counsel to assistthem could not be doubted: Galos Hired v R [1944] AC 149. No matter howmuch assistance was rendered by a judge to an unrepresented defendant, thiscould not really compare to the advantages of representation by counsel:Dietrich v R (1992) 177 CLR 292;(8) In all the circumstances, the judge’s approach to, and determination of,A1’s application to him for legal aid did not represent a proper exercise, if suchit was, of the discretion vested in him. However, this decision should not beseen as an open invitation to other applicants for legal aid to dissipate theirassets. A1’s trial was lengthy and unusually serious, and the financialconsiderations which prevented him from receiving the legal representation heshould have had were given undue weight. An examination of the entireproceedings showed that A1’s trial was not a fair one.Result - Appeal allowed. Retrial ordered.[The appeal of A2 was dismissed as being devoid of merit: Ed]98

CCAB 2003JuryJuryCA 490/2001Yeung &Ma JJAPang J(17.4.2003)*DG Saw SC&Chan Man-wai#LawrenceLok SC &RaymondFongLAMShing-takPlacing evidence before jury after retirement/Discretionary power to allowfurther evidence after retirement to be exercised in exceptionalcircumstances/Unfairness to defendant to be avoided/Issue to be canvassedin open court/ Judge and parties must adhere to agreement向 退 庭 後 的 陪 審 團 展 示 證 據 - 在 特 殊 的 情 況 下 才 可 行 使 酌 情 權 准 予在 陪 審 團 退 庭 後 提 出 額 外 證 據 - 須 避 免 對 被 告 人 造 成 不 公 平 - 須 在公 開 法 庭 討 論 有 關 事 宜 - 法 官 及 控 辯 雙 方 必 須 遵 守 協 議The Applicant was convicted after trial of offences of kidnapping andmurder.After the jury had retired to consider their verdicts, they asked twoquestions. Having reached agreement with counsel as to what the replies shouldbe, the judge recalled the jury and directed them as follows:Mr Foreman, gentlemen of the jury, you have sent me twoquestions which I have discussed with counsel. The first questionyou asked me is that: “Could the jury have a copy of the recordof the whereabouts of the defendant on 30 June 1999 allegedlyconfessed by the defendant to the police as recorded by DPC19065?” Well, the answer to that question is: No, I’m afraid not.Simply for this reason: because that record is not in evidencebefore you as an exhibit. I can say no more about it than that.What I will say is this, if you wish me at a later stage perhaps toremind you again of that police officer’s evidence concerning thecontent of his notepad, and you will remember I reminded you ofthat yesterday, I can certainly do that, and no doubt you will askme at a later stage if you wish me to do so.The second question which you asked is this: “When was suchrecord first received by the court/the defence counsel?” Theanswer to that is this: The court and defence counsel have hadcopies of the notepad and have had access to the original sincelast year. So those ......Before the Judge had completed the sentence, there were then the followingexchanges:Foreman: What - exact time?Court: The date, please?Mr Dinan: 23 February 2000.Court: Thank you very much, Mr Dinan. That is the answer tothat, 23 February 2000. Thank you, members of the jury.On appeal, it was submitted, inter alia, that in response to the secondjury question, the judge, by mentioning 23 February 2000, in effect providedfurther evidence to the jury, and this constituted a material irregularity. It wassaid that English authorities supported an absolute prohibition against furtherevidence being provided to the jury after the conclusion of the summing-up: R vWilson (1957) 41 Cr App R 226. In R v Nixon (1968) 52 Cr App R 218, thecourt ‘took the view that the strict rule that no evidence of any kind may beadmitted after the end of the summing-up, still less after the jury have retired,99

CCAB 2003Jurymust be enforced.’ In both Wilson and Nixon it was said that the fact that thefurther evidence was given with the consent of both counsel for the prosecutionand the defence did not prevent this constituting an irregularity in procedure.Held :(1) The rigidity of the prohibition was surprising. As to its logicalfoundation, it was indicated in R v Owen (1952) 36 Cr App R 16, that theprohibition was necessary to prevent attempts to clarify what otherwise mightconstitute a doubt on the guilt of an accused. In that situation, it was clearlyundesirable and unfair to allow further evidence;(2) The prohibition against further evidence for the jury after retirement,when considered in its proper perspective, could not be absolute. The strictapplication of the statement of the law pronounced in Owen could lead to thenecessary obstruction to the requirement that the court should provide as muchassistance to the jury as they reasonably required, not to mention that it might onoccasion cause injustice. There might be occasions when due to oversight orinadvertence the jury was not informed before they retired of what had beenagreed between the parties that they should be informed, particularly when thiswas necessary for the proper administration of justice and beneficial to thedefence. An absolute prohibition against presenting the jury with such furtherevidence with the explicit agreement of the parties not only defeated the properadministration of justice but would lead to unfairness and prejudice to thedefence;(3) If volunteered information, presumably perceived to be favourable to thedefence, given to the jury by defence counsel after the jury had retired couldhave the effect of annulling what would otherwise be a sound and proper verdictof the jury, this would reflect badly on the administration of justice. It couldalso lead to abuse. This was recognised by the High Court of Australia when itdealt with the supposed absolute rule that in a criminal trial no evidence mightbe admitted after the summing-up had ended. In Dryburgh v R [1961] 105 CLR532, 535, it was stated:Lord Goddard CJ did indeed lay down such a rule in speaking forthe Divisional Court in [Owen, Wilson and R Flynn (1957) 42 CrApp R 15] ... he insisted rigorously upon its observance, otherlearned judges concurring with him. The appellant would have usaccept the rule in all its strictness, and hold that the breach of it inthis case vitiated the trial. If it were not for his insistence thatthere be no new trial, we should have to decide whether in truththe rule has a place in the common law - there is no statutory basisfor it - or whether the true principle is not that the trial judge has adiscretion in the matter. If he has, it is necessarily a discretion tobe exercised with such jealous concern for obvious possibilities ofinjustice that only in rare cases can it be right to admit the belatedevidence.In R v Hodgkinson [1954] VLR 140, 148 Barry J considered the statement oflaw in Owen too absolute. He said:Furthermore, we think that the Lord Chief Justice’s statement istoo absolute, and to adopt it would be to ignore the cautionaryobservation of the majority of the High Court in Shaw’s Case(supra), at p.380, that it is ‘unsafe to adopt a rigid formula in viewof the almost infinite variety of difficulties that may arise at acriminal trial.’ Indeed, the rule as laid down by CJ Ormerod andParker JJ, in Owen’s Case (supra) was soon disregarded by a100

CCAB 2003JuryCourt consisting of Lord Goddard CJ, Lynskey and Pearson JJ, inR v Sanderson (1953), 37 Cr App R 32. In our opinion, when ajury desires that a witness should be questioned further at any timebefore verdict, that may be done, and we add that if the question isrelevant, and no compelling contrary reason exists, it is desirablethat such a request should be complied with.(4) The less rigid approach suggested in the High Court of Australia was tobe followed. In appropriate cases, a trial judge did have the discretionary powerto allow further evidence to be placed before the jury after summing-up or afterthey had retired to consider the verdict. This discretionary power should only beexercised in very special or exceptional circumstances. The exercise of thediscretion must not result in any unfairness or prejudice to the defence and mustnot operate to clear up what would otherwise be a doubt about the guilt of theaccused;(5) Before further evidence was provided to the jury after summing-up orafter they had retired, the matter must be canvassed in open court. The judgeshould obtain as much as possible explicit agreement from counsel beforefurther evidence was given to the jury. Both the judge and counsel must adhereto the agreement reached and not volunteer any information beyond theagreement;(6) The direction given by the judge was given after discussion with andagreement by counsel. No complaint was made then about the questions askedby the jury and the answers given to them at the trial. The Applicant could notnow complain. There was neither unfairness nor procedural irregularity arisingfrom the further evidence provided to the jury.Result - Appeal dismissed.Leave (CFA)CA 212/2001Stuart-MooreVPStock &Yeung JJA(14.1.2003)*PeterChapman#TRW Jenkyn-JonesLOMan-kamCourt of Final Appeal/No power in Court of Appeal to grant leave toappeal/Application for a certificate to be made immediately after judgmentgiven/Certificate to be sought within 7 days of handing down ofjudgment/Inexcusable delay in application/Counsel not formulatingquestion of law終 審 法 院 - 上 訴 法 庭 無 權 給 予 上 訴 許 可 - 要 求 給 予 證 明 的 申 請 須 於法 院 作 出 判 決 後 立 即 提 出 - 須 於 判 決 發 下 後 7 天 內 要 求 證 明 書 - 延誤 申 請 不 可 寬 宥 - 律 師 沒 有 擬 定 法 律 問 題The Applicant sought ‘leave to appeal ’ to the Court of Final Appeal, andan extension of time in which to make the application, by way of a Notice ofMotion dated 28 November 2002. This came over six months after the Reasonsfor Judgment were handed down.Held :(1) The Court could not give leave to appeal under the terms of s 32(2) ofthe Hong Kong Court of Final Appeal Ordinance, Cap 484. In appropriatecircumstances, a certificate could be granted but these did not arise and no pointof law of great and general importance was involved in the decision;101

CCAB 2003Leave (CFA)(2) The Practice Direction for criminal appeals to the Court of Final Appeal,issued by the Chief Justice, made it abundantly clear, and for good reasons (seeHKSAR v Choi Wing-man [1999] 2 HKC 382), that applications to the Court ofAppeal for a certificate that their decision involved a point of law of great andgeneral importance should be made, in the words of the Direction, ‘immediatelyafter the judgment is given from which the appeal is to be brought ’ ;(3) In the light of the Practice Direction for criminal appeals in the Court ofAppeal, where a reserved judgment or, as in these proceedings, the reasons for ajudgment were ‘handed down ’ in the absence of an applicant’s legalrepresentatives, ‘ ... any application for a certificate to the Court of Appeal thatthe decision involves a point of law of great and general importance should bemade within 7 days of the handing down of the judgment from which the appealis to be brought ’;(4) In any event the court would not have entertained this application as thedelay to which the application had been subjected was inexcusable;(5) The further reason why a certificate would be refused was that noquestion in the written application had been formulated for consideration. Italmost defied belief that counsel should come to the Court of Appeal on anapplication of this kind without specifying the questions on which he sought acertificate.Result - Application refused.LiesFACC 6/2002Li CJBokhary &Chan PJJ &Sir NoelPower & SirGerardBrennan NPJJ(9.4.2003)*Kevin Zervos& Simon Tam#GaryPlowman SC&Jeffrey FentonYUENKwai-choiLies/Principles to be applied with common sense/Lies usually affectcredibility only/Use of lie by prosecution/Circumstances requiring liesdirection/Proviso rarely appropriate in absence of necessary liesdirection/Test for application of proviso謊 言 - 原 則 可 按 常 理 予 以 應 用 - 謊 言 通 常 只 影 響 可 信 性 - 控 方 利 用謊 言 - 須 就 謊 言 作 出 指 引 的 情 況 - 但 書 甚 少 適 宜 用 於 有 需 要 卻 沒 有作 出 謊 言 指 引 的 個 案 - 驗 證 但 書 是 否 適 用 的 標 準The Appellant was convicted with D1 after a trial in the Court of FirstInstance of trafficking in a dangerous drug.The Appellant’s appeal against conviction having been dismissed by amajority in the Court of Appeal, the Appeal Committee granted leave to appealon the ground of substantial and grave injustice.The appeal involved two issues: first, whether, in the circumstances ofthis case, the omission of the trial judge to give a ‘lies’ direction to the jury inrelation to the Appellant’s case amounted to a material irregularity; and, if it did,whether the majority of the Court of Appeal was justified in applying theproviso under s 83 of the Criminal Procedure Ordinance, Cap 221, in upholdingthe conviction.The Appellant admitted possession of the travelling bag and the suitcasewhich contained the drug. The issue at the trial was whether he had knowledge102

CCAB 2003Liesof the contents thereof. The burden was on him to rebut, on the balance ofprobabilities, the presumption arising from s 47(2) of the Dangerous DrugsOrdinance, Cap 134, to the effect that he knew what was contained inside thebag and the suitcase. His evidence and hence credibility were of criticalimportance.The case was complicated by two unusual features which had a bearingon the Appellant’s evidence. First, the informer who gave information to thepolice about the drug transaction was called as a defence witness for theAppellant. He admitted that he was involved in the transaction and that it washe who had made use of the Appellant to make delivery of the drug for himwithout telling the Appellant what was really contained in the bag and thesuitcase. His dealing with the Appellant, particularly his contact with theAppellant on the day of the transaction, was relevant to the issue of knowledgeon the part of the Appellant. Second, D1 was permitted by the trial judge toadduce rebuttal evidence after the Appellant had testified in a way which wasdetrimental to D1’s case. The rebuttal evidence, if accepted by the jury, wouldtend to contradict that part of the evidence given by the Appellant with regard tohis contact with the informer on the day in question.Held :(1) What use a jury could make of lies told by an accused and what directiona trial judge should give to the jury were questions which had been subject tomuch judicial discussion. These questions were frequently encountered byjuries, as sole judges of fact, in criminal trials. The principles in this area of lawmight, depending on the circumstances of each case, be applied in a commonsense manner and in simple terms so that they were easily understood by thejury;(2) In almost every criminal trial, the jury were asked to assess the credibilityof witnesses and to decide what evidence they were to rely on as the basis fortheir verdict. There might be many reasons for the jury not to rely on theevidence of a witness. It was not necessarily because the witness had lied. Buteven if he had lied, there might be different reasons for not telling the truth.There was, however, a natural tendency that if the jury considered that a witnesswas not telling the truth on one aspect of his evidence, they might not believehim in respect of other aspects. This tendency had a much greater impact on thecriminal process when it was the accused who had testified in the witness box.If the jury considered that the accused was not telling the truth on one aspect ofhis case, there was a tendency that they might infer that he had lied because hewas guilty of the charge before the court. This ‘impermissible process ofreasoning ’, though sometimes natural enough for a layman, was to be avoided ifthe accused was to have a fair trial;(3) Lies usually affected credibility only. As a matter of law, a lie in itselfcould never prove guilt. That was the starting point for any discussion orsumming-up on the question of lies. It was the risk of improper use by the juryof an accused’s lie that the law wished to guard against. As Lord Devlin said inBroadhurst v R [1964] AC 441, 457:It is very important that a jury should be carefully directed uponthe effect of a conclusion, if they reach it, that the accused islying. There is a natural tendency for a jury to think that if anaccused is lying, it must be because he is guilty, and accordinglyto convict him without more ado. It is the duty of the judge tomake it clear to them that this is not so.(4) A rule of practice (which was sometimes referred to as the Broadhurst103

