To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies
致：刑事檢控科各律師/高級律政書記
裁判法院各法庭檢控主任
A Publication of the Prosecutions Division
of the Department of Justice
律政司刑事檢控科出版的刊物
CRIMINAL APPEALS BULLETIN
刑事上訴案判例簡訊
September Edition/2009
2009年9月號
General Editor
總編輯
I Grenville Cross, SC
江樂士 資深大律師
Associate Editor
副編輯
Patrick W S Cheung
張維新
Assistant Editors
助理編輯
Denise F S Chan
陳鳳珊
Lily S L Wong
王詩麗
Vinci W S Lam
林穎茜
Olivia O K Tsang
曾藹琪
This Bulletin summarises recent judgments which the editors consider of significance.
本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。
( * Denotes Public Prosecutor
( * 代表檢控官
# Denotes Appellant’s/Applicant’s/Respondent’s Counsel)
# 代表上訴人/申請人/答辯人的律師)
2
c.c.
SJ
副本送： 律政司司長
DDPPs
各副刑事檢控專員
e mail
LOs
電郵送： 各律政專員
D of AD
律政司政務專員
DSG
副法律政策專員
Secretary, Law Reform Commission
法律改革委員會秘書
DLA
法律援助署署長
Bar Association (Attn : Administrative Secretary)
香港大律師公會行政秘書
Law Society (Attn : Secretary General)
香港律師會秘書長
Editor/Hong Kong Cases
Hong Kong Cases 編輯
Faculty of Law, HKU (Attn : Dean of Faculty)
香港大學法律學院院長
Librarian (Law), City University
香港城市大學高級助理圖書館館長(法律組)
School of Law, Chinese University of Hong Kong (Attn : Director)
香港中文大學法律學院主任
PHQ/HKPF (Attn : ACP/Crime)
香港警務處警察總部警務處助理處長(刑事)
ICAC (Attn : Head/Ops)
廉政公署執行處首長
PTS/HKPF (Attn : FTO(Exam))
香港警務處警察訓練學校警察訓練主任(考試)
Administrator/Duty Lawyer Service
當值律師服務總幹事
C & E Training Development Group (Attn : Staff Officer)
香港海關訓練發展課參事
C & E Prosecution Group (Attn : Superintendent)
香港海關檢控課監督
LegCo Secretariat (Legal Service Division)
立法會秘書處法律事務部
D of Imm (Attn : AD(EL))
入境事務處助理處長(執法及聯絡)
Judiciary (PM/JISS Project)
司法機構資訊系統策略計劃策略經理
Librarian/D of J
律政司圖書館館長
Director of Advanced Legal Education
法律專業進修總監
Hung On-to Memorial Library (HK Collection)/HKU
香港大學孔安道紀念圖書館（特藏部）
Departmental Prosecution Sections
各部門的檢控組
3
INDEX
A.
B.
C.
p. 4 – p. 10
Applications for Review of Sentence
第4至10頁
申請刑罰覆核
p. 11 – p. 21
Criminal Appeals/Against Sentence
第11至21頁
刑事上訴案件/針對刑罰
p. 22 – p. 26
Magistracy Appeals/Against Sentence
第22至26頁
裁判法院上訴案件/針對刑罰
4
Appeal No.
(Date of
Judgment)
Case
Title
Significance
A. APPLICATIONS FOR REVIEW OF SENTENCE
申請刑罰覆核
AR 7/2008
Tang VP
Yuen JA
Saw J
(26.8.2009)
*David Leung
#J H McGowan
SJ
v
CHAU
Chi-yan
Unlawful sexual intercourse with girl under 13/
Unlawful sexual intercourse with girl under 16/Defendant
in loco parentis to girl/Gravity of offences/Discount in
excess of one-third after guilty plea/Limited effect of
mitigating factors/Concurrent and consecutive sentences/
Crimes Ordinance (Cap 200) ss 123 and 124
與 13歲 以 下 的 女 童 非 法 性 交 – 與16歲以下的女童
非法性交 – 被告人身居父母的地位 – 罪行的嚴重
性 – 認罪後獲多於三分一的減刑 – 減刑因素影響
有 限 – 同 期 及 分 期 執 行 的 刑 期 – 香 港 法 例 第 200
章《刑事罪行條例》第123及124條
The Respondent, a police officer, pleaded guilty to the
offence of unlawful sexual intercourse with a girl under 13,
contrary to s 123 of the Crimes Ordinance, Cap 200. The
particulars of offence alleged that between 1 June 2005 and 31
July 2005, he had sexual intercourse with a girl, X, who was 11
years old at the time, and was her step-daughter.
The Respondent also pleaded guilty to an offence of
unlawful sexual intercourse with a girl under 16, contrary to s 124
of the Crimes Ordinance, Cap 200. The particulars of offence
alleged that between 1 June 2007 and 30 June 2007 he had
unlawful sexual intercourse with X, who was then 13 years old.
The judge, having said this was not a case of incest, adopted
a starting point for sentence of 6 years’ imprisonment on Count 1,
which he reduced to 4 years for the plea. This was further reduced
to 3 years to give credit ‘for not seeking to lie your way out of the
matter and saving the girl’ . For Count 2, he adopted a starting
point of 4 years which he reduced to 2 years and 8 months for the
plea. The two sentences were ordered to run concurrently.
