ccab 93/95
Sentence (Quantum)
Arms & Ammunition
CA 262/92
NG Chun-keung
Power, Macdougall JJA, Liu J (19.1.93)
*V Hartstein
#J Haynes
Tariff for firearms offences/Guidelines postdating offence
Held :
(1) That which the court said in R v HO Chun [1992] 1 HKLR 86, as to the unlikelihood of it
interfering with sentences of at least 8 years imprisonment related to the possession of a firearm without
ammunition. Possession of a loaded firearm would attract a heavier sentence. Likewise would the
possession of both an unloaded firearm and ammunition call for a more severe sentence than that for an
unloaded firearm alone;
(2) Counsel failed to draw to the judge's attention the fact that the guidelines upon which he was relying
were delivered after the commission of the offence with which he was concerned. They were thus
inapplicable.
Result - Application for leave to appeal against sentences totalling 14 years for two firearms offences
allowed. 13 years substituted.
CA 222/92
MAN Hung-pui
Yang CJ, Bewley &Barnett JJ (27.8.93)
*D G Saw
#J Poon
Possession of ammunition/Condition of ammunition/Guidelines inappropriate
Held :
(1) Possession of ammunition is usually less serious than possession of a firearm;
(2) It was noteworthy that the ammunition involved was live and capable of being fired by a pistol;
(3) As the circumstances in which the offence of possession of ammunition without a licence vary
considerably, no guidelines would be issued.
Result - Appeal allowed against a sentence of 4 1/2 years imprisonment, and 32 months substituted.
CA 238/94
AU YEUNG Wai-kwong
259
ccab 93/95
Macdougall V-P, Litton JA, Kaplan J (17.8.94)
*I G Cross QC & J To
#F C Whitehouse
Possession of firearm and ammunition without a licence/Gravity of offence/Effect of mitigation
The applicant was found to be carrying a 7.62 TT32 pistol with magazine and 7 rounds of 7.62 x 25
mm ammunition suitable for use in that pistol. He immediately said that he bought the pistol for selfprotection from a loan shark. A test by a ballistics expert revealed that its condition was poor and it
frequently jammed after firing only one round - but it was capable of discharging shots.
The judge took a starting point of 12 years and reduced it to 8 years even though the appellant was
caught red-handed in possession of the weapon.
On appeal, it was submitted that the gun was unloaded at the time, that it was in poor condition and was
required for self-defence. Since the maximum sentence was 14 years, the taking of 12 years was very
near the top of the range which would indicate that it was difficult to think of any other case which was
quite as serious as this.
Held :
Firearms offences are extremely serious, and will attract very substantial prison sentences. If the
firearm is used in the course of criminal activity, that makes the matter even more serious. However,
the possession of a firearm with ammunition is but a step away from its use. The sentence was a proper
one, and the trial judge had faithfully applied the decision in Ho Chun [1992] 1 HKCLR 86.
Result -Application refused.
CA 315/94
Yang CJ,
Penlington JA,
Mayo J
(10.1.95)
*D G Saw
#A Souyave
LO Wing-lung
Arms and ammunition/Hand grenades/Danger to police
and public/Maximum sentence as starting point/Handling
valuable property from robbery/Totality
The Applicant sought leave to appeal against consecutive
sentences of, respectively, 11 and 4 years imprisonment, on
counts of possession of arms and ammunition, contrary to
section 13 Cap. 238, and of handling stolen property, contrary
to section 24, Cap. 210. (15 years in toto)
The arms and ammunition comprised a 7.62 mm automatic
pistol, nine rounds of ammunition, and four hand grenades each
containing an explosive surrounded by small steel fragments in
plastic casing designed to produce shrapnel on detonation.
In respect of the firearms count, it was submitted that the
judge erred when he took 14 years as his starting point, since
that is the statutory maximum.
As regards the handling count, it was said that the starting
point of 5 years was too high, and the discount reducing this to
4 years was not sufficient.
Held :
(1) The judge was right to stress that the possession for re-sale
of hand grenades brings this crime into the very top bracket of
offences of this sort and the judge was right to take the starting
point as the maximum of 14 years imprisonment. A weapon
260
ccab 93/95
such as a hand grenade is designed to inflict the maximum
amount of death and destruction in an entirely arbitrary
manner. If used in order to facilitate the carrying out of a
crime such as robbery, the danger to innocent members of the
public could not be under-estimated. What is however more
likely is that it would be used to facilitate escape and the
danger to the public as well as to any pursuing police officers is
obvious;
(2) As regards the handling charge, the property involved was
a valuable watch which the applicant knew to be the proceeds
of robbery. The starting point of 5 years was correct;
(3)
Taking into account the clear record for offences
involving violence or dishonesty, the family background and
the guilty pleas, the totality of 15 years was too high. For that
reason, the sentences in respect of each charge would be
reduced by one year, making a new total of 13 years.
Result- Appeal allowed.
CA 4/95
CHENG Kongngan
Power Ag CJ,
Bokhary JA,
Chan J
Possession of firearm and ammunition/Police unaware of
offence/Accused volunteering information
The Appellant volunteered information to the police,
while being interviewed about another matter, that he was in
possession of a firearm , a 7.62 mm pistol, and eight rounds of
ammunition for it. He led the police to recover that pistol and
ammunition. He was duly charged.
(5.5.95)
*A Bruce
The judge, having taken 12 years on his starting point,
emphasised that a deterrent sentence had to be imposed. He
imposed a sentence of 7 years.
#C Grounds
On appeal
Held :
(1) The strongest element of mitigation was the fact that the
information about the pistol and the ammunition was
volunteered to the police by the Applicant. The police would
not otherwise have known of them. The Applicant’s guilt of
plea was a genuinely and deeply remorseful one;
(2) The judge’s concern about the use of firearms was wellfounded. But this was a special case. The proper sentence
was one of 3 years.
Result - Application allowed.
CA 356/95
Power Ag CJ,
Mayo & Ching
JJA
Ronald George
MILHENCH
Possession of firearm and ammunition/Starting
point/Seriousness of offence/Relevance of
mitigation/Consecutive sentence for forged passport offence
The Applicant pleaded guilty to a charge of possession
of a .22 revolver and 34 rounds of live ammunition without a
261
ccab 93/95
(5.10.95)
*I G Cross QC
& W S Cheung
#G Plowman
QC & J
McNamara
licence, contrary to s. 13 Cap. 238. He received 4½ years
imprisonment.
He further pleaded guilty to a charge of possession of a
forged British passport, contrary to s. 42 Cap. 115.
The two sentences were ordered to run consecutively,
making 5 years in toto.
The Applicant was put forward at trial as a man who
fantasised about living a James Bond type of life. It was said
that he would take unnecessary risks. One such alleged risk led
to him bringing the false passport to Hong Kong from the
Philippines, where it was said he had been recruited as a DEA
agent by Lord Moynihan. His purpose was to use the passport
to establish a false identity and thereby to infiltrate and expose
a group of Filipinos involved in the smuggling of illegal
immigrants.
As regards the gun it was said that it belonged to the
Applicant’s daughter in America, and that he accidentally
packed it in his belongings when he had to evacuate Florida in
a rush due to a hurricane. Not until he arrived in Hong Kong
did he realise that somehow the gun and the ammunition had
passed undetected through the airport checks and that he had
them, still in their original wrappings. He was in a quandary
and as an interim measure put them into the safe deposit box he
had rented at the head office of the Hong Kong and Shanghai
bank.
The trial judge rejected the version of the Applicant that,
when he found he had the gun and ammunition, he became
worried that a check might be made on his daughter and she
might then find herself in trouble for not having them. He
claimed to have telephoned her to say how he would solve the
problem. He maintained that he had considered dismantling
the gun and sending her the pieces. He said he considered
throwing the gun into the harbour but to a gun enthusiast that
‘would be almost sacrilegious’, and would not solve his
daughter’s problem. He thought of going to the police but in
light of his 1974 convictions in England of offences of fraud,
deception and unlicensed possession of firearms, feared they
might not believe him and that they might arrest him. In
rejecting all this, the judge sentenced the Applicant on the basis
that possession of the gun and ammunition were part of the
Applicant’s fantasies. He was to be sentenced upon the basis
of his admitted possession and once his explanations were
rejected it became necessary to see what other matters there
may have been in mitigation. On appeal
Held :
(1) The Applicant could hardly have done otherwise than
plead guilty;
(2) Even though the weapon was a ladies gun, a defensive
weapon that had not been fired, the fact remained that the
Applicant was in possession of it and it was found to have been
in his possession as part of his fantasies : R v Ng Kwok-ying
262
ccab 93/95
CA 109/86 distinguished;
(3) Although it was true that the gun and ammunition had
been kept secure in the safe deposit box, the Applicant had free
access to it and the gun had been loaded with 5 of the 34
rounds. The gun must have been carried through the streets to
the safe deposit box. As the Applicant had not informed the
police of his possession so that secure provision could have
been made for it to be taken away, it was possible for him to
attempt to remove it. Guns and ammunition can go astray. The
carrying of a gun, especially a loaded one, brings with it not
only fear and the chance that it may be discharged however
accidentally but it invites the presence and use of other guns by
law enforcement officers. The only real point in mitigation was
that, as the trial judge had accepted, the Applicant had no
intention of using the gun for the purpose of some violent
criminal enterprise in Hong Kong;
(4) The trial judge was correct in stating that, but for the
guilty plea, the sentence for the gun offence would have started
at 12 years. Because of the plea, he started from a point of 8
years, and that was a generous discount. In light of all the
circumstances, a sentence of 4½ years was appropriate;
(5) There being no connection between the two offences, the
sentences were properly made consecutive.
Result - Application dismissed.
CA 57/95
Power Ag CJ,
Liu & Mayo
JJA
(22.9.95)
CHENG Yucheung
Unlawful possession of a stun gun/Stun gun and firearm
compared/Sentencing considerations
The Applicant pleaded guilty to possession of arms
without a licence, contrary to s. 13 Cap. 238. The arm in
question was a stun gun. He received 2 years imprisonment,
after the judge, having taken 2½ years as his starting point,
reduced it by 6 months to reflect the guilty plea.
*A Bruce
#B Beaumont
(absent)
The Applicant told the trial judge he acquired the stun
gun in 1993 against possible attacks by loan sharks. When he
left Hong Kong in late 1993, he left it with a friend, and did not
see it again until he stood his trial.
On appeal, the Applicant acted in person. However, the
court had the advantage of perfected grounds of appeal settled
by his counsel who was absent.
Held :
(1) No court would countenance the illegal possession of a
contraption of this kind. However, it bore no resemblance to a
gun or revolver. It was not as menacing as a firearm. While it
could be an aid to violent crime it was of limited application, at
close quarters. But nevertheless it was an article, the
possession of which is not permitted by law and should be
sternly discouraged. The starting point adopted at trial was not
unduly high;
263
ccab 93/95
(2)
The personal particulars and the mitigation required
greater weight. The Applicant pleaded guilty and had a clear
record. There was nothing to gainsay his claim that he had the
stun gun for self-defence. A greater discount was proper.
Result - Appeal allowed. Sentence reduced to imprisonment
for 1 year.
Obiter - That his co-accused had received 2 months
imprisonment from another judge for the same
offence, and that some other person had received a
sentence of one year for a similar offence, were not
matters to be prayed in aid by the Applicant.
Arson
CA 323/92
CHAN Wai-keung
Silke V-P, Power V-P, Macdougall JA
(26.3.93)
*I G Cross QC & W S Cheung
#A Tsang
Arson/Starting point after plea for inadequate offender
Held :
Eight years imprisonment was an appropriate starting point for a serious offence of arson committed by
an impulsive and inadequate man with a tendency to overreact : R v SHUM Hon-kai and Another
[1988] 2 HKLR 341, R v CHAN Yuk-kuen Cr App 402/80 considered.
Result - Appeal allowed. Sentence of 8 years imprisonment, imposed after a guilty plea, reduced to 6
years.
CA 309/94
Power Ag CJ,
Litton VP,
Bokhary JA
(16.5.95)
*D G Saw & A
Chan
LI Man-tong
Arson/Revenge attack/Gravity of offence
The Applicant pleaded guilty to a count of arson. He
received 4 ½ years imprisonment.
The facts showed that he and a confederate set fire to a
meat stall, by way of a revenge attack. The arson attack took
place at 2 a.m. Kerosene was used and the damage amounted
to $80,000. On appeal
Held :
#J Yau
The judge was right to emphasise that this was a revenge
attack which took place in the dead of night in a highly
populated area. Arson, because of the inherent danger in any
uncontrolled fire, is always regarded as an offence of particular
gravity. Arsonists exhibit reckless disregard for life and
property. The sentence was correct.
264
ccab 93/95
Result - Application dismissed.
Assault & Wounding
AR 14/92
LAM Yat-sing
Fuad V-P, Power & Macdougall JJA (14.1.93)
*I G Cross QC & W S Cheung
#A Sakhrani
Wounding with intent/Sentence after trial/Discount/Whether authorities useful
The District Court imposed a sentence of 4 months imprisonment upon a man who, after trial, was
convicted of wounding with intent, contrary to S. 17 Cap. 212. The facts showed that the accused, after
an argument, chopped the victim twice on the left side of the face. One of the blows caused a slight
fracture and both wounds required stitches. The AG sought a review on the basis that the sentence was
manifestly inadequate and/or wrong in principle.
Held :
(1) The sentence was so inadequate that the Court was bound to interfere. A judicial discretion in
determining what sentence to impose would not, if properly exercised, have resulted in a sentence of
only 4 months imprisonment;
(2) As the respondent had almost completed his prison term, a discount would be granted from the 2 1/2
years which ought to have been imposed : AG v WONG Kwok-wai [1991] 2 HKLR 384;
(3) Decided cases are of little assistance in deciding sentence in wounding cases as everything depends
so heavily on the particular facts of each case.
Result - AG's review allowed. Sentence increased to 2 years.
MA 189/93
CHAU Kam-cheong
Leonard J (21.9.93)
*S Wong
#K Hon
Unlawful wounding by husband on wife/Relevance of attitude of victim
Held :
(1) Although matrimony is not a licence for one spouse to assault another, it cannot be said that where
there is an assault by a man upon a woman, the circumstances are irrelevant to the question of sentence.
Here it was obvious that there were serious matrimonial difficulties which led up to the offence;
(2) The magistrate sentenced the appellant immediately after he had convicted him and heard a speech
in mitigation. If he had adjourned until he had the assistance of a background report, he might have
taken a different view. The background report now before the court was most helpful, and the affidavit
of the victim made clear that the appellant's offence was quite out of character, that he was remorseful,
265
ccab 93/95
and that she did not want her husband to go to prison. Her forearm had healed and there was no
permanent injury.
Result - Appeal allowed against a sentence of 9 months imprisonment imposed for unlawful wounding probation substituted.
CA 399/93
HUI Man-nee
Silke Ag CJ, Penlington JA, Sears J (4.11.93)
*C Coghlan
#I/P
Attack on public officers/Offenders cannot expect mercy from the courts
Held :
(1) Anybody who attacks a public officer who is carrying out his duties, a task which is often
unpleasant, can expect no mercy from the courts : R v Lee Wing [1988] 2 HKLR 227;
(2) The fact that the applicant lost control of himself after emotions had become inflamed did not in any
way justify an attack of this nature with a dangerous weapon upon public officers;
(3) Although in Lee Wing (above) the injuries were very serious, and here they were not, there were
nonetheless multiple offences;
(4) Had the applicant pleaded guilty and expressed real regret for his actions a more lenient view could
have been taken. There was no such expression of regret for this vicious attack.
Result - Application for leave to appeal against sentences totalling 2 years for three offences contrary
to section 17 Cap. 212, refused.
AR 1/94
NG Chak-hung
Silke Ag CJ, Litton & Bokhary JJA (2.9.94)
*P Wong
#D Law
Wounding with intent/Suspended prison term unlawful/Probation appropriate in exceptional
case
Held :
(1) An offence contrary to section 17 Cap. 212, is an excepted offence in respect of which a suspended
sentence of imprisonment cannot lawfully be imposed;
(2) Although it is unusual where such an offence is involved to impose a probation order, in the light of
the circumstances of this case and in particular the nature of the accused himself, the interests of the
offender and of society in general would be served if such an order was made.
Result - AG's review allowed.
266
ccab 93/95
Obiter : It is unfortunate that the legislature has seen fit to remove the option of a suspended sentence
in relation to S. 17 offences which can vary greatly in gravity.
AR 5/94
AG v CHAN Wai-luen
Power V-P, Mortimer JA, Mayo J (16.8.94)
*I G Cross QC & W Wong
#R Spicer
S. 17 Cap. 212/Youth causing permanent disability to victim/Prison inevitable
The Respondent, a teenager, pleaded guilty to causing grievous bodily harm with intent contrary to S.
17 Cap. 212. He was party to a revenge attack upon a young man which reduced the victim to a
comatose condition from which he was not likely to recover. The Respondent was ordered to be
detained in a training centre. On review
Held :
(1) Conduct of this kind requires suitable punishment and mere youth is not a sufficient barrier against
the imposition of a prison sentence : AG v Chan Chi-wai AR 17/83 applied;
(2) One of the reasons for the criminal law is to prevent people taking the law into their own hands, in
particular to prevent revenge feuds and vendettas : R v Sakhi (1984) 6 Cr App R 308 approved;
(3) The gravity of the offence demanded a sentence of imprisonment, and 6 years would have been
proper after trial.
Result - AG's review allowed. Training centre order quashed and 4 years imprisonment substituted.
CA 132/95
Yang CJ,
Mortimer &
Mayo JJA
(11.7.95)
*I G Cross QC
& R Leung
#M Poll
SIN Siu-ling
Causing grievous bodily harm/Consequences of serious
assault to be accepted even if unexpected/Relevance of
intent/Conduct after offence as mitigation/Family factors
The Applicant was convicted of causing grievous bodily
harm, contrary to section 17(a) Cap. 212. She received 5 years
imprisonment. On appeal, it was submitted that the sentence
was manifestly excessive.
Held :
(1) Although it was contended that the result of this type of
assault would not normally be so serious, if a serious assault is
perpetrated one should accept the consequences which flow
from it even if they may be unexpected;
(2) It was necessary to consider the intent. That is what was
contemplated at the relevant time. What seemed to be
envisaged was a relatively minor assault. She stayed behind
and tended to the victim after the assault was over;
(3) The other mitigating factors were the Applicant’s clear
record and the fact that she was looking after a 14 year old son
who was a student;
267
ccab 93/95
(4) The sentence was on the high side. A sentence of 3 years
was appropriate.
Result - Appeal allowed. Sentence of 3 years substituted.
Blackmail
CA 126/95
CHAU Chung-wai
Yang CJ,
Mortimer &
Mayo JJA
(20.10.95)
*D G Saw
#I/P
Blackmail/Extortion of money from victim as separation
fee/Property of victim damaged
The Applicant received a sentence of 3 years and 3
months imprisonment for an offence of blackmail. It was quite
a serious offence, and a demand for $108,000 was made of a 16
year old girl for what was described as a separation fee. After
she declined to pay, some damage was caused to her premises,
and she then informed police.
On appeal, the Applicant contended that his entire role in
the matter was minor.
Held :
The role of the Applicant was not minor. The judge made
a finding of fact that he had been a party to making demands of
the victim with menaces. The sentence was in no way
manifestly excessive or wrong in principle.
Result - Application dismissed.
Bribery/Corruption/ICAC
AR 3/93
NG Sheung-chun
Macdougall & Nazareth JJA, Sears J (29.4.93)
*K Zervos
#G J X McCoy
Sentences for corruption/Section 4 POBO/Public officer
Held :
(1) It is one thing for a public officer to engage in the corrupt acceptance of advantages, but entirely
another to corrupt fellow officers;
(2) The usual minimum sentence for an offence against section 4 POBO is 12 months imprisonment :
AG v TSANG Wai-kwong AR 2/85. Sentences other than immediate custodial sentences for such
offences can only be justified in wholly exceptional circumstances. Any latitude in departing from the
guidelines should not extend to the suspending of sentences for corruption offences of a serious nature :
AG v LEUNG Hung-hang AR 19/83 explained.
268
ccab 93/95
Result - AG's review allowed. Sentences of 20 months concurrent imprisonment, suspended for 3
years, imposed after guilty pleas by a Customs Officer who conspired to offer advantages to public
officers, and to accept advantages, set aside. Sentences totalling 4 years imprisonment substituted.
MA 396/93
HO Ming-tak
Bokhary JA (22.7.93)
*V Hartstein
#I/P
Illegal immigrant offering advantage to policeman/Sentencing for illegal immigrants
Held :
(1) Although the illegal immigrant probably acted in panic when he sought to bribe the officer who
intercepted him, bribery is an extremely serious charge;
(2) Given the flow of people coming to Hong Kong who do not wait their turn, the courts have to pass
severe sentences except in extremely exceptional cases.
Result - Appeal dismissed against consecutive sentences of 15 months, for unlawful remaining, and 3
months, for offering an advantage to a public servant.
CA 103/94
CHAN Kwok-hing
Penlington, Nazareth & Litton JJA (6.5.94)
*D G Saw
#A Sanguinetti & S Yu
Offering advantage to public officer/Immediate imprisonment of 12 months appropriate/1981
guidelines reaffirmed
Held :
(1) Offences contrary to S. 4 POBO normally require the imposition of immediate custodial sentences,
and alternative methods such as a fine, probation or a suspended sentence should be imposed only in
exceptional cases : Lai Yuk-kui v R [1981] HKLR 691 approved;
(2) The climate in Hong Kong as regards the seriousness of corruption has not changed since 1981 so
that the principles set out in Lai Yuk-kui (above) should be changed. A sentence of 12 months
immediate imprisonment is appropriate for relatively minor cases of corruption in the public sector.
Result - Application for leave to appeal against a sentence of 9 months imprisonment refused.
AR 9/92
Eddie SOH Chee-kong
Power V-P, Mortimer JA, Sears J (8.6.94)
269
ccab 93/95
*A Huggins QC & A Chan
#D Keane QC & L Law
Bribing public servant/Sentencing level for multiple offences/Effect of late remorse/Ill
health a matter for prison authorities
The Respondent was found guilty after trial of seven counts of offering an advantage to a public servant
and one of conspiring to offer an advantage to a public servant. He was sentenced to seven years of
concurrent imprisonment on each count. On review, it was submitted that while seven years was an
appropriate sentence for one such offence, it was manifestly inadequate for eight. Nothing urged in
mitigation would warrant an overall sentences of seven years, which sentence did not reflect the judge's
conclusion that the offences were of particular gravity, striking at the heart of the administration of
justice.
Held :
(1) The Respondent had been ruined and shamed by his convictions. He had at the eleventh hour
demonstrated a degree of remorse and co-operation but coming as it did after trial, after conviction and
after sentence little weight could be given to it. It was not proper for the court to give weight to
possible deterioration in his health. It was a matter for the prison authorities to see that he received
proper medical attention;
(2) It could not be said to be of assistance to draw a comparison between the sentence of seven years
the Respondent received and the sentence of eight years which the public servant (Reid) involved in the
offences had received;
(3) The judge was wrong to make the sentences concurrent. The overall sentence was manifestly
inadequate and wrong in principle. Assessing the proper overall sentence in light of the totality
principle, the sentence which should have been imposed was one of ten years.
Result - AG's review allowed. Sentence increased to nine years.
MA 408/94
CHAN Chi-wing
YEUNG Kwok-shiu
Leonard J (28.6.94)
*T Shiu
#J Pow
S. 9(2)(a) POBO/Sentencing considerations
The appellants pleaded guilty to the offence of conspiracy to offer an advantage to an agent, contrary to
S. 9(2)(a) Cap. 201, and each received 9 months imprisonment.
The appellants were clerks of Works for First Pacific Davies (FPD). They were also proprietors of a
company which was not an approved contractor with FPD and was not entitled to obtain work from that
firm. They offered three fellow employees commission if they would let maintenance contracts on
behalf of FPD to their company. As a result, some 19 maintenance contracts worth $152,465 were
awarded.
The appellants knew that it was wrong to let contracts to a company which was not an approved
contractor. They corruptly caused their colleagues to let the contracts in breach of their duty to their
employer. They themselves, as employees of FPD, were in breach of their duty of good faith to FPD
for they were the cause of the letting of contracts to an unapproved contractor. They also stood to profit
270
ccab 93/95
from the business which was going to their own limited company. They had a duty not to make secret
profits from dealings with their employers.
The magistrate took as a starting point 12 months imprisonment and allowing for the pleas of guilty and
other matters of mitigation, he reduced the term to 9 months. On appeal
Held :
(1) The offence was aggravated by the fact that the appellants were the employees of the firm from
which they hoped to make a secret profit by means of bribery. Although the recipients of the
commission did not make much money, the conspirators obtained work with a gross value of $152,465.
There were 19 contracts in all over the space of some 4 months;
(2) Whilst all corruption offences are serious offences, not all such offences merit an immediate
custodial sentence and each case must be decided upon its merits : Lai Yuk-kui v R [1981] HKLR 691,
R v Chui Yiu-lau MA 5/90 approved;
(3) The starting point of 12 months imprisonment was proper, and the mitigation deserved a more
substantial discount than was in fact given. The sentences would be reduced from 9 months to 7
months.
Result - Appeals allowed.
AR 5/95
Power Ag CJ,
Bokhary &
Mayo JJA
(9.5.95)
*K Zervos
#A Macrae (1)
A Sakhrani (2)
AG v
(1) BOW Ki-lun
(2) LEUNG
Chung-shu
POBO
offences/
Serious
and
criminality/Corruption must be reported
protracted
R1 was convicted after trial of the charge of soliciting an
advantage and of 17 charges of accepting an advantage. He
was sentenced to 12 months on each charge to be served
concurrently.
R2 was convicted of 16 charges of offering an advantage
and of one of false accounting. R2 was sentenced to 6 months
on each charge, also to be served concurrently.
On review, it was submitted that the sentences were
wrong in principle and manifestly inadequate.