CCAB 2003Liesdirection) had thus developed through the years requiring a trial judge to remindor even warn the jury, where there was a risk that they might wrongly infer guiltdirectly from their conclusion that the accused was not telling the truth, that theymust not draw such an inference and that there might be an innocent explanationfor his lie. This was a rule of practice which was designed to avoid a risk ofmiscarriage of justice: Bromley v R (1986) 161 CLR 315;(5) Although, as a general rule, a lie could not in itself be used as proof ofguilt, there were circumstances in which the prosecution might want to use a lietold by an accused to establish or assist the prosecution’s case or to strengthenan inference of guilt against him. A lie might be used, for example, to providecorroboration for an accomplice’s evidence or to support identificationevidence. In such circumstances, the law required that certain criteria must bemet before a lie was permitted to be used in such a way. These criteria were setdown in R v Lucas [1981] QB 720. Briefly, these were: it must be a deliberatelie, relating to a material issue in the case; there was no innocent explanation forthe lie and it was a lie which was either admitted or proved by independentevidence;(6) It must be borne in mind that the set of criteria in Lucas involved a casewhere it was sought to make use of a proved untruth or lie as amounting tocorroboration of an accomplice’s evidence. Hence, it was necessary, forexample, to have the 4th requirement, namely, that the lie must be admitted orproved by evidence other than the accomplice’s evidence which it was sought tocorroborate: R v Chong Chak-on [1995] 2 HKCLR 226; Edwards v R (1993)178 CLR 193;(7) In view of the circumstances in which the criteria were set, a ‘full Lucasdirection’ was not always necessary. Kennedy LJ in R v Burge and Pegg [1996]1 Cr App R 163, at 173 summarised the circumstances in which a Lucasdirection was usually required. However, he added that ‘where there is no needfor such a direction (as in the normal case where there is a straight conflict ofevidence), it will add complexity and do more harm than good ’ ;(8) In the great majority of cases where the prosecution contended that anaccused was telling lies in the witness box, a direction on lies was inappropriate:R v Barnett [2002] 2 Cr App R 168, 173. In cases where the rejection of anyexplanation given by an accused almost necessarily left the jury with no choicebut to convict as a matter of logic, or where the jury were asked to decide on thetruth of what an accused said on a central issue in the case, the usual directionon the burden and standard of proof would normally be sufficient: R v Dehar[1969] NZLR 763, 765; R v Man Bing-chou [1993] 2 HKCLR 71; R vLiacopoulos and Others, unreported, August 31, 1994, referred to in R v Burgeand Pegg [1996] 1 Cr App R 163. In these situations, there was no danger ofimproper use by the jury of any lie told by the accused and there was no risk ofmiscarriage of justice;(9) Where there was a risk that the jury might regard lies told by an accusedas probative of his guilt, as in the case where the prosecution addressed the juryon the basis that the accused had lied in what he said and that the lie wassupportive of the prosecution’s case or where there was a danger that the jurymight in any way misuse the lie, it was necessary to give a direction on lies. Inconsidering whether a direction on lies should be given, particularly when thetrial judge entertained a doubt as to what he should say to the jury in case hedecided to give such a direction, he should first raise the matter with counsel andthen give the direction unless it was clear that such a direction was not onlyunhelpful but might also mislead the jury. In this connection, it was apposite toconsider the advice of Judge LJ in R v Middleton, unreported, March 23, 2000 atparagraph 22:104

CCAB 2003LiesWe suggest that when, at trial, the question arises, should aLucas direction be given or should it not, it will usually be moreuseful to analyse the question in the context of the individual caseby examining the principles rather than by laboriously trawlingthrough hosts of reported and unreported cases and learnedcommentaries.(10) Where a direction on lies was required, the jury must be directed that alie in itself could never prove guilt and that they could not use the lie tostrengthen or establish the prosecution’s case unless they were satisfied that thelie was told because ‘he was unable to account innocently for the evidence thathas been given against him ’. Edwards v R (1993) 178 CLR 193, 199; or ‘thereis no innocent motive for the lie ’: R v Goodway (1994) 98 Cr App R 11, 15.The jury should also be reminded that there might be innocent reasons for the lieother than consciousness of guilt: HKSAR v Mo Shiu-shing [1999] 2 HKLRD155, 168. The terms of the direction must, however, ultimately depend on thecircumstances of each case. In deciding what language to adopt, a trial judgeshould consider the use to which the lie in question was intended to be put ormight be put, and the possible effect it might have on the accused’s case, alwaysbearing in mind that the purpose of such a direction was to avoid possiblemisuse of lies by the jury. Reference could be made to the specimen directionsapproved by the Court of Appeal in HKSAR v Mo Shiu-shing [1999] 2 HKLRD155, 169;[The court concluded that the trial judge had erred on the facts of this case infailing to give a lies direction in respect of the Appellant’s case. It thenconsidered whether the majority had erred in its decision that even if the judge’somission to give a lies direction was in error, it was an appropriate case for theapplication of the proviso under s 83(1) of the Criminal Procedure Ordinance,Cap 221.](11) The test for an application of the proviso was whether a hypotheticalreasonable jury, properly directed, would inevitably have come to the sameconclusion or would no doubt have convicted. Although the test anticipated theview of a hypothetical reasonable jury, the view of the jury which had tried thecase must be a factor - albeit not conclusive - to be taken into account inconsidering what the view of the hypothetical reasonable jury would be. Thefact that a particular jury only reached their verdict by a majority of 5 to 2 wouldindicate that two jurors had entertained some doubts about the guilt of theaccused. In the present case, the majority verdict would mean that at least twojurors had considered that the Appellant’s defence might be true;(12) It was not surprising that the attitude of the Court of Appeal had been oneof reluctance to apply the proviso where a lies direction was required but wasomitted by the trial judge: R v Mok Lun Cr App 502/93; R v Ho Che-chung[1994] 2 HKC 148; R v Wai Wing-sang and Another [1992] 2 HKCLR 23. Alies direction was aimed at warning the jury not to adopt an impermissiblereasoning process. Where this was required either as a matter of law or as amatter of practice, and if the judge had failed to give such a direction, there wasa risk that the jury might adopt such a reasoning process, and, if so, they mightnot have given the accused’s case a fair assessment. This was particularlydetrimental to a defendant (as the Appellant in this case) who had the burden torebut a statutory presumption on the balance of probabilities. His credibilitywas clearly of crucial importance and where credibility was an important issueand the jury was left with an inadequate or incorrect direction on credibility, theappellate court was reluctant to apply the proviso: White v R (1997) 53 WIR293; Barrow v The State (1998) 52 WIR 493;105

CCAB 2003Lies(13) The fact that trial counsel did not raise objection when the trial judge hadfailed to give a lies direction in his summing-up when such a direction wasrequired was only a factor to be taken into account.Result - Appeal allowed. Retrial ordered.Per cur -Some of the difficulties which had arisen in many of the previouscases on what direction should be given to the jury were complicatedby the use of such terms as: a Broadhurst direction, a Lucasdirection, a full Lucas direction. These terms were sometimesconfusing as slightly different meanings had been attributed to themin different cases. It was preferable simply to call it ‘a liesdirection ’.CA 571/2001Stuart-MooreVPStock JASeagroatt J(7.8.2003)*R G Turnbull& Hayson Tse#John GriffithsSC& A KingCHANBoon-ningLies direction/Mere assertion by prosecutor that defendant lied insufficientto trigger lies direction/Defence of claim of right not undermined by Ghoshdirection/Claim of right required direction that an unreasonable beliefmight be an honest one謊 言 指 引 - 僅 因 檢 控 人 員 聲 稱 被 告 人 說 謊 不 足 以 引 用 謊 言 指 引 - 以享 有 權 利 為 抗 辯 理 由 不 因 Ghosh 一 案 的 指 引 而 被 削 弱 - 辯 方 聲 稱 享有 權 利 時 法 官 須 作 出 ‘ 不 合 理 地 相 信 也 可 能 是 誠 實 地 相 信 ’ 的 指 引The Applicant was convicted after trial of three counts of theft and fourof false accounting. He was sentenced to 6 years imprisonment.On appeal, two grounds were advanced. First, it was said that the trialjudge failed to provide the jury with a direction as to lies allegedly told by theApplicant in his oral testimony at trial. It was said that such a direction wascalled for because the prosecutor in his closing address had ‘placedconsiderable emphasis on the alleged lies of the Applicant, suggesting byimplication that these lies would support an inference of guilt’.Second, it was submitted that the judge gave a Ghosh direction (R vGhosh [1982] 1 QB 1053), when no such direction should have been given andthat to do so gave rise to a danger of confusing the jury as to the test to beapplied. The perfected ground of appeal asserted that the ‘judge misdirected thejury by directing them to apply the test of dishonesty as expounded in R vGhosh … The issue of dishonesty in this particular case was not the ordinaryperson’s idea of dishonesty but rather the genuineness of the Applicant’s beliefas to the factual situation’. It was argued that since the real issue was a claim ofright under s 3(1)(a) of the Theft Ordinance, Cap 210, ‘the inclusion of theGhosh direction in the summing up could have confused the jury and led themto apply a convoluted and inappropriate test in determining whether theApplicant was dishonest’. Section 3(1)(a) and (b) of that Ordinance provided:(1) A person’s appropriation of property belonging to another is notto be regarded as dishonest:-(a)(b)if he appropriates the property in the beliefthat he has in law the right to deprive theother of it, on behalf of himself or of a thirdperson; orif he appropriates the property in the beliefthat he would have the other’s consent if theother knew of the appropriation and thecircumstances of it; or …106

CCAB 2003LiesHeld :(1) The need, or the absence of a need, for a lies direction had been thesubject of many appeals, and there was now a tendency to raise the issue invirtually every appeal case in which it was discovered from post trial scrutiniesof the summing-up that a lies direction had or had not been given. It seemedstill not to be appreciated that a lies direction was reserved for the limitedcircumstances in which a lie was used not merely to undermine the credibility ofthe defence, but as in itself constituting a separate item of evidence or conduct insupport of the case against the defendant, or where there was a danger that thejury might use a lie, not merely as undermining the credibility of a defence, butas proof positive of guilt;(2) In Archbold 2003 at para 4-402, it was stated, in light of R v Goodway(1994) 98 Cr App R 11, that a lies direction should be given ‘whenever lies arerelied on by the prosecution, or might be used by the jury, to support evidenceof guilt as opposed to merely reflecting on the defendant’s credibility’;(3) A mere assertion by counsel for the prosecution that a defendant had liedwas of itself far from the automatic trigger for a lies direction which so manyapplications for leave to appeal against conviction seemed to assume. That saidby the prosecutor in this case was concerned solely with credibility, and therewas no need for a lies direction;(4) Although the judge directed the jury in terms of Ghosh, before he did sohe directed them as to the terms or effect of s 3(1)(a) as well as s 3(1)(b); anddirected them as well that if in relation to the theft counts the Applicant’saccount that he believed he was entitled to take the money was true, or might betrue, then he was not acting dishonestly and that he must be acquitted;(5) There had been debate whether a Ghosh direction in itself covered allsituations in which a s 3(1)(a) defence was raised. It was suggested in R vWoolven 77 Cr App R 231, that:… a direction based on Ghosh seems likely to us to cover alloccasions when a section 2(1)(a) type direction might otherwisehave been desirable.(Section 2(1)(a) of the Theft Act to which reference was there made, was in thesame terms as section 3(1)(a) of the Theft Ordinance.)(6) The editors of Archbold 2003, para 21-28, said on this issue:As to the importance of referring to section 2(1)(a) where a claimof right is raised see R v Falconer-Atlee, 58 Cr App R 348, CA. InR v Woolven, 77 Cr App R 231, CA, it was said that a direction ondishonesty based on Ghosh would be likely to cover all occasionswhere a section 2(1)(a) type direction might otherwise have beendesirable. Woolven, however, was a case on section 15 of the Actto which section 2 does not apply. In cases involving an allegationof theft simpliciter, burglary or robbery, it is submitted that itwould still be necessary to give a section 2(1)(a) direction because,if the case comes within that provision, the jury must as a matter oflaw determine the first of the two questions in Ghosh in thedefendant’s favour. See also R v Wootton [1990] Crim L R 201,CA, and R v Wood [1999] 5 Archbold News 2, CA.(7) R v Falconer-Atlee was referred to in Woolven at 236:Our attention was drawn to Falconer-Atlee (1973) 58 Cr App R348 – a case of theft to which section 2(1)(a) therefore applied. A107

CCAB 2003Liesclaim of right was raised by the evidence. The learned judgedirected the jury as to the elements which the prosecution had toprove in order to establish the offence. In dealing with the elementof dishonesty he said: “The all important word … in those fourelements is ‘dishonestly’, but of course, it may well be that youmay not have much difficulty in deciding that if somebody incircumstances such as are alleged here appropriated propertybelonging to another with the intention of permanently deprivingthe other of it, then it was done dishonestly, but that is a matter foryou. It is for you to decide whether whatever was done was donedishonestly. If you are not satisfied that it was, then you could notconvict …”;In delivering the judgment of this Court, Roskill L J (as he thenwas) said at p 359: ‘To give the jury the limited direction whichthe learned judge gave, impeccable so far as it went in relation to‘dishonestly’, but on the facts of this case not to go on to tell themwhat section 2(1)(a) expressly provided was not to be regarded as‘dishonest’ was to omit what was an extremely importantdirection.’;In contrast, the summing up in the present case clearly broughthome to the jury that they must consider the appellant’s ownaccount of events and what he said about his state of knowledgeand if, on that basis, they thought he might have regarded hisactions as honest, they must acquit.(8) There was a material fact which distinguished Falconer-Atlee, as well asWood, from the present case; and it was that in the present case the judge didgive a s 3(1)(a) direction, and did so in clear terms. A significant aspect ofWood was that whilst the judge gave a Ghosh direction, ‘… he nowhere told thejury that if they thought that the defendant either did have a genuine belief ormight have had a genuine belief then they would have to acquit him’. So, too, itwas noted from the passage in Woolven that, compared to the summing up inFalconer-Atlee, the position in Woolven was that:In contrast, the summing up in the present case clearly broughthome to the jury that they must consider the appellant’s ownaccount of events and what he said about his state of knowledgeand if, on that basis, they thought he might have regarded hisactions as honest, they must acquit.(9) In the present case there was an express reference by the judge to theapproach to be adopted in relation to the three theft counts and to the defencethat the Applicant believed he was entitled to take the money. It was true thatthe judge gave no direction that the reasonableness of such a belief wasimmaterial; but he told this jury in terms that if the Applicant was or might betelling the truth, then he was entitled to be acquitted;(10) It could not be said, therefore, as it could in Wood and Falconer-Atlee,that there was no specific s 3(1)(a) or (b) direction. That was why thecomplaint on this ground had to retreat to the position that the Ghosh direction(which had, it was conceded, in any event to be given in respect of the remainingcounts) undermined the s 3 direction, and gave rise to a real risk of confusion;(11) It was not demonstrated that the Ghosh direction undermined the s 3direction or that it gave rise to a real risk of confusion; and the suggestion thatthe Ghosh direction had or might have had that effect was made for the first timeupon this appeal, a relevant factor in assessing the impact upon a particular juryof central directions. Leading counsel at trial was, as his closing address108