On review
Held :
(1)
There was no tariff for the offence of unlawful sexual
5
intercourse with an underage girl. But there were numerous dicta
of the Court of Appeal on the need for substantial sentences in
order to deter and to punish sexual offences involving young
children. In HKSAR v Kong Yun-chiu Cr App 315/2006, Stock JA
said :
11. In Chan Ching Ho, at page 481, Stuart-Moore
VP cited with approval the words of the sentencing
judge who had spoken of the importance of punishing
crimes against children of this kind ‘with a sentence
severe enough to deter others from acting like the
defendant, and also to show the abhorrence of
members of the public to crimes of this nature, and
also to redress the grievance suffered by the victim,
her friends and relatives.’ It should go without
saying that children are particularly vulnerable
members of society. It is too easy for those who
would prey on their naivete and trust to succeed, for
children are by nature trusting and the deliberate
invasion of a child’s innocence by an act of sexual
abuse bears a repulsive character of its own and
must be treated accordingly. The trauma caused to a
child by an indecent assault, and the long-term
adverse impact, is difficult to calculate but trauma
may safely be assumed in the vast majority of cases,
perhaps all. Similarly, the trauma and distress,
immediate and long-term, is not confined to the
child. Parents of child victims will almost certainly
be haunted by images of what has been done to the
child and, in addition, will nurture a deep sense of
guilt either for having entrusted the child to the
company of someone who breaches that trust or, in
other cases, for having left the child unguarded for
the odd moment. It should be remembered too,
particularly in cases of breaches of trust, that
children are much more likely than adults to suffer
the trauma in silence rather than report, and in cases
where there are threats levelled at the child not to
report, whether the threats are express or implicit,
fear is added to the initial offence and the culpability
is that much the greater. Whilst the range of offences
within the category of indecent assault is wide, the
fact that the victim of such an offence is a child is
always a severely aggravating feature. Viewed in the
light of these factors, offences of the kind in this case
call for substantial terms of imprisonment …
(2) Although the Respondent submitted that this was not a true
case of incest and that at the time of the first offence the
6
Respondent had not yet married the victim’s mother, he had been
living with the victim’s mother and her two girls as a family for 2
years and he stood in loco parentis to the girls. A starting point of
6 years was fully justified simply on the basis that a middle age
man had sexual intercourse with a girl just over 11 years when that
girl was living under his roof and in his power. No other
aggravating factor was required;
(3) In respect of the reduction of the sentence on Count 1 by
50%, the reason for an additional discount, over and above the
customary one-third, was explained in R v Pang Siu-hong Cr App
698/1995 :
We can see the force of the argument that the discount
for the guilty plea in respect of the attempted rape
should have been more than the one-third allowed by
the sentencing judge. That is because it is the
sentencing policy of the courts to give particularly
generous ‘guilty plea’ discounts in such cases so as to
encourage pleas which spare victims from having to
relive their ordeal by recounting the same in the
witness box.
Although the Respondent should have received a further discount,
a discount of 1 year could not be justified. Although the
magistrate had seen fit to give what he described as a merciful
sentence, where such offences arose, matters such as remorse,
previous unblemished record and extra-judicial punishment (such
as loss of a profession) carried little or no weight. No reduction
beyond 4 months was justified, and the sentence for Count 1
should be 3 years and 8 months;
(4) The second offence was committed 2 years after the first,
and would normally have attracted a consecutive sentence,
provided that the total sentence was not excessive. Whilst there
was force in the submission that at least 1 year of the second
sentence should have been served consecutively, making a total
sentence of 4 years 8 months’ imprisonment, since the sentence
was already being raised substantially, only 10 months of the
sentence on Count 2 would be served consecutively, making a total
sentence of 4 years 6 months’ imprisonment.
Result -
SJ’s application allowed.
Sentence of 4 years
6 months’ imprisonment substituted.
7
AR 6/2009
Ma CJ HC
Hartmann JA
Saunders J
(21.8.2009)
*David Leung
#Kwan Tong-lee
SJ
v
TSANG
Ho-pong
Dangerous driving causing death/Increase in maximum
penalty by legislature/Effects of poor driving record/
Defendant losing consciousness through tiredness/Deterrence
in sentencing/Disqualification for 2 years applicable to first
time offender/Defendant not entitled to additional discount
for remorse or injuries
危險駕駛引致他人死亡 – 立法機關提高最高刑
罰 – 駕駛紀錄差劣的影響 – 被告人因疲累而喪失
知覺 – 判刑的阻嚇性 – 取消駕駛資格兩年適用於
初犯者 – 被告人無權因悔意或受傷而獲額外減刑
The Respondent was convicted on his own plea of an
offence of dangerous driving causing death, contrary to s 36(1) of
the Road Traffic Ordinance, Cap 374, and was sentenced to 8
months’ imprisonment and disqualified from driving for 2 years.
The facts showed that while the Respondent was driving a
medium goods vehicle on the south-bound West Kowloon
Highway, he collided with the back of a motorcycle and rammed
into the back of a container truck. The motorcyclist, aged 27
years, was killed. At the time of the collision the Respondent’s
vehicle was travelling at 64 kph, and whereas the speed for the
highway was 100 kph, for medium goods vehicles, the limit was
70 kph.
At some point, the Respondent attempted to apply the
brakes, and witnesses heard heavy screeching and there were skid
marks on the road left by the Respondent’s vehicle, measuring
36.7 metres (on the near side) and 10.8 metres (on the off). A
gouge mark of 22.6 metres was left on the road by the motorcycle
after the collision. The impact on the container truck was
significant in that the driver of the truck said he was jerked
forward and pushed for some distance. All vehicles involved in
the accident were found to have been in good working order and
not overloaded. A breathalyser test was given to the Respondent
but no alcohol was detected. The weather conditions and visibility
were fine. A government forensic scientist calculated on the basis
of a speed of 64 kph and a 0.9 second reaction time that the
Respondent applied the brakes on the motor goods vehicle only 21
metres behind the motorcycle, which was insufficient to avoid the
collision.
Apart from the death of the motorcyclist, injuries were
sustained both by the Respondent and the driver of the container
truck. According to the judge, the Respondent suffered bruising
on his right hand, cruciate ligament tears at the knees and a
fracture of the 4th metacarpal bone on his right hand. It was said
that this affected his ability to drive professionally and the judge
8
was told he was no longer able to earn a living by driving, and the
driver of the container truck received slight injuries.
The cause of the collision was the Respondent closing his
eyes for 2 seconds while driving the medium goods vehicle. The
judge said the Respondent was not asleep, only that he closed his
eyes for 2 seconds. According to the Respondent, he felt sleepy
and therefore closed his eyes. He claimed that before he closed his
eyes he had not noticed the motorcycle, only seeing this for the
first time when he opened his eyes.