Held :
(1) It is the duty of the court to make it plain to the business
community that when situations such as this arise there is only
one course open to the person to whom the offer is made report the matter to the authorities;
(2)
There can be no gainsaying that these were serious
offences committed over a substantial period of time. More
than half a million dollars were involved. Offences of this type
strike at the heart of business probity;
(3) A proper starting point for R1 would have been 4 years. A
proper starting point for R2 upon the charges of offering an
advantage would have been 2 ½ years and a proper starting
point on the false accounting charge would have been 6
months.
Result - AG’s review allowed. Sentence of R1 increased to
one of 3 years. Sentence of R2 increased to one of 2
271
ccab 93/95
years.
MA 1524/94
Albert AU Chunfai
Wong J
Sentencing for S. 9 POBO/Large-scale and protracted
breach of trust/Private and public sector corruption
equally serious
The Appellant was convicted of seven charges of
accepting an advantage, contrary to S. 9 (1)(a) POBO, Cap.
201. On each charge he was sentenced to 12 months
imprisonment, to be served concurrently. He was also ordered
to pay $100,000 by way of restitution. On appeal
(21.3.95)
*D Pang
#L Lok QC & P
Tam
Held :
(1) The magistrate was right to take into account the fact that
the total amount involved was large and the offences were
committed over a period of 7 months. The Appellant was in a
position of trust and he had breached and abused that trust;
(2) Corruption in the private sector is no less serious than
corruption in the public service. They are inter-related because
both will affect the public interest. The corrupt moneys paid
and received in this way will ultimately pass on to the
consumer public as part of the production cost or expenses, and
the public interest suffers as a result.
Result - Appeal dismissed.
MA 157/95
Duffy J
(28.7.95)
*W Lam
#G Plowman
QC & S
Westbrook (1)
M Lee QC & P
Dinan (2)
(1) CHEUNG
Kwong-chuen
(2) POON Wingyam
Section 9 POBO/Custodial sentences not invariably
appropriate/Moral culpability must be assessed
This was an appeal against sentences of 5 months
imposed for offences contrary to ss 9(1)(a) and 9(2)(a) of the
POBO, Cap. 201. A1 pleaded guilty to four charges of
accepting advantages from A2, and A2 pleaded guilty to four
charges of offering advantages to A1. On appeal
Held :
(1) In his Reasons for Sentence, the magistrate said that he
had concluded that save in unusual and compelling situations,
corruption offences, including those under section 9, are to be
met with immediate custodial sentences. This was a misstatement of the law as it relates to s. 9 offences : R v Lai Yukkui [1981] HKLR 691;
(2) As counsel representing the accused at trial had produced
a schedule of s. 9 convictions and sentences passed between
January 1992 and March 1994, the magistrate ought to have
been guided by it to some extent;
(3) The moral culpability of the accused was small. This was
not a situation where an employee, in order to make a profit for
himself, solicited money from his employer’s clients in return
for special services or favours. The payments in this case were
made, unsolicited, by a grateful client, A2, for the particularly
272
ccab 93/95
good service that A1 had provided him. There was no attempt
at subterfuge. The corrupt motive was difficult to find. It was
not the sort of offence which struck at the root of the credibility
of Hong Kong’s commercial reputation. A1’s employer, who,
significantly, maintained a favourable attitude to the Appellant,
despite the charges, lost nothing as a result of the offences;
(4) Immediate custodial sentences were not required, and
other sentencing options should have been employed.
Result - Appeals allowed.
Sentences of imprisonment
suspended. Each Appellant was also ordered to pay
a fine of $60,000 in respect of each offence, making
a total of $240,000 for each Appellant.
CA 405/95
Yang CJ, Power
VP, Mayo JA
(11.10.95)
*J Poon
#K Egan
LIEW Kwokshan, William
Corruption/Public agent soliciting and accepting
advantage/Need for deterrence
The Applicant was convicted after trial, firstly, of being
a public agent, namely, a Chief Engineer of the Transport
Department, and unlawfully soliciting an advantage of
$400,000, and, secondly, of unlawfully accepting an advantage
of $100,000. He was sentenced, respectively, to 4½ years and
2½ years, the sentences to run concurrently. On appeal, he
contended that the sentences were wrong in principle and
manifestly excessive.
Held :
(1) The starting points of, respectively, 5 years and 3 years
were proper starting points for offences of this kind. Offences
such as these call for sentences which contain an element of
deterrence;
(2)
The sentences were neither wrong in principle nor
manifestly excessive.
Result - Application dismissed.
Burglary
CA 99/92
LUK Wai-kit
Silke V-P, Macdougall JA, Jones J (26.2.93)
*S Wong
#A Macrae
Burglary in domestic premises/Multiplicity of offences
Held :
273
ccab 93/95
(1) The accepted starting point for an offence of burglary of domestic premises after trial is 3 years : R
v CHAN Yui-man Cr App 36/88;
(2) As the applicant had pleaded guilty to a multiplicity of burglary offences, an overall sentence of 4
years was not manifestly excessive : R v CHAN Wing-ching Cr App 100/91.
Result - Application for leave to appeal against sentences totalling 4 years for 7 burglaries refused.
CA 130/93
Kwok Sun-chuen
Macdougall V-P, Mortimer JA, Bewley J (19.8.93)
*I G Cross QC & M Wu
#A Delaney
Burglary in commercial premises/Multiple offences/Guilty pleas
Held : (Majority)
(1) The starting point for one charge of simple burglary in commercial premises should be 2 1/2 years
imprisonment : AG v Lui Kam-chi AR 1/93; R v Wong Man CA 372/92;
(2) As the applicant had pleaded guilty to five separate burglaries of commercial premises, involving a
total of HK$23,614, a proper sentence was one totalling 4 years imprisonment.
Result - Appeal allowed. Sentence of 5 years imprisonment reduced to 4 years.
C&E
MA 873/92
HO Yuk-ki
Keith J (9.12.92)
*T Casewell
#E Toh
Deterrence and suspended sentences/Unlawful importation of dutiable goods
Held :
(1) If a deterrent sentence is called for, the deterrent value of the imposition of a custodial sentence is
negated if that sentence is suspended;
(2) Even though the Appellant, who had pleaded guilty, was a first offender, and although his
imprisonment would create family problems, the offence of importing dutiable goods without a licence,
(100,000 cigarettes), contrary to the Dutiable commodities Ordinance Cap. 109, was sufficiently serious
to justify an immediate prison term of three months.
Result - Appeal dismissed.
274
ccab 93/95
MA 797/92
NG Wai-hong
Litton JA (18.2.93)
*C Coghlan
#C Grounds
Smuggling offences/Distinction between types of goods/12 months upheld
Held :
(1) No valid distinction can be made between the smuggling of motor cycles and of electronic
equipment such as video cassette recorders. They are all high value products, the smuggling of which is
prevalent in Hong Kong, and bring substantial rewards;
(2) However, AG v SO Man-por [1981] HKLR 696 was not authority for the proposition that
magistrates should draw no distinction between various types of products in imposing sentences. If the
products are of low value, and the gain from smuggling would be low, and the incidence is rare, the
magistrate can take a more relaxed view.
Result -Appeal against concurrent sentences of 12 months imprisonment, imposed after pleas to two
offences contrary to the Import and Export Ordinance Cap. 60, dismissed.
MA 1178/92
SO Lo
Litton JA (18.2.93)
*C Coghlan
#N Pirie
Smuggling offences/Low value products/Low reward/Deterrence/3 months upheld
Held :
The smuggling of fresh fruit into China is not prevalent. However, the maintenance of legitimate trade
between Hong Kong and China is of vital importance to the community and erosion of the scheme of
regulation under Cap. 60 is an erosion of Hong Kong's "system and life style". Such smuggling, unless
contained, threatens to damage Hong Kong's relationship with China. The community requires the
assistance of the courts to contain, if not stamp out, smuggling of all kinds and deterrence must be kept
firmly in mind.
Result - Appeal against 3 months imprisonment, imposed after a plea to attempting to export
unmanifested cargo, contrary to s 18(1)(b) Cap. 60, dismissed.
MA 94/93
Ford Wealth Development Ltd.
Bokhary JA (16.4.93)
*W S Cheung
#P Nguyen
275
ccab 93/95
Exporting unmanifested cargo/Offence committed through inadvertence
Held :
(1) Even if the accused committed the offence of exporting unmanifested cargo, contrary to section 18
Cap. 60, through inadvertence rather than because of dishonesty, the offence remains a serious one to
be visited by serious punishment. This is because prosecutions of this kind are not brought to
discourage dishonest enrichment, but to protect the international reputation of Hong Kong : AG v
Marvels Clothing Co. Ltd. AR 7/84;
(2) If the offence occurs through inadvertence, the court should still attach some weight to that
circumstance.
Result - Appeal allowed. Fine of $300,000 reduced to one of $150,000.
MA 325/93
TSE Kwok-keung
Bewley J (9.12.93)
*D Chan
#Cheng Huan QC & P Nguyen
Constructing a vessel for the purpose of smuggling/Deterrent sentence required
The appellant was convicted of constructing a vessel of less than 250 gross tons for the purpose of
smuggling, contrary to S. 14A (1) of the Import and Export Ordinance, Cap. 60. He was sentenced to
six months imprisonment and to a fine of $50,000, plus $5,000 costs, with six months consecutive in
default of payment. On appeal
Held :
(1) The appellant played for high stakes and lost. The smuggling of goods to China is still taking place,
although it may have decreased in scale. Deterrent sentences are still required;
(2) The maximum sentence for this offence is two years imprisonment, plus a fine of $500,000. A
sentence of six months imprisonment after trial is not wrong in principle or manifestly excessive.
Result - Appeal dismissed.
MA 909/95
CHUI Chun-wah
Dealing with cargo without manifest/Export to China not
restricted/Technical offence
Duffy J
(28.11.95)
*E Sean & B
Cheng
#E
Mumford
QC & L Fung
The Appellant was convicted of the offence of dealing
with cargo with intent to export the cargo without a manifest.
The facts showed that customs officers boarded the
Appellant’s fishing vessel in Aberdeen typhoon shelter, and
when they searched the vessel they found a false fuel tank in
which were placed 69 bags of pearls. No export or import
manifest was produced and the Appellant admitted that he
intended to take the pearls to China. The magistrate imposed a
sentence of 4 months imprisonment. On appeal
Held :
276
ccab 93/95
The magistrate ought to have taken into account that the
transport of pearls into China is not restricted and no duty is
payable on them. The requirement that there be a manifest
was, in this case, a mere technicality.
Result - Appeal allowed.
original sentence.
Fine of $1000 substituted for
Conspiracy to Defraud
AR 6/92
(1) LEE Kun-wai
(2) CHAN Siu-ming
Silke V-P, Power V-P, Macdougall JA (25.6.93)
*I McWalters
#G Rodway QC & J Lam (1)
R Wong (2)
Fraud by bank officers/Cheque kiting/Sentencing approach
Held :
(1) The public are entitled to have confidence in officers of a bank. Hong Kong is a business city and,
where dishonesty is uncovered from those who carry on public business, a sentence of immediate
imprisonment should be the norm;
(2) The matters set out in R v Barrick (1985) 81 Cr App R 78, as factors to be taken into consideration
are not, of themselves, matters of mitigation - simply because some are absent does not reduce the
effect of the individual's dishonesty. They assist the sentencing court in determining what the proper
level of sentence should be;
(3) As the conspiracy to defraud concerned a cheque kiting scheme involving large sums and spanning
several months, a proper starting point should have been 3 years imprisonment, and no question of
suspension ought to have arisen.
Result - AG's review allowed. Suspended prison terms of 6 months and 12 months set aside.
Sentences of 18 months imprisonment substituted.
CA 527/92
KWAI Ying-ho
Penlington & Litton JJA, Kaplan J (12.8.93)
*C Grossman QC & M Wu
#A Sakhrani
Credit card fraud/Aggravating factors/Sentence after trial
Held :
Credit card frauds have in recent years been an insidious poison in the community. It affects a large
number of citizens, erodes the credit card system and damages Hong Kong's standing in the
277
ccab 93/95
international community. Any such fraud must therefore be dealt with severely. It generally involves
careful planning and, to be successful, it requires detailed knowledge of the workings of the electronic
card system. A great deal of time and energy was required to frustrate and prosecute the criminality.
Result - Appeal allowed against a sentence of 4 1/2 years imprisonment imposed for an offence of
conspiracy to defraud, and 3 1/2 years substituted.
AR 14/93
Yang CJ,
Macdougall VP,
Penlington JA
(R1) CHAN Yetwai
(R2) LEE Wingcheong
(R3) WONG Takhung
(21.12.94)
*K Zervos
#V Yim (1)
C Y Wong (2)
Multiple offences/Concurrent sentences wrong/Sentencing
for conspiracy to defraud
R1 pleaded guilty to four charges of obtaining property by
deception, contrary to section 17(1), Cap 210, to one charge
of using a false instrument, contrary to section 73 of Cap 200,
to one charge of conspiracy to defraud, contrary to common
law, to one charge of possession of a false instrument, contrary
to section 75(1) Cap. 200, and one charge of illegal possession
of an identity card, contrary to section 7A(1A) Cap 177. He
received sentences totalling 2 years imprisonment.
The conspiracy to defraud charge, which concerned all three
respondents, related to a conspiracy to defraud merchants,
banks and the account holder of a Visa card by presenting that
card to obtain a variety of goods. They carried the conspiracy
into effect by engaging in a buying spree. The value of the
goods totalled about $20,000.
R1 received 1 year’s
imprisonment, concurrent. R2 and R3 each received 9 months
imprisonment, suspended for 2 years.
On review
Held :
(1) The sentences passed on R1 failed to take into account the
extent of his criminality. It was wrong to pass wholly
concurrent sentences. Bearing in mind the number of offences
committed, a starting point of 6 years imprisonment would
have been appropriate, reduced to 4 years after guilty pleas.
His sentences would, accordingly, be increased to 4 years;
(2) The suspended sentence passed on R2 was wrong in
principle. He was guilty of a breach of trust. He would be
sentenced to 18 months imprisonment;
(3) As R3, who was dominated by R1 and R2, had become
an adult since sentence and could no longer be made the
subject of an order for detention in a Training Centre, his
sentence would not be disturbed.
Result- AG’s review allowed, in part.
AR 10/94
Macdougall VP, Penlington
JA, Yam J
(31.3.95)
Carina CHING
Wai-fan
Conspiracies to defraud/False employment
contracts/Increased sentences appropriate in future
The Respondent pleaded guilty to five charges of
conspiracy to defraud, and was ordered to serve concurrent
sentences of 12 months imprisonment for each offence. The
conspiracies involved the use of false or forged contracts of
278
ccab 93/95
employment and other documents which were to be furnished
to the Labour Department or the Immigration Department in
support of applications for domestic helpers from the
Philippines for unemployment visas, extensions of stay and reentry visas.
*I G Cross QC
& M Crabtree
#Sze Kin
On review, it was submitted that the sentences were
manifestly inadequate and wrong in principle and that, in the
light of R v Durup Cr App 194/94, the judge erred in taking a
starting point of “two years imprisonment at least”. Further,
enhanced penalties were required because of the multiplicity of
offences : R v Tong Hoi-fung [1988] 1 HKLR 610.
Held :
(1)
Notwithstanding the period of time over which the
conspiracies to which the Respondent pleaded guilty ranged,
the bogus contracts related to no more than five Filipina
workers;
(2) In R v Mak Chun-hin Cr App 458/92, which was a case
relating to a conspiracy in the course of which forged contracts
of employment were created to support the grant of
employment visas to prospective employees and which
involved millions of dollars, the court expressed the view that a
sentence in the region of one year’s imprisonment would have
been appropriate;
(3) Whilst the view expressed in Mak (above) was somewhat
benevolent, and the level of sentence for this type of offence
has hitherto been unduly low, in such a sentencing climate it
could not be said that the judge was wrong to have passed the
sentences which he did;
(4) Those who commit this type of offence in the future can
expect to be dealt with more severely than was the Respondent,
and were the defendants in Durup and Mak.
Result - Application dismissed.
Obiter - In the present case there were ten conspiracy charges
on the charge sheet, but the Crown was prepared to
accept pleas of guilty to five of those charges. If the
effect of plea bargaining is to reduce the scope of a
defendant’s criminal activity, the Crown must
expect the courts to pass sentences in accordance
with the criminality disclosed in the charges to
which pleas of guilty are accepted and nothing
more.
Criminal Intimidation
MA 910/95
Duffy J
NG Chun-ming
Criminal intimidation and doing an act intended to pervert
public justice/Interference with witness/Offences in less
serious category
279
ccab 93/95
(1.12.95)
*F Veltro
#S Wong
The Appellant was convicted after trial of criminal
intimidation and doing an act tending and intended to pervert
the course of public justice. He was sentenced to consecutive
terms of imprisonment of, respectively, 12 months and 18
months. On appeal
Held :
A total sentence of 30 months well exceeded the
criminality in this case. These were low grade, and low key,
attempts by the Appellant to persuade the victim, who was to
be a witness against him in a District Court trial, not to give
evidence against him. It is always a serious matter when
anyone interferes with a witness or with the evidence in a
criminal trial. However, there are degrees of seriousness. The
present case fell very much into the lower range of seriousness.
A sentence of 6 months for each offence was a sufficient
punishment. That said, as the two offences were separate
transactions the sentences had to be ordered to be served
consecutively.
Result - Appeal allowed.
substituted.
Total sentence of 12 months
Dangerous Drugs
CA 427/92
LARM Tat-ming
Silke V-P, Power & Macdougall JJA (19.2.93)
*S Wong
#M Lunn
Cannabis guidelines/Relevance to trafficking/Matters requiring mention in Reasons for Sentence
Held :
(1) The offence of trafficking in dangerous drugs is always very serious irrespective of the nature of the
dangerous drugs;
(2) The cannabis guidelines, set out in AG v CHAN Chi-man [1987] HKLR 221, do not go on to
consider direct trafficking by persons who were in the business of trafficking. Those guidelines are
ludicrously low when applied to those who traffic.
Result - Appeal allowed against a sentence of 15 months imprisonment imposed after a plea to
trafficking in 826.2 grammes of herbal cannabis. 12 months substituted.
Obiter :
(1) The trial judge should always indicate specifically what the starting point of sentence would have
been after trial and then indicate the actual sentence passed allowing for the mitigation;
(2) When authorities are cited to the sentencing judge, he should refer to them in his Reasons for
Sentence;
280
ccab 93/95
(3) The guidelines in AG v CHAN Chi-man (above) require revision at the next appropriate occasion.
CA 473/91
FONG Yuk-wa
Silke V-P, Power V-P, Barnett J (18.5.93)
*D G Saw
#GJX McCoy & D Fitzpatrick
Consequences of conspiracy/Court evaluating basis of culpability
Held :
(1) A conspirator who conspires to bring in dangerous drugs to Hong Kong must, unless there be
positive evidence to the contrary, accept the consequences of his agreement;
(2) Although in a conspiracy charge the jury is not asked to specify in its verdict what portions of the
evidence it did or did not accept, that did not mean that when in mitigation defence counsel sought to
put a gloss on the evidence it then became incumbent on the judge to inform counsel that he did not
accept his interpretation of the evidence given. It was a matter for the judge to make up his own mind,
having heard the whole of that evidence himself, what view he took of it. Counsel was not introducing
new facts, and there was no question of the judge being required to hold a Newton inquiry.
Result - Appeal against a sentence of 17 years imprisonment for conspiracy to traffic in a dangerous
drug, refused.
CA's 39 & 40/93
(1) CHIU Hung-wong
(2) CHOI Tung-cheung
Silke V-P, Litton JA, Mortimer J (9.5.93)
*A Bruce
#H Y Wong (1)
A Macrae (2)
Approach to increased penalties/Simple possession of dangerous drugs
Held :
(1) Provided that, when a defendant is only charged with an offence of unlawful possession of
dangerous drugs, contrary to section 8 Cap. 134, the court remembers that there is no offence known to
law as "unproven trafficking", courts can properly give effect to the intentions of the legislature by
imposing sentences higher than the norm which pertained before 26th June 1992 - when the enhanced
penalties were introduced - and which take account of the quantity of the drug concerned. It is the duty
of the courts to loyally carry out the laws as enacted by the legislature;
(2) In revising upwards the previous sentencing norms, the court should not ignore the latent risk factor
in a large quantity of drugs;
(3) Despite the enhanced penalties, it is noteworthy that section 54A Cap. 134 remains unchanged.
Result - (1) CHIU's appeal against a sentence of 2 years imprisonment dismissed; (2) CHOI's appeal
allowed. Sentences totalling 3 1/2 years imprisonment reduced to 2 years and 10 months.
281
ccab 93/95
CA 442/92
LEUNG Kim-wah
Macdougall, Litton & Bokhary JJA (6.7.93)
*A Bruce
#E Laskey
Relevance of addiction where quantity of drugs is large/Sentence for couriers
Held :
(1) As the defendant was possessed of so large a quantity of drugs, the fact that he was an addict did not
entitle him to an allowance;
(2) Couriers cannot expect to receive a reduction in sentence simply because they are couriers : R v Lau
Tak-ming [1990] 2 HKLR 370 applied;
(3) As the defendant was caught red-handed, and as the second set of offences occurred while he was on
bail for the first set, long sentences of imprisonment were richly deserved.
Result - Application for leave to appeal against sentences totalling 19 years imprisonment, for five
offences of DDUT, refused.
MA 274/93
LEUNG Pak-chung
Keith J (27.7.93)
*K Zervos
#I/P
Trafficking in dangerous drugs/Small quantity/Trafficking to feed addiction
Held :
A sentence of 2 1/2 years imposed after trial for an offence of trafficking in dangerous drugs with a
narcotic content of 8.76 grammes was a sentence well within the 2-5 year guideline prescribed in R v
Lau Tak-ming [1992] HKLR 370. The magistrate took the fact that the Appellant was a drug-addict
into account, and she must therefore have thought that the Appellant was engaged in selling drugs to
feed his own habit.
Result - Appeal dismissed.
AR 10/93
So Chin-chiu
Macdougall V-P, Sears & Kaplan JJ (19.1.94)
*D G Saw
#Wong Po-wing
282
ccab 93/95
Sentencing for herbal cannabis/Deterrent sentence necessary/Information given to authorities
must be of value
The AG sought a review of a sentence of 3 years imprisonment imposed after a plea of guilty to
trafficking in 93.26 kilos of herbal cannabis.
Held :
(1) Allowing for the fact that the seized substance was herbal cannabis resin, a proper starting point for
sentence for such a huge quantity, which was undoubtedly destined for large scale trafficking purely for
monetary gain, would have been 8 years imprisonment. The sentence imposed was wholly at variance
with the guidelines : AG v Chan Chi-man [1987] HKLR 221;
(2) Where there is trafficking in dangerous drugs, including possession for the purpose of unlawful
trafficking, deterrent sentences are required : R v Ng Tat-shing Cr App 56/79;
(3) Only if the Crown accepts that information supplied by the accused is of value, should the sentencer
act upon it : R v Tam Yin-chung CA 84/92. The mere supplying of names to police is not a relevant
factor;
(4) The sentence was manifestly inadequate.
Result - AG's review allowed. Sentence increased to 6 years imprisonment.
CA 169/91
A.B.BECLO
Power V-P, Bokhary JA, Mayo J (21.1.94)
*W S Cheung
#W Stirling
Trafficking in drugs/Duty of courts/Cheng Yeung explained
Held :
(1) When the Court of Appeal in R v Cheng Yeung [1989] 2 HKLR 258, observed that those who
engage in the drugs trade "can expect and will receive no mercy from the court", this did not mean that
any court would ever describe itself as merciless. But, equally, no court would ever turn its back on its
duty;
(2) In discharging its duty to protect the people who are the victims of offences of this kind, the courts
will not shrink from imposing extremely severe punishment.
Result - Application for leave to appeal against sentences totalling 17 years imprisonment for two
offences of DDUT, refused.
CA 611/93
Naveed Khalig
Macdougall V-P, Bokhary & Mortimer JJA (23.2.94)
*T Casewell
#I/P
283
ccab 93/95
Purporting to traffic in dangerous drugs/Seriousness of offence
Held :
(1) As the offence of trafficking in a purported dangerous drug, contrary to section 4(A) Cap. 134, is
punishable with 7 years imprisonment it is clear that the legislature regards it as a serious offence;
(2) As the applicant pleaded guilty to purporting to traffic in a dangerous drug, which in the event
proved to be flour, a sentence of one year's imprisonment was neither manifestly excessive or wrong in
principle.
Result - Application dismissed.
MA's 701 702/93
LO Sing-mei
Stock J (4.2.94)
*F Veltro
#R Pritchard
Drugs/Simple possession/Relevant considerations
The Appellant appealed against his sentence of 18 months imposed after a guilty plea to possession of
4.03 grammes of S.E.M.
Held :
Regard had to be paid to these factors :
(1) that the legislature's intent is that those convicted of offences of simple possession be imprisoned for
much longer terms than before the amendments to the old law were effected in 1992;
(2) that the sentences should not in effect or intent be sentences for trafficking when that is not the
charge, though
(3) regard is to be had, nevertheless, to the quantity in possession and the corresponding risk factor that
addicts with larger quantities will the more readily succumb to the temptation to sell : R v Chiu-Hungwong Another CA's 39 40 of 1993;
(4) such tariffs as emerge for simple possession of salts of esters of morphine do not so merge with the
tariff suggested in R v Lau Tak-ming as to blur the distinction between mere possession and trafficking;
(5) the tariff for the multiple offender will be higher than for the first offender.
Result - Appeal allowed. Sentence reduced to 15 months imprisonment.
(The Court, in assessing sentence, was conscious that new sentencing guidelines from the Court of
Appeal are pending : Ed.)