CCAB 2003Liesdemonstrated, well attuned to the importance of the s 3 defence or defences. Hemade no suggestion at trial that the summing-up was less than clear or fair onthat point, and when the judge asked specifically whether there were any pointscounsel wished to raise, no complaint was advanced. In any event, the s 3direction having been given, the Ghosh direction could not detract from itsimpact since a proper application of Ghosh would, if the Applicant’s suggestionof a claim of right was or might have been true, have determined the Ghoshquestions in the Applicant’s favour;(12) It was noted that the judge did not tell the jury that even an unreasonablebelief might be an honest one. It was desirable that when a claim of rightdefence was run, such a direction should be given. But in the light of thejudge’s very clear directions that if the Applicant’s account was or might betrue, no dishonesty was proved, the failure to do so in this case was not material.Result - Leave to appeal granted, but appeal dismissed.Obiter - It was not strictly necessary to deal with the arguments advanced onthe application of the proviso to s 83(1) of the Criminal ProcedureOrdinance, Cap 221. But if, contrary to the assessment made, thedirections on dishonesty were not as complete or ascompartmentalized as was required, this would be a clear case inwhich to conclude that no miscarriage of justice had occurred inconsequence thereof. Not only did the judge leave the jury in nodoubt but that the Applicant was to be acquitted if his account was ormight be true, but the case against him was quite overwhelming.CA 128/2003Stuart-MooreVPStock JAGall J(17.11.2003)*Sin Pui-ha#JeffreyFentonSHAMKit-yiLies/Prosecutor relying on suggested lie as proof of guiltyknowledge/Direction to jury required/Applicant not estopped from takingthe point by trial counsel’s failure to seek a direction from the judge謊 言 - 檢 控 人 員 依 賴 所 指 謊 言 作 為 被 告 對 罪 行 知 情 的 證 明 - 須 就 謊言 向 陪 審 團 作 出 指 引 - 申 請 人 不 因 律 師 在 審 訊 時 沒 有 向 法 官 尋 求 指引 而 被 禁 止 提 出 此 點The Applicant sought leave to appeal against conviction on a count oftrafficking in a dangerous drug, namely, 1.36 kilos of a mixture containing 0.98kilos of heroin hydrochloride.The Applicant and her co-accused (‘Yuen’) were co-habitees at Fu ChakHouse, Chak On Estate. On 29 December 2001, a security guard saw A1 enterthe building with Yuen and another man, press the password and hold the gateopen to enable the two men to push a trolley carrying seven to eight bags intothe lift. Later that morning another security guard saw them emerge, with Yuencarrying two heavy nylon bags. Upon inquiry, the security guard was told by theApplicant that they had purchased the wrong material and were going to changeit.Police later saw Yuen drive his vehicle to Fu Chak House. TheApplicant went into the building. When she emerged, police intercepted her anda search of her handbag produced keys to the flat and an unsealed manilaenvelope containing four blocks of heroin. Under caution, the Applicantallegedly said ‘Madam, they are dangerous drugs’.Police then took the Applicant to the flat using the keys and found twoand a half bags of heroin next to a sofa. The Applicant allegedly said these hadbeen delivered by her boyfriend, that she did not know what they were usedafterwards, and only knew they were dangerous drugs, not their actual names.109

CCAB 2003LiesOn appeal, it was submitted that the judge failed to give any lies directionwarning them that lies told by the Applicant, if any were established, were not tobe treated as evidence of guilt. This complaint was directed to the suggested liewhich was referred to thus in the summing-up:Miss Sham was cross-examined about how she knew which manilaenvelope she was to collect for Yuen. In the video interview shehad told the officers that she took the envelope because it was theonly one in the flat with anything in it. She told you in herevidence-in-chief that Mr Yuen had told her to collect the one onthe sofa. She denied that she had been inconsistent in this, sayingthat she was simply now giving more details than were in theinterview. Mr Ma, when dealing with this point, referred you toanswer 357, suggesting that there was no inconsistency. He didnot, however, deal with answer 210. In his address to you Mr Tamreferred you to question 209 and the defendant’s answer 210,where she was asked which place Mr Yuen asked her to get theenvelope from, and her answer in the video interview was, “Hedidn’t say, he just asked me to go home and get the manilaenvelope downstairs.” Mr Tam urges you to conclude that she isnot telling you the truth about this, and reminds you that Mr Yuenalso when cross-examined, confirmed that he was sure that whenhe sent her to collect the envelope he told her it was on the sofa.Both versions cannot be right. Either he did not tell her where tofind the envelope or he did. Whether one or both of the defendantand Mr Yuen are lying about this or have made mistakes is amatter for you to decide, members of the jury.The Applicant submitted that the lie was upon a collateral issue. It didnot, in other words, of itself determine whether or not the Applicant knew thatthere were drugs in the envelope, but that it was used in the way the judge foundthe matter as suggestive of guilt, an approach that carried with it the danger ofimpermissible reasoning by the jury, so that a lies direction should have beengiven.The essence of the complaint was that:(1) the prosecution was suggesting that her oral testimony was untruthfulin its assertion that she was told by Yuen precisely where theenvelope was;(2) the prosecution was using that lie in support of the prosecution case,rather than as going merely to the Applicant’s credit; and(3) alternatively to (2), that there was in any event a danger that the liewould be used by the jury as proof of guilt.The Applicant submitted that it did not follow that if she was not toldwhere the envelope was, she must have known that the envelope containeddrugs; which issue as to knowledge was the only live issue in the case. The lie,if lie it was, could have been told in order to embellish her defence, and that wasprecisely the type of innocent reason for a lie that needed to be pointed out to ajury.Held :(1) As stated in HKSAR v Chan Boon-nin Cr App 571/2001, a lies directionwas reserved for the limited circumstances in which a lie was used not merely toundermine the credibility of the defence but as in itself constituting a separateitem of evidence or conduct in support of the case against the defendant, orwhere there was a danger that the jury might use a lie as probative of guilt. In R110

CCAB 2003Liesv Burge and Pegg [1996] 1 Cr App R 163, 172, it was said that a lies directionwas necessary where prosecuting counsel had:Identified and sought to prove a particular lie on a material issuewhich is alleged to be explicable only on the basis of aconsciousness of guilt on the defendant’s part. This is, asProfessor Birch says, a very specific prosecution tactic, quitedistinct from the run of the mill case in which the defence case iscontradicted by the evidence of prosecution witnesses in such away as to make it necessary for the prosecution to say that in so faras the two sides are in conflict, the defendant’s account is untrueand indeed deliberately and knowingly false.(2) The prosecutor expressly relied on the suggested lie by the Applicant andher witness as probative of guilty knowledge. That being so, it was incumbentupon the judge to give a lies direction;(3) No invitation to the judge to give a lies direction was made. In relationto another matter, defence counsel at trial had suggested that no lies directionwas required. Whilst the failure of trial counsel to take the point raised onappeal might in some cases be a factor which would assist in determining the useto which everyone suggested a lie should be put, and whilst it might be a factorin determining whether to apply the proviso to s 83 of the Criminal ProcedureOrdinance, Cap 221, the Applicant was not by counsel’s silence at trial estoppedfrom taking the point on appeal. The failure to give a lies direction constituted amaterial omission, and it was not appropriate to apply the proviso.Result - Appeal allowed. Retrial ordered.PleaCA 352/2002Stock &Yeung JJABurrell J(10.7.2003)*Lynda Shine# M P TracyYUChi-wingAttempted robbery/Guilty plea/Plea equivocal/Nature of charge notappreciated/Conviction not safe企 圖 搶 劫 罪擕 - 承 認 控 罪擕 - 被 告 的 認 罪擕 含 糊 不 清 - 對 控 罪擕 的 性 質 並 不了 解攕 - 裁 定 罪擕 名 成 立 並 不 穩 妥The Applicant was convicted on his own plea of an offence of attemptedrobbery. After the judge had adopted a starting point of 3 years’ imprisonment,the Applicant was imprisoned for 2 years.The Applicant, who suffered from mental instability at the time of theoffence, was in the police station seeking the protection of the police, havingprovided them with all his particulars, when the offence occurred. Having madea crime report, the Applicant appeared to be afraid to leave the police station.He then grabbed a police constable from behind, and attempted to take hisloaded revolver from his holster. Police thwarted the attempt.Psychiatric reports before the District Court indicated that the Applicanthad a long history of drug addiction. One report indicated that ‘his drug abusewas complicated by the development of psychosis, characterised by auditoryhallucinations, paranoid ideas and moral disturbances. These symptoms tendedto resolve when he stopped to take the substances’.In the District Court, the judge was concerned as to whether there was an111

CCAB 2003Pleaintention to take hold of the weapon and also whether there was an intentionpermanently to deprive the officer of it. After an adjournment for counsel toobtain instructions, the judge was assured that the Applicant realised what washappening as the incident progressed, and was invited to accept the plea.Counsel told the judge that the Applicant ‘had the requisite intent to take awaythe pistol’. The judge accepted the plea.Held :On appeal(1) The conviction was not safe or satisfactory. Whether one proceeded onthe basis that the plea was equivocal, or that the evidence showed that theApplicant did not appreciate the nature of the charge, was a question which didnot need to be determined. There could be no doubt that the plea was equivocal,even though it might be said with some force that the judge was entitled toproceed as he did in light of what counsel had told him. The better course,however, would have been for the judge to have entered a plea of Not Guiltyand for the matter to have been tried;(2) It was rare for an application to succeed on the basis that an appellant didnot appreciate the nature of the charge; and the courts always treated suchsuggestions after plea and sentence with considerable circumspection for it wasan obvious avenue of potential abuse. But if in the rare case it could be proved,it afforded grounds for saying that a conviction was neither safe nor satisfactory:R v Forde (1923) 2 KB 400; R v Liberti (19916) 55 A Crim R 120; R v Ferrer-Ellis (1991) 55 A Crim R 231; R v Pauli (1991) 55 A Crim R 297. As that wasshown in this case, the conviction was not safe.Result - Appeal allowed. Conviction quashed.Practice & ProcedureMA 693/2002Gall J(28.1.2003)*Lynda Shine#M Panesar(1)Allan Che (2)(1) LEEKwan-yin(2) HUIKui-lunUnrepresented accused/Magistrate leaving it to interpreter to directaccused on matters of law/Justice not done無 法 律 代 表 的 被 告 - 裁 判 官 任 憑 傳 譯 員 向 被 告 作 出 有 關 法 律 事 宜 的指 引 - 沒 有 秉 行 公 正The Appellants were convicted of attempting to obtain pecuniaryadvantage by deception, and were each sentenced to 4 months’ imprisonment.Held :At trial, A1 was in person and A2 was represented by counsel.On appeal(1) As A1 was not represented, it was incumbent upon the magistrate toinform him of his rights in respect of the manner of the conduct of his case andhis rights, options and elections at the time when a case to answer had beenfound against him. The normal course would be for the magistrate at theappropriate time to deliver the proper instruction to him. At the point when sucha direction was necessary in this case, the magistrate directed the interpreter to112

CCAB 2003Practice & Procedureaddress A1 on these matters. The interpreter did so using his own knowledgeand his own words without contribution by the magistrate and without themagistrate confirming the direction to be correct. Three directions were givenby the interpreter without any assistance from the magistrate. The first dealtwith cross-examination; the second, a first instruction as to whether or not A1should give evidence; and a further instruction on the same matter;(2) It seemed that the interpreter had not been reading from a prepared scriptgiven to him by the magistrate being what the magistrate would have said hadshe said it herself. The two directions given to A1 on his rights, options andelections to give evidence or not to give evidence and the consequences thatflowed were different. A1 would have been left in a position of not knowingwhich of the two directions was the appropriate one, and, in any event, bothwere inadequate. This situation should not have arisen;(3) The magistrate should not leave it to an interpreter to give such directionas he saw fit to the parties on matters of law, particularly affecting the rights ofan accused. The prosecutor and the defence counsel should have intervened andbrought to the attention of the magistrate that such a direction by an interpreterwas unsafe, unsatisfactory and improper. Justice must not only be done, butmust be seen to be done. Where a magistrate left part of her duties to aninterpreter, justice was not done;(4) Having been told of his rights, options and elections by his counsel at theno case to answer stage, A2 would then have heard what was said to A1, andmight well have been in some doubt as to the accuracy of what he had been toldby his counsel. He was left with what his counsel told him and two otherversions to consider. That was a wholly unsatisfactory situation.Result - Appeal allowed.CA 381/2002Stuart-MooreVPStock JAGall J(5.3.2003)*I G Cross SCCheung Waisun& Wong Szelai#John MarraySJvFANKin-chungRights of prosecution/Prosecutor entitled to call relevant and admissibleevidence/No abuse of process for prosecutor to seek to call materialwitness/Breach of principle for judge to prevent prosecution adducingrelevant evidence控 方 的 權 利 - 檢 控 人 員 有 權 傳 喚 相 關 和 可 接 納 的 證 據 - 檢 控 人 員 尋求 傳 召 關 鍵 性 證 人 並 非 不 當 使 用 法 院 的 法 律 程 序 - 法 官 阻 止 控 方 援引 相 關 證 據 屬 違 反 原 則The Respondent was acquitted of burglary in the District Court after aruling that there was no case to answer. That was done before the prosecutionhad formally closed its case, when only 7 out of the 8 witnesses they had wishedto call had given evidence.The charge against the Respondent alleged burglary at 1-7 Shell Street inNorth Point and theft of $2,120 therein. The central issues at trial were, firstly,whether the Respondent was a trespasser when he entered the premises and,secondly, whether he was stealing the money he took from the flat. There wasno dispute that the Respondent entered the flat in question or that he hadpossession of money which had been kept at the flat.The prosecution wished to call their last witness (PW8), a police officer,to support the evidence of another police witness, and to testify about aconversation he had had with the alleged victim (PW6), who had testified that hedid not remember whether he had given the Respondent permission to takemoney from the premises on the day of the alleged offence. It was at that pointthat the judge stopped the prosecution from calling PW8. Instead, he invited theprosecutor to justify the calling of this witness. Having heard counsel give his113