The Respondent had 15 previous convictions, which
revealed an extremely poor driving record and one that included all
those driving offences that demonstrated the worst aspects of poor
driving in Hong Kong. The range of sentences passed stretched
from fines to disqualification, and also the imposition of 200 hours
community service. He first obtained his driving licence in 2000.
In sentencing, the judge took into account the following
factors:
(1) The appropriate principles of sentencing
contained in the authorities, among them
Secretary for Justice v Poon Wing-kay [2007] 1
HKLRD 660;
(2) The maximum sentence for the offence (if on
indictment) was now 10 years’ imprisonment
(the increase from 5 to 10 years was made by
amendment on 4 July 2008). This was an
indication of the seriousness with which this
offence was to be regarded and the courts must
fully take this into account;
(3) The facts of the present case merited the
imposition of a custodial sentence.
As
Poon Wing-kay emphasized, regard must be had
to the suffering caused to a victim’s family and
the impact on people’s lives; also to the need for
an effective deterrence;
(4) Here, notwithstanding the fact that the
Respondent closed his eyes for 2 seconds
through drowsiness, the judge was of the view
that the present case did not constitute the worst
of its kind.
Accordingly, the judge adopted a starting point of 15
months, reducing this by one-third to take into account the plea of
guilty. He made a further reduction of 2 months to take into
account the Respondent’s injuries and the remorse shown by him.
9
A disqualification order of 2 years was also imposed.
On review
Held:
(1) As the judge said, account had to be taken of the fact that the
standard of driving displayed by the Respondent was dangerous,
and that a death occurred. A death in these circumstances was
always one that could and should have been avoided;
(2) The judge was not convinced that there was a sudden onset
of tiredness, as the Respondent had initially claimed, and this was
an aggravating factor given the obvious dangers caused by motor
vehicles on the road. If a driver was feeling so tired that he was no
longer concentrating, he must stop driving. To continue to do so
was obviously very dangerous. In this case there was a shoulder
which would have enabled the Respondent to stop, and in this case
it resulted in a tragedy. It was the sheer danger caused by being
effectively unconscious that made this an aggravating factor. This
was much worse than just a momentary lapse of attention, and up
to the point of losing consciousness (albeit for 2 seconds), there
must have been quite a sustained period of drowsiness during
which the driver was not doing what motorists were expected at all
times to do: to pay attention, be alert on and to concentrate on
driving. This was an aggravating factor: R v Cooksley [2003] 3
ALL ER 40. Whether this arose through lack of sleep or
otherwise, did not really matter;
(3) While the judge did allude to the Respondent’s previous
convictions, the conclusion reached was merely that he did ‘not
have a good record of driving’. His record was much worse, and
showed that he had no respect for traffic laws which were there to
ensure that all who came into contact with motor vehicles were
safe;
(4) The penalty for the offence of dangerous driving causing
death had been increased from 5 to 10 years’ imprisonment;
(5) The overall culpability of the Respondent placed the offence
within the lower categories of seriousness, but it was still
dangerous driving. Closing one’s eyes through drowsiness or
sleepiness posed an extreme danger when driving a motor vehicle,
even to the point of being reckless;
(6) The deterrence element in sentencing was reflected in
Poon Wing-kay (above) at 668:
It is important for courts to drive home the message
10
that there may sometimes be extremely grave
consequences flowing from acts of dangerous driving
and it is therefore necessary to have in mind a
deterrent effect when sentencing in many cases
involving dangerous driving: at p.46C-E (para. 11). A
motor vehicle, many may often forget, when not driven
to requisite standard, can kill or maim. The standards
required by the law for motorists found in the road
traffic legislation and elsewhere are there to ensure
that all who can come into contact with motor vehicles
(whether fellow motorists, passengers or pedestrians)
are safe and that their lives are not endangered.
(7) The judge underestimated the seriousness of the dangerous
driving involved and had not given due weight to the Respondent’s
very poor record of previous convictions for traffic-related
offences. In this case, more so than a first time offender, the need
for a deterrent sentence became evident. In the circumstances, the
sentence of 8 months was manifestly inadequate;
(8) With a starting point of 24 months, the Respondent was
entitled to a third reduction on account of the plea of guilty. This
was a reflection of the genuine remorse he felt but he was not, as
the judge held, entitled to a further discount on account of this
factor. Nor was the extent of his injuries such that he was entitled
to a discount in this respect either;
(9) The appropriate sentence should therefore have been 16
months. Given however that this was a review of sentence in
relation to an offence where there had been very few authorities to
offer guidance since the increase in maximum penalty and also that
the estimated time for the Respondent’s discharge from prison (if
the original sentence were maintained) was sometime next month,
a sentence of 12 months was appropriate in the present case.
Result–
SJ’s application granted. Sentence of 12 months’
imprisonment substituted. Disqualification period
extended from 2 to 3 years.
Per cur– Section 36(2A)(a) of the Road Traffic Ordinance stated
in relation to disqualification that in a case of a first
conviction, the period of disqualification should be not
less than 2 years. This would therefore be applicable to
a first time offender. The Respondent was not a first
time offender as far as traffic offences were concerned.