AR 15/93
P N Rojas
Silke V-P, Macdougall V-P, Bokhary JA (16.5.94)
284
ccab 93/95
*D G Saw
#K Chan
Sentencing for cocaine/Transit not a mitigating factor/Deterrence/Foreign status of accused as
mitigation
Held :
(1) The guidelines prescribed in R v Lau Tak-ming [1990] 2 HKLR 370 are equally applicable to
cocaine : AG v Leung Pang-chiu [1986] HKLR 608 considered;
(2) That the respondent did not intend to spread the drugs in Hong Kong was irrelevant. To consider as
mitigation that they were not intended for local consumption is to ignore the international aspect of the
drug trafficking trade. That is a factor which very much should be in the minds of sentencing judges;
(3) In hard drug cases the element of deterrence in the quantum of the sentence always plays a large
part;
(4) That the accused is a foreigner unable to converse with fellow prison inmates is not a factor which
would affect sentence to any substantial degree. It is still something to be considered in determining the
totality of the sentence : R v Venatius Okoye Cr App 405/90 explained;
(5) A sentence of 7 years imprisonment, imposed after a delayed plea of guilty to unlawfully trafficking
in a dangerous drug, namely, 2,353.75 grammes of a mixture containing 1,771.58 grammes of cocaine
hydrochloride, was manifestly inadequate.
Result - AG's review allowed. Sentence increased from 7 to 14 years imprisonment.
AR 2/94
CHANG CHEN Liu-sa
Macdougall V-P, Litton & Bokhary JJA (16.8.94)
*D G Saw
#N de Boinville
Trafficking in cocaine/Cocaine hydrochloride on a par with salts of esters of morphine/Meaning
of "SEM"
The Respondent was convicted after trial of trafficking in a dangerous drug, namely, 713.11 grammes
of a mixture containing 595.37 grammes of cocaine hydrochloride and 491 ml of a solution of which
15.36 grammes were cocaine hydrochloride. He received 6 1/2 years imprisonment.
On review
Held :
(1) The judge was clearly in error in applying the guidelines laid down in Chan Chi-ming v R [1979]
HKLR 491;
(2) Since the court stated in AG v Leung Pang-chiu [1986] HKLR 608 that cocaine is a hard drug, the
sentencing guidelines prescribed for heroin in R v Lau Tak-ming [1990] 2 HKLR 370 were equally
applicable to cocaine : AG v Rojas AR 15/93 followed;
(3) The expression "SEM" was used in Lau Tak-ming for convenience to refer to a mixture of a purity
between that of No. 3 and No. 4 heroin, not as an acronym for salts of esters of morphine;
285
ccab 93/95
(4) The proper sentence was one of 20 years imprisonment. However, in view of the great increase,
there should be some discount from the appropriate sentence and 16 years imprisonment would be
substituted for the original sentence.
Result - AG's review allowed.
CA 691/93
LAI Kwok-hung
Silke V-P, Macdougall V-P, Mortimer JA (4.5.94)
*D G Saw
#A Macrae
Sentencing for "ice"/Relevance of early plea/No such thing as inevitable plea or inevitable
conviction/Need for discount
Held :
(1) As the applicant had pleaded guilty to trafficking in 119 grammes of "ice", the judge adopted a
correct starting point of 11 years imprisonment, in accordance with the guidelines in AG v Ching
Kwok-hung [1991] 2 HKLR 125;
(2) Although the applicant had been caught in physical possession of the drugs, the judge should not
have minimised the weight attaching to the applicant's plea at the first opportunity on the basis that it
could be regarded as 'little more than a recognition of the inevitable'. There is no such thing as an
inevitable plea nor an inevitable conviction;
(3) If the courts do not recognise that an early plea is an expression of remorse and if those who plead
guilty and save time and expense to the public are not given full credit, there will be little benefit for an
accused to plead guilty. A failure to give proper weight to a plea puts counsel in difficulty in the advice
he is to give to those who may be inclined to be remorseful and accept their guilt;
(4) In giving only two years reduction for the plea of guilt at the early stage, the judge did not give
sufficient recognition to the remorse of the applicant and to the benefits of his plea.
Result - Appeal allowed. Sentence reduced from 9 to 7 years.
CA 656/93
TAM Man-kit
Macdougall V-P, Mortimer JA, Rhind J (7.9.94)
*J Reading
#A Macrae
Sentencing for simple possession/Risk of drugs getting to the public/Duty of judge to adjust
sentences
Held :
(1) Since the maximum sentence for possession of a dangerous drug was increased to 7 years, the most
important consideration on sentence is the risk that the drugs will get into the hands of the public. This
286
ccab 93/95
will often be related to the quantity and the circumstances of the possession : R v Chiu Hung-wong and
Another CA's 39 and 40 of 1993 applied;
(2) Courts should not sentence those convicted of simple possession as if they had been convicted of
trafficking. Even if there is a high risk of the drugs concerned falling into the hands of the public,
possession is a lesser offence and the sentence should reflect this. Although the circumstances of
possession vary so greatly that it would be difficult to suggest guidelines, a sentence for possession
could not be justified if it matched or exceeded a sentence which would be passed for trafficking in
accordance with the guidelines in R v Lau Tak-ming [1990] HKLR 370;
(3) The judge was wrong in thinking that to reduce the sentence in order to reflect the difference in
quantity between the cases cited and this case would be "mere tinkering." A judge is entitled to adjust
sentences. It is the Court of Appeal which refrains from tinkering with a sentence passed by a judge
below.
Result - Appeal allowed against sentences totalling 4 years for two charges of simple possession. 2 1/2
years substituted.
AR 9/93
AG v CHAN Ching-ho
Power V-P, Ryan & Stuart-MooreJ J (12.10.94)
*I G Cross QC & W S Cheung
#R Buchanan
Simple possession of dangerous drugs/Large quantity/Gravity of offence/Legislative increase of
penalty
After trial, the respondent received a sentence of 3 years imprisonment for the offence of possession of
dangerous drugs, contrary to S. 8 Cap. 134, namely, 112.56 grammes of a mixture containing 62.81
grammes of salts of esters of morphine. On review
Held :
(1) The amount in the possession of the respondent was substantial. The sentence on a person found to
have been trafficking in that amount would be in the band ranging from 8 to 12 years;
(2) Although the respondent had to be dealt with on the basis of having been found guilty of simple
possession, the gravamen of such an offence, when a large quantity is involved, is the danger which is
posed to society by having such drugs "at large" in the control of an addict. The offence fell into the
category of the more serious offences that could be committed by an offender convicted under S. 8;
(3) As the legislature has recently increased the maximum penalty for this offence from 3 to 7 years
imprisonment, that new view of the seriousness of the offence should be reflected in the sentence
imposed : AG v Ho Yu-ping AR 8/93 approved;
(4) The sentence imposed was manifestly inadequate and/or wrong in principle.
Result - AG's review allowed. Sentence increased to one of 4 1/2 years
CA 198/94
Christiana A SALANTE
Bokhary JA, Barnett & Stuart-MooreJ J (23.9.94)
287
ccab 93/95
*D G Saw
#K B Egan
Simple possession of "ice"/Latent risk factor/Filipina in foreign jail/Relevance of deportation
The Applicant pleaded guilty to one charge of possession of dangerous drugs ("ice"), and one charge of
possession of apparatus fit and intended for smoking of a dangerous drug. She received concurrent
terms of imprisonment of, respectively, 21 months and 3 months. On appeal
Held :
(1) The "latent risk factor", with which the Court was concerned in R v Chiu Hung-wong Cr App 39/93,
namely, that the quantity possessed was of such proportions that the possessor might easily be tempted
to dispose of that stock to some other persons, did not apply in this case. The Applicant and her
boyfriend were to share the drugs, and this view was supported by the paraphernalia recovered. In
addition, the Court was advised that the Applicant had resorted to prostitution, and that prostitutes
commonly take "ice" to ease their lot;
(2) As a Filipina, the Applicant would spend her imprisonment in a foreign jail. Thereafter she would
be deported and thus separated from her boyfriend who had the right to remain in Hong Kong. She
pleaded guilty at the first opportunity, and had a relatively good criminal record.
Result - Appeal allowed. Sentence of 15 months substituted.
MA's 739 & 740
CHONG Siu-yeung
Bewley J (28.10.94)
*L Ho
#I/P
Sentence for first offender convicted of simple possession of dangerous drugs/DATC appropriate
Held :
(1) Where a first offender is convicted of the offence of possession of dangerous drugs, contrary to S. 8
Cap. 134, it is the intention of the legislature, except in wholly exceptional circumstances, that he
should receive treatment for his addiction;
(2) As the Appellant was aged 18 years, was suitable for the DATC, and wanted to go there, the
sentences totalling 3 years imprisonment, imposed after guilty pleas to 9 charges of simple possession,
would be set aside and substituted with a DATC order.
Result - Appeal allowed.
MA 1386/94
NGUYEN
Duc
Van
DATC report/Extent of court’s duty to implement
recommendation
Duffy J
(27.1.95)
The Appellant appealed against a sentence of two years for
drug trafficking.
*Y Mahomed
Held :
#M Rattigan
If a magistrate asks for a DATC report and the
288
ccab 93/95
recommendation is thereafter that the Appellant be given
treatment at a DATC, a magistrate should be very slow to reject
that recommendation. In the area of drug addiction, it is
incumbent upon the courts to listen to the views of those who
are experts in dealing with drug addicts. If those experts
recommend further treatment then, save in exceptional
circumstances, that recommendation should be accepted.
Result - Appeal allowed. DATC order substituted.
CA 208/94
Frank
OWEH
Macdougall
VP,
Penlington
& Liu JJA
Nigerian in Hong Kong prison/Foreign status not
mitigation/Couriers in drugs play vital role
The Applicant, a Nigerian, was convicted of an
offence of trafficking in dangerous drugs. The quantity
involved 3,693 grammes of a mixture in which was 3,306
grammes of No. 4 heroin. He was arrested at Kai Tak
airport, while he was in transit between Thailand and
Holland. He received 23 years imprisonment, on the basis
of the guidelines contained in R v Lau Tak-ming [1990] 2
HKLR 370.
(14.2.95)
*D G Saw
#D Percy
On appeal, it was submitted that, although the
sentence was not wrong in principle, given the quantity of
heroin involved, the trial judge had not taken into account
that for the Applicant imprisonment for such a long period
would impose unusual hardship on him.
Held :
(1)
In R v Ohmert Cr App 213/85, it was said that,
although anybody caught in somebody else’s country and not
speaking the local language would find prison a more
disagreeable experience than otherwise would be the case,
that in general is not a circumstance which the court would
take into account in mitigation to any substantial degree;
(2) The Applicant spoke quite good English. There are
other Nigerians in prison in Hong Kong serving sentences
for similar offences and it is a constant source of amazement
that Nigerians coming through Kai Tak seem to think that
they are able to bring in substantial quantities of heroin
without detection. The Applicant would not be isolated in
prison. The factor of being a foreigner did not call for any
reduction in the sentence passed;
(3) The evidence showed that the Applicant was a courier.
As couriers play a very important role in the international
drug traffic, this is not a factor that should be taken into
account.
Result - Application dismissed.
CA 447/94
HO Chi-ming
Trafficking in dangerous drugs/Lau Tak-ming
explained/Deterrence
289
ccab 93/95
Power Ag CJ,
Litton VP
The Applicant pleaded guilty to one charge of trafficking
in dangerous drugs.
He was sentenced to 17 years
imprisonment. The facts showed that he unlawfully trafficked
in 1.39 kilos of a mixture containing 1.213 kilos of salts of
esters of morphine.
(12.5.95)
*M Crabtree
#J Chandler
The judge in sentencing took as his starting point 25
years imprisonment. It was submitted that the starting point
should have been 20 years and that, when Silke VP, in R v Lau
Tak-ming [1990] 2 HKLR 370, had said that “in appropriate
cases which fall into that category (over 600 grammes), we
think that there can be an upward increase in the ‘cut off
sentence’”, the use of the words “appropriate cases” meant that
a sentencing judge has a “general discretion” : that he must
bear in mind that there might be cases in which it would be
inappropriate for the court to go beyond 20 years as the
starting point even where the narcotic content is above 600
grammes. It was further contended that the expression “cut off
sentence” provided some sort of ceiling to the length of
sentence which ought be imposed.
Held :
(1) The court in R v Lau Tak-ming (above), in the quoted
passage, meant that any case where the narcotic content is over
600 grammes is an appropriate case for the sentencing judge to
fix a starting point above 20 years. The larger the amount the
higher the starting point;
(2)
In sentencing an offence the court is exercising
jurisdiction conferred by S. 4 (1)(a) DDO, where the
maximum sentence for trafficking in dangerous drugs is life
imprisonment. That is the “cut off” imposed by statute; there
is no other that can be properly considered by the court;
(3) Courts are entitled to apply experience in sentencing and
it is clear that attitudes have hardened in the courts to the
offence of conspiracy to traffic in drugs since R v Lau Yauyuen [1991] 2 HKLR 278 was decided;
(4) A sentencing judge is perfectly entitled to have regard to
the fact that deterrence is necessary in order to abate the
incidence of serious crime.
Result - Application dismissed.
AR 12/94
Power VP,
Litton VP,
Mortimer JA
TUEN Shui-ming
WONG Waisheung
Sentencing levels for trafficking in cannabis/New guidelines
The Respondents were each sentenced to imprisonment
for two years after pleading guilty to a joint charge of
trafficking in dangerous drugs, contrary to the Dangerous
Drugs Ordinance.
(9.6.95)
*D G Saw & E
Brook
The particulars of the count alleged that they “unlawfully
trafficked in a dangerous drug, namely 51,230.45 grammes of
cannabis resin containing 1,174 grammes of tetrahydro-
290
ccab 93/95
#P Dykes
cannabinol”, or ‘THC’. (THC is the psychoactive ingredient in
cannabis.)
On review, it was submitted that the judge had fallen into
error by referring to “over 5 kilogrammes of cannabis resin” the actual quantity imported being over 50 kilogrammes.
Held :
(1) The court in Chan Chi-man (infra) was plainly dealing
with the total value of cannabis resin and that is the amount to
which the tariff applies. If, for example, 9000 grammes was
seized, then the appropriate starting point would be 48 months.
It would be proper for the sentencing court to adjust that figure
to a limited extent in accordance with the concentration of
THC.
In the present case, given that more than 50
kilogrammes was involved, 7 years would have been an
appropriate starting point. That could properly have been
varied to 6 years given the very low concentration;
(2) The application would be allowed and the sentences in
each case varied to one of 4 years.
Result - AG’s review allowed.
The Applicant also took the opportunity afforded by this
review to invite the court to revise upwards the sentencing tariff
for offences of trafficking in cannabis, as set out in AG v Chan
Chi-man [1987] HKLR 221, since these required revision.
Having considered material placed before the court to
illustrate, inter alia, patterns of cannabis user, the court
concluded:
(1) It was not persuaded that trafficking in cannabis presents
such a major problem that the tariff in Chan Chi-man must be
wholly recast;
(2)
However, given that 500 grammes of either herbal
cannabis or cannabis resin will produce 2,500 cigarettes, it was
clear that a judge’s sentencing discretion in the lower bands is
inappropriately inhibited. Bands (a), (b) and (c) of Chan Chiman would therefore be deleted and replaced by a single band
as follows :
“under 2,000 grammes-up to 16 months”. No
change was required to bands (d), (e), (f) and (g);
(3) The evidence showed that the concentrations referred to in
Chan Chi-man were no longer correct. A sentencing court must
now bear in mind that cannabis resin has an average
concentration of THC about four times higher than the average
found in herbal cannabis and that cannabis oil has an average
also about four times higher than the average in cannabis resin.
Taking this into account a sentencing judge must adjust the
tariff, which applies to cannabis resin when sentencing for
trafficking in either herbal cannabis or cannabis oil. Any
adjustment should be within a range dictated by the starting
point indicated in the tariff. Whilst persons with herbal
291
ccab 93/95
cannabis could, unless very large quantities are involved,
properly be given a discount of up to a year from the sentence
that would have been imposed had they had a similar amount of
cannabis resin, offenders discovered with cannabis oil would
face an increase of at least that length. Since tariffs are not
strait-jackets, a sentence well in excess of the guidelines would
be proper for an accused found selling cannabis in any form to
children;
(4) The guidelines would be recast as follows :
(a)
(b)
(c)
(d)
(e)
CA 53/95
Yang CJ,
Mortimer &
Mayo JJA
(4.7.95)
*J Reading
#S D’Almada
Remedios
WONG Tiu-kwan
Under 2,000 grammes - up to 16 months
Over 2,000 grammes - 16 to 24 months
Over 3,000 grammes - 24 to 36 months
Over 6,000 grammes - 36 to 48 months
Over 9,000 grammes - 4 years upwards.
Dangerous drugs/Simple possession/Sentencing
considerations/Lau Tak-ming not relevant
The Applicant pleaded guilty to possession of a
dangerous drug, contrary to S. 8 Cap. 134. He admitted
possession of 46 packets of a mixture containing 35.39
grammes containing 14.86 grammes of heroin. The judge took
4 years as his starting point, and sentenced the Applicant to 3
years imprisonment.
On appeal, it was submitted that the sentence was wrong
in principle because the judge took the sentencing guidelines in
R v Lau Tak-ming [1990] 2 HKLR 370, as appropriate, albeit
that he adjusted the guidelines slightly. What he said was “had
the defendant been convicted after trial the sentence would
have been in the region of five years imprisonment according to
the guideline case”.
Held :
(1) The judge was quite wrong. A sentence will usually be
wrong in principle if the sentence for possession equates with
the sentence for trafficking. That is what had happened;
(2) It is not possible to lay down guidelines for possession
cases. They vary greatly. What is important is to consider the
quantity of narcotic and, secondly, the latent risk of that
narcotic finding its way into the hands of the public. This the
judge had not considered and he seemed to have accepted that
the drugs were for his own consumption. However, having
regard to the nature of the packaging and the amount, there
must be at least some small risk of the drugs getting into public
hands;
(3) The proper starting point would be 3 years imprisonment
with a reduction for the plea of guilty to 2 years.
Result - Appeal allowed. Sentence reduced to 2 years.
292
ccab 93/95
MA 275/95
TANG Fung-wan
Duffy J
Unlawful
trafficking/Young
offender/DATC
order
recommended but rejected by court/Court to be guided by
experts
This was an appeal against a sentence of 35 months
imposed following the Appellant’s conviction of one count of
trafficking in heroin. The amount involved was 15.61 grammes
of a mixture containing 4.28 grammes of salts of esters of
morphine.
(16.6.95)
*M Crabtree
#M Rattigan
Although the Appellant, aged 17 years, was found to be
suitable for committal to the DATC, the magistrate rejected this
option having regard, inter alia, to her earlier detention there,
to the fact that a DATC order was inappropriate for trafficking
in so large a quantity, and to the need to pass a deterrent
sentence. On appeal
Held :
(1) The Appellant was aged only 17 years, and she had a drug
addiction problem which was responsible for the present
offence. In the event that experts within the DATC find that
she is suitable for a period of abstinence there, a sentencing
court should be slow to reject that finding;
(2) The Appellant could count herself fortunate to be given
yet another opportunity to rehabilitate herself. This was
undoubtedly her last chance.
Result - Appeal allowed. Sentence of 35 months set aside and
a DATC order substituted.
MA 384/95
CHAN Hing-wah
Simple
possession
of
dd/Small
quantity/Guilty
plea/Prevalence of offence relevant to sentence
Ryan J
(26.7.95)
*D Pang
#J McGowan
The Appellant pleaded guilty to possession of a plastic
straw containing a mixture which contained 0.02 grammes of
heroin. The magistrate obtained a DATC report which stated
that the Appellant was not considered to be suitable for
admission.
He sentenced the Appellant to 12 months
imprisonment.
On appeal, it was submitted that the magistrate should
have investigated other ways of dealing with the Appellant
rather than imposing a custodial sentence, but, in any event,
having regard to the small amount of narcotic involved, a
sentence of 12 months was excessive.
Held :
(1) The magistrate was clearly concerned about the prevalence
of this type of offence in the area, a stance he was entitled to
take;
(2) Given the amount of the narcotic involved, 12 months
imprisonment was excessive.
293
ccab 93/95
Result - Appeal allowed.
imprisonment.
CA 62/95
NG Wing-kwong
Power VP,
Bokhary &
Mayo JJA
Sentence reduced to 9 months
Trafficking/Reduced discount
retrial/Disparity submission
after
guilty
plea
at
The Applicant pleaded guilty at a retrial to trafficking in
a dangerous drug. The quantity of the drugs was 1068.82
grammes of a mixture containing 734.82 grammes of salts of
esters of morphine. He received 15 years imprisonment. On
appeal
(1.9.95)
*I G Cross QC
& L Ho
Held :
(1) Although the Applicant had pleaded guilty, he could not
expect the full discount as he had pleaded not guilty at the first
trial. That was a factor which could properly be weighed by
the court;
#K J Oderberg
(2) No legitimate sense of grievance could be said to have
arisen on account of a discrepancy alleged to exist between his
sentence and that imposed upon his co-accused who was
convicted of two offences, one of which was not related to the
present offence. The amount of dangerous drug in this offence
fell into the category of “very large quantities of dangerous
drugs” according to the Lau Tak-ming guidelines. Once that
level is passed the correct starting point is a figure in excess of
20 years. The Applicant was fortunate that the judge took a
starting point of 20 years. The fact that a starting point of 22½
years was adopted in relation to the offences of which the coaccused was convicted took the matter no further.
Result - Application dismissed.
CA 685/93
Power VP,
Mortmer &
Mayo JJA
(31.5.95)
*D G Saw & W
Chan
# J Griffiths QC
& E Kwok
NG Muk-kam
Trafficking in drugs/Massive quantity/Life imprisonment
/Confiscation of money seized
The Appellant was convicted, after trial, of the offence
of trafficking in a dangerous drug, namely, 339,525.75
grammes of a mixture containing 306,190.63 grammes of salts
of esters of morphine. He was sentenced to life imprisonment,
and an order of confiscation was made in respect of $150,000
which was found in the car he was driving when arrested.
On appeal, it was submitted that the trial judge erred in
law in not informing defence counsel that he had life
imprisonment in mind, that it was wrong in principle to impose
life imprisonment, and that the confiscation order ought not to
have been made since the money was not used in the
commission of an offence.
Held :
(1)
As the judge has not made clear to counsel in explicit
294
ccab 93/95
terms that a sentence of life imprisonment was in
contemplation, the Court had to make its own determination as
to the propriety of the sentence;
(2) As the Applicant was not in the category of most serious
offender, it was not necessary to decide whether life
imprisonment would ever be appropriate for such a person. On
the facts, he was not shown to be either the mastermind or the
chief financier. He was, however, clearly involved in a major
way in the handling of a very large quantity of dangerous drugs.
The seizure was enormous, the fifth largest such seizure in the
world. It had a wholesale value of about $46,000,000 and a
street value of $146,000,000. It represented many life times of
honest earnings and many more life times of misery and despair
for addicts and their families. Although the sentence was not a
proper one the offence called for a very substantial sentence.
The sentence would be varied to one of 35 years;
(3) It was open to the judge to infer that the money seized was
to be used in the course of trafficking having regard to the
circumstances. As such he was entitled to order its forfeiture
under section 102(1)(c) Cap. 221.
Result - Appeal allowed, in part.
CA 633/94
Power Ag CJ,
Mayo JA, P
Chan J
CHONG Chak-on
Herbal cannabis/Trafficking in massive quantity/20 years
proper after trial
The Applicant was convicted after trial of unlawfully
trafficking in a dangerous drug, namely, 388.674 kilogrammes
of herbal cannabis.
(31.10.95)
*F Veltro
#Cheng Huan
QC & J Tse
Having noted that the Applicant was not the mastermind,
and that he fell to be dealt with upon the basis that he was the
person who had arranged to store the drugs and who had played
an integral role in the enterprise, the judge sentenced him to 20
years imprisonment. On appeal
Held :
(1) The applicable sentencing guidelines are laid down in AG
v Chan Chi-man [1987] HKLR 221. This states that where an
accused is found in possession of over 9,000 grammes the
sentence will be four years upwards. It indicates the court may
take into account in the case of herbal cannabis the less
damaging effect it has than that of cannabis resin and cannabis
oil. The guidelines make it clear that sentence is governed by
the weight of the herbal cannabis.
The THC
(tetrahydrocannabinol) is relevant only in so far as it allows the
court to take a more lenient view of herbal cannabis than it
would of an equivalent amount of cannabis resin. The
Applicant had in his possession over 40 times the amount of
cannabis that would have called for a 4 year sentence. It had a
wholesale value of more than $50m and a street value of more
than $17m. The judge was right to state that he had ‘no doubt
that there is a large scale criminal operation behind it’ : AG v
So Chin-chiu [1994] 1 HKC 131 considered;
295
ccab 93/95
(2) The judge was faced with a difficult task when assessing
sentence. The quantity was larger than any previously dealt
with by a court in Hong Kong and the guidelines were of
limited assistance. Although he arrived at the sentence he did
by a wrong route, the sentence of 20 years was not in any way
wrong given the amount involved.
Result - Application dismissed.
CA 574/95
LAM Yick-fai
Power
VP,
Mayo JA, P
Chan J
(21.11.95)
*D G Saw
#W Chan
Possession of dangerous drug/Possession at same time of
instrument fit for smoking of dangerous drug/Onetransaction rule appropriate
The Applicant was convicted after trial of two charges,
one of possession of a dangerous drug and one of possession of
an instrument fit and intended for the smoking of a dangerous
drug. The possession charge related to 33.95 grammes of a
mixture containing 13.86 grammes of salts of esters of
morphine, and the second charge, at the same time and place, to
instruments related to the consumption thereof. The Applicant
was sentenced to 2½ years on the first charge and 6 months on
the second charge, those terms to run consecutively. On appeal
Held :
The two offences should have been treated as one
transaction and the sentences made concurrent : R v Chiu
Hung-wong [1994] 1 HKCLR 184 considered.
Result - Appeal allowed. A total of 2½ years imprisonment
substituted.
Environmental Protection
MA 1422/94
TSUI Chit-fan & 2 others
Duffy J (22.12.94)
*M Crabtree
#C Grossman QC A Ma
Ozone Layer Protection Ordinance/Damage to environment/Factors relevant to level of fine
The Appellants, the first two of whom were directors of the third, had pleaded guilty to 71 offences
against the Ozone Layer Protection Ordinance, Cap. 403 and total fines of $703,500 were imposed.
They appealed.