CCAB 2003Practice & Procedurereasons, the judge expressed the opinion that the calling of PW8 would notadvance the prosecution case, for three reasons. First, the conversation betweenthe proposed witnesses PW8 and PW6, which was said by counsel to relate topermission to enter the premises, was of ‘insignificant relevance’ and would nothave been admitted to prove the truth of its contents. Second, the Respondent’salleged suspicious behaviour had been refuted by PW4, the caretaker. Third, theRespondent did not deny taking the money in question.The judge considered that any continuation of the proceedings wouldamount to an abuse of process as nothing was to be gained by calling PW8 andthis could only lead to a wastage of legal costs and court time. In the CaseStated, he set out the essence of his approach as follows:I was of the opinion that taking the prosecution case at thehighest, given the uncertain nature of both PW1 and PW6’sevidence on the crucial issues, the prosecution could not possiblyprove that the Respondent entered there as a trespasser and thathe was there to steal. It was therefore my duty to stop the trialonce it was apparent that no further evidence could cure thedefects in the prosecution case would be called.Having given the prosecution the opportunity to address him, the judgethen ruled that there was no case for the Respondent to answer.The question of law which the judge posed for the opinion of the Courtof Appeal at the instance of the Appellant was whether he ‘erred in law instopping the proceedings before the last witness was called.’Held :(1) The three principles established by the authorities upon which theAppellant relied were not in dispute. These were, first, that unless a prosecutorwas abusing the process of the court or seeking to introduce irrelevant orinadmissible evidence, it was improper for a judge prematurely to make up hismind as to whether or not there was a case to answer before the court had hadthe opportunity to hear the whole of the evidence which the prosecutionintended to adduce. Second, in a criminal trial, fairness applied as much to theprosecution as it did to the defence. Third, it was for the prosecution, and notthe judge, to decide which witnesses should be called subject always torelevance, admissibility and to the prosecutor not abusing the process of thecourt;(2) On the evidence that the judge had heard, the Respondent was bound tobe acquitted. The additional evidence of PW8, in practical terms, would havebeen more or less worthless. At its highest, it might have shown the Respondentto have remained silent in the face of an allegation of burglary made by PW6 ata time when a response was to be expected. However, if relevant and admissibleevidence remained to be called by a prosecutor who wished to adduce it, thejudge could not prevent this unless the conduct of counsel amounted to an abuseof the process of the court. Such an example would occur where the allegationagainst a defendant clearly depended wholly on the evidence of a complainantwho had failed to support the allegation made in the charge but, in spite of this,all the remaining evidence was called by a prosecutor in the knowledge that itcould not possibly make any difference to the outcome of the trial. In suchcircumstances, the evidence would most certainly also fail the test of relevanceand it was hard to imagine that prosecuting counsel would ever engage inconduct of that kind;(3) Since it could not, on balance, be said that PW8’s evidence was114

CCAB 2003Practice & Procedureimmaterial to the central issue, it could not be said that the calling of this oneextra witness would actually have been an abuse of process. It followed that,strictly, the judge ought not to have stopped the proceedings when he did;(4) It appeared that in deciding to persist, rather than accept the stark realityof the situation, the prosecuting counsel instructed on fiat had overlooked thetrue spirit of the direction contained in the Department of Justice’s ‘Statement ofProsecution Policy and Practice’, which read, at para 13.1:Once a prosecution has been instituted, the prosecutor is under aduty to ensure that its continuation remains in the public interest.If circumstances change, or if new material comes to light, theprosecutor may have to review the prosecution. If it becomesapparent that it is no longer in the interests of justice to proceedwith the case, it should be stopped.(5) Although, rather than sitting back, nodding at counsel’s every whim, thejudge acted with commendable concern for a realistic and expeditious disposalof the case, the judge’s decision to refuse to allow PW8 to be called and toprematurely acquit the Respondent after the prosecutor had made hissubmissions, was strictly speaking a breach of principle.Result - Question posed answered in the affirmative. The judge erred instopping the proceedings before the final witness for the prosecutionwas called. Appeal dismissed. [See also Practice and Procedure: Ed]CA 545/2001Stock &Yeung JJAGall J(21.3.2003)* KevinZervos& Gary Lam# DanielMarash SC &Maggie WongCHOWChe-waiCalling or recalling of witness by judge/Discretion rarely to beexercised/Power to be sparingly exercised where neither party wishes callor recall/No duty on prosecutor to recall witness/ Issue always case specific法 官 傳 召 或 再 傳 召 證 人 - 甚 少 行 使 此 酌 情 權 - 如 控 辯 雙 方 均 不 欲 傳召 或 再 傳 召 證 人 則 法 庭 須 經 慎 重 考 慮 後 才 可 行 使 權 力 - 檢 控 人 員 沒有 責 任 再 傳 召 證 人 - 爭 論 點 始 終 視 乎 案 件 的 個 別 情 況In 1990, the Housing Authority was constructing housing blocks at TungChung and awarded a contract for that construction to a company called CheungKee Fung Cheung Construction Company Limited (‘the company ’). TheApplicant was engaged by the company as construction manager in charge of theproject. He and two others (D1 and D3) were charged in the District Court withthree conspiracies to defraud the Housing Department, which was the executivearm of the Housing Authority.The case had to do with steel bars for reinforcing concrete. The steelbars used for the project were delivered to the site in batches, each with a givennumber; and the bars were of different sizes, each denoted by their differentdiameters. All steel bars intended for use on the site had, by contract, to besubmitted for testing to a company called Castco Testing Centre Limited(‘Castco ’ ), who would test the bars for yield stress, mass density, and otherfeatures. From each batch delivered, the contractor had to submit a sample fortesting. If the test failed, the corresponding model of steel bar within the batchwas not to be used in the construction, and had to be returned to the supplier.In this case, from time to time, steel bars were encased in theconstruction without waiting for the samples to be sent for testing, so that whentests proved negative, the failed bars were not removed from the construction,let alone the site; and false documentation was engineered, and other stepstaken, to fool the Housing Department that the bars had been removed from thesite, and had not been used in the construction. At trial it was accepted thatthere had been a conspiracy to defraud, and the issue was whether the Applicant115

CCAB 2003Practice & Procedurewas party to that conspiracy.On appeal, it was submitted that there had been a material irregularity inthe failure of the judge, alternatively of the prosecutor, to recall PW2 and PW3once D1 had testified; and the failure by the judge, alternatively the prosecutor,to call a Mr Yeung (‘Yeung ’), the Housing Department Works Supervisor, whowas not called at all to give evidence. That issue arose as follows.In the course of cross-examination, the Applicant said that he had toldPW3 and Yeung that some of the failed bars had been cut and bent, and mighthave been used in the superstructure. He had gone to inform Yeung and did so,but Yeung had said that all steel bars would have to be returned. D1 said that hethen telephoned PW3, and told him the same. He did this to see whether theymight agree to the use of the failed bars in the superstructure, but PW3 said hecould not give an immediate answer. D1 said that he did this because he wantedto solve the problem in a lawful way. PW3, however, never responded. This allhappened one or two days after his first conversation with the Applicant aboutthe failed bars.This evidence did not sit well with the evidence of PW3 and PW2, orwith a statement which Yeung had made to the ICAC. PW3’s evidence was thathe had no suspicions, that he thought all the steel had been removed, and that hehad no suspicions about the bona fide of the documents. However, when askedat the end of his evidence whether, when he saw a direction dated 2 February tothe company from the Housing Department saying that batches 24 and 25 hadbeen cut without prior testing, and that they were not to be used, he felt anysuspicion, he said that he could not be sure whether he did or not.PW2, also of the Housing Department, was also alleged by D1 to haveknown that failed bars might have been used in the structure. According to thisevidence, there had been a site meeting in February 1999 attended by D1, theApplicant, PW3, PW2 and others, and from the conversation which took place,D1 inferred that Yeung had told PW2 that steel might have been used in thestructure. He said that if so, they had better be taken down. The effect ofPW2’s evidence was that he signed various documents evidencing removal ofthe bars, trusting that the removal had taken place.In his statement to the ICAC, Yeung had said that he had never receivedany request from the company to use failed steel bars in the structure.D1’s suggestion that he had spoken to PW3, and that PW2 apparentlyknew of the use of failed bars, had never been put to either witness.The day before closing addresses, the judge informed the parties that heintended to secure the attendance at court the following day of PW3 and PW2;so that these matters could be put to them. Counsel conferred, and the judgewas informed that neither side required the attendance of those two witnesses.Nonetheless, the witnesses, at the judge’s invitation, were at court the followingday. The prosecution did not recall either, and all defence counsel declined thejudge’s offer that they be recalled for the purpose of further cross-examination.Yeung was not asked to attend. The judge himself did not know of Yeung’sstatement.The Applicant accepted that the decision for a judge whether or not tocall a witness himself (or to have a witness recalled) was one within hisdiscretion. But he argued that the judge in this case erred in the exercise of thatdiscretion. He pointed to some dicta which suggested that where justicerequired a judge to put questions, he had a right and duty to do so. He referredto R v Evans, 29 January 1974, unreported, cited at page 99 of Pattenden116

CCAB 2003Practice & Procedure‘Judicial Discretion and Criminal Litigation’ 2nd ed., and Johnson v UnitedStates 333 US 46; and to R v Finta [1994] 1 RCS 701, 856 in which theCanadian Supreme Court approved of a decision of a judge to call witnesseswhere both parties to an issue refused to do so; and to R v Grant [1958] CrimLR 42.Held :(1) Although it was always possible for counsel to find a case, here andthere, in which the facts and the course of proceedings were such that the failureof the judge to intervene by himself calling or recalling a witness would be thesubject of legitimate criticism, such issues were always case specific and did notderogate from the principle, emphasised in R v Finta, that the discretion shouldrarely be exercised. The power to call a witness, or to recall a witness, whomneither the defence nor the prosecution wished to have recalled, was one whichshould be sparingly exercised;(2) In the circumstances of this case, it could not be said that the judge erredin the exercise of his discretion, given what transpired and given the nature ofthe evidence at issue. In relation to Yeung, the suggestion that the judge shouldhave called him was untenable, given that the judge did not know that he hadmade a statement. In relation to the others, counsel had specifically been askedwhether they wished to have the witnesses recalled. On the day on whichclosing submissions were delivered, the witnesses were there, ready to berecalled. The judge then re-opened the offer and told counsel precisely whythey might wish the witnesses to be recalled. Both counsel declined theopportunity to put questions. It was difficult in the circumstances to see how itcould conceivably be said that the judge or the prosecutor failed in some duty,or the court in the exercise of a discretion;(3) There was no duty on the prosecutor in the circumstances to recall eitherwitness. The prosecution was faced with the fact that there was something of anapparent conflict and that was a situation with which prosecutors were notinfrequently faced; an apparent conflict with which the defence were quitecontent to pursue their arguments, as was the prosecutor.Result - Application dismissed.CA 381/2002Stuart-MooreVPStock JAGall J(5.3.2003)*I G Cross, SCCheung Waisun& WongSze-lai#John MarraySJvFANKin-chungS 84 District Court Ordinance, Cap 336/Appeal by way of casestated/Question of law answered in favour of appellant/ Court not bound tointerfere with verdict or order of acquittal第 336 章 《 區 域 法 院 條 例 》 第 84 條 - 以 案 件 呈 述 的 方 式 上 訴 - 就 法律 問 題 的 回 答 對 上 訴 人 有 利 - 法 院 毋 須 干 預 裁 定 無 罪 的 裁 決 或 命 令Having answered in the affirmative the question posed in a Case Statedas to whether a judge had erred in law in stopping the proceedings before thelast prosecution witness was called, the Court of Appeal considered what shouldbe done.Under the procedure contained in s 84 of the District Court Ordinance,Cap 336, it was stated:An appeal shall lie at the suit of the Secretary for Justice to theCourt of Appeal against a verdict or order of acquittal, which shallinclude any order quashing or dismissing a charge for any allegeddefect therein or want of jurisdiction. Such an appeal shall relateto matters of law only and the following procedure shall applythereto:117

CCAB 2003Practice & Procedure(a)(b)(c)…………at the hearing of the appeal, whether or not the respondentappears, the Court of Appeal shall-(i)(ii)(iii)if it is satisfied that there is no sufficientground for interfering, dismiss the appeal; orreverse the verdict or order and direct that thetrial be resumed or that the accused be retriedas the case may be, or find him guilty, recorda conviction and pass such sentence on him asmight have been passed on him by a judge;andgive all such necessary and consequentialdirections as it shall think fit.The Appellant contended that if the question of law posed was answeredin the Appellant’s favour, the court would be duty-bound to reverse the verdictand direct that the trial should be resumed or, alternatively, to direct a retrial.Since the Appellant did not wish to prosecute the Respondent further, the courtwas invited to direct a retrial, and no evidence would then be offered against theRespondent. Reliance was placed in this regard upon Attorney General v IpChong-kwan and Others [1978] HKLR 141, where the Court of Appeal remitteda case to the first instance tribunal while, at the same time, expressing the stronghope that the prosecution would not proceed.Held :(1) It seemed to have been assumed in Ip Chong-kwan (above) that the courthad no choice except to remit the matter, and there was no suggestion that thisissue was ever argued;(2) It would be odd if s 84 of the District Court Ordinance deprived the courtof the same power given by s 83 of the Criminal Procedure Ordinance, Cap 221,to apply a vehicle in the nature of a proviso where it had been shown that nomiscarriage of justice had occurred, and the court was not bound, by the terms ofs 84, to make an order under s 84(c)(ii) whenever the stated question of law wasanswered in an appellant’s favour. An appeal under s 84 was, in the finalanalysis, an appeal against a verdict or an order of acquittal;(3) Since, under s 84, such an appeal related to matters of law only, itnecessarily followed, and the section required, that ‘the grounds on which theproceeding is questioned for the opinion of the court’ should be stated. Thesection therefore required the court to address, firstly, the point of law raisedand, secondly, and only then, its impact on the ‘verdict or order of acquittal’;(4) Section 84(c)(i) specifically addressed the verdict or the order ofacquittal and required the court to consider whether there was ‘sufficient groundfor interfering’ with the verdict or order. It did not follow that where the pointof law stated was decided in favour of the appellant, there was necessarilysufficient ground for interfering with the verdict or orders, and the use of theword ‘sufficient’ was no doubt deliberate. If it were otherwise, it would meanthat wherever a case stated had raised a point of law in respect of which thejudge had made an error, the court would be bound to make an order under s118