11
B. CRIMINAL APPEALS/
AGAINST SENTENCE
刑事上訴案件/針對刑罰
CA 39/2009
Yeung JA
Wright &
Saw JJ
(2.9.2009)
*I G Cross SC
& Winsome Chan
#I/P
TSUI
Pik-fong
Abortion/Miscarriage procured by administration of drugs/
Offence not susceptible to tariff sentence/Customary
sentencing range of 18 months to 3 years’ imprisonment save
where consequences grave/Offences against the Person
Ordinance (Cap 212) s 46
墮胎 – 施用藥物以促致流產 – 難以就此類罪行訂
定量刑基準 – 除非罪行後果嚴重，否則慣常的判
刑 幅 度 為 18 個 月 至 3 年 監 禁 – 香 港 法 例 第 212 章
《侵害人身罪條例》第46條
The Appellant was convicted after trial of two offences, each
contrary to s 46 of the Offences against the Person Ordinance,
Cap 212, of having administered a poison or other noxious thing
with the intent to procure a miscarriage by an 18-year-old girl; the
offences occurred on 1 and 9 October 2007, respectively. She was
sentenced to undergo imprisonment for 3 years on each count, the
sentences to be served concurrently with one another; two
suspended sentences imposed upon her for possession of Part I
poison and possession of antibiotics were activated and she was
ordered to serve, consecutively, a further period of 2 months’
imprisonment.
The evidence showed that the girl and her boyfriend had
been in a relationship for 2 years; he had impregnated her in
January 2007 whereupon she had visited the Family Planning
Association and the pregnancy was terminated in lawful
circumstances; seven months later she was pregnant again; she and
her boyfriend discussed a second abortion and, at his suggestion,
on 1 October they went to consult the Appellant who was a
Chinese medicine practitioner practising in Tuen Mun; after saying
that she was pregnant but did not wish to give birth, she was
examined by the Appellant who told her that she had been
pregnant for 40 days and who gave her, at a cost of $900,
13 tablets; the Appellant had told her how to take the tablets, that
she would experience ‘slight abdominal pain and would excrete
the baby’; in the ensuing days she took the tablets, but not as
directed; nothing happened so she returned, alone, to the Appellant
on 9 October; on this occasion she was given 12 tablets at a cost of
$800, told how to take them and told that she would have
‘abdominal pain and that the baby would then be passed from her
body’; she returned to the Appellant on 15 October as, apart from
slight abdominal pain and bleeding, nothing had happened but, on
this occasion, after examination she was given further tablets
12
which transpired to be placebos.
That night, she felt slight abdominal pain, went to the toilet
and sometime after midnight heard a sound of something dropping
into the toilet bowl which, although she did not look, she took to
be the foetus; she continued to bleed heavily through the night; she
became so weak she was unable to walk; at her sister’s suggestion,
she went to Queen Mary Hospital in the afternoon of 16 October;
she was examined by a doctor in the Accident and Emergency
Department who found that she looked pale with a haemoglobin
level at 7.1, blood pressure ‘on the low side’, with tachycardia and
had a haematoma at the back of her head; she was then examined
by an obstetrician and gynaecologist who testified that she had lost
2 to 3 litres of blood, some 40% of her total blood supply, that the
tachycardia was due to the diminished supply of blood and that if
she had not been treated immediately ‘there was a danger to her
life’; his unchallenged evidence was that his findings on
examination were consistent with the girl having taken drugs to
bring about an abortion; a pathologist who testified spoke to the
presence of foetal tissue in tissue taken from the girl's uterus.
The Appellant was arrested the following day, 17 October.
Amongst items seized from her clinic were two tablets of
mifepristone, an antiprogestogenic steroid, an abortifacient, which
was unregistered in Hong Kong. The prosecution case, as
accepted by the jury, was that this was the substance administered
to the girl.
Hartmann JA granted the Appellant leave to appeal sentence
on the basis that a clearly arguable issue had been raised as a result
of the judge’s expressed view that ‘... an abortion procured by
way of the administration of drugs could be (and was in this
particular case) more serious than the procuring of an abortion by
using surgical implements.’ Moreover, he took the view that the
authorities which had been invited to his attention were of many
years standing and that this case might be ‘... an opportune
moment for the Court of Appeal to consider what may or may not
be appropriate by way of sentencing in offences of this kind.’
Held :
(1) The judge did not go so far as to indicate that, as a matter of
principle, sentences where a miscarriage was procured by way of
the administration of a noxious substance should be greater than
where they were procured by way of physical intervention but
rather regarded the administration of the abortifacient in this case
as an aggravating feature;
(2)
There were inevitably risks, and potentially grave ones,
13
whichever method was used. Whilst it might well be that, when a
termination of a pregnancy was lawfully conducted, the procedure
was carried out in a suitable environment and the practitioner
ensured the ongoing safety of the patient and was present if, as the
judge said, things went wrong, experience showed that that was
not necessarily the case where unlawful physical intervention took
place: it was notorious that unlawful terminations of pregnancy
were frequently conducted in a non-sterile environment with scant
regard for the ongoing condition of the woman, illustrated by the
deserved epithet ‘backstreet abortion’. This was graphically
illustrated in R v Ng Ying [1977-79] HKC 57, where the Court of
Appeal confirmed a sentence of five years’ imprisonment,
describing the offence as ‘quite the worst of its type which this
Court has encountered,’ and relating the following facts:
A few hours after leaving the Appellant's clinic, the
girl was taken to Queen Elizabeth Hospital where the
doctor who examined her described her as near death;
his diagnosis was original abortion, perforated womb
and haemoperitoneum…; there was a laceration of
3 inches in length on the anterior uterine wall; several
foetal parts were found in the uterus together with
several pieces of placental tissue and the whole of the
small bowel except for about 5 feet was gangrenous
and one part was completely torn away at one end.
Two operations were performed upon the victim who
had miraculously retained consciousness throughout
the treatment, described by the Doctor at Queen
Elizabeth Hospital as butchery, inflicted upon her by
the Appellant and who, despite her condition, was then
cynically and unceremoniously placed in a taxi with
the admonition to tell nobody especially the police
about what had happened, since otherwise both she
and the Appellant would get into trouble.