After the court advised counsel of its preliminary view that the fines were inadequate, and that there
was a power to increase sentences upon appeal against sentence, the Appellants sought leave to
abandon the appeal. After granting leave, the court indicated why in general terms the fines were
inadequate.
296
ccab 93/95
Held :
(1) It was incumbent upon the courts of Hong Kong to ensure that the message of the legislation is
clearly and without equivocation brought home to all those who are involved commercially or otherwise
with substances which endanger the environment. It was the deliberate policy of the legislature to enact
that the penalty for each offence could be one million dollars and two years imprisonment. The courts
must ensure that the penalties they impose adequately reflect the community's determination to protect
its own environment, and to observe its international obligations under the various environmental
protection agreements. Penalties must be a real deterrent against those whose priorities list profit above
our ecological well-being;
(2) The flagrant and frequent contempt for the legislation displayed by the Appellants was not, having
regard to the maximum penalty available, adequately punished by fines between $20,000 or $40,000 in
relation to each offence;
(3) It was clearly not appropriate to have regard to the commercial gain which the Appellants had
derived from the enterprise when assessing the proper level of fines. The level of fines should be
governed by the amount of damage that can result from the indiscriminate use of the offending
substances, the amount of the substances involved, the frequency of the breaches of the legislation, the
degree of deceit involved, and the number of countries to which the offending goods had been exported.
Taking these factors into account, the total fines the court would have imposed would have been at least
double the total fines of $703,500. Offences against environmental protection legislation are of
significantly greater seriousness than offences against ordinances which protect Hong Kong's
commercial credibility, as they can cause irreversible damage.
Explosive/Explosion
AR 12/93
(1) CHEUNG Shu-tai
(2) WONG Kwan-pak
(3) YIM Chun-hung
(4) LAW Tin-ho
Power V-P, Mortimer JA, Mayo J (26.8.94)
*D G Saw A Lai
#K Oderberg (1)
B Sceats (2 & 4)
C Grounds (3)
Causing explosion likely to endanger life/Starting point/Sentence must reflect public abhorrence
Each of the Respondents was convicted of a joint offence of causing an explosion likely to endanger life
or cause serious injury to property, contrary to S. 53, Cap. 200. The facts showed that a bomb made out
of a bottle packed with commercial explosives which was attached underneath a car exploded, causing
devastating damage to that car and to the cars nearby. The intended victim was saved from death or
serious injury because he noticed smoke from the burning fuse when he came to his car.
The trial judge, having taken 12 years as his starting point, sentenced the two main culprits, Yim and
Wong, to 9 and 8 years respectively, and Cheung and Law to 5 years each. On review, it was submitted
(1) The gravity of the offence was such that the starting point of 12 years was too low;
(2) The judge erred in granting such substantial discounts;
297
ccab 93/95
(3) The judge ought to have imposed a sentence which more adequately reflected the circumstance that
the explosion was intended to endanger life rather than simply to damage property - at any rate so far as
the two main culprits were concerned.
Held :
(1) The judge erred in taking 12 years as his starting point. Whilst guidelines are neither possible nor
required, this is a serious offence and public abhorrence requires heavy punishment in which retribution
and deterrence will be the main considerations. Members of the public and the victims are put at
serious risk. The starting point ought to have been in the region of 15 years. Accordingly, Yim and
Wong would have their sentences increased to 14 years;
(2) As Law pleaded guilty and gave evidence for the Crown, a reduction of 50% was appropriate from
the sentence which ought to have been passed - his sentence would therefore be increased to 7 years;
(3) As Cheung's role was minimal, his sentence did not require review.
Result - AG's review allowed, in part.
False Instrument
CA 339/92
LEUNG Yui
Silke V-P, Power JA (25.2.93)
*W S Cheun
#I/P
Forgery of identity cards
forgery/Sophisticated operation
and
travel
documents/Possession
of
implements
for
The applicant was involved in a large scale operation for the sophisticated forgery of Hong Kong
identity cards and other travel documents. The results were to be sold for profit. The applicant was
recruited into the scheme in October 1990, and worked mainly as a front man who delivered the
finished products until his arrest in January 1991. He pleaded guilty to seven charges involving :
possession of forged identify cards; possession of unlawfully altered identity cars; possession of
implements for forgery; possession of a forged identity card. He received sentences totalling 4 years.
On appeal Held :
The sentences were in no way excessive.
Result - Application dismissed.
CA 411/92
Botelho J
Penlington & Nazareth JJA, Sears J (12.3.93)
*A Sham
298
ccab 93/95
#G J X McCoy
Producing counterfeit credit cards/Seriousness
Held :
(1) Those who assist in the production of counterfeit credit cards should expect to receive substantial
prison sentences. Such offences affect the stability not only of Hong Kong but also other countries;
(2) It must be made clear to the public that those who engage in such activity will face a sentencing
starting point of 5 years imprisonment.
Result - Application to appeal against a sentence of 3 years imprisonment, imposed after a guilty plea,
dismissed.
CA 162/92
WONG Hing-chin
LEUNG Wai-hing
Macdougall JA, Bewley & Ryan JJ (8.7.93)
*J Pethes
#W Allan
Possession of forged banknotes and related articles/Prevalence of offence
Held :
Sentences totalling 6 years imprisonment were appropriate after trial for 3 offences involving
possession of a large quantity of forged banknotes, possession of forged dies, and possession of articles
fit and intended for use in the forgery of a document : R v Ngan Chun-yee and Another Cr App 137/84;
R v Wong Fu-keung Cr App 5/91; R v Botelho Cr App 411/92 considered.
Offences involving the forgery of banknotes are becoming more prevalent.
Result - Applications for leave to appeal refused.
AR 16/93
CHAN Pui-sang
CHUNG Kwok-on
Silke V-P, Litton & Bokhary JJA (22.3.94)
*A Schapel
#A Hung
Crimes Ordinance/Forged credit cards/Possession and use of/Assessing totality
Chan pleaded guilty to possession of two forged credit cards which he knew to be forged and with
intent to defraud and received 9 months imprisonment. He also received 12 months of consecutive
imprisonment for possession of 5 forged credit cards which he knew to be false.
Chung pleaded guilty to possession of a forged credit card with intent to defraud, and to attempted
obtaining property by deception. He received 6 months of concurrent imprisonment on each charge.
299
ccab 93/95
The AG sought a review on the basis that the sentences were manifestly inadequate and/or wrong in
principle.
Held :
(1) Credit card frauds must attract sentences which reflect the serious nature of such offences : R v
Wong Fu-keung Cr App 5/91, R v Kwai Ying-ho, Cr App 527/92;
(2) While the sentences passed in relation to matters of forged currency should be borne in mind when
considering offences involving the use of forged credit cards, the same level of sentencing should not
apply to both. There is an extra element in relation to forged currency in that ordinary members of the
public may, at a later stage, be deceived by its use and this is not present in credit card frauds;
(3) The trial judge erred when he approached the sentencing exercise by deciding firstly what the
overall sentence was to be, and then apportioning that sentence as between the two charges. He should
have considered what was the appropriate individual sentence to impose on each of the charges and
then viewed the totality producing the ultimate sentence by giving consideration to that totality and to
such discount as he would have granted for mitigation.
Result - AG's review allowed. Chan's sentences increased to 4 years imprisonment. Chung's sentences
increased to 2 years imprisonment.
CA 249/93
TAI Yiu-wah
Silke & Macdougall VPP, Mortimer JA (12.5.94)
*A Schapel
#E McGuinniety
Possession of forged dies/Change in penalty/Article 12(1) BORO
Held :
As the trial of the applicant occurred subsequent to an amendment of the Crimes Ordinance which
repealed the old S. 76(2) and replaced it with the new S. 75, the applicant must, by virtue of Article
12(1) BORO, have been rendered liable upon his conviction on the old S. 76(2) offence to the lighter
penalty provided by the new S. 75 for simple possession of a forged instrument : R v Mohammad Faisal
Cr App 540/92 followed; R v Wan Siu-kei Cr App 486/92 not followed.
Result - Appeal allowed. Sentence of 4 years imprisonment for possession of forged dies reduced to 2
1/2 years.
CA 99/93
LAU Kwok-hung
Silke V-P, Macdougall V-P, Mortimer JA (25.2.94)
*I C McWalters
#K Ramanathan
Conspiracy to produce counterfeit credit cards/Gravity of offence/Heavy sentences necessary
The applicant was convicted after trial of two counts. The first involved a conspiracy to obtain money
and property from the production, supply and use of counterfeit credit cards. The second involved
300
ccab 93/95
bribing the staff of hotels and businesses to provide details of credit card holders to be used in the
manufacture of counterfeit cards. He was sentenced to terms of imprisonment of, respectively, 5 1/2
years and one year. On appeal
Held :
(1) The applicant's involvement was very substantial. Evidence at trial showed that credit card fraud of
this kind involves sums of the order of US$200M world-wide of which $10M was the value of card
fraud against Hong Kong residents. Those who commit this type of offence target wealthy visitors to
Hong Kong not necessarily Hong Kong residents for obvious reason;
(2) The offences were of great seriousness. The credit cards are in wide use throughout the world.
They are now a fact of commercial life throughout the world and particularly in the more developed
countries. Offences of this nature strike at the root of this valuable commercial system and must be
treated with seriousness. Those who are caught must expect heavy sentences.
Result - Application refused.
AR 5/95
Power Ag CJ,
Bokhary &
Mayo JJA
(9.5.95)
*K Zervos
#P Lim
LEUNG Kwokchung
Forged credit card offences/Deterrence/Prevalence/Accused
marrying after commission of offences
The Respondent pleaded guilty to three offences of
possession of a false instrument, contrary to S. 75(2) Cap. 200,
and to eight offences of use of such an instrument, contrary to
S. 73 Cap. 200. The maximum penalties are, respectively,
three and fourteen years imprisonment. The judge sentenced
him to 11 concurrent terms of imprisonment of 8 months.
The facts showed that the Respondent purchased three
forged credit cards, and used these on eight occasions to pay
for meals at a restaurant.
On review
Held :
(1) The object of a sentence is not only to deter the particular
offender. Other people have also to be deterred;
(2) The possession and use of forged credit cards is very
widespread in Hong Kong. The problem is very serious both
by its nature and its prevalence;
(3) The courts always show as much leniency as they can.
How much leniency a court can show is limited by its duty to
the public. In taking a starting point of 13 months on each
charge, and discounting that term by about 40% to arrive at the
term of 8 months, the judge had been unjustifiably generous.
The respondent had been caught “red-handed”;
(4) The starting point for the using charges ought to have been
two years imprisonment, and the sentences sought to have been
ones of 15 months.
Result - AG’s review allowed. Sentences increased to 15
months imprisonment.
Obiter - It was of relevance that, since the commission of the
301
ccab 93/95
offences, the Respondent had married the mother of
his child. That sort of settling down holds some
promise for better behaviour in future.
SO Chung-kwong
CA 455/93
Yang
Power
Keith J
(10.11.95)
*K Zervos
CJ,
VP,
Credit card fraud/Careful planning and international
ramifications/Damage to Hong Kong’s reputation/Severe
sentence necessary
The Applicant was convicted after trial of one charge of
conspiracy to obtain property by virtue of a forged document,
one charge of conspiracy to defraud, and one charge of
possession of implements of forgery. He was sentenced to
consecutive terms of imprisonment of 2 years on each charge :
6 years in toto.
#A Macrae
The evidence showed that on different occasions those
involved in the fraudulent conduct had come together to plan,
arrange and participate in the production, handling and use of
forged credit cards to obtain goods, services and money in
Hong Kong and Malaysia. The syndicate would obtain and
supply credit card information and pay for the production of
forged credit cards. It was agreed that the Applicant was not
involved in the production of forged credit cards but in their
use. The intention of the syndicate was to use forged credit
cards through various members of the syndicate in Hong Kong
and Malaysia and the proceeds of the use were to be split up
among those who participated.
On appeal
Held :
(1) It was not clear how the judge had arrived at a starting
point of 5½ years but it seems he may have been guided by R v
Lau Kwok-hung and Another Cr App 99/93, which adopted
that starting point. However, it was inexplicable that the judge,
having taken a starting point of 5½ years, sentenced the
Applicant in the outcome to 6 years. In this situation the
question arose of whether the totality was appropriate in all the
circumstances;
(2) The Applicant was deeply involved in very substantial
credit card fraud with international ramifications. The planning
was careful, detailed and effective. Whilst not the most
serious case of its kind, it involved a series of grave offences
which struck at the heart of business probity. The offences also
called into question the reputation of Hong Kong as a business
centre as the false cards emanating from Hong Kong were used
fraudulently in Malaysia.
Result - Application dismissed.
Obiter - It does not greatly assist the court to look at the facts
of other cases unless they set out guidelines or unless they have
some particular feature which makes reference to them
relevant.
302
ccab 93/95
Jose B GAMO
CA 391/95
Mortimer
Mayo JJA
&
Using
forged
passport
to
open
false
bank
accounts/International crime involved/Seriousness of
offence
The Applicant pleaded guilty to three offences of using a
forged passport contrary to s. 73 Cap. 200. He was sentenced
to 2 years concurrent on the first two counts and 9 months
consecutive on the third count.
(9.11.95)
*F Veltro
The facts showed that he was party to a scheme to use a
false passport to open bank accounts in Hong Kong with a view
to defrauding an international bank of US$500,000.
#I/P
On appeal
Held :
These offences were very serious indeed. International
crime was involved. Such crime cannot be carried out without
those such as the Applicant who was prepared to come here and
open false bank accounts using false passports. It is inevitable
that those who are caught will receive punishment. The
sentences were by no means severe.
Result - Application dismissed.
Forged Bank Note
CA’s 220 &
210/94
Power VP,
Macdougall VP,
Penlington JA
YIP Moon-kwan &
2 others
Sentencing for offences of conspiracy to forge and to
utter forged bank notes
The Applicants were convicted of offences of conspiracy
to forge and conspiracy to utter forged banknotes, and
received sentences ranging from eight to thirteen years
imprisonment. On appeal
(10.3.95)
Held :
*V Hartstein
#R Spicer
(A1&A3)
J McNamara
(A2)
(1) When the court stated in R v Chow Tin-wah [1991] 1
HKLR 68, that “on a charge of forging or uttering, a proper
starting point, where the face value of the forged notes is
substantial, is six years”, it had in mind a sentence of six
years imprisonment where the face value of the counterfeit
notes is more than minimal, and that the sentence would
increase in accordance with the value of the banknotes and
the scale of the illegal operation. It was never intended that
in very serious cases a starting point of six years
imprisonment would be appropriate;
(2) The counterfeiting operation in this case was the largest
in Hong Kong that had came to the attention of the court. An
overall sentence of 13 years imprisonment - the statutory
maximum is 14 years - was appropriate in respect of an
Applicant convicted after trial of conspiracy to forge and of
303
ccab 93/95
conspiracy to utter forged US$100 and US$20 banknotes;
(3) Where an offender is convicted of several offences it is
the overall length of sentence that is passed by the court, not
the length of each individual sentence, with which an appeal
court is primarily concerned.
Result - Applications refused.
Gambling
CA 108/93
(1) YIP Kam-fai
(2) FONG Kwai-fung
Yang CJ, Macdougall V-P, Barnett J (3.9.93)
*E Chan
#(1) G Plowman QC & K Yeung
(2) C Grounds
Sentence for substantial bookmaking operation/Fines to be within capability to pay
Held :
(1) Anyone who facilitates gambling beyond the limits permitted by the legislature on a large scale must
expect to be dealt with severely by the courts. The operators of a substantial bookmaking operation can
expect to receive a sentence of between 2 and 3 years imprisonment after trial. The judge was entitled
to take a starting point in excess of 2 years imprisonment and reduce it to 18 months to reflect the
mitigation;
(2) Any fine which is imposed must be within the capability of the offender to pay.
Result - Appeal dismissed against sentences of 18 months imprisonment imposed after guilty pleas to
offences of bookmaking. Appeal against fines of $250,000 allowed, and fines reduced to $125,000.
MA 364/94
TSOI Tak-shing
Leonard J (21.6.94)
*C Coghlan
#S Mason-Parker
Operating a gambling establishment/Large scale operation/Appropriateness of imprisonment
The appellant pleaded guilty to offences of operating a gambling establishment and gambling in a
gambling establishment. He received concurrent prison terms of, respectively, 6 months and 14 days.
The scale of the establishment was indicated by the fact that 25 people were present and police found
stake money of over $450,000. The appellant also had a recent conviction for gambling. On appeal it
was submitted that the prison term, although proper, ought to be suspended.
304
ccab 93/95
Held :
This was not a minor case. The magistrate was well aware of his power to suspend for he suspended
the sentence on another defendant. The sentence imposed was a proper one : AG v Li Wai-ming AR
9/84 followed.
Result - Appeal dismissed.
Homicide
CA 348/91
NGUYEN Minh-tri and 10 others
Silke V-P, Power V-P, Macdougall JA
(26.3.93)
*I G Cross QC & W S Cheung
#A Macrae
Manslaughter in Vietnamese refugee camp/Starting point/Deterrence/Relevance of offer to plead
The applicants appealed against sentences ranging from 8 1/2 to 10 years imprisonment imposed upon
them for manslaughter arising from a premeditated attack by a group of armed Vietnamese upon
another inmate of the Detention Centre.
Held :
(1) This was a vicious and cowardly crime, and fell within the most serious category of manslaughter.
Such crimes are all too frequent in Vietnamese refugee camps. Any sentence must contain a substantial
element of deterrence;
(2) Anyone, including a young person with a clear record, who lends himself to such an attack can
expect to receive little mercy from the courts;
(3) 10 years imprisonment was an appropriate starting point : R v KO Kam-hung [1991] 2 HKLR 433
considered;
(4) Although it is open to the court to grant a discount to an accused who offers to plead guilty to a
lesser charge at the outset, and is found guilty after trial of that lesser charge after the Crown had
rejected the earlier offer, there is no rule of thumb discount that must invariably be given in every case:
R v YAM Wing-ching Cr App 116/78, R v LEE Yuk-wah explained.
Result - Applications dismissed.
CA 14/92
CHEUNG Chi
Power V-P, Litton & Bokhary JJA (9.5.93)
*S R Bailey
#I/P
Manslaughter/Gang attack
305
ccab 93/95
Held :
Eight years imprisonment was an appropriate sentence for a 19 year old defendant who pleaded guilty
to manslaughter in circumstances where there was a death in the course of a gang-attack, and the
defendant was not armed and was not the leader of the group.
Result - Application dismissed.
CA 402/93
LAU Pak-yu
Yang CJ, Macdougall V-P, Kaplan J (20.1.94)
*I G Cross QC & J Fung
#I/P
Manslaughter by provocation/Husband killing wife/Range of sentence/Physical provocation
Held :
(1) Sentences for manslaughter by reason of provocation generally range from 3 to about 7 years
imprisonment. The sentence depends on the culpability of the defendant and the nature of the
provocation : R v Peddie (1990) 12 Cr App R (S) 176;
(2) However, 7 years imprisonment should not in all cases be considered the maximum sentence the
court should impose for killing which had been reduced to manslaughter due to provocation. That
figure may be increased if aggravating factors exist : R v Shaw (1984) 6 Cr App R (S) 108;
(3) The provocation to the applicant was physical, and there was evidence of a very substantial bite to
his abdomen and of a physical attack upon his private parts. The applicant appeared genuinely
remorseful;
(4) The sentence should not have come at the upper limit of the range which is roughly appropriate in
this sort of case. The judge did not really analyse the nature of the provocation when sentencing, and in
the circumstances 7 years was too high.
Result - Appeal allowed. Sentence of 5 years imprisonment substituted for one of 7 years.
CA 402/93
LAU Pak-yu
Yang CJ, Macdougall V-P, Kaplan J (20.1.94)
*I G Cross QC & J Fung
#I/P
Basis for manslaughter verdict/Jury required to indicate reason/Judge to ask jury before they
retire
Before the jury were sent out, the trial judge should have invited them to tell him when they returned
their verdict, if it was manslaughter, whether the verdict was based upon provocation, or the alternative
ground that they were not satisfied that the applicant had formed the necessary specific intent for
murder. It is better to do this before the jury retire so that they know they will be asked this question
and can focus their minds on the answer to it. If the judge just springs the question upon them when
they have returned with their verdict, confusion will most likely result.
306
ccab 93/95
CA 23/94
LUNG Fan-wa
Silke V-P, Macdougall V-P, Stuart-MooreJ (21.7.94)
*C Coghlan
#D Law
Manslaughter/Appropriateness of hospital order of unspecified length
Held :
If the psychiatrists are not able to predict, with confidence, how long the patient would need hospital
treatment before being fit for release into the community, then the hospital order should have no term
attached to it : R v Tsui Chung-leung Cr App 414/79 approved.
Result - Application dismissed.
CA's 623 624/93
TSANG Kam-cheong
Macdougall V-P, Bokhary JA, Wong J (2.9.94)
*J Reading
#M Lunn QC & L Law
Life imprisonment for manslaughter/When manslaughter plea should not be accepted
Held :
(1) The circumstances of the crime of manslaughter were so grave that the maximum sentence of life
imprisonment would have been justified after trial;
(2) An overall sentence of 31 years imprisonment was appropriate to three separate incidents of (1)
forcible detention of a person with intent to procure a ransom for her liberation robbery, possession of
an imitation firearm at the time of committing robbery, and two thefts, (2) aggravated burglary,
manslaughter and wounding with intent, and (3) robbery.
Result - Application dismissed.
Obiter : A plea of guilty to manslaughter on a count of murder should not be accepted where the agreed
facts clearly indicate that the offence committed was murder, not manslaughter.
CA 149/94
YUNG Man-chuen
Litton & Bokhary JJA, Wong J (16.9.94)
*D G Saw
#C Grossman QC & B Chung
Diminished responsibility manslaughter/Relevance of prisoner serving term in isolation
307
ccab 93/95
The Applicant pleaded guilty to manslaughter on the basis of diminished responsibility. He received 6
years imprisonment. On appeal
Held :
(1) As much as and probably more than any other offence, manslaughter is one committed under
infinitely various circumstances albeit with one constant factor, namely, the gravity of the taking of a
human life;
(2) Upon the whole of the evidence the judge was right in taking the view that the applicant's
responsibility, although substantially impaired, was not impaired to the extent of being "minimal";
(3) Although the Appellant, as a former Correctional Services Officer, was serving his prison term in
isolation for his own safety, the trial judge was only required to take this into account to a very limited
degree, and this he had done.
Result - Application dismissed.
AR 7/94
(1) WONG Yim-ping
(2) HON Leung-fong
Yang CJ, Macdougall VP, P Chan J (25.11.94)
*I G Cross QC & D G Saw
#A Mitchell-Heggs (1)
G Plowman QC & A Macrae (2)
Manslaughter/When sentence in excess of 10 years appropriate/Use of maximum penalty
The Respondents were convicted, on their own pleas, of manslaughter.
imprisonment, and R2 received 8 1/2 years imprisonment.
R1 received 7 years
The admitted facts showed that the death of the victim occurred as a result of a course of conduct which
had been carefully planned. The plan was for R1 to take the victim to a hotel and, while R2 waited in
an adjoining room, R1 would first make the victim drunk by causing her to drink spirits, knowing she
did not normally drink alcohol. R1 would then render the victim unconscious by administering
chloroform, following which R2 would enter the room, indecently assault the victim and record the act
on videotape. The object of the scheme was to gratify R2's perverted sexual inclinations. The plan was
implemented, but the victim died of the effects of the chloroform - extra chloroform having been
obtained when the initial administration failed to induce unconsciousness.
On review, it was submitted that the sentences imposed were manifestly inadequate and/or wrong in
principle.
Held :
(1) Although sentences beyond 10 years are not usual in cases of manslaughter, sentences beyond 10
years are sometimes passed when appropriate, having regard to the extreme seriousness of the conduct
causing death : R v Barrell (1992) 13 Cr App R (S) 646;
(2) The conduct was premeditated and ruthlessly planned. The act of obtaining another bottle of
chloroform and applying its contents to the victim when it must have been obvious that she was in a
state of distress demonstrated a callous disregard for her life. Her death was not the result of a
spontaneous or impulsive act which, had time for thought been given, would not have occurred;
308
ccab 93/95
(3) Although it was submitted that the Respondents demonstrated remorse by summoning an ambulance
and by attending at the hospital and notifying the victim's family, no other realistic avenue was open to
them as they knew that they could not disassociate themselves from the scene;
(4) The concoction of a false story in a desperate attempt to exculpate themselves instead of
immediately admitting what they had done and giving the doctor a true account of the quantity of
chloroform they had applied to the victim and thereby assisting him in deciding upon the best form of
treatment, did not sound of genuine remorse;
(5) Had death not resulted, and had the Respondents been convicted instead of administering drugs to
obtain or facilitate an unlawful sexual act, contrary to S. 121 Cap 200, the maximum sentence of 14
years imprisonment would have been appropriate. As it was, a sentence was required which truly
reflected "the abhorrence which right-minded members of the public have of the offender's conduct" :
per Lawton L J in R v Prime (1983) 5 Cr App R (S) 127;
(6) The starting point after trial was 20 years. A discount would be given, both to take account of the
mitigation and of the fact that the sentences on review were greatly in excess of those passed originally :
AG v Wong Kwok-wai [1991] 2 HKLR 384 applied.
Result - AG's review allowed. Sentences increased to 12 years (Wong) and 15 years (Hon).
CA 233/94
CHONG
Yan-yuk
Attempted murder/Circumstances in which
imprisonment appropriate/Worst possible case
life
Yang CJ,
Litton &
Mortimer JJA
The Applicant was convicted of attempted murder
and sentenced to life imprisonment. On appeal
(28.2.95)
Held :
*I G Cross
QC & L Lai
Life imprisonment is usually imposed in the case of
an accused who is a phychopath or an accused who may well
repeat the same offence some time in the future. Although it
was true that the Applicant did not fall into either category,
this was perhaps one of the worst imaginable cases of the
type. It was only by sheer good fortune that the victim did
not die from the very serious wounds inflicted upon her.
#P Callaghan
Result - Application dismissed.