CCAB 2003Practice & Procedure84(c)(ii) even where it could be demonstrated that there were sound reasons forthe verdict or order of acquittal to stand. No sufficient ground for interferingwith the judge’s verdict of acquittal had been demonstrated.Result -Appeal dismissed.HCAL206/2002Chu J(28.4.2003)*IanMcWalters &Winnie Ho#AndrewBruce SC &Philip WongCHANTit-shauvSJMagistrates Court/Preliminary inquiry/Committal for trial/No generalduty for magistrate to give reasons裁 判 法 院 – 初 級 偵 訊 – 交 付 審 訊 – 裁 判 官 並 無 一 般 責 任 必 須 說 明理 由The Applicant sought an order of certiorari to quash the decision of amagistrate to commit him for trial in the Court of First Instance.The Applicant was charged with conspiracy to defraud on an informationlaid before a magistrate. The prosecution arose out of the short piling of theHong Kong Housing Authority’s development project at Tin Shui Wai. TheApplicant elected for a preliminary inquiry as opposed to a paper committal.The magistrate committed the Applicant for trial before the Court of FirstInstance. In giving her decision, the magistrate said simply that ‘I find that thereis sufficient evidence before me to put the defendant upon his trial for anindictable offence ’.The Applicant submitted that the committal of the Applicant was illegalas the magistrate failed to give reason for her decision, thus depriving theApplicant of the right to a fair trial.Held :(1) It was incumbent upon the Applicant to establish that there was a legalduty on a magistrate at a preliminary inquiry to give reason for the decisionwhether to commit for trial. It would not be sufficient for the Applicant to showthat it was desirable or that it was the judicial practice for reasons to be given.The issue those arose for determination in the judicial review application wasthe confined one of whether there was a duty in law for a magistrate hearing apreliminary inquiry to give reasons for the decision whether to commit for trial;(2) The role of the magistrate in a preliminary inquiry was a limited one. Hisduty was simply to decide whether the evidence before him was sufficient toamount to a prima facie case against the accused. In so doing, the magistratedid not take any final determination of fact or of law. He did not determine anyrights between the parties in the sense that he neither decided the question ofguilt nor decided whether the accused should stand trial, which was a decisionfor the prosecution. The limited role of the magistrate and the fact that therewas no appeal against the magistrate’s decision were important factors to beborne in mind when considering whether a duty arose under the law to givereasons for the decision on a preliminary inquiry;(3) The Magistrates Ordinance, Cap 227, imposed no statutory obligation togive reasons in a preliminary inquiry. The role of a magistrate at a preliminaryinquiry was limited, and he merely decided whether the accused should bedischarged or committed to stand trial, but did not determine whether theaccused should stand trial. The preliminary inquiry and the magistrate’sdecision were merely procedural steps in the criminal process. It might be that amagistrate’s decision to discharge might practically end the prosecution, butwhether or not it did remained the decision on the part of the prosecution;(4) A preliminary inquiry did not operate as a full trial. Only witnesses119

CCAB 2003Practice & Procedurenominated by the accused would testify. It was a focused hearing and themagistrate’s hearing was similarly a focused one. Upon a consideration of thestructure of Part III of the Magistrates Ordinance, the nature of committalproceedings and preliminary inquiry in particular, and also the limited effect ofthe magistrate’s decision in a preliminary inquiry, there was no basis for a dutyto give reasons after a contested preliminary inquiry to be implied under theMagistrates Ordinance;(5) As to whether a duty to give reasons for preliminary inquiry was to beimplied as a matter of common law, Lord Mustill said in R v Secretary of Statefor Home Department ex parte Doody [1994] 1 AC 531, that the law did notpresently recognise a general duty to give reasons. The authorities, however,recognised that in the interest of openness, transparency and fairness, it wasdesirable for courts to give reasons: Oriental Daily Publisher Ltd. vCommissioner for Television and Entertainment Licensing Authority (1997-98)1 HKCFAR 279, 290. The question of whether a duty to give reasons aroseunder the common law turned primarily on considerations of fairness andjustice. In the absence of a statutory requirement to give reasons, the partyseeking to argue that reasons should be given must show that it would be unfairif reasons were not given: R v Secretary of State for Home Department ex parteDoody [1994] 1 AC531, 561. The question of whether a magistrate presidingover a preliminary inquiry should be required to give reasons had to beapproached by asking whether fairness and justice demanded that an additionalsafeguard should be built into the procedure contained in Part III of theMagistrates Ordinance, Cap 227, by requiring the giving of reasons;(6) A preliminary inquiry was a focused hearing and the evidential or legalissues canvassed were well identified and within narrow compass. The broadbasis on which the outcome was based was unlikely to be missed even withoutthe giving of reasons. That was particularly so where the parties were legallyrepresented. There was additionally no right to appeal the magistrate’s decision.The benefit of enabling the parties to exercise their right of appeal was notrelevant. Given the narrow compass within which the preliminary inquiryoperated and that the magistrate was not called upon to make findings of factand law, the risks of the decision being made on improper grounds was not suchas to require additional safeguard through imposing a duty to give reasons;(7) The importance of transparency and openness of the process had to beviewed against the restrictions on reporting of committal proceedings imposedby s 87A of the Magistrates Ordinance, Cap 227. Section 87A(7) set out adetailed list of matters that might be reported of committal proceedings. Theintention was clearly to enable the public to be informed only of the bare bonesof committal proceedings. Whilst the list included the decision of the magistrateto commit the accused for trial and the decision on the disposal of the casewhere an accused was not committed, it did not extend to the evidence andissues at the hearing. The restrictions on reporting under s 87A might beundermined if magistrates hearing preliminary inquiry had to give a reasoneddecision;(8) In committal proceedings, openness in the administration of justice andpublic confidence in the process were generally achieved by the presence of thepublic as well as the press at the inquiry. The public interest in transparency andopenness of the criminal process did not further require examining magistrates atpreliminary inquiry to invariably give reasons for their decisions. The benefitsand purposes to be gained from a duty to furnish reasons for decisions made atpreliminary inquiry were minimal. Although the main benefit lay in enabling theparties, particularly the accused, to have an understanding of the results of thepreliminary inquiry, the basis of the decision did not have to be gauged from areasoned decision, but could be gauged from the transcript of the inquiry. In120

CCAB 2003Practice & Procedurereality, similar to an examining magistrate in extradition proceedings and ajudge presiding over a voire dire, there was very little for a magistrate hearing apreliminary inquiry to say or explain;(9) The Applicant had failed to make out a case that it was insufficient toachieve fairness and justice without the magistrate giving reasons for thedecision made after a preliminary inquiry. That being so, there was no basis forthe common law to supplement the statutory frame work and procedure byimplying a general duty to give reasons. The decision was not illegal.Result - Notice of Motion dismissed. Costs to be taxed, if not agreed.Prosecutor / ProsecutionsCA 522/2000Stuart-MooreVPStock JASeagroatt J(2.5.2003)*DG Saw SC &Winston Chan#F Whitehouse(1)R Donald (2)A Raffell (3)(1) CHANMan-lok(2) LEUNGShing-cho(3) LEUNGWai-lunJudge canvassing issues with counsel before final speeches/ Emotivestatements by prosecutor/Careful consideration required before onecounsel impugns integrity of another法 官 與 律 師 在 最 後 陳 詞 前 詳 細 討 論 問 題 – 檢 控 人 員 作 出 情 緒 化 的 陳詞 – 律 師 指 責 另 一 方 律 師 的 誠 信 前 須 予 審 慎 考 慮said:In disposing of appeals against conviction for manslaughter, the court(1) Judges should, particularly in complex cases, identify issueswhich it would be prudent to canvass with counsel before thesumming up. To take two common examples, such mattersmight include whether to leave a particular issue to the jurywhich might be controversial, or a discussion as to how it wasintended to direct the jury on a legal topic of some difficulty.When such questions were canvassed, it was generallyimportant that this was done prior to counsel’s speeches so thatcounsel would know how the judge proposed to approach thoseissues and so that they would have the opportunity to commenton them should they think fit to do so. It was said in R vWhitfield (1984) 79 Cr App R 36, 40:It is often convenient before counsel address thejury for the judge to hear legal argument in theabsence of the jury and to indicate to counsel theway in which he will direct the jury upon the law.But this is better done at the conclusion of the casefor the defence when all the evidence has been led.(2) It was somewhat disturbing that a number of highly emotivestatements had been made by the prosecutor at trial both incross-examination and in his final speech. In an emotionallycharged trial such as this such comments were more thanusually out of place;(3) When counsel saw fit to make an allegation which was likely toreflect on the integrity of other counsel, even when doneinferentially, this should only be done after the most carefulconsideration based upon a proper investigation of all thecircumstances.121

CCAB 2003Prosecutor / ProsecutionsCA 81/2003Stuart-MooreACJHCBeeson &McMahon JJ(2.12.2003)*Paul Madigan#Peter DuncanSHEKKa-kinCross-examination of defendant/Prosecutor making use of undisclosedmaterial/Court preventing cross-examination/ Permissibility of crossexaminationas to credit/Material used going to proof of general issue盤 問 被 告 人 – 檢 控 人 員 採 用 未 經 披 露 的 資 料 – 法 庭 阻 止 盤 問 – 容許 就 可 信 性 進 行 盤 問 – 所 採 用 的 資 料 可 作 為 一 般 爭 論 點 的 證 明The Applicant was convicted of conspiracy to defraud, contrary tocommon law.On appeal, complaint was made of the ‘material irregularity’ that theprosecutor, in cross-examination, relied upon material purporting to confirm thatin 1999 the Applicant had been a director of another company which, like thecompany in his case, dealt in ‘Loco London gold’. It was not clear why thematerial had not been disclosed to the defence, or put in as unused material.The prosecution stance was that the document was not intended to be probativeof guilt, but it was to be used in cross-examination to destroy the Applicant’scredibility.Held :(1) The judge rightly considered the prosecutor’s submission that thedocument would go to credit only as disingenuous, because the practical effectof producing it would not only affect the Applicant’s credibility but also beprobative of guilt. She directed herself to ignore the prejudicial effect ofknowing the Applicant was a director of another named company, as no suchevidence was adduced. Thereafter, in line with defence counsel’s submission onhow she should treat the material, she took into account only that the Applicantwas a director of another limited company in 1999, and had no involvement inor knowledge of that company;(2) It was an important principle of practice which required the prosecutionto adduce all the material it intended to rely on before the prosecution case wasclosed: R v Rice [1963] 1 QB 857;(3) Cross-examination was permitted on unused material which went tocredit only: R v Halford (1978) 67 Cr App R 318. If such material, in addition,was undisclosed a separate issue might arise as to whether a court mightintervene to prevent its being used. It was possible that if there was a goodreason for the non-disclosure of the material the court would permit crossexaminationof a defendant as to his credit on material that was both unused andundisclosed. The judge correctly decided that the particular material wentbeyond providing a test of the defendant’s credit but went to proof of the generalissue;(4) The judge dealt with the problem correctly. She decided that the materialshould be excluded. She ignored any possible prejudice to the Applicant whichmight have arisen from any irregular use of the material. In making thatjudgment she took into account only the remaining part of the cross-examinationwhich was unexceptional and which was not objected to by defence counsel.She strictly limited the facts she took from the material, which had been forcedto her attention.Result - Leave to appeal granted, but appeal dismissed.122

CCAB 2003ProvisoProvisoFACC 6/2002Li CJBokhary &Chan PJJ &Sir NoelPower & SirGerardBrennan NPJJ(9.4.2003)*Kevin Zervos& Simon Tam#GaryPlowman SC&Jeffrey FentonYUENKwai-choiLies/Principles to be applied with common sense/Lies usually affectcredibility only/Use of lie by prosecution/Circumstances requiring liesdirection/Proviso rarely appropriate in absence of necessary liesdirection/Test for application of proviso謊 言 - 原 則 可 按 常 理 予 以 應 用 - 謊 言 通 常 只 影 響 可 信 性 - 控 方 利 用謊 言 - 須 就 謊 言 作 出 指 引 的 情 況 - 但 書 甚 少 適 宜 用 於 有 需 要 卻 沒 有作 出 謊 言 指 引 的 個 案 - 驗 證 但 書 是 否 適 用 的 標 準The Appellant was convicted with D1 after a trial in the Court of FirstInstance of trafficking in a dangerous drug.The Appellant’s appeal against conviction having been dismissed by amajority in the Court of Appeal, the Appeal Committee granted leave to appealon the ground of substantial and grave injustice.The appeal involved two issues: first, whether, in the circumstances ofthis case, the omission of the trial judge to give a ‘lies’ direction to the jury inrelation to the Appellant’s case amounted to a material irregularity; and, if it did,whether the majority of the Court of Appeal was justified in applying theproviso under s 83 of the Criminal Procedure Ordinance, Cap 221, in upholdingthe conviction.The Appellant admitted possession of the travelling bag and the suitcasewhich contained the drug. The issue at the trial was whether he had knowledgeof the contents thereof. The burden was on him to rebut, on the balance ofprobabilities, the presumption arising from s 47(2) of the Dangerous DrugsOrdinance, Cap 134, to the effect that he knew what was contained inside thebag and the suitcase. His evidence and hence credibility were of criticalimportance.The case was complicated by two unusual features which had a bearingon the Appellant’s evidence. First, the informer who gave information to thepolice about the drug transaction was called as a defence witness for theAppellant. He admitted that he was involved in the transaction and that it washe who had made use of the Appellant to make delivery of the drug for himwithout telling the Appellant what was really contained in the bag and thesuitcase. His dealing with the Appellant, particularly his contact with theAppellant on the day of the transaction, was relevant to the issue of knowledgeon the part of the Appellant. Second, D1 was permitted by the trial judge toadduce rebuttal evidence after the Appellant had testified in a way which wasdetrimental to D1’s case. The rebuttal evidence, if accepted by the jury, wouldtend to contradict that part of the evidence given by the Appellant with regard tohis contact with the informer on the day in question.Held :(1) What use a jury could make of lies told by an accused and what directiona trial judge should give to the jury were questions which had been subject tomuch judicial discussion. These questions were frequently encountered byjuries, as sole judges of fact, in criminal trials. The principles in this area of lawmight, depending on the circumstances of each case, be applied in a commonsense manner and in simple terms so that they were easily understood by thejury;(2) In almost every criminal trial, the jury were asked to assess the credibilityof witnesses and to decide what evidence they were to rely on as the basis for123

CCAB 2003Provisotheir verdict. There might be many reasons for the jury not to rely on theevidence of a witness. It was not necessarily because the witness had lied. Buteven if he had lied, there might be different reasons for not telling the truth.There was, however, a natural tendency that if the jury considered that a witnesswas not telling the truth on one aspect of his evidence, they might not believehim in respect of other aspects. This tendency had a much greater impact on thecriminal process when it was the accused who had testified in the witness box.If the jury considered that the accused was not telling the truth on one aspect ofhis case, there was a tendency that they might infer that he had lied because hewas guilty of the charge before the court. This ‘impermissible process ofreasoning ’, though sometimes natural enough for a layman, was to be avoided ifthe accused was to have a fair trial;(3) Lies usually affected credibility only. As a matter of law, a lie in itselfcould never prove guilt. That was the starting point for any discussion orsumming-up on the question of lies. It was the risk of improper use by the juryof an accused’s lie that the law wished to guard against. As Lord Devlin said inBroadhurst v R [1964] AC 441, 457:It is very important that a jury should be carefully directed uponthe effect of a conclusion, if they reach it, that the accused islying. There is a natural tendency for a jury to think that if anaccused is lying, it must be because he is guilty, and accordinglyto convict him without more ado. It is the duty of the judge tomake it clear to them that this is not so.(4) A rule of practice (which was sometimes referred to as the Broadhurstdirection) had thus developed through the years requiring a trial judge to remindor even warn the jury, where there was a risk that they might wrongly infer guiltdirectly from their conclusion that the accused was not telling the truth, that theymust not draw such an inference and that there might be an innocent explanationfor his lie. This was a rule of practice which was designed to avoid a risk ofmiscarriage of justice: Bromley v R (1986) 161 CLR 315;(5) Although, as a general rule, a lie could not in itself be used as proof ofguilt, there were circumstances in which the prosecution might want to use a lietold by an accused to establish or assist the prosecution’s case or to strengthenan inference of guilt against him. A lie might be used, for example, to providecorroboration for an accomplice’s evidence or to support identificationevidence. In such circumstances, the law required that certain criteria must bemet before a lie was permitted to be used in such a way. These criteria were setdown in R v Lucas [1981] QB 720. Briefly, these were: it must be a deliberatelie, relating to a material issue in the case; there was no innocent explanation forthe lie and it was a lie which was either admitted or proved by independentevidence;(6) It must be borne in mind that the set of criteria in Lucas involved a casewhere it was sought to make use of a proved untruth or lie as amounting tocorroboration of an accomplice’s evidence. Hence, it was necessary, forexample, to have the 4th requirement, namely, that the lie must be admitted orproved by evidence other than the accomplice’s evidence which it was sought tocorroborate: R v Chong Chak-on [1995] 2 HKCLR 226; Edwards v R (1993)178 CLR 193;(7) In view of the circumstances in which the criteria were set, a ‘full Lucasdirection’ was not always necessary. Kennedy LJ in R v Burge and Pegg [1996]1 Cr App R 163, at 173 summarised the circumstances in which a Lucasdirection was usually required. However, he added that ‘where there is no needfor such a direction (as in the normal case where there is a straight conflict of124