(3) The judge summarised the evidence as showing that no harm
would be caused by an overdose of mifepristone, other than
causing the miscarriage. Consequently, there was no suggestion
that the girl was potentially exposed to unanticipated side effects
from or reactions to the drug itself;
(4) A further element was the risk to the woman's future ability
to bear children. On the evidence which was available in this
matter, it could not be determined whether the administration of
mifepristone or other antiprogestogenic steroid might adversely
affect a woman's childbearing ability: if that were so, then that
would be a consequence similar to the frequent outcome of a
mechanical termination whilst, if the administration of the drug
were to have no effect on future childbearing, it might be argued
14
that there was less risk inherent in the oral administration of an
abortifacient. That was a matter upon which evidence might be
needed in the future. There was no justification for drawing a
distinction in sentence based on the method chosen by the
abortionist;
(5) Nor were offences of this nature susceptible to the
imposition of a tariff for sentencing purposes. The circumstances
of the commission of an offence of this nature were so varied, the
offence being one which was intensely personal in nature, as not to
admit of the categorisation of factors which were determinative of
an appropriate sentence;
(6) The English Court of Appeal suggested that three levels of
the culpability on the part of an abortionist should be recognised:
R v Scrimlagia (1971) 55 Cr App R 280. Such categorisation was
not necessary in the Hong Kong context where, fortunately,
offences of this nature infrequently came before the courts.
Conversely, the circumstances which that court ascribed to the
three categories would be features which a sentencing judge would
be entitled to take into account in assessing an appropriate
sentence;
(7) As regards the sentencing authorities, in 1963 a sentence of
3 years imprisonment on a plea was reduced to 18 months where
the damage caused by the abortion resulted in the woman spending
30 days in hospital and undergoing a hysterectomy; the Court of
Appeal reviewed a number of sentences imposed in the preceding
years in Hong Kong observing that the resulting sentences varied
between 15 months and 3 years imprisonment and that in none had
it been established clearly that the accused was a professional
abortionist: Yip Kang-tung v R [1963] HKLR 814. In 1977 a
period of 3 years imprisonment imposed after trial on a 64-yearold male who had two previous convictions for abortion and had
committed the offence for which he was then being sentenced
within six months of his last release from prison was confirmed on
appeal: Wong So-chun and Anor v R Cr App 385/1977.
Chronologically, the next case was that of Ng Ying (above), which
appeared to have been the high watermark of sentences. This was
followed by R v Chan Yau [1984] HKC 218, in which a period of
5 years imprisonment was confirmed after the applicant, described
by the court as a professional abortionist, had been convicted after
trial of two charges of abortion, she having a previous conviction
in 1964 of manslaughter consequent upon performing an abortion.
In R v Heung Muhhammad and Anor [1986] HKLR 514 a sentence
of 3½ years imprisonment after trial was reduced to 2 years on
appeal, the Court of Appeal commenting that the facts did not
show him to be a professional abortionist despite the fact he was
running a clinic and in possession of equipment for gynaecological
15
purposes, treating the offence of which he had been convicted as a
single act. A 2-year starting point after trial in respect of a male
with no previous convictions was upheld by the Court of Appeal in
R v Cheung Kam-kei Cr App 404/1994, where the foetus that was
aborted resulted from an ectopic pregnancy;
(8) To turn from the general to the particular, the judge’s prime
concern seemed to have been the fact that the Appellant gave the
girl little warning of the possible consequences of the
administration of the drug. Whilst his concern was understandable,
what appeared to have escaped the judge’s attention was the fact
that the girl had already undergone one lawful pregnancy
termination a few months previously, which plainly suggested it to
be unlikely that she would be oblivious to the possible
consequences;
(9) In addition, the evidence of the gynaecologist, which was
summarised in the judge’s summing-up as being that ‘… if she had
not been treated immediately there was a danger to her life’, was
escalated by the judge in his sentencing remarks to ‘If the sister
had not got her to hospital, she would have died,’ but it was
inappropriate to categorise the evidence in those terms;
(10) Whilst, in respect of the earlier cases, except
Cheung Kam-kei, the rule prescribing an automatic one-third
discount on a plea of guilty had not become as inflexible as it was
today, thus rendering difficult an accurate assessment of a starting
point where a sentence was imposed after a plea of guilty,
sentences might be seen to have ranged between 18 months’ and
3 years’ imprisonment for a single offence save for those in which
particularly grave consequences resulted;
(11) The sentence was appropriate on the facts of this case.
Moreover, the sentence imposed by the judge could not be said to
be substantially at variance with the general pattern of sentences
imposed over many decades, albeit that it tended towards the upper
end of the general range of sentences.
Result - Appeal dismissed.
[For abortion generally and quantum of sentence, see Sentencing in
Hong Kong, 5th ed., p 578: Ed]
CA 118/2008
Cheung &
TAM
Yun-chuen
Blackmail/Offence triad-related/Extremely serious offence
requiring to be deterred/Starting point of 4 years’
imprisonment after trial
16
Yeung JJA
Saw J
勒索罪 – 罪行與三合會有關 – 必須阻嚇此類極度
嚴重罪行 – 審訊後以4年監禁為量刑起點
(7.9.2009)
The Applicant was convicted after trial of an offence of
blackmail. The particulars alleged that he, together with four other
men, approached an employee (‘Mr X’) of a massage
establishment (‘the establishment’) and demanded a monthly
payment of a few thousand dollars by claiming to be members of
the 14K triad society.
*R S K Lee SC
#Vincent Lung
The judge imposed a sentence of 4 years’ imprisonment.
On appeal, it was submitted that the sentence was manifestly
excessive because there was no indication that the case was triadrelated. In any event, it was said, the Applicant should not have
been sentenced on the basis that the offence was triad-related as he
was not charged with any triad offence and he had not been given
the chance to refute the triad allegation.
Held :
(1) It had always been the prosecution case that the Applicant,
together with four others, tried to blackmail Mr X by saying that he
was ‘No. 14 Wu So Chuen’ and was responsible for the whole
Tokwawan area in order to obtain monthly payments from Mr X.