CA 190/94
Nazareth VP,
Mortimer & Liu
JJA
KELLECI Izzet
Plea
to
manslaughter
due
to
diminished
responsibility/Appropriate sentence when hospital order
appropriate but treatment not available/Life sentence or
determinate sentence ?/Relevance to sentence of
Convention on the Transfer of Prisoners 1983 when
Accused’s home country is a signatory
(21.7.95)
*I G Cross QC
& W S Cheung
#J Mullick
The Applicant pleaded guilty to manslaughter on the
grounds of diminished responsibility. He was a Turkish
national who spoke little or no English. The medical reports
indicated that he suffered from a psychiatric disorder. His
condition was amenable to treatment by psychotherapy. But
for the difficulties presented by language and culture, a hospital
order would be indicated but the necessary facilities for him
were not available in Hong Kong. All agreed that the only
hope of successful treatment to improve the Applicant’s mental
state would be afforded by his return to Turkey and treatment
309
ccab 93/95
there in his own language and culture.
The trial judge concluded that he fell between two stools.
On the one hand, the Applicant was ill and this was not a case
for imprisonment. On the other, if he was confined either in
prison or in hospital in Hong Kong, his mental condition would
deteriorate. In these circumstances, the judge considered the
prospect of the Applicant being removed to Turkey to serve
any sentence imposed. Through the UK, Hong Kong and
Turkey have ratified the Convention on the Transfer of
Prisoners 1983. By this, it is possible for the Applicant to be
transferred to Turkey to serve any sentence. But whether this
happens is not a matter over which the courts have any control.
This must be achieved administratively by the executive
authorities. The judge concluded that he was obliged to pass
such sentence as was appropriate under Hong Kong law. It not
being open to him to impose a hospital order, and since the
Applicant posed a danger to the public for an unpredictable
period of time, there was no option but to pass an indeterminate
sentence of imprisonment, leaving it to the doctors and the
executive to decide when the Applicant’s condition was such
that he no longer constituted a problem.
On appeal, the Applicant invited the court to consider
the “catch 22” situation. Hope of improvement in his mental
condition depended upon him receiving appropriate psychiatric
treatment. That was not available in Hong Kong. Indeed, here
his prospects of improvement were diminished. Also, because
he would be incarcerated, his condition was likely to
deteriorate, with the result that because of the sentence itself,
the Applicant may present an unpredictable danger for an
unpredictable period of time. This led to the imposition of the
indeterminate life sentence.
The Applicant adduced fresh psychiatric evidence which
indicated that he was not highly dangerous. It showed that
neither considerations of appropriate length of period of
treatment required nor the need to protect the public from his
dangerousness required that he be kept in custody for more
than a few years.
In light of that fresh report, it was submitted, relying
upon R v Wilkinson (1983) 5 Cr App R (S) 105, that this case
did not fall into one of those most exceptional cases in which a
life sentence ought to be imposed and that a determinate
sentence of imprisonment was correct in principle.
Held :
This was an extremely difficult case on sentence. The
judge’s approach was impeccable on the information before
him. Giving full weight to the fresh evidence, the Applicant
did not represent such a continuing danger to the public
consequent upon his medical condition - which was not
psychotic - as to warrant an indeterminate life sentence.
Result - Application allowed. Life sentence quashed and
substituted with 10 years imprisonment.
310
ccab 93/95
Obiter -
AR 7/95
Power Ag CJ,
Ching JA, P
Chan J
(21.9.95)
*I G Cross QC,
D G Saw & R
Leung
#K J Oderberg
LI Ying-kuen
CHENG Wai-lun
It was to be hoped that in pursuance of the
international agreement, the Applicant would be
transferred to Turkey as a matter of urgency so that
he may serve his sentence either in prison or,
hopefully, in a prison hospital in which he can
receive appropriate treatment. However, these are
not matters over which the court has any control or
influence. The most that the court can do is to pass
a sentence which is the most appropriate on the
basis that it will be served in Hong Kong. There are
few circumstances in which the possibility of a
prisoner being transferred to his home country to
serve his sentence becomes relevant to the
sentencing judge. One is when there is a genuine
choice as to the appropriate sentence; the court may
then seek to avoid a sentence which may prevent an
appropriate sentence or proper treatment being
given to him in his home country.
Manslaughter and blackmail/Young offenders/Disturbed
background not mitigation/Public abhorrence/Training
centre order wrong/Prison inevitable
The Respondent pleaded guilty to manslaughter and to
blackmail. At the time of the offences, they were aged,
respectively, 16 years and 10 months and 17 years and 10
months. The manslaughter count particularized that the two
Respondents unlawfully caused the death of a 13 year old boy.
The blackmail count particularized that the Respondents had,
with a view to gain for themselves, subsequently made an
unwarranted demand of $500,000 from the parents of the
victim.
The victim was left tied in such a way that, according to
the pathologist, it was a “distinct possibility” that the deceased
might have accidentally strangled himself while trying to
escape from “the bonds about his wrists which were attached to
the wires around his neck”.
The trial judge, having had regard to the four classical
principles of sentencing set out in R v Sargeant (1974) 60 Cr
App R 74, 77, referred to the opinion of the psychiatrists that
the Respondents, given detention and training, might well
become useful members of society. He indicated that detention
in a training centre not only gave the opportunity for
rehabilitation but also carried with it punitive and deterrent
elements. He concluded that it was “absolutely clear that in
dealing with such young offenders, the courts concern should
not so much be on retribution in the strict sense as it should be
on the rehabilitation of them, for as I have indicated, they will
have to return to society, and the greater public interest must be
that they become good citizens.”
The Respondents were each sentenced to detention in a
training centre. On review, it was submitted that the sentences
were manifestly inadequate and/or wrong in principle.
311
ccab 93/95
Held :
(1) The trial judge placed too much weight upon the perceived
shortcoming of the parents and upon what he regarded as the
“disgraceful and appalling childhood” of the Respondents and,
having done so, led himself into the error of over-emphasising
the rehabilitation aspect of sentencing. All the reports agreed
that the Respondents knew perfectly well what they were doing.
They quite knowingly perpetrated a life threatening assault
upon the deceased and then, accepting the version which was
most favourable to them, attempted to cover that up by making
a blackmail demand which they hoped would prevent the
family from reporting to the police that the deceased was
missing;
(2)
The judge appeared to be concerned solely with the
actions that caused the death of the deceased. He nowhere
mentioned the second count in which the Respondents, having
caused the death displayed a vicious disregard for the feelings
of the family by attempting to terrify them into silence. The
judge failed properly to balance the competing sentencing
considerations:
(3) The interests of society as well as those of the offenders
had to be borne in mind. Right thinking members of the public
would feel abhorrence towards these offences : R v Inwood
(1974) 60 Cr app R 70 applied;
(4) The offences called for immediate custodial sentences.
After trial, sentences of 10 years on the manslaughter count and
6 years on the blackmail count would have been proper, as
would have an order that they be concurrent. However, the
pleas of guilty, the youth of the Respondents, and the fact that
sentences of imprisonment were being imposed in place of
training centre orders had to be borne in mind. Sentences
totalling 5 years imprisonment would be substituted, for each
Respondent (5 years for manslaughter, and four years for
blackmail, concurrent).
Result - AG’s review allowed.
CA 88/95
Power Ag CJ,
Ching JA, Ryan
J
(21.9.95)
*I G Cross QC
& P Wan
#N Sarony QC
& J Cheng
CHU Po-kwong
Manslaughter by arson/Multiple deaths/Sentencing
considerations
The Applicant faced 12 counts of murder arising out of
the arson attack at the Shek Kip Mei branch of the Hong Kong
and Shanghai bank on 10 January 1995. He pleaded not guilty
to those offences, and was convicted of manslaughter in each
case. He was sentenced to imprisonment for 20 years on each
count, the sentences to be concurrent.
On appeal, it was submitted that when sentencing the
trial judge lost sight of the emotional state of the Applicant at
the time of the offences, and that he erred in describing the case
as a bad one, just short of murder.
Held :
312
ccab 93/95
(1)
The judge was right to regard a case such as this,
manslaughter caused by fire, as being at the top of the range of
manslaughter offences. He rightly characterised the actions of
the Applicant as ‘criminal, irresponsible and callous’.
Multiple deaths occasioned by the deliberate creation in a
public place of a situation which can lead to uncontrolled fire
constitute offences of particular gravity. What was done was
done in a public place wherein there were at the time, to the
Applicant’s knowledge, a substantial number of people. He
created a situation of utmost danger which led to 12 deaths. He
did so pursuant to a plan which was carried forward in a
calculated way. He must have realised, whatever his emotional
state, that if, for any reason, a fire started, there were
incalculable and terrible risks for all in the vicinity. Undue
emphasis had not been placed by the trial judge upon the aspect
of retribution;
(2) Having regard to all matters, including the preparedness of
the Applicant to plead guilty to manslaughter and his previous
good character, to which, in the circumstances, little weight
could be given, 20 years was not an unduly severe sentence.
Result - Application dismissed.
CA 189/95
Power Ag CJ,
Mayo JA & P
Chan J
(6.9.95)
LEE Sau-ping
Diminished responsibility manslaughter/Sentencing
considerations/Whether indication of starting point
necessary
The Applicant was charged with the murder of her 5 year
old daughter. She pleaded guilty to manslaughter on the
ground of diminished responsibility. She was sentenced to 10
years imprisonment.
*A A Bruce
#R Forrest
The Applicant was 28 years of age, and had suffered
since childhood from a mild grade mental retardation after a
brain injury. The father of the victim had asked the Applicant
to have an abortion before she gave birth to the victim, and
when she refused, he deserted her. The Applicant had
previously abused the victim and had once been convicted of
child abuse. It was admitted that the Applicant had taken the
victim out from the Po Leung Kuk, put her inside a nylon bag,
dumped her into the sea and drowned her. It was not in dispute
that the Applicant had planned this for a few days.
On appeal
Held :
(1) It was accepted that in sentencing the Applicant in a case
of this nature, the court is mainly concerned with two
determining factors : first, the degree of her responsibility, and,
second, the danger she might pose to the public or other people.
Those two issues were clearly in the mind of the trial judge;
(2)
The doctors were in consensus in saying that the
Applicant’s decision to kill her daughter was irrational in that
313
ccab 93/95
there was no apparent motive for doing what she did and that
she committed the offence because she must be under the
influence of her mild degree mental retardation, resulting in a
personality deficiency leading to impulsiveness, irrationality
and emotional instability. However, the doctors were almost
unanimous in saying that she was capable of planning such a
killing, was capable of carrying out such a plan and was
capable of making up various stories to cover what she did.
The trial judge was entitled to take account of all these matters
in assessing the degree of responsibility of the Applicant;
(3) Although it was submitted that the trial judge wrongly
placed too much emphasis on the element of danger, and that
there was only a danger to the second child of the Applicant,
this contention was not tenable. Danger to the public includes
danger to the people she knows and danger to the people to
whom she is related. This element of danger cannot be related
to any definite period of imprisonment. It is a factor to be
taken into account in imposing an overall sentence;
(4) Although the judge did not see fit to indicate any starting
point or how much discount was to be given for the plea, this
was one class of offence where a judge may not be able
conscientiously to fix a starting point. There is a wide range of
sentence, from probation to life imprisonment. A sentencing
judge may well feel that, having taken an overall view of the
matter, all he can finally do is to decide on the appropriate
sentence. The judge properly did this in this case. He was
entitled to take into account the careful planning of the killing,
the ruthless conduct towards the victim, the manner in which
she had executed the plan and her attempts to cover up her
wrong doing when she was arrested. As the doctors said, she
was only marginally mentally affected, and was well aware of
what she had done.
Result - Application dismissed.
CA 275/94
Yang CJ,
Mortimer &
Mayo JJA
(27.10.95)
*D G Saw
#G McCoy & R
Yu
NG Kin-ming
Attempted murder/Causing explosion likely to endanger
life/Case not in worst category/Relevance of remission
The Applicant was convicted after trial of, firstly,
attempted murder and, secondly, causing an explosion likely to
endanger life.
He was sentenced to imprisonment of,
respectively, 25 years and 15 years. The judge ordered 5 years
of the 15 years for count 2 to run consecutively to the 25 years
for count 1l, whilst the balance of 10 years was to run
concurrently with the sentence on count 1. The totality was
therefore one of 30 years imprisonment.
The facts showed that the Applicant sent a parcel bomb
to the Holiday Inn Golden Mile Hotel, where the victim was on
duty at the reception counter. When opened, the parcel bomb,
which contained shrapnel, carpet tacks and nails, exploded,
causing serious injuries to the victim, and some injury to
another employee. Extensive damage was also caused to the
premises.
314
ccab 93/95
On appeal
Held :
(1) The judge erroneously took into account the remission the
accused might earn while serving a term of imprisonment.
Remission is a possibility, earned by good behaviour while in
prison, and not a certainty;
(2) A totality of 30 years is approaching very close to the
worst case of this type. It was possible to imagine crimes
worse than those committed by the Appellant, such as terrorist
attacks or random attacks in a crowded place.
Result - Appeal allowed. Sentences reduced from 30 to 20
years.
YU Wing-sze
CA 372/95
Power
Litton
Keith J
VP,
VP,
Manslaughter by provocation/10 years not excessive in a
brutal case
The Applicant, who was charged with murder, was
convicted after trial of manslaughter, on the basis of
provocation.
(15.11.95)
*I McWalters
The judge, having taken 12 years as his starting point,
reduced it to 10 years on account of the unsuccessful offer to
plead guilty to manslaughter ab initio. He observed :
#N Stirling
‘This is a bad case and any provocation can
only have been minimal.
Your loss of selfcontrol found by the jury as a result of that
provocation is difficult to excuse’.
On appeal
Held :
(1) Manslaughter by its very nature is committed in such a
variety of circumstances as to make it difficult for the court to
lay down guidelines;
(2)
The facts disclosed a brutal crime. The victim was
unlawfully killed in her own home. Although the 10 year
sentence was on the high side it was not excessive.
Result - Application dismissed.
Immigration
AR 12/92
LI Hop-ming
315
ccab 93/95
Cons V-P, Kempster & Litton JJA (19.1.93)
*T Casewell
#G McCoy
II sentencing/Humanitarian reasons and policy/Mixing custodial and suspended sentences
The Respondent, an illegal immigrant, was imprisoned for 6 months for using a forged identity card,
and was sentenced to a further 18 months imprisonment, consecutive to the above term but suspended
for 2 years, for the offence of unlawful remaining in Hong Kong. The Attorney General sought a
review of sentence.
Held :
(1) The magistrate was well aware that the normal sentence for such offences is 15 months
imprisonment, and that in general suspended sentences should not be "mixed" with terms of immediate
imprisonment : R v SO Man-king ors [1989] 1 HKLR 142; AG v TSE On [1986] HKLR 215;
(2) Although it was contended that the fact of a "split" family, the root cause of the magistrate's
decision, could never be accepted as strong humanitarian grounds, for to do so would inevitably
undermine the very policy of the legislation, humanitarian grounds will, from their very nature, usually
run contrary to the general purpose of the particular law as recognised in SO Man-king (above);
(3) It could not be successfully maintained that the "mixing" of the sentences was necessarily wrong in
principle when the principle itself allows for the exception;
(4) Although the prison term was considerably less than the court itself might have imposed, this did not
mean it was manifestly inadequate. The circumstances of the Respondent at the time of trial were
exceptional.
Result - AG's application dismissed.
MA 866/92
YUEN Liu-pang
Keith J (8.12.92)
*L Cross
#D Law
II/Unlawful remaining/Intention to commit offence/Prosecution outside guidelines
Held :
(1) Whatever the Appellant's intention might have been in coming to Hong Kong, he did not in fact
commit an offence. The fact that he did not commit a criminal offence meant that he should not have
been prosecuted for the immigration offence under the prosecution guidelines. Accordingly, to deny
him the discount which he should get, according to R v NG Tung-fong [1992] 1 HKLR 114, merely
because he intended to commit a criminal offence, is to treat him as if he had actually committed one.
An illegal immigrant should not be penalized for his mens rea unless it is accompanied by an actus reus;
(2) The appropriate discount which the Appellant should receive for the fact that in the event he was
prosecuted outside the terms of the existing policy was 9 months.
Result - Appeal against a sentence of 15 months imprisonment for unlawful remaining allowed.
Sentence of 6 months substituted therefor.
316
ccab 93/95
MA 912/92
LAM Lai-chu
Keith J (9.12.92)
*T Casewell
#P Wong
Illness of illegal immigrant's relative in China/Mitigating effect
Held :
(1) The illness in China of a relative of the illegal immigrant is not per se a strong humanitarian reason
for departing from the guidelines in R v SO Man-king [1989] 1 HKLR 142 : R v LAM Sai-ying MA
811/92 followed;
(2) As the Appellant clearly knew of her husband's illness before she came to Hong Kong, and chose to
come nonetheless, it was not something to be prayed in mitigation;
(3) Experience suggests that there is hardly ever an illegal immigrant who does not have an ill or dying
spouse or parent in China.
Result - Appeal dismissed against sentences totalling 15 months imprisonment for immigration
offences.
AR 10/92
MA 553/92
(Consolidated)
(1) LAU Chung-ming
(2) WONG Mok-din
Power, Nazareth & Litton JJA (19.3.93)
*T Casewell
(1) I/P
(2) J Mullick
Unlawful employment of illegal immigrant/15 months a proper starting point/Relevant factors
Held :
(1) Fifteen months imprisonment is a proper starting point when sentencing for unlawfully employing
an illegal immigrant in circumstances where only one employee is involved and there is no exploitation
- it having been established that the offender was aware that he had employed an illegal immigrant or
had acted recklessly in so doing;
(2) That starting point should be increased in cases of multiple employment and where there is an
element of exploitation. It will be a mitigating circumstance that the offender pleads guilty and that he
had made some but not all practicable enquiries sufficient to establish the statutory defence;
(3) It was necessary to take into account that, in 1990, the maximum sentence for an offence contrary to
S. 17 I Cap. 115 had been raised to a fine of $250,000 and imprisonment for 3 years. (Prior to that, it
had been $50,000 and 1 year).
317
ccab 93/95
Result - (1) AR 10/92 : AG's application for review of a fine of $2000 allowed. 5 months substituted;
(2) MA 553/92 : Appeal allowed against a sentence of 12 months imprisonment. Sentence varied to
allow of the appellant's immediate release.
MA 40/93
SONG Kiao-luo
Bewley J (27.4.93)
*P Madigan
#A Sanguinetti & K H Tsang
Possession of false passport/Transit a mitigating factor
Held :
The magistrate should have taken into account the fact that, although the defendant pleaded guilty to
possession of one unlawfully obtained and one unlawfully altered travel document, he was only in
transit and did not attempt to pass through immigration in Hong Kong : R v Garcia MA 1317/89
followed.
Result - Appeal allowed. Consecutive sentences of 8 and 4 months imprisonment ordered to run
concurrently.
MA 267/93
(1) CHAN Man-sum
(2) CHOW Shui-hung
Leonard J (1.6.93)
*Tong Man
#A Sedgwick QC & Chung Boey (1)
C Grounds (2)
Obtaining employment visas by trickery/Starting point/Appropriateness of suspended sentence
Held :
(1) For an ordinary case in the magistrate's court, a starting point of 18 months is appropriate for an
offence of preparing and/or obtaining false and/or forged contracts of employment with the intention
that they be furnished to the Labour Department and Immigration Department in support of applications
for the granting of employment visas, extensions of stay and re-entry visas : R v Durup CA 194/86, R v
HSU Sia-man Another AR 12/86, R v MAK Chun-hin CA 458/92 considered;
(2) Offences designed to interfere with the control of immigration into Hong Kong are undoubtedly
serious and will often but not always attract immediate sentences of imprisonment.
Result - Appeals allowed. Sentences reduced from 12 to 9 months, (CHAN), and 18 months to 13
months, (CHOI).
MA 480/93
318
ccab 93/95
FONG Pan
Leonard J (24.8.93)
*D G Saw
#D Law
Using identity card relating to another person/Use by illegal immigrant to obtain employment
justifies enhanced sentence
Held :
The court understood the guidelines in R v So Man-king [1989] 1 HKLR 142 to indicate that, if an
illegal immigrant does no more than carry an identity card so that he may show it to a law enforcement
officer if he is challenged as to his immigration status then there is no ground for enhancing the
sentence. Once he uses the card to obtain some benefit then it is open to the court to impose an
enhanced sentence. The main benefit which would enable an illegal immigrant to remain unlawfully in
Hong Kong is employment. It is a greater benefit than the opening of a bank account. It follows that
producing an identity card in order to obtain employment is the use of that card to obtain a benefit and
that merits an enhanced sentence.
Result - Appeal against sentences totalling 19 months for immigration offences and theft refused.
MA 529/93
TAI Wai-hung
Stock J (12.11.93)
*M A Crabtree
#P S Graham
Status of "tolerated border crossers" ("TBC's)/Unlawful employment of TBC/Sentencing
considerations
Farmers from the Chinese territory bordering Hong Kong have traditionally been allowed access to
lands annexed in 1898, for the purposes of tending their fields, fish ponds and oyster beds. In 1979 the
Chinese authorities introduced a system of issuing "Cross Border Farming Permits" to people living on
the Chinese side of the border. The Hong Kong authorities have no role in the issue of these
documents, but are advised by the Chinese authorities of the names of the persons issued with such
documents. These people, known as "tolerated border crossers", or "TBC's", are allowed to enter the
border areas between 6 a.m. and 6 p.m., and, in addition to their places of work, may visit Sheung Shui,
Fanling, Yuen Long, Lau Fau Shan and Sha Tau Kok. On average, 800 TBC's cross the border daily.
The appellant pleaded guilty to employing a person not lawfully employable, namely a TBC. He
received 8 months imprisonment. On appeal
Held :
(1) TBC's are to be distinguished from other illegal immigrants from the mainland in that they return
daily and enter Hong Kong with permission. The sentencing policy in R v So Man-king and Others
[1989] 1 HKLR 142 is directed at a group of potential principal offenders, unlimited in number or by
geography. Their very entry to Hong Kong is unlawful and there can be no question but that their
continued presence in Hong Kong is unlawful. However, the TBC is permitted to be in Hong Kong,
albeit for a limited purpose, returns each day, belongs to a group whose number is very limited, and in
respect of whom no particular social or immigration policy is envisaged. The need to target at them a
sentencing policy which will deter those who employ them must therefore make allowance for these
particular factors;
319
ccab 93/95
(2) However, it would not be right to equate the TBC who comes here but does not farm with visitors to
Hong Kong from abroad who take up employment in breach of a condition of stay. To residents of
areas bordering Hong Kong the attractions of coming here to work, even unlawfully, are substantial and
the courts must guard against the risk of creating a window of opportunity for would be illegal
immigrants by announcing to them that they have only to flourish these certificates to attract a more
sympathetic approach;
(3) Those who employ TBC's should expect sentences heavier than those employing overstayers from
abroad. However, as the Crown had not formulated a clear prosecution policy towards TBC's who
offend, it would be wrong to visit upon someone in the appellant's position the usual level of
punishment;
(4) If the TBC started to reside in Hong Kong, a term of imprisonment approaching the tariff for
employers of mainland illegal immigrants may well be appropriate. If employment is for an extended
period, or if there is exploitation of the TBC, or if several are employed, then an effective custodial
sentence will be warranted;
(5) In this case, there was a guilty plea and a short period of employment of the TBC with no hint of
exploitation. However, the appellant supervised a building site and ought to have been particularly
careful. Although a fine of $20,000 would be substituted for the prison term, this was not to be taken as
a tariff for the future.
Result - Appeal allowed.
MA 885/93
NGUYEN Duc-quang
Yang CJ (15.3.94)
*K H Wong
#D Law
Starting point for possession of forged Vietnamese Refugee Card and Escape from Detention
Centre
Held :
For an offence of possession of an unlawfully altered Vietnamese Refugee card, a starting point after
trial should be one of 15 months of imprisonment, and an offence of escaping from a Detention Centre
should attract 6 months after trial.
Result - Appeal dismissed against sentences totalling 16 months imprisonment for offences of escaping
from the Detention Centre, and possession of a forged Vietnamese Refugee card.
[Corrigendum :In the March Bulletin, under Criminal Appeals Against Sentence, reference was made to
CA 641/93. The reference should read : R v Naveed Khalig CA 611/93 - Ed.]
CA 385/93
NG Muk-keng
Silke V-P, Macdougall V-P, Nazareth JA (10.3.94)
*T Casewell
#D Cosgrove
320
ccab 93/95
Bringing unauthorized entrants to HK/Aggravating features/Starting point
The applicant, having pleaded guilty at committal to the offence of being a member of the crew of a
ship which entered Hong Kong with unauthorized entrants on board, was sentenced to 5 years
imprisonment. On appeal it was submitted that, given the mitigating circumstances, the facts of the
case, and the starting point taken by the judge of 6 years imprisonment, the discount of one year was too
low. The applicant was not the owner of the vessel.
Held :
(1) It was an aggravating factor that there was a very substantial number of unlawful entrants involved 100. The vessel was unseaworthy and, while the unlawful entrants were concealed, they could escape
from the compartments in which they were. Nevertheless the number of immigrants in a small vessel of
itself constituted a danger : R v Ng Kit-yuen [1992] 1 HKCLR 170 considered;
(2) A starting point of 6 years was far too low and while from that starting point only one year was
allowed as the discount for the plea, nevertheless, the sentence of 5 years was one which was fully
justified.
Result - Application refused.