CCAB 2003Provisoevidence), it will add complexity and do more harm than good ’ ;(8) In the great majority of cases where the prosecution contended that anaccused was telling lies in the witness box, a direction on lies was inappropriate:R v Barnett [2002] 2 Cr App R 168, 173. In cases where the rejection of anyexplanation given by an accused almost necessarily left the jury with no choicebut to convict as a matter of logic, or where the jury were asked to decide on thetruth of what an accused said on a central issue in the case, the usual directionon the burden and standard of proof would normally be sufficient: R v Dehar[1969] NZLR 763, 765; R v Man Bing-chou [1993] 2 HKCLR 71; R vLiacopoulos and Others, unreported, August 31, 1994, referred to in R v Burgeand Pegg [1996] 1 Cr App R 163. In these situations, there was no danger ofimproper use by the jury of any lie told by the accused and there was no risk ofmiscarriage of justice;(9) Where there was a risk that the jury might regard lies told by an accusedas probative of his guilt, as in the case where the prosecution addressed the juryon the basis that the accused had lied in what he said and that the lie wassupportive of the prosecution’s case or where there was a danger that the jurymight in any way misuse the lie, it was necessary to give a direction on lies. Inconsidering whether a direction on lies should be given, particularly when thetrial judge entertained a doubt as to what he should say to the jury in case hedecided to give such a direction, he should first raise the matter with counsel andthen give the direction unless it was clear that such a direction was not onlyunhelpful but might also mislead the jury. In this connection, it was apposite toconsider the advice of Judge LJ in R v Middleton, unreported, March 23, 2000 atparagraph 22:We suggest that when, at trial, the question arises, should aLucas direction be given or should it not, it will usually be moreuseful to analyse the question in the context of the individual caseby examining the principles rather than by laboriously trawlingthrough hosts of reported and unreported cases and learnedcommentaries.(10) Where a direction on lies was required, the jury must be directed that alie in itself could never prove guilt and that they could not use the lie tostrengthen or establish the prosecution’s case unless they were satisfied that thelie was told because ‘he was unable to account innocently for the evidence thathas been given against him ’. Edwards v R (1993) 178 CLR 193, 199; or ‘thereis no innocent motive for the lie ’: R v Goodway (1994) 98 Cr App R 11, 15.The jury should also be reminded that there might be innocent reasons for the lieother than consciousness of guilt: HKSAR v Mo Shiu-shing [1999] 2 HKLRD155, 168. The terms of the direction must, however, ultimately depend on thecircumstances of each case. In deciding what language to adopt, a trial judgeshould consider the use to which the lie in question was intended to be put ormight be put, and the possible effect it might have on the accused’s case, alwaysbearing in mind that the purpose of such a direction was to avoid possiblemisuse of lies by the jury. Reference could be made to the specimen directionsapproved by the Court of Appeal in HKSAR v Mo Shiu-shing [1999] 2 HKLRD155, 169;[The court concluded that the trial judge had erred on the facts of this case infailing to give a lies direction in respect of the Appellant’s case. It thenconsidered whether the majority had erred in its decision that even if the judge’somission to give a lies direction was in error, it was an appropriate case for theapplication of the proviso under s 83(1) of the Criminal Procedure Ordinance,Cap 221.]125

CCAB 2003Proviso(11) The test for an application of the proviso was whether a hypotheticalreasonable jury, properly directed, would inevitably have come to the sameconclusion or would no doubt have convicted. Although the test anticipated theview of a hypothetical reasonable jury, the view of the jury which had tried thecase must be a factor - albeit not conclusive - to be taken into account inconsidering what the view of the hypothetical reasonable jury would be. Thefact that a particular jury only reached their verdict by a majority of 5 to 2 wouldindicate that two jurors had entertained some doubts about the guilt of theaccused. In the present case, the majority verdict would mean that at least twojurors had considered that the Appellant’s defence might be true;(12) It was not surprising that the attitude of the Court of Appeal had been oneof reluctance to apply the proviso where a lies direction was required but wasomitted by the trial judge: R v Mok Lun Cr App 502/93; R v Ho Che-chung[1994] 2 HKC 148; R v Wai Wing-sang and Another [1992] 2 HKCLR 23. Alies direction was aimed at warning the jury not to adopt an impermissiblereasoning process. Where this was required either as a matter of law or as amatter of practice, and if the judge had failed to give such a direction, there wasa risk that the jury might adopt such a reasoning process, and, if so, they mightnot have given the accused’s case a fair assessment. This was particularlydetrimental to a defendant (as the Appellant in this case) who had the burden torebut a statutory presumption on the balance of probabilities. His credibilitywas clearly of crucial importance and where credibility was an important issueand the jury was left with an inadequate or incorrect direction on credibility, theappellate court was reluctant to apply the proviso: White v R (1997) 53 WIR293; Barrow v The State (1998) 52 WIR 493;(13) The fact that trial counsel did not raise objection when the trial judge hadfailed to give a lies direction in his summing-up when such a direction wasrequired was only a factor to be taken into account.Result - Appeal allowed. Retrial ordered.Per cur -Some of the difficulties which had arisen in many of the previouscases on what direction should be given to the jury were complicatedby the use of such terms as: a Broadhurst direction, a Lucasdirection, a full Lucas direction. These terms were sometimesconfusing as slightly different meanings had been attributed to themin different cases. It was preferable simply to call it ‘a liesdirection ’.CA 340/2001Stuart-MooreVPStock JALugar-MawsonJ(1.4.2003)*D G Saw SCJonathan Man#Michael PollLUITsi-faiHomicide/Judge directing jury that only verdicts open were murder ormanslaughter/Judge required to leave verdict of acquittal notwithstandingno prospect of such save in wholly exceptional circumstances殺 人 罪 - 法 官 指 引 陪 審 團 可 供 選 擇 的 裁 決 只 有 謀 殺 或 誤 殺 - 即 使 被告 人 沒 有 機 會 獲 裁 定 無 罪 , 法 官 仍 須 容 許 有 可 能 如 此 裁 定 , 情 況 完全 例 外 者 則 作 別 論The Appellant was convicted after trial of murder.On appeal, it was submitted that the judge had erred in law in directingthe jury that it was only open to them to convict of murder or of manslaughter.It was said that as the Appellant had entered a plea of ‘Not Guilty’, a thirdoption should have been left open to the jury, entitling them to acquit altogether.The passage of which complaint was made was this:Before I finish, let me tell you something about the verdict. Thiscase is unlike the ordinary case because of the course it has taken.126

CCAB 2003ProvisoThe only possible verdicts that you can return in this case is eithera verdict of guilty of murder or a verdict of guilty of manslaughter.There is no other verdict that you can return in this case.The Appellant contended that this was a direction to convict, albeit thatthe jury were left to decide between murder and manslaughter. The Respondentsubmitted that as no issue had ever arisen on the facts of this case that theAppellant was at least guilty of manslaughter, the directions given by the judgewere entirely appropriate.Held :(1) In R v Gent (1989) 89 Cr App R 247, the trial judge had summed up tothe jury with a direction to convict based upon the Appellant’s evidence whichwas said by the judge to have amounted to an admission that he had agreed witha co-conspirator to supply amphetamines to another. The English Court ofAppeal said, at 250:Whether or not there is still a category of rare cases where thejudge is justified in directing a conviction, it is perhapsunnecessary to decide. There is no reference to any such categoryin the speeches of the majority in Director of Public Prosecutions vStonehouse (1977) 65 Cr App R 192, [1978] AC 55; and theexistence of such a category is inconsistent with the thrust of LordKeith’s speech at p. 232 and p. 94 respectively.Our own view would be that, if such a category exists at all, it mustbe confined to wholly exceptional cases where, for example, therehas been something in the nature of a formal admission of guilt.The fact that on the evidence, including the evidence of thedefendant himself, only one verdict is possible, does not justify thejudge in directing the jury to convict. If the judge takes the viewthat the defendant has, in the course of his evidence, admitted hisguilt, then it is always open to him to give the defendant anopportunity, in the absence of the jury, to change his plea. But ifhe maintains his plea, the defendant is entitled to the verdict of ajury, even though in the view of the judge, an acquittal would beperverse.Thus it is the function of the jury to assess the evidence and fromthat evidence to determine the facts. If the evidence isoverwhelmingly one way, then their task will be easy, but itremains their task. The confusion seems to arise from equatingoverwhelming evidence with the existence of the facts necessary tofound a conviction; but the two are not the same. Overwhelmingevidence is likely in the nature of things to lead to the jurydetermining that the necessary facts for a conviction exist, but thatdetermination is a matter for them, not the judge.Of course the judge may make his view clear. He may use the sortof language that was suggested by Lord Salmon in Director ofPublic Prosecutions v Stonehouse at p. 219 and p. 80. But hislanguage, however strong, must fall short of a direction to convict.He must, in the words of Lord Edmund-Davies at p. 226 and p. 88,‘trust the jury to play their constitutional part in the criminalprocess.’(2) The judgment in R v Gent made plain that in such a case as the presentone, where there was nothing ‘in the nature of a formal admission of guilt’ , a127

CCAB 2003Provisodirection to convict should not be given, whatever the strength of the evidenceagainst the defendant. The court expressed the strength of this sentiment thus:One would have thought that Director of Public Prosecutions vStonehouse (supra) was clear enough. But the message has not yetgot home. Cases continue to arise where judges are directingjuries to convict. Challinor (1985) 80 Cr App R 253 was such acase. Thompson (1984) 79 Cr App R 191, [1984] 1 W L R 962was another. Gordon, The Times, May 11, 1987, was a third. Inall these cases it was held that the direction to convict was amaterial irregularity. The present is another case in the sameseries.The appellant’s evidence in the witness box may have been thestrongest possible evidence on which the jury could find that hewas a party to the conspiracies with which he was charged. But itwas still only evidence of guilt. The appellant was entitled to havethe verdict of the jury on the evidence, not the view of the judge.Accordingly there was a material irregularity in respect of allthree counts.(3) If there was a category of case in which the judge was entitled to direct ajury to convict, it had to be confined to wholly exceptional cases where, forexample, there had been something in the nature of a formal admission of guilt.There were sometimes cases where the jury was made aware of a plea of guiltyto an alternative offence which the prosecution had declined to accept. Inmurder trials, it was not unusual for a defendant who had pleaded guilty tomanslaughter on his arraignment for murder to make the fact that he hadformally accepted his guilt to manslaughter known to the jury. Provided nothingwas said during the trial which suggested that the plea might have beenequivocal, the judge would in such circumstances be entitled to leave to the jurythe simple choice of convicting the defendant of either murder or manslaughter.The same would equally apply in other cases involving an alternative plea beingentered to the main allegation on the indictment, for example, where the jurywas informed that a defendant had pleaded guilty to handling in the alternativeto theft, or theft in the alternative to robbery or burglary, or indecent assault inthe alternative to rape;(4) Anything short of a plea of guilty to a less serious alternative offencewhich the prosecution had not accepted or a formal admission under s 65C ofthe Criminal Procedure Ordinance which removed any vestige of a defence,would invariably mean that issues of fact, however clear-cut they might seem tobe, must be left to the jury to decide. Even where the evidence had been all oneway, it nevertheless remained the task of the jury to decide whether theprosecution had proved the facts which must be established before they couldconvict. The function of the judge, by contrast, was to direct the jury on the law,including the ingredients which constituted the offences set out on theindictment, and as to the facts which must be proved to establish them;(5) It was open to a judge in appropriate circumstances to instruct a jury thata defence which had been advanced was not a defence in law, or to suggest to ajury that there was no dispute as to an element of an offence. What a judge mustnot do was to make a deduction from the evidence that a defendant was in effectadmitting guilt and, on that basis, direct a jury to convict. Conclusions arrivedat from the evidence, no matter how strong that evidence might have been, werematters for the jury to decide. In this sense, it was vital that evidence whichmight well be described as ‘all one way’ should not be confused with a formaladmission of guilt;128

CCAB 2003Proviso(6) Taking the facts of the present case, there had been no formal admissionof guilt. There was an evidential admission in which the Appellant had made nopretence that he bore responsibility for the killing and the manner in which itwas carried out. There was no express admission that the killing was‘unlawful’ . The judge was not entitled to direct the jury in terms which did notleave open the possibility, however theoretical, of acquitting the Appellantaltogether. As such, there had been a material misdirection. There was,however, no prospect of an acquittal even had the jury been properly directed,and the proviso in s 83(1) of the Criminal Procedure Ordinance, Cap 221, wouldbe applied.Result - Appeal dismissed, on the application of the proviso.CA 405/2002Stuart-MooreVPStock JALunn J(19.12.2003)*John ReadingSC& Gavin Shiu#WNC Stirling& ChanChung-mingTSOIChak-faiConspiracy to defraud/Co-conspirators testifying for prosecution underimmunity/Witnesses speculating about state of mind of accused/Test foradmissibility of parol evidence串 謀 詐 騙 罪 – 共 同 串 謀 者 在 獲 豁 免 起 訴 下 為 控 方 作 供 – 證 人 就 被告 的 心 態 作 出 揣 測 – 口 頭 證 據 可 否 獲 接 納 的 驗 證 標 準The Applicant was convicted by a jury of 12 counts of conspiracy todefraud, contrary to common law and s 159C(6) of the Crimes Ordinance, Cap200.Two named co-conspirators, Poon Yuk-lan (‘Poon’) and Tam Shui-yee(‘Tam’) gave evidence as immunised witnesses for the prosecution. They gavemost of the circumstantial evidence which the prosecution relied upon toestablish the Applicant’s involvement in the conspiracies in evidence. Eachgave opinions about the Applicant’s state of knowledge in relation to fraudulentinvoices and fraudulent letters of credit.On appeal, it was submitted that the opinions of Poon and Tam wereinadmissible. The jury should have been directed to disregard them. Thejudge’s failure to do that left a danger that the jury might have drawn aninference based on these opinions.Held :(1) The judge should not have allowed the witnesses to give replies toquestions calling for expressions of opinion or guesswork on their part;(2) Although the witnesses undoubtedly had every reason to have strongsuspicions that the Applicant was a knowing party to the publication ofnumerous documents over many months, this did not justify the introduction ofspeculation on their part, however overwhelming the inference might have beenwhich they seemed to have drawn;(3) In Archbold 2003, at para 10-64, the test of admissibility in respect ofopinion evidence was said in general to be that:Parol evidence is not admissible with regard to anything notimmediately within the knowledge of the witness; he must speak offacts which happened in his presence, or within his hearing. Thisrule excludes both hearsay and the expression of opinion orbelief.(4) The failure of the judge to warn the jury that expressions of belief byPoon and Tam about the Applicant’s state of knowledge amounted to merespeculation and should be ignored, when this was the central issue in the case,129