The tenor of the prosecution case was that it was a typical case of
triad members trying to obtain ‘tor dei ’ money from the operator
of the establishment;
(2) Whether or not the Applicant was charged with other triad
related offences was completely irrelevant. The Applicant,
together with four others, made an unwarranted demand for
monthly payments from the establishment. Foul language was
used and Mr X was threatened with the use of violence. Terms
such as ‘No. 14’ and ‘blowing whistle ’ were mentioned and they
gave the impression that they were collecting ‘tor dei ’;
(3) The submission that there was no basis to suggest that the
case was triad-related because no triad expert was called to explain
the meaning of those terms was unrealistic. There was no need for
any expert to explain those terms. The submission that ‘No. 14 ’
could mean that the Applicant was the 14th child in his family and
was nicknamed as such was farcical;
(4) The manner in which the Applicant and his companions
made the unwarranted demand from Mr X, the words they uttered
and the circumstances in which they made the demand clearly
supported the judge’s conclusion that the offence was triad-related
17
and that the Applicant should be sentenced on that basis;
(5) Triad members bullying law abiding citizens in order to
extort money from them was an extremely serious offence and had
to be deterred: HKSAR v Wong Fu-wa [1991] 1 HKC 363;
(6) In Wong Fu-wa, a starting point of 4 years’ imprisonment
was expressly approved and there was no reason not to adopt it.
The 4-year sentence imposed by the judge was entirely proper.
Result - Application dismissed.
[For blackmail generally and quantum of sentence, see Sentencing
in Hong Kong, 5th ed., Appendix, p 582: Ed]
CA 86/2009
Yeung JA
Saw J
(3.9.2009)
*Sin Pui-ha
#Wong Po-wing
MAK
Chun-man
Indecent assault/Sexual predator targeting young women/
Aggravating factor that offences committed in lift/Offences
committed shortly after release from custody for like offences
猥褻侵犯 – 以年輕女子為獵物的性罪犯 – 在升降
機內犯案是加重刑罰的因素 – 因同類罪行被羈押
但獲釋不久即再犯案
The Applicant pleaded guilty to two offences of indecent
assault, contrary to s 122(1) of the Crimes Ordinance, Cap 200.
For Count 1, he was sentenced to 2 years’ imprisonment, and for
Count 2 to 4 years’ imprisonment. The judge ordered that 1 year
of the sentence on Count 1 be served consecutively to the sentence
on Count 2, making a total sentence of 5 years’ imprisonment.
The facts of Count 1 were that the Applicant placed his hand
inside the dress of a young woman in a lift and touched her on the
thigh.
The facts of Count 2 were that the Applicant followed a 15year-old school girl to her home, forced his way inside, grabbed
the girl and covered her month, unzipped her school dress from
behind and inserted his hand inside the dress touching her breasts.
After a struggle, she escaped, and was later treated at hospital for
bruises and abrasions.
The judge was aware that the Applicant had spent the better
part of the last 6 years in custody for repeatedly committing
offences of indecent assault and the like, and that since at least
early 2002 he had been a sexual predator.
18
The judge adopted starting points for sentence of 3 years
(Count 1) and 6 years (Count 2).
On appeal
Held :
(1) The Applicant, aged almost 23 years of age, was, according
to the psychologist, functioning at borderline range of intelligence
but was able to differentiate between right and wrong. He had a
long history of sexual deviancy, and there was a high risk he would
re-offend. He had been institutionalised almost continuously since
July 2002, and had been counselled and treated to no avail;
(2) Both offences were serious. They involved the Applicant
attacking young women in circumstances in which they were
attacked at their most vulnerable. The first offence was committed
inside the lift of a building, which was an aggravating factor, given
that he had followed the victim into the lift with the express
intention of indecently assaulting her. In both cases the Applicant
had followed the victims with the intention of assaulting them, and
in both cases they were alone and vulnerable. In both cases they
were unable to call for or obtain assistance;
(3) The offences were separate in time and place. The victims
in each case were targeted by the Applicant. The offences were
committed shortly after his release from custody for the very same
or similar offences;
(4) The judge had not imposed a sentence of ‘preventive
detention’ upon the Applicant which was disproportionate to the
criminality of his conduct;
(5) The Applicant had shown no remorse or empathy for the
victims of his attacks.
Result - Application dismissed.
[For indecent assault generally and quantum of sentence, see
Sentencing in Hong Kong, 5th ed., Appendix, pp 637-638: Ed]
CA 184/2008
Yuen &
Hartmann JJA
Saw J
LIU
Hiu-zhi
Assistance to authorities/Discount of 50% after guilty plea and
valuable testimony for prosecution/Lookout as equally culpable
as other gang members
向當局提供協助 – 因認罪和為控方提供重要證供
19
而減刑50% – 把風者與同黨的刑責相同
(19.8.2009)
*J Reading SC
& Jasmine Ching
#Monica Chow
The Applicant pleaded guilty to offences of assault
occasioning actual bodily harm (Count 1), theft (Count 2),
conspiracy to blackmail (Count 3) and criminal damage (Count 4).
The judge imposed sentences of imprisonment of 16 months
(Count 1), 16 months (Count 2), 32 months (Count 3) and 20
months (Count 4). He ordered that 8 months of the sentence on
Count 1 be concurrent to the sentence on Count 2. He ordered that
the sentences on Counts 3 and 4 be concurrent one to the other and
that the sentence on Count 2 be consecutive to the sentences on
Counts 3 and 4. The total sentence was 4 years 8 months’
imprisonment.
The facts indicated that on 29 January 2006 a group of men
which included the Applicant entered the Hong Kong Buddhist
Cemetery at Cape Collinson in Chai Wan. They took with them
what were described as ‘ground breaking and digging tools’.
These tools included a pneumatic drill, spades, a sledge hammer,
electric saws, chisels, pick axes and the like. Two of the group
also carried beef knives and one a black imitation pistol.
Their intention was to break open the tomb of the deceased
of a prominent Hong Kong businessman. They intended then to
remove the remains of the deceased and any valuables then found
buried with her. Subsequent to this they had intended to demand a
ransom for the return of the remains (Count 3).
The plan was put into effect during the Lunar New Year
break of 2006. The group of men entered the cemetery after dark
and attempted to break into the tomb using the tools. Progress was
slow, but external damage was nevertheless caused to the external
surfaces by their actions.