MA 804/93
S NAWAZ
Barnett J (2.3.94)
*J Lee
#R Tang
Forged identity card guidelines/Link between offender's status in HK and card/Establishing link
Held :
When a court considers whether to invoke the guidelines prescribed in R v Chan Shau-kin Cr App
934/81 for the sentencing of illegal immigrants in possession of forged identity cards, the real question
is the intention or purpose behind the possession of another's identity card. It matters not whether the
offender is an illegal immigrant or overstayer. The court should look to see whether there is a link
between the offender's status in Hong Kong and the identity card, and ask itself whether the offender
has the card to obtain employment or otherwise further his remaining in Hong Kong. If the answer to
that question is yes, a sentence of 15 months imprisonment after a plea of guilty is not excessive. If the
answer is no, and no link is established between the offender's status in Hong Kong and the identity
card, the offence in relation to the identity card falls to be treated as an unconnected offence : AG v
Lam Ping-chun [1989] 1 HKLR 161 considered;
(2) How the necessary link is to be established will depend upon the facts and circumstances of each
individual case. In some, it will no doubt be futile to try and pursue the matter. In others, the facts and
circumstances may be so overwhelming and compelling that the only inference to be drawn is that the
offender had the identity card in his possession to further his purpose in remaining in Hong Kong. In
others, it may be necessary, where the accused has pleaded guilty, for the magistrate to conduct a
Newton hearing;
(3) No link was established by the magistrate. The offence accordingly fell to be dealt with as being
unconnected with the immigration offence. As such, a sentence of 3 months imprisonment was
appropriate for possession of an identity card belonging to another : R v Ghazanfar Iqbal MA 654/93.
Result - Appeal allowed against sentences totalling 15 months for possession of another's identity card
and unlawful remaining; sentences totalling 3 months substituted.
321
ccab 93/95
CA 158/94
TSOI Hon-to
Silke V-P, Power V-P, Stuart-MooreJ (28.7.94)
*C Coghlan
#I/P
Crew of a ship bringing unauthorised entrants to Hong Kong/Whether status as captain an
aggravating feature
Held :
Five years imprisonment is appropriate when a court is dealing with the person in charge of a vessel
carrying unlawful entrants. As that starting point allows for the fact that the accused is the captain, the
judge erred in treating the accused's status as an additional factor : R v Ng Kit-yuen [1992] 1 HKCLR
170 considered.
Result - Appeal allowed. Sentence reduced from 4 years and 3 months, imposed after a guilty plea, to
3 years and 5 months.
MA 389/94
KWOK Hau-ching
Keith J (19.7.94)
*W S Cheung
#I/P
Illegal immigrant/Illness of relative/Unexpected disaster
Held :
Although the Court of Appeal held, in AG v Liu Chi-ping AR 1/90, that humanitarian considerations
did not arise where a relative of the illegal immigrant had fallen ill when the immigrant came to Hong
Kong, the position may be different where some unexpected disaster, such as the severe illness of a
close relative, occurs after the immigrant has arrived in Hong Kong. In such cases, a shorter sentence,
or even a suspended term, might be appropriate.
Result - Appeal allowed against sentences totalling 12 months for immigration offences.
MA 655/94
S M QUAZZAFI
Bewley J (31.8.94)
*D G Saw
#I/P
Identity card and travel document offences/Pakistani citizen not to be punished in same way as
Chinese national
322
ccab 93/95
The appellant pleaded guilty to three charges, namely : (a) using an unlawfully obtained travel
document, contrary to S. 42 (2)(b) Cap. 115; (b) using a Hong Kong identity card relating to another
person, contrary to S. 7A (1A) Cap. 177; and (c) breach of condition of stay, contrary to S. 41, Cap.
115.
He was sentenced to concurrent terms of imprisonment of 15 months on charges A and B and 2 months
on charge C. On appeal
Held :
(1) In saying that he saw no reason why a Pakistani should be treated differently from a mainland
Chinese, the magistrate appeared to have overlooked that, in R v Bashir Ahmed MA 522/93, it had been
held that a sentence of 9 months imprisonment was appropriate for a Pakistani overstayer who had
pleaded guilty to using the identity card of another person of the same ethnic origin as himself by
producing it to the police;
(2) A starting point of 12 months in the case of a Pakistani overstayer using an identity card relating to
another person, contravening a condition of stay and failing to produce proof of identity was held to be
appropriate in R v Nadeem Butt MA 359/94;
(3) Nine months is an appropriate sentence in cases of the isolated use of a false passport by persons
unconnected with Hong Kong or China : R v Bhagwant Singh - Padda MA 144/88.
Result - Appeal allowed. Sentences on charges A and B each reduced to nine months.
MA 426/94
WONG Chung-foon
Bewley J (17.8.94)
*T Casewell
#L Lee
Possession of forged identity card/When usual sentence may be enhanced
Held :
If an illegal immigrant does no more than carry an identity card so that he may show it to a law
enforcement officer if he is challenged as to his immigration status then there is no ground for
enhancing the usual sentence of 15 months imprisonment. Once he uses the card to obtain some
benefit, then it is open to the court to impose an enhanced sentence. The main benefit which would
enable an illegal immigrant to remain unlawfully is employment : R v Fong Pan MA 480/93.
(Magistrates should follow this approach in the absence of a contrary decision by the Court of Appeal.)
Result - Appeal allowed. Sentence reduced from 18 to 15 months imprisonment.
MA 468/94
KWOK Mei-ho
Leonard J (29.6.94)
*M Holmes
#D Law
Aiding and abetting remaining of illegal immigrant/Relevance of family relationship
323
ccab 93/95
The appellant, a mature woman of good character, received a telephone call from her husband's sisterin-law, who was from mainland China. The sister-in-law said she had arrived in Hong Kong and
intended to visit the appellant. She did so and stayed there with the appellant. Next day, she realised
that her guest had come illegally from China and was in Hong Kong without authority. She nonetheless
allowed her visitor to stay. Eight days later, she asked her visitor to deputise for her at the shop where
she worked, and it was there that she was discovered by an immigration officer.
After the appellant pleaded guilty to the offence of aiding and abetting the remaining in Hong Kong
without authority of an illegal immigrant, the magistrate, upon hearing that the illegal immigrant had
been sentenced to 15 months imprisonment, felt bound to impose the same sentence on the appellant.
On appeal
Held :
The circumstances of the case were such that the magistrate was entitled to depart from any standard
guidelines and to sentence the appellant on the basis of the particular facts. There was a great deal of
mitigation having regard, inter alia, to the relationship between the people involved. The employment
of the immigrant was purely temporary. The sentence of 15 months imprisonment was in the
circumstances too high. That sentence would be reduced to one of 6 months, suspended for 2 years.
Result - Appeal allowed.
MA 414/94
HO Kwok-hung
Leonard J (29.6.94)
*M Holmes
#D Law
Aiding and abetting remaining of illegal immigrant/Immigrant the girl friend of accused
The appellant, who was convicted after trial of aiding and abetting the remaining of an illegal
immigrant, received 15 months imprisonment.
The illegal immigrant was the girl friend of the appellant, and he had told police that as he loved her he
let her stay. On appeal
Held :
(1) Cases where there is a close relationship between the aider and abetter and the illegal immigrant and
where there is no question of economic exploitation are recognised as falling outside the guidelines of R
v So Man-king [1989] 1 HKLR 142;
(2) As Bewley J said in R v To Yee-sang MA 589/89 : "It is asking a lot of a young man to expect him
to kick his girl friend out or to report her to the police";
(3) In the circumstances, it was proper to set aside the sentence of 15 months imprisonment and to
substitute therefor a sentence of 9 months.
Result - Appeal allowed.
CA 225/94
LAM Chak-hing
324
ccab 93/95
Bokhary JA & Wong J (13.9.94)
B Ryan
#I/P
Assisting passage of unauthorised entrants/Surrender to be encouraged/Relevance of
youth/Section 109A Cap. 221
The Applicant, a boy aged 17 and of previous good character, pleaded guilty to the charge of assisting
the passage within Hong Kong of unauthorised entrants, contrary to S. 37D(1)(a) Cap. 115. The facts
showed that he was steering a sampan in which police found 13 unauthorised entrants. He did not seek
to escape. He was sentenced to 3 1/2 years imprisonment. On appeal
Held :
(1) Surrendering to the police is to be encouraged, while leading them on a high speed sea chase which is a dangerous thing especially at night - is to be discouraged and all of that should be reflected in
the sentencing approach of the courts;
(2) In dealing with young offenders the courts must be careful not to facilitate the task of syndicates in
recruiting young people to do their dirty work for them. If young people are treated too leniently, that
makes it far easier to recruit them. That does not mean that the youth of the offender is to be ignored.
It does mean, however, that there has to be a certain measure of caution in giving effect to such youth
when imposing sentence. The position has to be monitored constantly; and if an increase in the number
of young people being involved in this kind of offence begins to manifest itself, then the sentencing
approach will have to be adjusted to meet that development.
Result - Appeal allowed. Sentence reduced to 2 1/2 years.
Obiter : It is the better practice, where the person before a judge is between the ages of 16 and 21, if
the trial judge were to make it clear that he had in mind the provisions of S. 109 A(1) Cap. 221 before
imposing any sentence of imprisonment.
MA 693/94
WU Chun
Litton JA (27.9.94)
*F Veltro
#A Macrae
Possession of forged identity card/Whether aggravating factor/Importance of consistency in
sentence
The magistrate, having imposed 15 months imprisonment upon the Appellant for an offence of
unlawfully remaining in Hong Kong, imposed a concurrent term of 18 months for the offence of
possession of a forged Hong Kong Identity Card on the basis that he regarded the possession of the card
as a serious aggravation of the offence of unlawful remaining since the purchasers of such cards are
keeping thieves and forgers in a very lucrative business. That factor merited an extra 3 months
imprisonment. On appeal
Held :
(1) It was not clear that the factor relied upon by the magistrate could properly be taken into account as
an aggravating circumstance having regard to the guidelines in R v So Man-king [1989] 1 HKLR 142.
325
ccab 93/95
Just as deterrence is a matter of great public importance so there is another matter of policy to be borne
in mind when sentencing: the consistency in sentence;
(2) The Court felt unease that the Crown could not advise whether the sentence of 18 months reflected
the general view now taken either in the North Kowloon Magistracy or in other magistracies dealing
with these cases. However, guidelines are not strait-jackets and there could well come a time when, by
the joint experience of sentencing courts, there is seen to be an inadequacy in the term imposed; the
deterrence has lost its effect. There might then be evolved an upwards revision of the term imposed
because the previous normal sentence is shown to have become ineffective;
(3) If there is to be such upwards revision it ought to be done uniformly. There was seemingly no move
on the part of magistrates to increase the sentence. The sentence of 18 months was thus out of line and
not justified by the reasons given.
Result - Appeal allowed. Sentence reduced to 15 months imprisonment.
MA 520/94
BUI Duc-tho
Leong J (8.11.94)
*V Hartstein
#J Mullick
Possession of forged Vietnamese Refugee Card/Starting point/Vietnamese and Chinese illegal
immigrants contrasted/Offender sneaking back to Hong Kong
The Appellant was convicted by his own plea of the offence of possession of a forged Vietnamese
Refugee Card. The Appellant was a refugee who had been repatriated on a voluntary basis back to
Vietnam. Two months later he sneaked back to Hong Kong and purchased the forged refugee card.
There was no evidence he had used the card to obtain any benefit.
The magistrate sentenced him to 17 months imprisonment, taking into account that he had been
repatriated and thereafter sneaked back and that he had previous similar convictions. He considered the
tariff sentence in R v So Man-king [1989] 1 HKLR 142 equally applicable to Vietnamese refugees who
sneaked back to Hong Kong after repatriation to Vietnam. The Appellant was in the same position as
an illegal immigrant from China who had come to Hong Kong for the second time.
On appeal, it was submitted, firstly, that it was wrong to apply the So Man-king guidelines since, in R v
Bui Duc-thanh MA 216/91, a distinction was drawn between illegal immigrants from China and
Vietnamese who had escaped from the detention centre. Secondly, it was said that, in R v Nguyen Ducquang MA 885/93, it had been held that for an offence of possession of an unlawfully altered
Vietnamese Refugee Card, the starting point after trial should be 15 months imprisonment. Finally, it
was contended that R v Bhagwant Singh-padda MA 1447/88 and R v Quazzafi MA 655/94
demonstrated that not only is a distinction to be made between illegal immigrants from China and
others, but also that 9 months imprisonment is appropriate for offences of using unlawfully obtained
travel documents and making false representations to an immigration officer.
Held
So Man-king provides guidelines for sentencing illegal immigrants from China, and Nguyen Duc-quang
should be followed in cases such as the present involving Vietnamese refugees. A starting point after
trial of 15 months, in the absence of aggravating factors, should be followed. Had there not been a plea
of guilty, the sentence would have been 15 months with an upward adjustment for the aggravating
factor that the Appellant had sneaked back to Hong Kong shortly after his repatriation to Vietnam. If
Vietnamese refugees who had been repatriated were not deterred from sneaking back, it would make a
326
ccab 93/95
mockery of the Voluntary Repatriation Scheme. The sentence of 17 months would have been proper
after trial but, in view of the plea, the sentence would be reduced to 14 months.
Result - Appeal allowed.
MA 139/95
CHOW Mei-yung
Employing a person not lawfully employable/15 months
the proper starting point
Wong J
*V Hartstein
The Appellant pleaded guilty to a charge of employing a
person not lawfully employable, contrary to section 17 I(1)
Cap. 115. She was sentenced to 15 months imprisonment.
On appeal
#Y C Yeung
Held :
(2.3.95)
An immediate custodial sentence is imperative for such
an offence, and the starting point is 15 months imprisonment.
Taking into consideration the plea of guilty and the clear
record, the sentence would be reduced to 9 months
imprisonment : R v Wong Mok-din MA 553/92 considered.
Result - Appeal allowed.
MA 148/95
MAK Chun-sang
Accused single parent/Sentence reduced as “act of mercy”
to enable accused to look after children
Duffy J
The Appellant received 15 months imprisonment after
trial for the offence of aiding and abetting the remaining of an
illegal immigrant. On appeal
(13.7.95)
*D Pang
Held :
#S M Chan
As the Appellant was a single parent who had the
responsibility for the care of his two young children, the
sentence would, as an act of mercy, be reduced to one of 9
months.
Result - Appeal allowed.
MA 225/95
DAI Sui-ying
Unlawful possession of identity card/Theft of card requires
consecutive sentence/Merciful approach to father’s illness
Duffy J
(13.7.95)
*P Chapman
The Appellant received 15 months imprisonment,
comprising a sentence of 15 months for possession of an
identity card belonging to another, 3 months for theft of that
identity card and 3 months for breach of a condition of stay.
All sentences were concurrent.
#I/P
The facts showed that the Appellant was in Hong Kong
lawfully until 3rd November 1994. On that day, her permission
to stay in Hong Kong expired. In the previous month she had
found the identity card which belonged to a colleague, and on
23rd November produced it to a police officer who demanded
proof of her identity.
327
ccab 93/95
The magistrate, having noted that the Appellant was an
overstayer, sentenced on the basis that by keeping and not
returning the identity card and then producing it to the police
officer she was attempting to pass herself off as someone
entitled to reside in Hong Kong. As such, he sentenced her to
15 months imprisonment for the identity card offence. On
appeal
Held :
(1) The magistrate’s reasons for passing the sentence he did
could not be faulted. There was a causal link between the
accused’s status in Hong Kong and the identity card : R v
Shamim Nawaz MA 804/93;
(2) As an act of mercy because of her father’s illness, the
Appellant’s sentence could be reduced from 15 months to 9
months;
(3) The theft of the identity card was an extension of the
Appellant’s criminality and, therefore, the sentence in respect
of that should be served consecutively. The court would so
order.
Result - Appeal allowed.
imprisonment substituted.
MA 169/95
Litton VP,
Mortimer &
Ching JJA
(11.8.95)
*W Walsh
#L Lee
(Reserved
pursuant to s.
118(1)(d) Cap.
227)
CHAN Leong
Total sentence of 12 months
Sentencing/AG’s guidelines on prosecutions under s.
38(1)(b) Cap. 115/Accused pleaded guilty but disputed
factual background/Magistrate held Newton enquiry and
concluded that accused had lost the benefit of the remorse
shown by his guilty plea to an extent
Although the Appellant pleaded guilty to one charge of
illegal entry under s. 38(1)(b) Cap. 115, he was sentenced to 18
months imprisonment after he disputed central elements of the
prosecution case. Having held a Newton enquiry, which led to
a finding adverse to the position contended for by the
Appellant, the magistrate tailored sentence to reflect that by his
(the Appellant’s) “approach to the factual issue he had shown a
lack of remorse and to an extent lost the benefit of the remorse
apparently shown by his plea of guilty”.
Underlying the point of principle giving rise to the
appeal was the prosecution policy, under which illegal
immigrants are only prosecuted for remaining in Hong Kong
under s. 38(1)(b) Cap. 115, if :
(i) They are found at any place of employment.
(ii)
They have committed any other criminal offence
whether immigration - related or not.
The Appellant had contended that he had only been
sleeping at the construction site, not working there, and that, in
any event, he was only found by the side of the construction
328
ccab 93/95
site, not within it.
The question for determination was whether the
magistrate was right in his approach, having regard to the fact
that if the Appellant’s version was correct, he would not have
been prosecuted under government policy.
Held :
(1)
The Appellant challenged the facts stated by the
prosecution and lost his challenge. The magistrate was not
“punishing” the Appellant for challenging the facts. Nor was he
saying that he was giving the Appellant no credit at all for the
guilty plea. He merely concluded that to an extent the
Appellant had lost the benefit of the remorse apparently shown
by his guilty plea, and had accordingly imposed a heavier
sentence than the normal “tariff” on a guilty plea;
(2) The facts relevant to the exercise of the discretion to
prosecute were so closely bound up with the ingredients of the
offence under s.38 (1)(b) that, quite rightly, the magistrate
concluded that this was a strict Newton situation. However, it
is worth bearing in mind that the burden of establishing facts in
mitigation is generally upon the defence, since such extraneous
matters would not normally be within the knowledge of a
prosecution witness;
(3) The magistrate reached the correct conclusion.
Result - Appeal dismissed.
MA 224/95
CHU Kwan-chi
Illegal
immigrant/Appellant
claiming
death
relative/Attempt to deceive court/Sentence increased
of
Duffy J
This was an appeal against a sentence of 18 months for
remaining in Hong Kong without authority.
(21.7.95)
On appeal, the Appellant submitted that his son had died
and he produced a death certificate. The judge ordered that an
investigation be made into the validity of the certificate. The
Chinese Authorities were asked to cooperate and did so. They
reported that the certificate was a forgery.
*A Lai
#I/P
Held :
The Appellant had deliberately tried to deceive the court.
Result - Appeal allowed.
imprisonment.
MA 803/95
LAM Mei-ying
Sentence increased to 2 years
Visitor contravening conditions of stay/Working as a
prostitute/No guidelines
Stuart-Moore J
(14.8.95)
The Appellant was charged with contravening her
conditions of stay as a visitor in Hong Kong. She was not
329
ccab 93/95
allowed to take up any employment but was found to be
working as a prostitute. Having pleaded guilty she was
sentenced to 4 months imprisonment, after the magistrate had
deducted 2 months from his 6 months starting point to reflect
her clear record and guilty plea at the earliest opportunity. On
appeal
*J McMaster
#P Chan
Held :
(1) The value of the Attorney General’s records, produced to
assist the court, lay in their synopsis of some 24 cases which
showed that the instant sentence was longer than any other case
in this category;
(2) With so many factors to consider, it is very difficult to
issue any tariff guidelines. Each case has to be considered on
its own merits.
Result - Appeal allowed. Sentence of 4 weeks substituted.
CA 109/95
Litton VP,
Bokhary & Liu
JJA
(17.8.95)
*I G Cross QC
& M Crabtree
#A MitchellHeggs
LO Shui-lun
Assisting passage within Hong Kong of unauthorised
entrants/Sampan/Safety considerations/Clear record of
foreigner not relevant
The Applicant was convicted after trial of one charge of
assisting the passage within Hong Kong of unauthorised
entrants, contrary to s. 37D(1)(a) Cap. 115. He received 6
years and 5 months imprisonment.
The judge, having taken 7 years imprisonment as his
starting point, granted a discount of 6 months to recognise his
good character, and of a further month to take account of time
spent in custody prior to being remanded in custody by the
court. In adopting the starting point he did - the maximum
penalty is 14 years imprisonment - the judge ruled that the
sampan, whereon were the two unauthorised entrants whom the
applicant was seeking to bring to Hong Kong, was unseaworthy
in the sense that there was no life-saving or fire-fighting
appliance on board and that the vessel carried no navigational
lights. On appeal
Held :
(1)
This kind of smuggling of human cargo inherently
involves some danger to life which is already taken into
account by the 5-year starting point referred to in R v Ng Kityuen [1992] 1 HKCLR 170;
(2) In the present case, the absence of fire-lighting equipment,
while not to be condoned, was of relatively little significance.
The same might be said of the absence of navigational lights.
Even had the sampan carried lights, it was not realistic to think
she would have shown such given that she was engaged in a
clandestine operation.
These are generally operations
dependent on the cover of poor visibility : something which the
5-year starting point takes into account;
(3) The absence of life-saving equipment stands differently. It
330
ccab 93/95
would not have been in any way unrealistic to expect at least
life-belts for the persons on board. This might be said to have
produced some slight increase in the hazard over and above the
sort inherent to this kind of activity;
(4) Courts must avoid forever comparing different degrees of
relatively minor danger from one case to another. That is
unlikely to lead to greater uniformity or better justice. If,
however, the court is concerned with “floating coffins”, or
“leaky tubs”, or where - in a combination of these two evils there is a “leaky floating coffin” then there is clearly a basis for
a considerable increase from 5 years. Either of the first two can
add on 2 years to make 7 years, and the third can add on 4
years to make 9 years. The precise amount to be added on will
depend upon the number of immigrants involved and the
degree of danger. The degree of danger would involve, inter
alia, the age and condition of the unauthorised entrants. For
the very young, very old and the infirm would naturally be at
greater risk in the event of a mishap;
(5) Sometimes additional danger results from a high speed sea
chase when the “snake head” tries to escape from the police;
(6) The trial judge erred when he gave the Applicant a 6
month discount for his previous good character. The Applicant
did not come from Hong Kong, and it was not demonstrated
that he was a good citizen of China, from whence he came.
Result - Appeal allowed. Sentence reduced to 5 years.
MA 397/95
Mohammad Asim
ARSHAO
Possession of false passport/Offence in transit at Kai
Tak/Six months appropriate after guilty plea
Ryan J
(26.7.95)
*D Pang
The Appellant received a sentence of 9 months
imprisonment for possession of a forged travel document. A
Pakistani, he was found in the transit lounge of Kai Tak Airport
and was in possession of a Maltese passport which was known
to be false.
#Wong Po-wing
The Appellant co-operated with the authorities and
pleaded guilty to the charge of being in possession of a forged
travel document. The Magistrate in the Reasons for Sentence
made reference to authorities and stated that the usual sentence
on a plea of guilty is between 9 to 18 months imprisonment.
On appeal it was submitted that as the Appellant had
been found in the transit lounge, he should attract a lesser
sentence than the usual type of offender.
Held :
On the authorities, a lesser sentence was appropriate.
Result - Appeal allowed.
imprisonment.
Sentence reduced to 6 months
331
ccab 93/95
MA 476/95
CHANG Su-jian
Leong J
Possession
of
forged
identify
cards/Large
operation/Accused caught red-handed/Effect of guilty
pleas
The Appellant was one of five accused who were
arrested at the boarding gate at Kai Tak Airport. They were
about to board a flight to Japan. The Appellant was found to
be in possession of four Hong Kong identity cards, the
photographs on which were substituted with those of the other
four accused. Those four accused were found possessing travel
documents also substituted with their own photographs. The
Appellant admitted that she had been recruited to escort the
four defendants from Guangzhou to Hong Kong and using the
forged identity cards she made the necessary departure
arrangements for them to go to Japan. She also admitted that
for each accused she assisted, she would receive RMB
$10,000. She pleaded guilty to possession of forged identity
cards, and received two years imprisonment. The magistrate
considered that the offences disclosed a serious problem and
that the maximum sentence was warranted. He gave little
credit for the guilty pleas. On appeal
(31.8.95)
*D Pang
#C S Fu
Held :
(1) This was undoubtedly a serious case. The Appellant had
been recruited to escort persons from China who only
possessed forged travel documents to go through immigration
and she provided them with forged identity cards to go on an
international flight to Japan. She was to be paid for each entry.
It was obvious that she was part of a scheme to enable persons
who were not legally entitled to gain entry into a foreign
country on forged documents. The benefits she could derive
from the scheme were not insubstantial. This case was very
different from the usual case of possession of a forged identity
card by an illegal immigrant to enable him to stay here. The
magistrate was right to regard this as the worst type of the
offence;
(2)
Pleas of guilty, particularly those made at the first
opportunity, are to be positively encouraged, but if a person is
caught red-handed, that detracts from the mitigation : R v
Kwok Yee William Cr App 452/93, AG v Wong Kwok-wai
[1991] 2 HKLR 385;
(3) The Appellant was caught in the act. Nevertheless, her
plea of guilty had saved court time and expenses and a discount
of 3 months was warranted.
Result - Appeal allowed. Sentence of 21 months substituted.
AR 9/95
Power Ag CJ,
Mayo JA, P
Chan J
AG v CHAN Siuyun
Assisting
passage
within
HK
of
unauthorised
entrants/Dangerous conduct at sea by helmsman of boat
carrying unlawful entrant/Consecutive sentences necessary
The Respondent was found guilty after trial of two
offences : assisting the passage within Hong Kong of
332
ccab 93/95
(14.9.95)
unauthorised entrants, contrary to the Immigration Ordinance,
and endangering the safety of others at sea, contrary to the
Shipping and Port Control Ordinance. He received concurrent
prison terms of, respectively, 3½ years and 18 months. On
review
*A A Bruce &
A Lai
#J Haynes
Held :
(1) The case called for consecutive sentences;
(2) The Respondent had to be dealt with on the basis that he
was the helmsman of the sampan with one passenger on board
as it rounded the headland. There was no finding that he was a
member of the crew that had brought unauthorised entrants to
Hong Kong. There was further no finding that he had
participated in any profits from any such venture. There was a
finding that he was in charge of the vessel with an unlawful
entrant upon it as it was leaving the bay but there was no
finding as to the destination. However, common sense
indicated that he was either taking the vessel back to China or
was heading for another landing place in Hong Kong. What
the judge meant by saying that he would take the usual starting
point of 4 years was not clear. Four years is the usual starting
point for a crew member who offers his services for the whole
voyage and does so in the expectation of remuneration. The
judge found that the Respondent was not proved to be a crew
member. Therefore, a term of only 3 years imprisonment
would have been proper on the first charge;
(3)
The second charge was one of very considerable
seriousness. The Respondent put at risk not only himself and
his passenger but the police officers who were chasing him and
any other persons operating vessels in the vicinity that night.