CCAB 2003Provisowas a material irregularity. However, in view of the strength of the evidenceagainst the Applicant, no miscarriage of justice had actually occurred.Result - Leave to appeal granted. Appeal dismissed, upon application of theproviso under s 83 of the Criminal Procedure Ordinance, Cap 221.Public JusticeMA1219/2002McMahon DJ(7.3.2003)*Polly Wan#D Tolliday-WrightMAKHSSLANTrajan VahePerverting the course of public justice/Ingredients of offence/ Right andduty of police to arrest those reasonably suspected of crime/Propriety ofarrest not affected by subsequent acquittal破 壞 司 法 公 正 - 犯 罪 要 件 - 警 察 有 權 利 亦 有 責 任 拘 捕 合 理 地 被 懷 疑犯 罪 的 人 - 即 使 被 捕 者 其 後 被 裁 定 無 罪 亦 不 影 響 拘 捕 行 動 的 恰 當 性The Appellant was convicted after trial of an offence of doing an acttending and intended to pervert the course of public justice, contrary to commonlaw, and an offence of resisting a police officer in the due execution of his duty.On appeal, complaint was made, inter alia, of the inadequacy of evidenceto support the offence of perverting the course of justice. It was also submittedthat the Appellant’s arrest for the second charged offence of resisting a policeofficer in the execution of his duty was only proper if the first charged offencewas properly made out at trial, and if it were not, a person could resist any sucharrest with impunity.Held :(1) The common law offence of perverting the course of justice was madeout when it was proven that the defendant performed an act which had atendency to and was intended to interfere with the course of public justice: R vLalani [1999] 1 Cr App R 481;(2) An act directed towards preventing a witness providing information tothe police during the course of an investigation was capable of satisfying thiscriterion and it was sufficient even if the course of justice had arrived only at thestage of police investigation and that the act involved only might interfere withthose investigations: R v Selvage and Morgan [1982] QB 372; R v Rafique[1993] QB 843. The facts as found by the magistrate were sufficient to provethe offence;(3) The right and duty of a police officer acting in the proper execution ofhis duty was to arrest persons he reasonably suspected of having committed anoffence. Whether or not the arrested person was subsequently convicted of thatoffence did not add to or detract from the propriety of the arrest.Result - Appeal dismissed.130

CCAB 2003Public JusticeCA 510/2002Ma CJHCStuart-MooreVPBeeson J(10.11.2003)*Kevin ZervosSC & GaryLam#Gerard McCoySC & BernardChungWONGShing-yim,Peter&18 OthersPerverting the course of public justice/Elements of offence/ Course ofjustice a reference to curial proceedings/Link between act andproceedings/Actus reus and mens rea of offence破 壞 司 法 公 正 - 犯 罪 要 件 - 司 法 公 正 指 法 庭 的 法 律 程 序 - 作 為 與 法律 程 序 之 間 的 連 繫 - 犯 罪 行 為 與 犯 罪 意 圖The Applicants, who were at the material time employees of the UrbanServices Department (‘USD’), were convicted after trial of the offence ofconspiracy to pervert the course of public justice, contrary to common law ands 159A of the Crimes Ordinance, Cap 200, and punishable under s 159C of theCrimes Ordinance, Cap 200.The Applicants were all members of a hawker control team whichoperated at Yan Oi Court, a busy thoroughfare in Kwun Tong. The prosecutionalleged that between May 1997 and March 1999, the Applicants firstpredetermined the number of arrests that would be made each day in advance ofany arrest operation and, furthermore, that arrests would be carried out ondesignated hawkers. This scheme was communicated to representatives of thehawkers so that when an arrest operation was being carried out, arrestees wouldsimply present themselves to be arrested and would ‘go quietly’. The arresteeswould only be licensed hawkers, which meant that they were more likely tosecure the return of any seized goods whereas, in the case of unlicensedhawkers, their seized goods would inevitably be confiscated. As the arrestswere pre-arranged, there was no real arrest as such. That created a problem inthat there had to be some formal record of the arrest. The prosecution allegedthat an officer would be nominated randomly and his name written into theseforms even though the named officer was not the officer who carried out therelevant arrest. This meant that the arrest forms contained false particulars.Seizure forms, supposedly containing a record of seized items following arrest,were completed by the Applicants knowing that they were inaccurate or theywere reckless as regards the accuracy thereof. The prosecution alleged theseforms did not record at all the goods that were seized, if any goods were seizedin the first place. All that took place regarding the Applicants and the hawkersat Yan Oi Court was said to be a ‘charade’.In convicting the Applicants, the judge held that their activities inenforcing the law against hawkers came within the course or administration ofjustice. He said:It is also obvious that each of the members of J Squad, trained andexperienced as they were, knew that they were engaged in theadministration of public justice. The administration of justice is notconfined to the processes of adjudication. It begins well before thattime.On appeal, it was submitted, inter alia, that the judge wrongly directedhimself on the law regarding the common law offence of perverting the courseof public justice. It was said that the course of administration of justice wasreferable only to curial proceedings, in other words, proceedings before a courtor some other tribunal whose function was to see the adjudication of the matterbrought before it, whether criminal or civil.Held :(1) As succinctly stated by the authors of Archbold: Criminal Pleading,Evidence and Practice 2003, broken down to its constituent parts, the commonlaw offence of perverting the course of public justice was committed where aperson or persons:131

CCAB 2003Public Justice(a)(b)(c)(d)acted or embarked upon a course of conduct;which had a tendency to; andwas intended to pervert;the course of public justice.(2) The rationale of this offence, which was one against public justice, wasto criminalise acts or conduct which might result in miscarriages of justice orwhich might result in defeating the ends of justice. Thus rationalised, the natureof the offence must necessarily be a wide and general one, encompassing anumber of possible situations;(3) The phrase ‘the course of justice’ was one that was directed to courts oflaw and other tribunals which had the function of adjudicating on or determiningdisputes. In criminal proceedings, it was the determination of guilt orinnocence. The phrase referred to curial proceedings, by which was usuallymeant courts of law, but was not restricted to such. It could equally apply toarbitrations: R v Vreones [1891] 1 QB 360;(4) In determining whether an act or conduct tended to pervert the course ofpublic justice, regard inevitably had to be had to the effect on curialproceedings. It was not necessary that such curial proceedings were actually inexistence at the time of the relevant act or conduct or whether such curialproceedings ever took place at all. It was sufficient if such proceedings wereimminent, probable or even possible at the time of the relevant act or conduct: Rv Rogerson (1992) 174 CLR 268. It was therefore no bar to a charge ofperverting the course of public justice that the relevant curial proceedings hadnot yet begun. The charge was often appropriate where there had been someacts committed during the course of police investigations. Even where policeinvestigations had not yet begun, it was possible that acts or conduct mightpervert the course of public justice: R v Rafique [1993] QB 843;(5) Though, as a matter of timing, it was not necessary that the relevant actor conduct under scrutiny be perpetrated at a time when curial proceedings werein existence, there must nevertheless be a discernible link between the act orconduct and any possible or actual curial proceedings;(6) In some cases there had been some dicta to the effect that policeinvestigations were somehow also a part of the course or administration ofjustice: Chau Au-shu v R [1981] HKLR 289, R v Selvage [1982] 1 QB 372. Thecases proceeded on the basis of the importance of the link between the act orconduct under scrutiny and possible curial proceedings. The investigation mustbe connected to proceedings that might be brought;(7) The second important feature of the offence was that the actus reusinvolved an act or conduct which had a tendency to pervert the course of publicjustice. The tendency must be a clear or manifest one. That said, all that neededto be proved was a tendency. It was unnecessary to prove either that therelevant tribunal was or would actually have been misled;(8) The third feature was the requisite mens rea of the offence. It wasinsufficient for the prosecution merely to prove the intention to do the act orembark on the conduct complained of. There had to be an intention to pervert.This meant that when doing the act or embarking on the course of conductcomplained of, the accused must also have known or contemplated thepossibility of curial proceedings so that, in doing what he did, he would haverealised that such act or conduct would have the manifest or clear tendency topervert the course of public justice or that he intended this to be the effect;132

CCAB 2003Public Justice(9) The concept of perverting the course of public justice really just meantthe deflection, frustration, impairment or hindrance of the ability of a court ortribunal in any actual, imminent, contemplated or possible curial proceedings, toadminister justice;(10) Such errors of law as might have crept into the judge’s Reasons forVerdict were ultimately insignificant in the context of the facts of the case. Ifanything, the judge’s approach to the law signified a more stringent test for theprosecution to satisfy. The Applicant was unable to point to any obvious errormade by the judge consequent upon his understanding of the law.Result - Applications dismissed.MA 39/2003Beeson J(28.11.2003)*B M Ryan& Gary Lam#Cheng HuanSCJP Chandler &Lawrence Hui(1)Lawrence LokSC& Allen Lam(2)(1) TSENicholas(2) LAUChi-waiConspiracy to pervert the course of public justice/Elements ofoffence/Obvious activity not required/Informed acquiescence sufficient/Nodistinction to be drawn between common law and statutory conspiracy串 謀 破 壞 司 法 公 正 – 犯 罪 要 件 – 無 須 證 明 有 明 顯 的 犯 罪 活 動 – 具備 知 情 的 默 許 已 足 夠 – 普 通 法 串 謀 罪 及 法 定 串 謀 罪 兩 者 並 無 分 別The Appellants were convicted after trial of an offence of conspiracy topervert the course of public justice, contrary to common law and s 159A of theCrimes Ordinance, Cap 200.The particulars of the offence alleged that the Appellants conspired withShing Kwok-ting and Chow Chu-fai to pervert the course of public justice byallowing Shing Kwok-ting to falsely represent himself, in substitution forNicholas Tse, as the driver of a private car in the police investigation of a trafficaccident involving that private car which took place in Cotton Tree Drive on 23March 2003.The relevant part of s 159A of the Crimes Ordinance, Cap 200, stated:If a person agrees with any other person or persons that a courseof conduct shall be pursued which, if the agreement is carried outin accordance with their intention, either (a) will necessarilyamount to or involve the commission of any offence or offencesby one or more of the parties to the agreement, he is guilty ofconspiracy to commit the offence or offences in question.On appeal, it was submitted, inter alia, that the magistrate erred inconvicting A1 on a defective charge because proof of a shared intention thatpolice be misled by PW1, Shing Kwok-ting, simpliciter, was not sufficient toestablish A1’s involvement in a statutory conspiracy. It was also submitted thatin order to find participation in a statutory conspiracy, there had to be a finding,adverse to the individual, that he intended to and in fact did play some part infurthering the criminal object of the conspirators. There was no direct evidenceA1 played any active role in furthering the object of the conspiracy. He playedno part in the initial negotiations with A2 and the magistrate had not found hewas organising the conspiracy, or that he took an active part in furthering theunlawful purpose, beyond non-intervention.Held :(1) The offence which the Appellants allegedly agreed on and intended tocommit was the common law offence of perverting the course of public justice.That offence was committed where a person or persons (1) acted or embarkedupon a course of conduct; (2) which had the tendency to; and (3) was intendedto pervert; (4) the course of public justice. The rationale of the offence was to133

CCAB 2003Public Justicecriminalise acts or conduct which might result in a miscarriage of justice, orwhich might mean that the ends of justice were defeated. There had to be adiscernible link between the act or conduct being scrutinised and any possible,or actual curial proceedings: HKSAR v Wong Sing-yin, Peter and Others Cr App510/2002;(2) The actus reus of the offence involved an act or conduct which had aclear, or manifest, tendency to pervert the course of public justice. All thatneeded to be proved was a tendency. The mens rea required proof of anintention to pervert;(3) The crime of conspiracy required an agreement between two or morepersons to commit an unlawful act with the intention of carrying it out. Theintention to carry out the crime constituted the necessary mens rea for theoffence: Yip Chiu-cheung v R [1994] 2 HKCLR 35;(4) As the essence of a conspiracy was the agreement it would be absurd toallow a conspirator to escape responsibility for his part in that agreementbecause he did not participate actively in what was proposed. A1 knew whatwas proposed, knew the proposal was for his benefit and agreed to it. He waskept informed by PW1, his employee, of what was happening. Given his initialagreement, his acceptance of what was going on and his apparent declining tostop the work of his employees on his behalf he had to be taken as being fullyengaged in the conspiracy;(5) The agreement that obvious activity had to be established before aconviction could follow ignored the fact of the essence of the conspiracyresiding in the initial agreement. A conspirator must have knowledge that theact or conduct complained of would tend to pervert the course of justice and thatthe act was done, or the conduct embarked on, with the intention that justice beperverted. In R v Siracusa (1990) 90 Cr App R 340, 349, O’Connor L J said:Participation in a conspiracy is infinitely variable: it can beactive or passive. If the majority shareholder and director of aCompany consents to the Company being used for drugsmuggling carried out in the Company’s name by a fellowdirector and minority shareholder, he is guilty of conspiracy.Consent, that is the agreement or adherence to the agreement,can be inferred if it is proved he knew what was going on. Theintention to participate in the furtherance of the criminal purposeis also established by his failure to stop the unlawful activity.(6) The argument that there was a great difference between the elements of acommon law and a statutory conspiracy had not been made out. Thecomparative inactivity of A1 did not mean he was not part of the conspiracy;(7) Participation need not be active and need not be any greater thaninformed acquiescence. It was the element of agreement which had to beestablished. At the time of that agreement, which had to be with at least oneother party, the Appellant must have intended that the course of public justice beperverted and be aware that the conduct in which it was proposed to engage hada tendency to pervert the course of public justice and must intend it be soperverted. The link with curial proceedings must be discernible;(8) The plan to substitute a stand-in for the real driver would certainly have amanifest tendency to pervert the course of justice in that the court system wouldbe manipulated to deal with a person who had no connection with the accident,or with any consequential offences. The manipulation occurred even before theconsideration of whether charges might follow the event as the standard134