When the caretaker of the cemetery and his wife returned at
about 11 p.m. (they lived on the premises), the Applicant, as
lookout, alerted the others. There was a confrontation between the
men and the caretaker and his wife. The caretaker was struck with
two blows to the head with the flat of one of the beef knives which
resulted in two minor lacerations (Count 1).
The caretaker and his wife were taken into the cemetery
office where they were tied up and their eyes covered. They were
detained there for some 3 hours while the men again set about
trying to break into the tomb. At some point they decided they
could not achieve this and the decision was made to leave but not
before cash, jewellery and other valuables were taken from the
caretaker and his wife (Count 2).
20
The damage to the tomb by the attempts to break it open
amounted to $50,000 (Count 4).
The Applicant was D3 in the indictment. He and a coaccused, D2, were sentenced on the same day. Another coaccused, D1, was acquitted. Other gang members were also
sentenced for these or like offences.
In HCCC 254/2007, D1 and D2 faced similar charges to the
Applicant. The Applicant gave evidence for the prosecution which
was instrumental in securing their convictions for some of the
charges they faced. He gave his evidence after he had been
sentenced in this matter.
The judge was aware that the Applicant would give evidence
in HCCC 254/2007, and told him that this ‘might entitle you to
additional consideration over and above the one-third discount
you will be entitled to by virtue of your pleas of guilty’. His coaccused, D2, who was sentenced at the same time, received 5
years’ imprisonment, as he had brandished the beef knife and was
present when the caretaker was assaulted. He also took part in the
attempt to break open the tomb whereas the Applicant was the one
who stood guard and alerted the other gang members to the return
to the cemetery of the caretaker and his wife.
On appeal, it was submitted that the Applicant was entitled
to the additional discount for having given evidence against the
other gang members, and that his role had not been properly
assessed.
Held :
(1) A proper discount in all the circumstances should be 50%.
The notional starting point for sentence adopted by the judge
overall was one of 7 years. A full reduction from that figure would
result in a sentence of 3 years 6 months’ imprisonment;
(2) Although it was submitted that the Applicant took no part in
the actual detention of the caretaker and his wife and the taking of
their valuables, and should not be dealt with in the same way as D2
who was then present and actually engaged, his role as lookout
was critical to the success of the enterprise. He was no less guilty
given the circumstances of the execution of the gang’s plan by
reason of this. Each member of the gang had a role to play, and
the Applicant played his.
Result - Appeal allowed. Sentences reduced to 3 years 6 months’
imprisonment.
21
[For assistance to the authorities generally, see Sentencing in Hong
Kong, 5th ed., Ch 4: Ed]
22
C. MAGISTRACY APPEALS/
AGAINST SENTENCE
裁判法院上訴案件/針對刑罰
MA 507/2009
Mackintosh DJ
(12.8.2009)
*Franco Kuan
#I/P
WEI
Bixiao
False representation to immigration assistant/Conspiracy to
defraud immigration department by Mainland woman
entering into bogus marriage with Hong Kong resident/
Offences common/Level of sentence/Immigration Ordinance
(Cap 115) s 42
向入境事務助理員作出虛假的申述 – 內地女子藉
着與香港居民假結婚而串謀詐騙入境事務處 – 罪
行 普 遍 – 量 刑 等 級 – 香 港 法 例 第 115章 《 入 境 條
例》第42條
The Appellant was convicted after trial of two offences:
Charge 1, making a false representation to an immigration
assistant, contrary to s 42(1)(a) of the Immigration Ordinance,
Cap 115; and Charge 2, conspiracy to defraud, contrary to common
law. She was sentenced to 12 months’ imprisonment and 18
months’ imprisonment, respectively, the sentences to run
concurrently.
The evidence showed that in 2007, the Appellant, a
Mainlander, met a Hong Kong resident called Ma in Shenzhen.
They hatched a plan whereby, in return for her paying him
RMB 10,000, they would enter into a marriage in Hong Kong. As
the Appellant admitted, this was a bogus marriage in that it was
entered into, not so that the parties could live together as man and
wife, but for the sole purpose of facilitating her entry to Hong
Kong from the Mainland on the false claim that she was visiting
her husband. She was provided by Ma with sufficient details of
himself and his family to give credence to her claims to be visiting
him if she was asked. In pursuance of this plan, in September
2007, the marriage was solemnised in Hong Kong and she paid Ma
his fee.
Thereafter, as the Appellant admitted, she successfully
applied on a number of occasions for a Tanquin endorsement to
her exit permit from the Mainland, issued for the purpose of
visiting family in Hong Kong, namely, Ma, and used by the
immigration authorities in Hong Kong as a ground for permitting
her entry. On none of these visits did the Appellant actually visit
Ma, and she never saw him again after the marriage. She was
issued with 90-day work permits to stay and her objective, she said
in interview, was to work in Hong Kong. This agreement with Ma
was represented by the conspiracy to defraud charge.
23
On 28 December 2008, the Appellant arrived in Hong Kong
and falsely represented to an immigration officer that she was
coming to visit her husband, Ma. She was given a further 90-day
permit to land. This was represented by Charge 1. She was later
arrested whilst hawking goods in the street and the offences came
to light.
The Appellant, aged 42 years, was divorced in the Mainland,
with adult children, and had no previous convictions in Hong
Kong.
On appeal
Held :
(1) The overall term of 18 months’ imprisonment was entirely
consistent with the established approach in bogus marriage cases:
HKSAR v Lui Kon-fai MA 1029/1998, HKSAR v Chen Wu-cheng
MA 251/2007, HKSAR v Lui Qiangqing MA 103/2007 (where an
overall term of 21 months’ imprisonment was upheld for what
were said to be ‘prevalent’, ‘wholly dishonest’ and ‘hard to detect’
offences);
(2) On the issue of prevalence of bogus marriages being used to
circumvent immigration restrictions, the Immigration Department
figures showed a total of 240 convictions in 2007, 259 in 2008 and
81 up to May 2009. This was in line with the magistrate’s
comment about this being a commonplace offence;
(3) There was no basis for concluding that the sentences were
excessive or in any way wrong in principle.