Persons in charge of vessels in circumstances such as these
must be given an indication that such conduct will not be
tolerated;
(4) Sentences totalling 5½ years would have been appropriate.
Result - AG’s review allowed. Sentence of 3½ years on charge
1 varied to 3 years; sentence on charge 2 varied to
2½ years. Sentences to run consecutively, making
5½ years.
CA 230/95
Power VP,
Mayo JA
(6.10.95)
* K H Wong
#I/P
CHIU Man-hung
Crew member bringing unauthorised entrants to Hong
Kong/Deterrent sentence required in public interest
The Applicant pleaded guilty to a charge of being a
member of the crew of a ship which entered Hong Kong with
unauthorised entrants. There were seven such entrants, three of
whom were in advanced stages of pregnancy. He admitted that
he was to be paid between $400 and $500 as a reward. The
judge, in imposing a sentences of 3 years and 11 months, said
that the driving of an unlit sampan at night at high speed in
open sea with far too many passengers on board was highly
dangerous. On appeal
Held :
333
ccab 93/95
(1) The sentences imposed on persons brought before the
courts for offences of this nature are severe ones. The courts
have a duty to the residents of Hong Kong to pass sentences
which ensure that illegal immigrants do not flood into the
territory. Those who commit such offences are well aware that
they face severe penalties upon apprehension. That the
families of offenders will suffer is a matter which offenders
should bear in mind before undertaking such unlawful
enterprises;
(2)
The sentence, given the applicable guidelines, was a
lenient one. However, it would have been of assistance if the
judge had seen fit to indicate the starting point which he used
and the way in which he applied the relevant guidelines.
Result - Application dismissed.
CA 232/95
WONG Ho-kay
Yang CJ,
Mortimer &
Mayo JJA
Making false representations to immigration officer/Use of
false documents/Gravity of offence
The Applicant was convicted after trial of five offences
of aiding and abetting the making of a false representation to an
immigration officer, contrary to s. 89 Cap. 221 and s. 42(1)(a)
Cap. 115. On each charge he was sentenced to 3 years
imprisonment concurrent.
(1.10.95)
*D G Saw
The facts showed that the Applicant assisted domestic
helpers from the Philippines to come to Hong Kong or remain
in Hong Kong under false contracts of employment. For
payment he supplied bogus employment contracts, false
employers identity cards, fax returns and supporting letters.
These enabled those concerned either to come to Hong Kong or
remain here. When any limitation of stay expired, he would
supply supporting letters for applications for extensions. The
supply of false documents was done either directly by the
Applicant or through associates and the cost varied between
about $4000 to $8000.
#I/P
On appeal
Held :
The Applicant involved others in the use of false
documents and he received substantial sums of money. The
offences struck at the root of the local system whereby
domestic helpers are allowed in provided they have valid and
approved contracts. The sentences were amply justified on the
facts.
Result - Application dismissed.
CA 168/95
Power VP,
WONG Kam
Assisting passage of unauthorised entrants/Little difference
between unsafe vessel and safe vessel unsafely
operated/Starting point
334
ccab 93/95
Mortimer & Liu
JJA
The Applicant pleaded guilty to a charge of assisting the
passage within Hong Kong of unauthorised entrants. He was
sentenced to 6 years imprisonment.
(22.8.95)
The facts showed that the Applicant was intercepted while
steering a vessel towards Sha Kiu, having come from Mainland
China. There were eight passengers on board. The Applicant
admitted that he was to be paid RMB 1600. The vessel had no
life saving equipment and no fire fighting appliance, and there
were no navigation lights fitted for night operation. The
surveyor was satisfied that the vessel was not appropriately
equipped and was not suitable for carrying passengers for the
voyage between China and Hong Kong.
*T Casewell
#W Chan
In sentencing, the judge referred to the sentencing
considerations adumbrated in R v Ng Kit-yuen [1992] 1
HKCLR 170, and pointed out that those who ship human
beings to Hong Kong in unsafe vessels, without due regard to
their safety, can face sentences as high as 9 years. On appeal, it
was submitted that Ng Kit-yuen (above) had no application, as
the vessel in question was not one which by reason of poor
maintenance or age was in an unseaworthy condition and that
the starting point for sentence should have been 5 years.
Held :
(1) There is little or no difference between a safe vessel being
unsafely operated and an unsafe vessel. This vessel, which had
no running lights, no life saving equipment and no fire fighting
equipment, was a safe vessel which was being unsafely
operated to the danger of those being carried in it and the
seriousness of the offence is much the same as where an
unseaworthy vessel is being operated. The load, one of whom
was 8 months pregnant, and the sea condition rendered the
inadequacies a danger factor for consideration. The additional
factor of dangerous concealment not being present an
appropriate starting point would have been 7 years which was,
in the outcome, the starting point taken by the judge;
(2) The discount of one year for the plea of guilty was less
than should have been given. The Applicant was entitled to a
discount of 2 years, and to a further discount of one month
because of time served in the custody of immigration
authorities.
Result - Application allowed. Sentence reduced to 4 years and
11 months.
AR 10/95
Nazareth
VP,
Liu JA, Gall J
(5.12.95)
AG v Li Ah-sang
Unlawful
employment/Deterrence/PRC
fishermen
working on fish farm/Court adherence to facts as found
below
The Respondent pleaded guilty to two charges of
employing a person not lawfully employable, contrary to s.
17I(1) Cap. 115.
*I G Cross QC
335
ccab 93/95
& M Crabtree
#E
L
McGuinniety
The facts showed that, on 13 April 1995, at his fish
farm at Sha Tau Kok Hoi, the Respondent was employing two
PRC fishermen as handymen/watchmen at a salary of $2000
per month. One had been employed for 13 months and the
other for 6 months.
The magistrate fined the Respondent $5000 on each
charge. On review, it was submitted that the sentences were
manifestly inadequate and wrong in principle.
Held :
(1) Per Liu JA and Gall J - In 1990 the legislature sought to
reinforce the policy of deterrence of unlawful employment by
increasing the relevant penalties from a fine of $50,000 and
imprisonment for 1 year to a fine of $250,000 and
imprisonment for 3 years. Recent authority has laid great
emphasis on the importance of enforcing legislation in this
direction. There is at present a high rate of unemployment in
the community. Employers of persons who are not lawfully
employable should be incarcerated unless there are
extenuating circumstances. The two offences were not, as the
magistrate described them, of a technical nature;
(2)
Although the Respondent’s former employees were
accepted for the purposes of sentencing as non-illegal
immigrants, their precise status was not specified. This made
it difficult to suggest a proper starting point. However, having
taken into account the guilty plea and the absence of
exploitation, a term of 3 months imprisonment would seem to
be appropriate. The fines imposed by the magistrate were
manifestly inadequate and wrong in principle. Employing a
person not lawfully employable should be visited with an
immediate custodial sentence. However, regard would be had
to the fact that this was a review of sentence;
(3)
Per Nazareth V-P : A sentence of 15 months
imprisonment is ordinarily warranted for an offence of
employing an illegal immigrant : R v Wong Mok-din [1994] 2
HKCLR 96. Nice questions are posed as to the ordinary
starting point of a sentence for an offence in present
circumstances, that is, employment of a person who is not
lawfully employable, but is not an illegal immigrant because
he has not landed. Despite the anomaly involved in a person
being said to be employed and working in Hong Kong and yet
not having ‘landed’, regard must be had to the objects of the
Immigration Ordinance and the need for the deterrence of
breaches of its provisions. The starting point should at least
lie closer to the 15 months starting point for the employment
of illegal immigrants, rather than for the employment of
overstayers, persons in breach of conditions of stay and
tolerated border crossers : R v Tai Wai-hung MA 529/93.
Result - AG’s review allowed. Two concurrent terms of
imprisonment for 3 months, suspended for 2
years, added to the existing fines.
Obiter :
336
ccab 93/95
(1) In the “Brief Facts of Case”, the two former employees
were not categorised. It was not suggested they were illegal
immigrants. The magistrate assumed they were not. He was
not asked by the prosecution to conduct a Newton hearing.
He made no independent determination in law on the status of
the employees.
As the prosecution took no steps to
discourage the magistrate from proceeding on the basis that
the employees were not illegal immigrants, it was not open to
the Attorney General to seek a review on facts other than
those on which the magistrate was apparently free to act. The
court should not be asked to adjudicate on the hypothetical
basis that the facts for sentencing were different. The court
has to proceed on the same factual basis for sentencing the
respondent as did the magistrate;
(2) Per Nazareth VP : It was to be hoped that the prosecution
would in the context of another similar case have an early
opportunity of presenting the factual material necessary and
full submissions to a trial court so that the precise status of
such employees can be determined.
CA 445/95
Liu JA, Gall &
Leonard JJ
*I McWalters
#I/P
Dolly
QUIAMAS
A
Conspiracy to forge/False documentation for Filipino
workers/Gravity of offence
The Applicant was convicted of a charge of conspiracy to
forge in that she, with others, between 1 May 1994 and 24
October 1994, conspired together with persons unknown to
make forged HK identity cards, immigration stamp
impressions, immigration employment visa stamps and
employment contracts, with the intention that they or another
use them to induce someone to accept them as genuine, and by
reason of so accepting them to do or not to do some act to his
own or any other person’s prejudice.
The facts showed that the Applicant agreed with another
defendant to bring Filipinos to Hong Kong on tourist visas to
work here. She procured those workers to enter into contracts
which were not genuine. She was aware that their passports
were taken from them in Hong Kong, chopped and returned to
them later with false stamps entered in them as to their exit
from the Philippines and as to their entry into Hong Kong and
the other necessary stamps for employment. She was aware
that identity cards were given to them.
The Applicant was sentenced to 3 years imprisonment,
after trial. On appeal
Held :
What the Applicant did struck at the heart of the system
whereby domestic helpers are allowed into the territory
provided they have valid and approved contracts : R v Wong
Ho-kay CA 445/95. The sentence was wholly justified.
Result - Application dismissed.
337
ccab 93/95
MA 714/95
EZEH Josephine
Nwabuaku
Possession of forged travel document/Use of forged
passport to commit serious offence/Totality
Bewley J
The Appellant was convicted of an offence of possession
of a forged travel document and sentenced to 20 months
imprisonment.
(17.11.95)
*A Lai
This was ordered to run consecutively to a term of 13
months imprisonment imposed 6 months previously for an
offence of trafficking in dangerous drugs.
#J Halley
The Appellant was stopped at Lo Wu terminal, and
found to be in possession of a Nigerian passport, in which the
photograph had been substituted, and also a quantity of
cannabis.
The magistrate took 2 years as his starting point for
sentence.
On appeal
Held :
(1) As the Appellant had used the forged passport in the
course of committing a serious crime, the magistrate was right
to treat that an as aggravating feature : R v Wong Ju-wen
[1989] 2 HKLR 26. He also recognised that the sentence
should be consecutive to the trafficking sentence;
(2) The sentence had to reflect the use to which the forged
passport was put - to smuggle drugs - but, having regard to the
13 months term, the overall sentence was too heavy.
Result - Appeal allowed. Sentence reduced to 15 months.
MA 903/95
BUI Duc-tho
Breach of deportation order/Level of sentence/Consecutive
sentence required
Duffy J
(21.11.95)
*W Wong
The Appellant was convicted on his own plea of breach
of a deportation order, for which he was sentenced to 4 months
imprisonment, and remaining in Hong Kong unlawfully, for
which he received a consecutive sentence of 18 months. On
appeal
#M Poll
Held :
The sentences were in all regards proper, and had to run
consecutively. Those who breach deportation orders must be
seen to serve separate and distinct sentences for that offence.
However, as an act of mercy the sentences would be reduced to
a total of 18 months by ordering that they run concurrently.
Result - Appeal allowed.
338
ccab 93/95
Kidnapping
CA 161/92
TAM Ping-man
Silke V-P, Power V-P, Macdougall JA (11.5.93)
*D G Saw
#C Grounds
Common law kidnapping/ Kidnapping for ransom/ S. 42 Cap. 212/ Correctness of charge/
Kidnapping of child
Held :
(1) The maximum term of imprisonment in Hong Kong for the common law offence of kidnapping is,
by virtue of section 90 Cap. 1, 7 years. It is inappropriate to charge kidnapping at common law where
the offender has an intention to procure a ransom or benefit from the liberation of the person kidnapped.
In such cases, a charge under section 42 Cap. 212, which carries a maximum penalty of like
imprisonment, should be brought;
(2) The fact that the child is returned unharmed because of a combination of fortuitous circumstances
weighs little in favour of the offender. The planned kidnapping of a child involving a ransom is an
offence within the upper range of seriousness and calls for a sentence, where the offender is charged
with the common law offence of kidnapping, of 6 years;
(3) A planned kidnapping for ransom should, after trial, receive a sentence of not less than 8 years
imprisonment and, in most cases, a more severe sentence may well be called for.
Result - Application for leave to appeal against a sentence of 6 years imprisonment imposed after trial,
refused.
Obiter :
It is a matter of concern that the Crown should continue to charge the common law offence, when it is
alleged that the offender had one of the intents specified in section 42 Cap. 212. The common law
offence is appropriately charged where the offence involves no more than a carrying away by force or
fraud without consent and lawful excuse.
CA 46/93
LAM Hing-yin & 2 Others
Macdougall V-P, Bokhary & Mortimer JJA (19.11.93)
*T H Casewell
#S M Chan
Forcible abduction of child/Gravity of offence
Held :
(1) The forcible abduction of a person and his or her detention while demanding a ransom for his or her
liberation is a particularly cowardly and despicable crime, and is all the more so where the person
abducted is a child. It is horrifying not only for the immediate victim but also for his or her family. It
was to be noted that the maximum penalty for this offence was increased in 1982 from 14 years
imprisonment to life imprisonment : AG v David Li Po-man [1992] 2 HKCLR 70 considered;
339
ccab 93/95
(2) A sentence of 10 years imprisonment was properly taken as the starting point for the offence of
forcible detention of a person with intent to procure a ransom for his liberation.
Result - Applications for leave to appeal against sentences ranging from 6 to 14 years, imposed after
guilty pleas to offences of forcible detention and robbery, refused.
CA 529/91
(1) TSE Kwok-keung
(2) CHUNG Yuk-kau
(3) MAK Ah-yau
Yang CJ, Macdougall V-P, Nazareth JA (4.3.94)
*P S Chapman
#M Poll (1 2)
G Plowman QC & P Chang (3)
Forcible detention with intent to procure a ransom/Range of sentences
The applicants received sentences ranging from 18 to 25 years after convictions for forcible detention
of a person with intent to procure a ransom for his liberation. (Tse alone pleaded guilty). On appeal
Held :
The sentences passed were clearly very much heavier than those cited in the authorities. As Chung
received 25 years after trial, it might properly be asked what sentence the mastermind should receive.
Having regard to all the circumstances of this very serious case, justice would be served if the sentences
were reduced by about one third.
Result - Appeals allowed. Sentences ranging from 12 to 16 years substituted.
CA 548/94
Power VP,
Keith &
Seagroatt JJ
(26.4.95)
*I G Cross QC
& W Chan
#C Grounds
SUNG Chin-pang
Kidnapping/View of victim to accused/Situations where
such view relevant to sentence
The Appellant pleaded guilty to two offences of
kidnapping, arising out of the same circumstances, and an
offence of possessing an imitation firearm with intent to
commit an arrestable offence. Concurrent sentences of 10
years were imposed for the two kidnapping offences, and a
consecutive term of 4 years was imposed for the imitation
firearms offence, totalling 14 years.
On appeal, it was submitted, inter alia, that the starting
point for the kidnapping offences was too high, and that the
sentence for the firearms offence should not have been
consecutive, since the starting point for the kidnapping
offences must have included the use of an imitation firearm as
an aggravating feature and that inadequate regard was paid to
the mitigating features, including the pleas of leniency made
both by the adult victim and her husband.
Held :
(1)
The impact of such offences on the public at large,
whatever view the actual victims of the offence might have
340
ccab 93/95
expressed, had to be taken into account : R v Kwok Yee,
William Cr App 452/93;
(2) In the normal course of events, the victim’s views are not
to influence the court’s decision on sentence. However, the
exceptional plea made on behalf of the Appellant was
considered, unemotional, sustained. It was rational and
intelligent. When members of the public, particularly victims,
seek to persuade the court to exercise mercy or leniency in a
wholly unsolicited, but principled manner, it would be wholly
wrong for the court not to pay some regard to it. Such a case,
however, would be exceedingly rare;
(3) The proper global starting point for the kidnapping was
12 years. On the basis of the plea, the co-operation and the
mitigation urged by the victim, the sentence should be
discounted to one of 7 years. The firearm offence should
attract a concurrent sentence of 3 years, that having been
discounted from a term of 5 years.
Result : Appeal allowed. Sentences reduced to 7 years.
Labour
MA 440/93
Hip Hing Construction Co. Ltd.
Leonard J (27.9.93)
*W S Cheung
#A Houghton
Breach of safety regulations/Cap. 59/Size of operation relevant to fine/Starting point to be
indicated/Levels of sentencing to be raised/Prosecution placing relevant material before court
Held :
(1) It is notorious in Hong Kong that workers work faster if they disregard safety precautions and that
many workers are killed or injured as a result. The purpose of the safety regulations is to cause
principal contractors to supervise and control work on construction sites so as to ensure that the
regulations are observed;
(2) It was wrong to contend that the magistrate was in error in taking into account the fact that the
appellant was the contractor in charge of a large construction site and financial operation, and that the
size of the operation should not affect the fine. A fine is not a fixed fee to be paid for the privilege of
ignoring safety regulations : it is a punishment. The scale of the appellant's operation was a relevant
factor in sentencing;
(3) The magistrate should have indicated what in his view was the proper starting point for sentence
after trial and gone on to show the various aggravating or mitigating factors which he considered and
how they led him to the final result;
(4) The level of sentence prevailing in 1992 for the offences involving breaches of safety regulations
appears to have been very low having regard to the statutory maxima. If the prosecution in future leads
evidence to show that current sentencing is failing to induce contractors to give more than lip-service to
341
ccab 93/95
the safety regulations, magistrates should consider a gradual increase in the starting point for sentence
until a point is reached where it is cheaper for contractors to enforce obedience to the regulations than
to ignore them. The court would not consider it unreasonable if magistrates were to begin by adopting
henceforth a starting point of $15,000 in an ordinary case, where the maximum is $50,000, and $12,000
where the maximum is $30,000;
(5) It is up to the prosecution, if at any time it is felt that the level of fines is too low, to put the relevant
evidence before the magistrate in court, so as to enable a convicted person to deal with it in his
submissions and so that magistrates may make an informed decision. Sentencing magistrates should
remember that it is always open to them to invite the prosecution to provide such evidence in order to
assist them in their task.
Result - Appeals allowed. Fines reduced.
Money Lending
MA 172/93
SIU Yuk-shing
Wong J (7.4.93)
*L Cross
#AJJ Sanguinetti & A Liang
Unlicensed moneylender/Lending money at excessive interest
Held :
(1) Where an accused was convicted on his own pleas of carrying on business as moneylender without a
licence, and three charges of lending money at excessive interest, a total sentence of 3 months
imprisonment plus a fine of $10,000 was not wrong in principle;
(2) Although the sentence of 3 months imprisonment would be suspended, the fine would be increased
to $30,000.
Result - Appeals allowed.
CA 95/93
LUI Sau-cheong
Silke V-P, Bokhary JA, Leonard J (28.10.93)
*D G Saw
#J Hemmings
Loan-shark operations require severe punishment/Duty of courts to combat the problem
The applicant was convicted after trial of three charges of lending money at an excessive interest rate,
and to one charge of false imprisonment. The victim was a prostitute, who was falsely imprisoned
because she could not repay. He received 9 months concurrent imprisonment on each lending charge,
and four years consecutive on the false imprisonment charge. On appeal
Held :
342
ccab 93/95
(1) By earlier standards the sentences were very high. However, times have changed, and changed for
the worse : R v Yung Yiu-keung MA 671/88 considered;
(2) The substance of the case was one of a "loan-shark" operation of a particularly nasty character.
Such operations are unfortunately all too frequent nowadays. The courts have a duty to combat the
problem by penalties heavier than those generally imposed in the past.
Result - Applications for leave to appeal refused.
CA 389/93
CHAU Ho-wan
Macdougall V-P, Wong & Ryan JJ (13.1.94)
*B Ryan
#N de Boinville
Nature of training centre order/Whether disparity argument arises
The applicant and his co-accused were convicted of lending money at an excessive rate.
As the applicant's co-accused had received determinate sentences of, respectively, 18 and 8 months
imprisonment, he submitted that the effect of the Training Centre Order was to deprive him of his
liberty for a longer period than his more culpable confederates, and that the sentence of training centre
was therefore wrong in principle.
Held :
(1) The training centre is specially designed for young offenders who have attained the age of 14 years
and are under the age of 21 years. The object of the order is training and reformation. The length of
the detention is between 6 months and 3 years. The date of release depends on the assessment by the
Commissioner of Correctional Services of the behaviour and performance of the detainee;
(2) The training centre order would benefit the applicant as much as it would benefit society. The
making of the order was entirely reasonable and proper in the circumstances and was the best and most
effective way of dealing with the applicant.
Result - Application dismissed.
Neglict of Child
CA 197/95
Litton VP,
Bokhary & Liu
JJA
(17.8.95)
*I G Cross QC
& M Crabtree
#A MitchellHeggs
LAM Wai-mei
Wilful neglect of child/Maximum penalty as starting
point/Worst case scenario
The Applicant was convicted of having wilfully
neglected her child of two years, in a manner likely to cause
him unnecessary suffering, contrary to section 27, Cap. 212.
The Applicant, who was aged 21 years, and 19 years at the time
of the offence, was sentenced to 21 months imprisonment. The
judge took the maximum penalty of 2 years as his starting
point, and allowed a small discount of 3 months to recognise
the plea of guilty.
On appeal, it was submitted that the judge erred in taking
the maximum penalty set by law as his starting point.
343
ccab 93/95
Held :
(1) Given the serious injuries to the baby, the repeated failure
by the Applicant to arrange medical treatment, and her general
disregard of its welfare, the case came within the broad band of
the worst type of case that could come before the courts : R v
Ambler [1976] Crim L R 266;
(2) Society does not tolerate this type of conduct and the court
must express public abhorrence in cases of this sort. Subject to
the small discount for a guilty plea, the Applicant was rightly
visited by the maximum penalty;
(3)
There was really no room here for any personal
inadequacy such as envisaged in R v Smith (1984) 6 Cr App
R(S) 174. But as a measure of caution, the court extended to
the Applicant the opportunity to be examined by psychiatrists.
That opportunity was flatly refused by the Applicant.
Result - Application dismissed.
Obiter - Since sentence, the maximum penalty for this offence
had been raised from 2 to 10 years. It is evident that
the legislature takes a very serious view of cases of
this kind. That is a view which the courts cannot
ignore.
Obscene Articles
MA 203/93
WONG Tim-choi
Woo J (28.5.93)
*W S Cheung
#J McLanachan
Possession for publication of obscene articles/Repeat offender
Held :
A sentence of 9 months imprisonment for the offence of possession for the purpose of publication of
101 obscene video cassettes, imposed upon a defendant who had two recent such convictions, was not
manifestly excessive.
Result - Appeal dismissed.
Pervert the Course of Justice
CA 470/92
Alick AU Shui-yuen
344
ccab 93/95
Yang CJ, Bokhary JA, Mayo J (29.9.93)
*A Huggins QC & A Chan
#G J X McCoy & J Hemmings
Conspiracy to pervert the course of justice/Gravity of offence/Public interest requires severe
sentence
The applicant, aged 38, had been in practice as a solicitor and held the rank of auxiliary police Chief
Inspector. After a trial lasting some 2 1/2 months he was convicted by a jury of conspiracy to pervert
the course of justice and sentenced to 4 years imprisonment. He applied for leave to appeal. He
contended that the offence was committed not in his position as an officer of the court, and at a time
when the gravity of the crime allegedly committed by the person he assisted to escape had not surfaced.
Held :
(1) The length to which the applicant was prepared to go in his attempt to assist in the escape of a high
government official, and the persistence with which he pursued the plan agreed on by the conspirators,
could not be overlooked;
(2) By any account this was a serious offence. It is right that, in passing sentence, the court must not
only consider the personal interest of the accused, but also the larger interest of the public. A sentence
should be passed which reflects the abhorrence of the reasonably minded man in the street.
Result - Application dismissed.
MA 910/95
Duffy J
(1.12.95)
*F Veltro
#S Wong
NG Chun-ming
Criminal intimidation and doing an act intended to pervert
public justice/Interference with witness/Offences in less
serious category
The Appellant was convicted after trial of criminal
intimidation and doing an act tending and intended to pervert
the course of public justice. He was sentenced to consecutive
terms of imprisonment of, respectively, 12 months and 18
months. On appeal
Held :
A total sentence of 30 months well exceeded the
criminality in this case. These were low grade, and low key,
attempts by the Appellant to persuade the victim, who was to
be a witness against him in a District Court trial, not to give
evidence against him. It is always a serious matter when
anyone interferes with a witness or with the evidence in a
criminal trial. However, there are degrees of seriousness. The
present case fell very much into the lower range of seriousness.
A sentence of 6 months for each offence was a sufficient
punishment. That said, as the two offences were separate
transactions the sentences had to be ordered to be served
consecutively.
Result - Appeal allowed.
substituted.
Total sentence of 12 months
POOW
345
ccab 93/95
LI Chi-lung
CA 363/95
Mortimer
Mayo JJA
Sentence for POOW/Accused already undergoing training
centre order/Desirability of limiting prison term
&
The Applicant pleaded guilty to an offence of possessing
an offensive weapon in a public place, contrary to s. 33 Cap.