CCAB 2003Public Justicebreathalyzer test had been avoided altogether.Result - Appeals dismissed.Public OrderMA 98/2002Lugar-MawsonJ(14.3.2003)*DG Saw SC& AnthonyCheang#Wong Hinlee& JeremyChanLAUSan-chingand 6 OthersS 4(28) of Summary Offences Ordinance/Causing obstruction in publicplace/Offence preventative in nature/No lawful authority for persons tochain themselves to flagpole/Offence not strict liability/ Ingredients ofoffence/Resolution of conflict between Chinese and English authentictexts/Rights to freedom of expression and peaceful assembly not absolute《 簡 易 程 序 治 罪 條 例 》 第 4(28) 條 - 在 公 眾 地 方 造 成 阻 礙 - 罪 行 屬預 防 性 質 - 任 何 人 皆 無 合 法 權 限 以 鐵 鏈 將 自 己 鎖 於 旗 杆 - 並 非 嚴 格法 律 責 任 的 罪 行 - 犯 罪 要 件 - 解 決 中 英 文 真 確 本 之 間 互 相 抵 觸 之 處- 自 由 發 表 意 見 及 和 平 集 會 的 權 利 均 非 絕 對After trial, the Appellants were convicted of an offence of causing anobstruction in a public place, contrary to s 4(28) of the Summary OffencesOrdinance, Cap 228. The particulars of offence were that the seven accused:on the 7th day of May, 2001 at Golden Bauhinia Square, 1 ExpoDrive, Wanchai, in Hong Kong, without lawful authority or excusedid an act, namely chaining themselves up with metal chains andpadlocks to a flagpole erected at the Golden Bauhinia Squareoutside Phase II of the Hong Kong Convention and ExhibitionCentre, whereby obstruction, whether directly or consequentially,might accrue to a public place.The Golden Bauhinia Square was a public place. By it were twoflagpoles set on a podium. The regional flag of the HKSAR was placed on thewest flagpole and the national flag of the People’s Republic of China was placedon the east flagpole. Each day since 4 April 1999 the national flag and theregional flag had been raised at 8 am and lowered at 6 pm. The ceremony wascarried out by five police officers in accordance with an internal police order.Sometime in the afternoon of 7 May 2001, each of the seven Appellantschained themselves with metal chains and padlocks to the west flagpole. Threebanners bearing political messages were on display, one of which read inChinese ‘Hunger strike to protest against appointment of the Chief Executive byImperial Edict’ .Sergeant 22770 testified that it was necessary for the podium to be clearof people so that the ceremony could be carried out at 6 pm with dignity anddecorum and in accordance with the internal police order. Station SergeantChung Siu-wai was told by A1 that he was responsible for the group ofdemonstrators, and that they were on a hunger strike. When at 3.30 pm theDirector of Operations at the Exhibition Centre asked the Appellants to leave,they refused. Senior Superintendent Hunt asked the demonstrators to leavepeacefully and warned of possible arrest for breach of the peace. At 4.23 pm,Inspector Ng Wai-kee and Emergency Unit officers were sent to free theAppellants, who said they had not got the keys to the padlocks. Police then cutoff the chains with metal cutters and the Appellants were removed in turn fromthe podium to a police vehicle.135

CCAB 2003Public OrderGenerally, it was said that the convictions on the s 4(28) offence wereunsafe and unsatisfactory in all the circumstances. That section read:Held :Any person who without lawful authority or excuse … seemsstrange, does any act whereby injury or obstruction, whetherdirectly or consequentially, may accrue to a public place or to theshore of the sea, or to navigation, mooring or anchorage, transitor traffic. …The Appellants submitted, in particular, that the magistrate:(i)(ii)erred in law in ruling that s 4(28) created and/or imposed astrict liability offence;having apparently accepted that there was a discrepancybetween the English and Chinese authenticated texts of s4(28), in that the word ‘may’ was not in the Chinese text andthat the prosecution had conceded that the defendants wouldnot have a case to answer if the court relied on the Chinesetext, proceeded to hold that the word ‘may’ was inadvertentlyomitted from the translation. It was said that the magistrateshould have resolved the conflict between the two texts infavour of the Appellants and held that only obstruction whichactually occurred and/or caused would suffice in proving theoffence;(iii) was wrong in law in convicting the defendants of the s 4(28)offence as no actual obstruction was caused to the flaglowering ceremony or would have been caused had theAppellants remained chained to the flagpole. Alternatively,even if they had remained chained to the flagpole, there was areasonable doubt whether they would have potentially causedany obstruction to the flag lowering ceremony; and(iv) was wrong in law, and on the facts, in holding that ‘the rightsunder Articles 16 and 17 of the Bill of Rights Ordinance andin this case were entirely different matters ’, in that he waswrong not to find that the accused were carrying out apolitical demonstration or protest, to have ignored the factthat they were carrying out a political demonstration orprotest, and to hold that the acts in question were notprotected by Articles 16 and 17 of the Hong Kong Bill ofRights Ordinance, Cap 383, and Article 27 of the Basic Law.(1) Section 4(28) was preventative in nature, being designed to prevent theobstruction of public places, the seashore or adjacent waterways. It recognisedthat actual obstruction could result in the risk to, or interference with, the rightsof others and it was there to prevent that from happening;(2) In a prosecution under s 4(28) the prosecution had the onus of provingthat the defendant caused an obstruction, which was deliberate and notaccidental. If that was done the onus then passed to the defendant to prove, onthe balance of probability, that he had lawful authority to cause the obstructionor a lawful excuse for causing the obstruction. The prosecution did not have toprove that he had no lawful authority or excuse to cause the obstruction. The s4(28) offence was not a strict liability offence in the sense that the establishmentof the offence was complete once the prosecution had proved the commission ofthe prohibited act, for it provided for a specific defence which the defendant136

CCAB 2003Public Ordermight raise and seek to establish;(3) Only A5 and A6 testified, and neither of them claimed to have had lawfulauthority to do what they did. The other defendants did not seek to establishthat they acted with lawful authority or lawful excuse. In so far as A5 and A6sought to establish a defence of lawful excuse, it was their case that they hadchained themselves to the flagpole to attract the media’s attention, and to‘symbolise that the right of the people of Hong Kong to elect their ChiefExecutive had been restrained.’ This they did because they considered thatthey had a right of assembly and a right to express their political views under theBasic Law and the Bill of Rights and that no-one should interfere with theirrights at will. That, however, came nowhere near to establishing that they had alawful excuse. A lawful excuse embraced activities that were lawful inthemselves, which might or might not be reasonable in all the circumstances:Hirst & Agu v The Chief Constable of West Yorkshire [1987] Crim LR 330. Ifthe act was unlawful in itself, the question of whether or not it was reasonabledid not arise;(4) The appellants in Hirst & Agu did no more than hold banners and handout leaflets, activities that were not unlawful in themselves. As that was all theydid, it was not surprising that the Divisional Court found their actions to bereasonable. In this case, however, the protest went further than in Hirst & Agu,and the Appellants committed an undoubted trespass in chaining themselves tothe flagpole, something they had no right at law to do in the absence ofpermission from the Exhibition Centre. That was an unlawful act and thequestion of whether or not it was reasonable for them to do that could not arisefor consideration. As what the Appellants did was an unlawful act none of themcould have had a lawful excuse for committing it;(5) Although the magistrate erred in referring to the s 4(28) offence as one ofstrict liability, he recognised that it was an offence to which the Appellants couldraise a defence. He saw this as being a defence of reasonable, but mistaken,belief for good and sufficient reasons. That was wrong, as the defence was aclaim of lawful authority or lawful excuse. But that was not fatal to theconvictions, as all Appellants, save for A5 and A6, chose not to raise thatdefence, which was the only one available to them, and A5 and A6 had notestablished a lawful excuse;(6) The magistrate was right to say that the offence was made out once they,without lawful authority or excuse, did an act whereby an obstruction, whetherdirectly or consequentially, might naturally have resulted in a public place. Itwas not necessary for the prosecution to prove knowledge on the Appellant’spart that they might have obstructed the flag lowering ceremony had theyremained chained to the flagpole. The offence was complete at the very momentthey chained themselves to the flagpole. Common sense dictated that had theynot been removed from the flagpole an obstruction would accrue, either to themembers of the party engaged in the flag lowering ceremony, or those membersof the general public who might wish to take advantage of the Golden BauhiniaSquare for their own use, or both;(7) Although, according to the Chinese authentic text, actual obstruction, beit direct or consequential, must have accrued to a public place before the offencecould be made out, that text was declared to be authentic in 1992, whereas theEnglish text came into existence in 1932. Whereas the Chinese text created anoffence whereby an obstruction actually accrued, the original English textcreated an offence when any person did any act whereby obstruction mightaccrue. Section 10B of the Interpretation and General Clauses Ordinance, Cap1, provided:137

CCAB 2003Public Order(1) The English language text and the Chinese language text ofan Ordinance shall be equally authentic, and the Ordinanceshould be construed accordingly.(2) The provisions of an Ordinance are presumed to have thesame meaning in each authentic text.(3) Where a comparison of the authentic texts of an Ordinancediscloses a difference of meaning which the rules of statutoryinterpretation ordinarily applicable do not resolve, themeaning which best reconciles the texts, having regard to theobject and purposes of the Ordinance, shall be adopted.(8) Section 10B(3) provided for a two-step approach: first there must be anattempt to resolve the difference of meaning by applying the rules of statutoryinterpretation. If that failed, the interpreter had to adopt the meaning which bestreconciled the texts with regard to the object and purposes of the legislation.From that it necessarily followed that if the Ordinance was initially enacted inEnglish, the English text was the original text from which the Chinese text wassubsequently prepared and declared authentic. In ascertaining the Ordinance’slegal meaning, the English text should be taken as more accurately reflecting thelegislative’s intent at the time it was originally enacted. In this case, themeaning borne by the original English text, which was in existence in 1932,should take precedence over the Chinese authentic text. The magistrate wascorrect to rely on the English text;(9) Although the Appellants submitted that they were allowed to contravenes 4(28) with impunity by virtue of Article 16 (right of freedom of expression) ofthe Bill of Rights Ordinance, that Article did not guarantee to anyone a right tocontravene legislation preventing the obstruction of public places. Neither did s4(28) restrict anyone’s freedom of expression. By implication, it permitted aperson to carry out a political demonstration in a public place, provided that indoing so his acts did not give rise to the possibility of obstruction to that publicplace. What Article 16 did not guarantee was the right to express opinions,political or otherwise, anywhere at any time uninhibited by other domesticlegislation;(10) Article 17 (right of peaceful assembly) of the Bill of Rights Ordinancerecognised that the right of peaceful assembly was subject to laws which werethere to protect the interests of public safety, as well as the interests of publicorder (ordre public); and the rights and freedoms of others whose right ofpeaceful access to and enjoyment of a public place must be as equallyrecognised and respected;(11) In the present context, Article 27 of the Basic Law added nothing to therights provided for in Articles 16 and 17 of the Bill of Rights Ordinance. Itprovided:Hong Kong residents shall have freedom of speech, of the pressand publication; freedom of association, of assembly, ofprocession and of demonstration; and the right and freedom toform and join trade union and to strike.(12) It was well-established that the guarantees provided for by Articles 16and 17 of the Bill of Rights were qualified and not absolute. International anddomestic courts in the interpretation of legislation similar to the Bill of RightsOrdinance had recognised that whilst some rights were absolute and could notbe proscribed by domestic legislation (such as the right to a fair trial) otherscould be subject to limited qualifications which were proportionate to the138

CCAB 2003Public Orderachievement of their intended aim. Hence, when the laws of a particularjurisdiction encroached upon the rights of an individual that was permissibleprovided it was proportionate: Brown v Scott [2001] 2 WLR 817, 836; HKSAR vNg Kung-siu & Another [1999] 3 HKLRD 907, 920;(13) The magistrate rightly concluded that the s 4(28) offence was completeat the time the Appellants chained themselves to the flagpole. In doing so theynot only inhibited the right of access of others to the area in which the flagpolewas, they interfered with the Exhibition Centre’s property and challenged theExhibition Centre’s right to impose reasonable limitations on its use. No onecould seriously argue that the Exhibition Centre had no right to require thatpeople did not chain themselves to one of its flagpoles without its permission.Having done that, the Appellants persisted in claiming the supremacy of theirrights over the rights of others for over an hour until the police forcibly removedthem. The action of police was entirely reasonable, and it was the Appellantswho acted unreasonably.Result - Appeals dismissed.MA 928/2002Beeson J(9.9.2003)*Leung Sunyee#I/PMORTERDavidPublic order/Behaving in a disorderly manner in a public place/Defendantshouting and swearing inside police station/ Whether breach of the peacelikely公 共 秩 序 - 在 公 眾 地 方 作 出 擾 亂 秩 序 的 行 為 - 被 告 人 在 警 局 內 高 聲叫 囂 並 出 言 咒 罵 - 是 否 相 當 可 能 破 壞 社 會 安 寧The Appellant was convicted after trial of an offence of behaving in adisorderly manner in a public place whereby a breach of the peace was likely tobe caused, contrary to s 17B(2) of the Public Order Ordinance, Cap 245.The evidence showed that the Appellant screamed and swore at peoplegoing into Wanchai Police Station. He later dashed into the station where heswore and shouted at a woman police officer. This behaviour continued at thereception desk of the report room, where he was heard by members of the publicoutside in the lobby.In convicting the Appellant, the magistrate stated:I considered whether or not in the confines of a report room,where members of the public attending in varying degrees ofdistress or otherwise are to be expected and whether suchbehaviour in a disorderly manner in this public place constitutedconduct that was likely to cause a breach of the peace.I found that such a breach under these circumstances was likelyto be caused. Having considered all the facts that I found asaforesaid, I found that the prosecution had proven each elementof the offence beyond any reasonable doubt. I convicted thedefendant as charged.On appeal, the issue arose of whether the disorderly conduct was likely tocause a breach of the peace.Held :(1) A breach of the peace arose where there was an actual assault, or wherepublic alarm and excitement were caused by a person’s wrongful acts. Mereannoyance and disturbance or insult to a person or abusive language, or greatheat and fury without personal violence, were not generally sufficient: R v KamMan-fai [1983] 1 HKC 614 considered;139

CCAB 2003Public Order(2) There was no evidence, apart from the fact that people were frightened,or appeared frightened, that any one of them was likely to use violence, or beprovoked into causing a scene, as a result of the Appellant’s behaviour. Norwere the police officers present likely to have been incited to violence, or put infear of harm being caused to their persons, or property, by one elderly, foulmouthedmale in a police report room: R v Li Wai-kuen [1973-1976] HKC 346considered;(3) The situation might have been different if the members of the public hadbeen, say, the triad brothers of persons arrested and being investigated for agang fight. A disturbance such as that caused by the Appellant might well haveprovided an opportunity for a general brawl. That was not the position.Result -Appeal allowed. Conviction quashed. Appellant ordered to enterinto a recognizance in the sum of $2,000 to be of good behaviour,and to keep the peace for a period of 18 months, in terms of s 61(1)of the Magistrates Ordinance, Cap 227.140