Result -
MA 189/2009
Mackintosh DJ
(11.8.2009)
*Andrew Cheng
#Ody Lai
CHENG
Man-ki,
Steven
Appeal dismissed.
Disqualification/Defendant driving vehicle with excess breath
alcohol concentration/Special reasons/Amount of excess not
relevant to disqualification/Level of fine/Road Traffic
Ordinance (Cap 374) s 39A(1)
取消駕駛資格 – 被告人在呼氣中酒精濃度超標的
情況下駕駛車輛 – 特別理由 – 逾限多少並非取消
駕駛資格的相關因素 – 罰款級數 – 香港法例第
374章《道路交通條例》第39A(1)條
The Appellant pleaded guilty to an offence of driving a
motor vehicle with a breath alcohol concentration exceeding the
24
prescribed limit, contrary to s 39A(1) of the Road Traffic
Ordinance, Cap 374 (‘the Ordinance’).
The offence occurred on 17 December 2008, before recent
amendments to the statutory scheme for driving with excess
alcohol took effect.
The Appellant was fined $5,000 and disqualified from
driving for 2 years.
The offence occurred on almost exactly the second
anniversary of the Appellant’s conviction for a similar offence, for
which he was fined $6,000 and disqualified for one year. Given
the second conviction within five years, the magistrate was obliged
to comply with s 39A(2) of the Ordinance which, so far as was
material, read at the time: ‘The magistrate ... shall disqualify [an
offender] from driving for a period of not less than two years for a
second or subsequent conviction ... unless for special reasons ...
the magistrate orders that he be disqualified for a shorter period
or that he be not disqualified.’
Section 39A(3), as then enacted, created the 5-year time
frame. Under s 39A(1), the maximum fine for such a second
offence increased from Level 3 ($10,000) to Level 4 ($25,000).
These statutory levels, found in Schedule 8 of the Criminal
Procedure Ordinance, Cap 221, and designed to allow for easy
adjustment of fines for all offences, were fixed in 1994 upon their
introduction.
The admitted facts were that in the early hours of the
morning the Appellant drove a car in an erratic manner towards a
police roadblock where it was stopped. The Appellant smelt of
alcohol and was breathalysed. The screening test showed 33 µg of
alcohol per 100 mL of breath and he was arrested. Later analysis
showed a breath alcohol concentration of 32 µg per 100 mL: the
statutory limit was 22 µg per 100 mL.
On appeal, it was submitted that the magistrate had failed to
take into account a number of ‘mitigating factors’ in determining
the period of disqualification. These included what was said to be
the blameless driving of the Appellant (despite the admission that
his driving was erratic), the effect of disqualification upon his
employment, including what was said to be a loss of income of
$5,000 to $7,000 per month, and the consequential impact on his
marriage plans, and his family circumstances. It was said that the
court should have had regard to the cumulative effect of these
matters.
A definition of ‘special reasons’ appeared in s 2 of the
25
Ordinance. It meant:
... special reasons relating to the offence itself, and in
exceptional circumstances special reasons relating to
(a) the offender; and (b) such other circumstances that
the court ... may consider to be relevant.
Held :
(1) At common law, it was well-settled that certain minimum
criteria must be satisfied for a matter to amount to a ‘special
reason’. The most significant of these was that it must be directly
connected with the commission of the offence: Whittal v Kirby
[1946] 2 All ER 552, R v Wickens (1958) 42 Cr App R 236.
Although this statutory definition in Hong Kong extended the
meaning in exceptional circumstances to include other matters
which might relate to the offender himself, none of the factors
advanced in this case could be said to be exceptional either taken
alone or taken together. Any disqualification was bound to have a
significant impact on the offender’s personal life and might well
affect his employment, particularly if he was a professional driver.
However, such circumstances were commonplace, not exceptional.
This aspect of the definition was aimed at cases where, for
example, the offender was severely disabled or had a severely
disabled family member and the loss of licence for 2 years would
have a drastic impact;
(2) The contention that the excess alcohol in this case, 10 µg
over the limit, was negligible, and that this was a reason for
reducing or cancelling the minimum period of disqualification
because it related to the offence itself, had to be rejected. The
Appellant was driving with a breath alcohol content which was
approximately 50% above the statutory maximum. But even if it
was correctly categorised as negligible, there was clear authority
that being slightly over the limit could not amount to a special
reason: Delaroy-Hall v Tadman [1969] 2 QB 208 (where the court
was dealing with three cases, involving excesses of 4%, 20% and
35% in relevant limit), R v Anderson [1972] RTR 113;
(3) Just as the amount of the excess could not affect the issue of
guilt or innocence, so it was of no consequence with regard to the
question of disqualification. Thus the amount of the excess could
not constitute a special reason. To find otherwise would be to
introduce a degree of uncertainty, as to where the line was to be
drawn, into legislation which was designed to provide for
uniformity and certainty;
(4) There were no special reasons for not disqualifying the
Appellant for the mandatory 2 years or for reducing the
26
disqualification to any degree;
(5) The magistrate was not correct to impose a fine of $5,000,
which was the sort of fine generally imposed on a first offender.
Such a fine failed to reflect the increase in the maximum fine for a
second offender, from Level 3 to Level 4 which the legislature had
prescribed. A fine in the order of at least $10,000 would have
been appropriate given that increase and the degree of excess
alcohol.
Result -
Appeal dismissed.
Obiter -
Although there was a power in s 119(e) of the
Magistrates Ordinance, Cap 227, to vary the fine, this
power was rarely used. It was common for legal
representatives to advise prospective appellants that
they could appeal against a part of the sentence (such as
a disqualification) and be confident that the rest would
remain intact. That was what happened in this case.
[For disqualification generally, see Sentencing in Hong Kong, 5th
ed., Ch 19: Ed]