245. The judge took 2 years as his starting point, and reduced
this to 18 months to recognise the guilty plea. On appeal
(9.11.95)
*F Veltro
Held :
#I/P
It was necessary to keep a number of factors in mind.
The first was that the Applicant was subject to a training centre
order, and received a sentence of less than 2 years
imprisonment which results in the training centre order being
suspended during the time of his sentence of imprisonment.
That necessarily involves some consideration of the totality of
the sentence imposed.
The further matter was that the training centre order is
designed to assist in the reformation of those who undergo it.
A long interruption of that process is unlikely to be beneficial.
There were grounds for believing that when the Applicant
returned to the training centre he would benefit from the time
spent there.
Result - Appeal allowed. Sentence reduced to 12 months.
Procuring Miscarriage
CA 404/94
Litton VP,
Bokhary & Liu
JJA
(17.8.95)
*I G Cross QC
& M Crabtree
#K Hon
CHEUNG Kamkei
Using instrument to procure a miscarriage/18 months
proper after trial
The Applicant was convicted after trial of using an
instrument with intent to procure a miscarriage, contrary to s.
46 Cap. 212. The judge, having taken 2 years imprisonment as
his starting point, discounted the sentence to 18 months to
reflect the clear record and the family background. On appeal
Held :
There was no error in the sentencing process. The
correct scale for an offence of this nature ranges from 18
months to 2 years : R v Heung Muhammad and Another Cr
App 180/85.
Result - Application dismissed.
Road Traffic
MA 727/92
CHAN Kwok-fu
Gall J (16.10.92)
346
ccab 93/95
*R Donald
#G Alderdice
Furious driving/Whether prison necessary/Individual deterrence
The Appellant was convicted of furious driving, contrary to S. 33 of the Offences Against the Person
Ordinance, and received 6 months imprisonment. On appeal against sentence :
Held :
(1) The aggravating features necessitated an immediate custodial sentence : R v Boswell [1984] 3 All E
R 353 considered;
(2) The authorities indicated that 3 months of immediate imprisonment was an appropriate sentence;
(3) Although a deterrent sentence was not required in respect of the public generally, such a sentence
was necessary in respect of this appellant.
Result - Appeal allowed. Three months imprisonment substituted - plus a disqualification from driving
for 4 years.
MA 367/93
SHAM Man-chak
Leonard J (6.9.93)
*S Wong
#K Hon
Reckless driving causing death/Aggravating and mitigating factors/No tariff
Held :
(1) The speed of the driver had to be considered in the light of the conditions prevailing at the scene. It
is not necessarily safe to drive at 50 kmh where 50 kmh is the speed limit. The magistrate was entitled
to find that the appellant's speed was in all the circumstances grossly excessive and was an aggravating
factor;
(2) The fact that two other persons were injured is a relevant aggravating factor;
(3) Although the plea of guilty and the remorse were taken into consideration, the magistrate said
nothing about the appellant's clear record, which he was entitled to have taken into account. He had,
unlike many drivers of light goods vehicles, avoided any contravention of the law, and this was
significant : AG v Chung Yim-chow [1986] HKLR 109;
(4) There is no tariff for this offence and each case must be decided on its own facts. Giving credit for
a clear record generally and a clear driving record in particular, as well as the plea of guilty and
expression of remorse, a sentence of three months was appropriate;
(5) This was not a "one-off" momentary reckless error of judgment, and no ground for suspending the
sentence had been made out.
Result - Appeal allowed. Sentence of 6 months set aside, and 3 months substituted.
MA 860/93
347
ccab 93/95
MAK Kok-kui
Keith J (28.1.94)
*W S Cheung
#I/P
Disqualification/Relevance of special reasons
Held :
(1) Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272) makes
disqualification for at least 12 months mandatory for the offence to which the Appellant pleaded guilty,
namely, permitting another person to use a motor cycle on a road without third party insurance, unless
the court for special reasons thinks fit to order otherwise. Special reasons are mitigating or extenuating
circumstances, not amounting in law to a defence to the charge, but directly connected with the
commission of the offence and ones which the court properly ought to take into account when
determining sentence. Ignorance of the limited cover provided by a policy of insurance does not
constitute a special reason : Knowles v Rennison [1947] KB 488. The theory is that the defendant
should have made enquiries as to the extent of his cover before permitting his motor cycle to be used on
the road;
(2) Although the Appellant said he worked as a driver and that he would not be able to earn his living
during the period of his disqualification, and that he was the sole bread-winner of his family, the law did
not allow those considerations to be taken into account.
Result - Appeal dismissed.
MA 807/94
TANG Chung-fai
Leong J (3.11.94)
*W Lam
#W K Lee
Special reasons not to order disqualification from driving
The Appellant pleaded guilty to the offence of driving a vehicle which was not licensed and was
convicted after a trial of the offence of driving without third party insurance. He was fined and
disqualified from driving for 12 months.
On appeal, it was contended that there was special reason for the period of disqualification to be
reduced or removed especially, three months had expired since the order for disqualification was made.
That in effect meant that the Appellant had already been disqualified for three months.
Held :
The Appellant was entrusted with the selling of the vehicle. He was not the owner of the vehicle and
had been told both by the owner and the latter's girl friend that there was valid third party insurance. He
did not take the vehicle to the place where it was unlawfully parked - that had been done by the
potential buyer. The Appellant was about to drive it away in order to avoid a parking ticket when the
police officer came along. That was the first time he drove it. He did not have time to check the
licence. He had a valid driving licence and there was no evidence that if he was allowed to drive again,
it would be a danger to the public. In those circumstances, there were special reasons for not
348
ccab 93/95
disqualifying him for the minimum period of 12 months under the section.
disqualification would therefore be reduced to 6 months.
The period of
Result - Appeal allowed.
MA 110/95
LAM Siu-fung
Road
traffic/Disqualification
consecutive sentences
orders/Propriety
of
Wong J
The Appellant was convicted of two driving offences, and
sentenced, inter alia, to consecutive terms of disqualification.
On appeal, he submitted that the magistrate was wrong to order
the disqualifications to be consecutive and that he had no
power to make such an order.
(16.3.95)
*W S Cheung
#S D’A
Remedios
Held :
(1) Unless there is statutory power, orders of disqualification
ought to run concurrently : R v Tung Koon-ming MA 879/85;
(2) Although an additional order of disqualification may be
imposed when an offence occurs during the currency of an
existing order, that does not apply where there are two or more
offences arising out of the same transaction for which
disqualification has been ordered : R v Tang Sik-hung MA
653/94;
(3) The magistrate had no power to make the order he did, and
the orders of disqualification would be ordered to run
concurrently.
Result - Appeal allowed.
MA 551/95
HUI Chi-wing
Careless driving/Carelessness minimal/Disqualification only
appropriate in serious cases
Duffy J
(11.10.95)
The Appellant was convicted of careless driving, fined
$2,000, and disqualified for 3 months. On appeal
*P Chapman
Held :
#I/P
Since the carelessness involved in this case was minimal,
and as this was a first offence, a sentence of disqualification
was manifestly excessive. Sentences of disqualification ought
to be imposed only for those single careless driving offences
which are the worst of their type. This was not such a case.
Result - Appeal allowed. Order of disqualification removed,
and fine reduced to $1,500.
Robbery
CA 369/92
CHENG Shu-keung
349
ccab 93/95
Power & Macdougall JJA (18.12.92)
*P Li
#I/P
Robbery/Getaway driver/Professed ignorance of firearm
Held :
(1) The driver of a getaway car plays no less important a role in the commission of a robbery than that
which is played by those who actually enter the premises and participate in the events that occur there;
(2) Where a person embarks on what he knows to be an armed robbery of a jewellery shop it is of no
avail to him simply to assert that he did not realise that a firearm would be carried by one of his
accomplices.
Result - Application for leave to appeal against 7 years imprisonment for robbery refused.
CA 392/92
LI Kam-fu
Power & Macdougall JJA, Liu J (19.1.93)
*E Kwok
#V Hartstein
Robbery in lift/Starting point/Mitigation
Held :
(1) The usual starting point for a lift robbery is 4 years imprisonment;
(2) Since the appellant used little force, was a first offender, carried no weapon, and was remorseful, the
sentence of 3 1/2 years would be reduced to 2 3/4 years.
Result - Appeal allowed.
CA 289/92
CHEUNG Wing-wai & 2 others
Penlington, Nazareth & Bokhary JJA (20.4.93)
*P Ross
#E L McGuinniety
Young offenders/Training centres
Held :
(1) Detention in a training centre can be for up to 3 years, and thereafter there can be post-release
supervision for up to 3 years. The principal purpose of detention at a training centre is rehabilitation.
Rehabilitation in such circumstances carries with it considerable punitive and deterrent elements;
350
ccab 93/95
(2) An additional attraction of the training centre was that the two applicants, who were in their midteens, would be protected from the evil influence of older criminals.
Result - Appeal allowed against sentences of 5 - 5 1/2 years imprisonment imposed for robbery.
Training centre orders substituted.
AR 7/93
WAN Wing-tak
Yang CJ, Bokhary JA, Bewley J (15.10.93)
*K Zervos
#I/P
Lift robbery/Multiplicity of offences/Relevance of drug addiction/Appropriateness of DATC
order
After the defendant pleaded guilty to three offences of lift robbery, and to one of possession of an
offensive weapon in a public place, the judge sentenced him to detention in a Drug Addiction
Treatment Centre. On review
Held :
(1) As there was a multiplicity of offences, regard should have been had to the fact that for even one
such robbery a sentence in the region of 5 years would have been proper : R v Wong Wai-por Cr App
464/85, Mo Kwong-sang v R [1981] HKLR 610;
(2) The fact that the purpose of a robbery was to secure money to buy dangerous drugs has never been a
mitigating factor : R v Yau Kwok-tung [1987] HKLR 782;
(3) A DATC order, although not wrong in principle, should be made only rarely in robbery cases : R v
Wong Sai-cheong AR 1/85;
(4) Where there is more than one offence of a similar nature committed at different times, it is right for
the court to award a higher sentence than if there had been only one offence : R v Tong Hoi-fung [1988]
1 HKLR 610;
(5) The DATC order was manifestly inadequate and wrong in principle.
Result - AG's review allowed. DATC order set aside, and sentences totalling 5 years imprisonment
substituted.
CA 152/93
SUN Sheung-chung
Yang CJ, Bokhary JA, Bewley J (15.10.93)
*K Zervos
#D Percy
Taking of bank-account operating material from a robbery victim is an aggravating factor
Where bank-account operating material is extracted along with other property in the course of a
robbery, then these considerations come into play :
351
ccab 93/95
(i)
the potential loss of the victim is increased, possibly very considerably;
(ii)
the potential for gain to the criminal is correspondingly increased;
(iii)
the sense of violation suffered by the victim is heightened;
(iv)
the period and scope of the criminal activity involved is extended.
This feature is accordingly a considerable feature of aggravation, and it will attract additional
punishment as a result.
Result - Application for leave to appeal against sentences totalling 7 1/2 years imprisonment for
robbery and theft refused.
CA 307/92
WONG Sui-ming
Macdougall V-P, Mortimer JA, Bewley J (19.8.93)
*I G Cross QC & M Wu
#J Mullick
Armed robbery of bank/Prevalence of offence necessitates severer sentences
The applicant was convicted after trial of two offences of robbery and two associated offences of
possession of firearms. The facts showed, inter alia, that a gang of men, armed with pistols, entered a
bank, and told staff they would use the firearms if necessary. A large quantity of cash was stolen, and a
victim was assaulted. For this bank robbery, he received 20 years imprisonment, and 22 years in toto.
On appeal
Held :
(1) In the past, lighter sentences have been imposed for serious offences of this nature. However,
sentences have to be increased because of the prevalence of armed robberies involving the use of
firearms and it has become necessary to pass severe deterrent sentences : R v Pang Chun-wai Cr App
7/92, R v Wong Ping-yu [1987] HKLR 785, R v Chan Lee-Kong [1986] 1 HKLR 1096 distinguished;
(2) The aggravating features included : possession of firearms, an armed robbery, a gang of four, the
men were masked, the robbery involved a bank, there were threats to use the guns which were taken
seriously and there was some minor violence. (Some 9 months later the less serious robbery took place,
but nevertheless the victim was clearly frightened and the applicant intended to frighten him by clicking
the gun and threatening to use it if necessary.)
Result - Application for leave to appeal refused.
CA 260/92
YU Lok-ting 2 others
Silke V-P, Macdougall V-P, Penlington JA (14.12.93)
*D G Saw
#I/P
Deterrent sentences required for armed gangs from China/25 years proper for robbery shootout/Joint enterprise produces equal culpability
352
ccab 93/95
Held :
(1) It must be made clear to those in China that if they come to Hong Kong, armed with guns, in order
to commit serious crimes, they can expect no mercy from the courts;
(2) Those who take part in a shoot-out with the police at the scene of a robbery or while escaping after
committing it can expect to face sentences of 25 years imprisonment : AG v Kam Chung-pang CA
504/91 approved;
(3) Although the 2nd and 3rd applicants were not physically present when the officer was shot by the
1st applicant, it was clear that each had armed himself with a pistol with the intention of using it to carry
out a robbery and effectuate escape. The tragic death of a police officer was the outcome of this
criminal venture.
Result - Applications for leave to appeal against sentence ranging from 15 to 20 years imprisonment,
for offences of robbery, and possession of arms and ammunition, refused.
CA 513/92
HUI Fuk-ming
Macdougall V-P, Sears & Kaplan JJ (19.1.94)
*A A Bruce
#J McNamara
Armed robbery/Carrying of firearms/Heavy sentences required
The Applicant was convicted after trial on counts of robbery, theft and possession of a firearm or an
imitation firearm at the time of committing a robbery. He was sentenced to concurrent terms of 15
years, 3 years and 11 years respectively.
On appeal it was submitted that sentences for robberies carried out in establishments other than banks,
jewellery shops or the like should be comparatively lighter.
Held :
(1) Had no firearm been carried in the course of the present robbery, a sentence of 8 years
imprisonment would have been well merited : R v Mo Kwong-sang [1981] HKLR 610;
(2) If a genuine or an imitation firearm is carried during the course of a robbery, the conduct is more
culpable and therefore deserving of a more severe punishment. The use of firearms, both genuine and
imitation, has become far too prevalent in recent times. Such conduct calls for the imposition of heavy
sentences;
(3) Although a starting point of 15 years imprisonment was not wrong, the trial judge was unduly
influenced by the Applicant's minor conviction for dishonesty when he was aged 15 years.
Result - Appeal allowed. Sentence of 15 years imprisonment reduced to 14 years.
CA 519/91
TANG Yuen-hang
CHIANG Yuek-chun
Bokhary JA, Wong & Ryan JJ (3.2.94)
353
ccab 93/95
*S Opai
#I/P
Robbery with firearms/Severe and deterrent sentences required
Held :
(1) Robbery committed with the use of firearms is a serious offence of the utmost gravity and it will
always attract severe and deterrent sentences;
(2) Sentences of 15 years imprisonment imposed on Tang for one robbery, and 20 years imprisonment
imposed on Chiang for 3 robberies, were proper sentences.
Result - Applications for leave to appeal against sentences refused.
CA 209/94
YIP Yuk-sang
Bokhary JA, Ryan & Saied JJ (25.10.94)
*J Reading
#A Macrae
Armed robberies of jewellery shops/Shots fired/Deterrent sentences required
The Applicant pleaded guilty to a total of seven offences involving two robberies upon the same
jewellery shop by a gang armed with guns. Shots were fired. Property totalling HK$32 million was
stolen. The Applicant's role was extremely serious. He received sentences totalling 28 years. On
appeal
Held
(1) Robbery is bad enough. And the possession of firearms at the time of committing robbery makes it
worse. But it does not mean that it cannot be any worse. What is actually done with the firearm can
make things worse;
(2) Although 28 years is a dreadfully long time in prison, these were dreadful offences; and they are
prevalent offences. Far from thinking that the sentence imposed by the judge was astonishing, it would
be astonishing in Hong Kong today if this kind of conduct were not to be visited by that kind of
punishment.
Result - Application dismissed.
Obiter - It was not necessary for the prosecution when presenting the antecedents to tell the judge that
the Applicant was the second most wanted man in Hong Kong.
CA 307/94
LAM Wing-chuen
Yang CJ, Macdougall VP, Keith J (8.11.94)
*I G Cross QC & L Ho
#M Panesar
354
ccab 93/95
Multiple lift robberies/Sentencing level/Failure to indicate starting point
The Applicant was sentenced to 6 years and 4 months of concurrent imprisonment on each of three
charges of lift robbery to which he pleaded guilty. Violence was used upon two of the victims.
On appeal, it was submitted that the total sentence was manifestly excessive having regard to the
Applicant's clear record at the time of the commission of the offences, his age (18), background and
personal circumstances, the circumstances of the offences and the period over which they were
committed. In particular, it was said that insufficient discount was given for the pleas of guilty and the
clear record of the Applicant at the time of the commission of the offences.
Held
Notwithstanding the judge's failure to indicate what discount he had given for the pleas of guilty, an
overall sentence of 6 years and 4 months for a total of three lift robberies, was neither manifestly
excessive nor wrong in principle.
Result - Application dismissed.
Obiter - Sentencing cases other than guideline cases are nothing more than examples of the way in
which a court dealt with a particular offender in the circumstances of a particular case. They are not
binding authorities.
CA’s 18, 20 &
21/94
Macdougall
VP,
Penlington &
Liu JJA
(16.3.95)
*I G Cross
QC & L Ho
#A Macrae
(1) CHOW
Man-chi
(2) CHAN
Kin-chung
(3) CHOY
Sze-man
(4) HO Shuwing
Armed robberies/Assistance to police/Discount for
“Supergrass”/Discount
for
early
pleas
and
information/No distinction between genuine and
imitation firearms in robbery cases
A1. CHOW Man-chi
The Appellant pleaded guilty to five counts of
robbery and was sentenced to 12 years imprisonment on
each count, all sentences to be concurrent. He was a
member of a gang which committed a series of armed
robberies in jewellery shops. The trial judge took a starting
point of 24 years for each count, and reduced that by 50%
on each charge, as considerable assistance had been given to
police. On appeal it was submitted that, although the
starting point was correct, A1 was a ”supergrass” who had
volunteered crucial information and offered to give
evidence. Had he been required to do so, he would have
given that evidence. However, in the event, the other
defendants pleaded guilty. A1 had placed himself and his
family at very considerable risk.
Held :
Although, as stated in R v Chan Fu-kui [1986]
HKLR 967, it is a matter for the discretion of the trial judge
as to the category into which a defendant who has given
valuable assistance to the police falls, here there was
undisputed evidence that not only had the Applicant
surrendered himself when under no great pressure to do so,
but had then given information to the police which enabled
an extremely dangerous gang to be apprehended. This was
done at considerable personal risk both to A1 and to his
family and therefore he fell to be treated as a “supergrass”
who was entitled to a reduction of two thirds of the sentence.
355
ccab 93/95
Result - Appeal allowed. Sentence reduced from one of 12
years on each charge to one of 8 years on each
charge, to be served concurrently.
A2. CHAN Kin-chung
The Appellant was sentenced to 20 years
imprisonment in respect of 14 counts - he participated in 12
robberies and 2 attempted robberies of goldsmith shops.
The trial judge took 28 years as his starting point, and
reduced it on account of the early pleas, and the very
valuable assistance given to the police. On appeal, it was
submitted that the discounts were insufficient.
Held :
The court has always declined to lay down any
guidelines as to the discount to be given for a plea of guilty
and assistance to the police, as it varies so much in
individual cases. Here there was a plea of guilty to all
charges at an early stage, valuable information was given to
the police and the Appellant gave evidence which may well
have resulted in the conviction of the other robber and have
induced others to plead guilty. His discount was one of
approximately 30%. He was, however, entitled to a higher
discount.
Result - Appeal allowed. Sentences reduced from 20 years
to 15 years imprisonment.
A3. CHOY Sze-man
The Appellant pleaded guilty to 10 robbery counts.
The judge took 24 years imprisonment as his starting point,
and allowed a discount of 8 years resulting in concurrent
sentences of 16 years for each offence. The judge noted her
early pleas and her co-operation with the police, but did not
specifically mention that she has actually given evidence for
the Crown.
On appeal
Held :
Although the starting point was appropriate,
insufficient discount was given for the mitigating factors,
particularly the giving of Queen’s evidence.
Result - Appeal allowed. Sentences reduced on each count
from 16 years to 12 years imprisonment.
A4. HO Shu-wing
The Applicant pleaded guilty to 4 robbery counts,
and received sentences totalling 16 years imprisonment.
The judge took 24 years as his starting point but reduced it
to reflect the guilty pleas and the assistance to police. On
appeal, it was submitted that A4 was the first of the robbers
356
ccab 93/95
to be arrested, and that his cooperation was of considerable
assistance to the police in tracking down the rest of the
gang. Therefore, a discount of 33% was not sufficient.
Held :
The starting point was correct, and the discount was
appropriate.
Result - Application dismissed.
Obiter - As the court said in R v Yu Tai-wing Cr App
454/94, in cases of bank robbery, jewellery and
goldsmith shop robbery, security van or pay roll
robbery or such like, no distinction should be
made between cases in which genuine firearms
are used but not discharged and those in which
imitation firearms are used. (q.v.)
CA 448/94
SUNG Kinwai
Yang CJ,
Penlington &
Liu JJA
Taxi robbery/Theft of credit card/Use of PIN number
aggravating factor
(22.2.95)
The Applicant was convicted, after trial, of two
charges : robbery of a taxi driver and conspiracy to rob. He
received consecutive sentences of 8 years imprisonment : 16
years in toto. He was acquitted of a related firearms charge.
*D G Saw
On appeal
#K Oderberg
Held :
(1) The evidence was that the taxi driver was threatened
with a knife having been told to drive to a remote location.
His valuables were taken from him, including a visa card,
and, when the robbers failed to obtain what they regarded as
sufficient money, they obtained the taxi driver’s PIN number
with the intent of taking further money from his bank
account - that is an aggravating factor : R v Sun Sheungchun Cr App 156/93;
(2) Although, in R v Tran Van-anh [1993] 2 HKCLR 122,
it was said that sentences of 7 years for robbery of taxi
drivers late at night after a contested trial are appropriate,
the sentence of 8 years, in view of the theft of the credit card
and obtaining the PIN number, was correct;
(3)
While in themselves the sentence of 8 years
imprisonment on each count could not be said to be wrong
in principle if standing alone, they did not reflect the fact
that the Applicant was acquitted on the charge of possession
of the arms and ammunition.
Result - Appeal allowed. Sentence reduced to 14 years,.
CA 454/94
YU Tai-wing
Genuine and
imitation firearms/Distinctions to be
357
ccab 93/95
Yang CJ,
Macdougall VP,
Liu JA
(28.2.95)
*K Zervos
#L Lok QC & L
Mui
made/Use of such arms in robberies/Correct sentencing
approach
The Applicant, a serving police officer, was
convicted of robbery and of possession of an imitation
firearm at the time of committing a robbery, and was
sentenced to concurrent terms of 10 and 5 years
imprisonment.
On appeal, the issue arose of the appropriate level of
sentence in the case of a robbery, other than a bank robbery,
committed by a robber acting alone and using an imitation
firearm.
Held :
(1)
For policy reasons, in the case of bank robberies,
jewellery shop and goldsmith shop robberies, security van or
payroll robberies and such the like, no distinction should be
made between cases where genuine firearms are used but not
discharged and those in which imitation firearms are used.
Obviously, the risk that a loaded genuine firearm carried by
a robber might be discharged in the course of such robbery
does not exist where the robber is armed with an imitation
firearm. But the chance that the police or security guards
who are called to or happen upon the scene might open fire
in the course of such robberies cannot be overlooked. The
risk of innocent by-standers being killed or injured is always
present in circumstances where decisions have to be made in
split seconds;
(2) However, a distinction clearly arises where a robber
actually discharges a firearm during the course of
committing or escaping from a robbery irrespective of where
the robbery occurs;
(3)
A further distinction should be preserved between
robberies in which firearms are used in the places or
circumstances referred to, and those carried out by a sole
robber in a public place. Those who commit the first type of
robbery are aiming for high stakes. It accords with sound
policy that the sentences for such offences should be
correspondingly higher;
(4)
Where an opportunist type of robber, such as the
Applicant, embarks on a robbery alone with an imitation
firearm in a public place and inflicts no injury on his victim,
the level of sentence should be considerably lower than that
which is appropriate for a robbery of the first type;
(5)
Had the present robbery been committed by using a
knife or other dangerous weapon, not being a firearm, a
sentence of five years imprisonment would have been
appropriate in accordance with the guidelines laid down in
Mo Kwong-sang v R [1981] HKLR 610. However, the
weapon used was an imitation firearm. Since the mere
carrying of such a weapon with intent to commit an
arrestable offence normally attracts a sentence of five years
imprisonment after trial, an overall starting point for
358
ccab 93/95
sentence of ten years imprisonment after trial was
appropriate;
(6) The judge’s starting point of 12 years was manifestly
excessive. Applying the totality principle, and taking into
consideration the fact that, although the Applicant was a
serving police officer at the time of the commission of the
offences, he had completed 20 years of unblemished service
and had plainly acted completely out of character in doing
what he did, an overall sentence of 8 1/2 years imprisonment
was sufficient.
Result - Application allowed. Sentences reduced to 8 1/2
years.
AR 2/95
YAU Wing-hong
Power VP,
Mayo JA,
Barnett J
Robbery/Young person/Training centre wrong/Seventeen
not “extreme youth”/Adherence to guidelines
The Respondent pleaded guilty to 6 counts of robbery,
which he committed at the age of 16 ½ years. At the time of
sentence, he was aged 17 years. The High Court judge
sentenced him to detention in a training centre.
(28.6.95)
*D G Saw
On review
#J McLanachan
Held :
(1) Where a serious robbery is committed, save in exceptional
circumstances, imprisonment ought to be imposed in a case of
serious robbery. Youth of itself is not such an exceptional
circumstance, although extreme youth might be : AG v Li Chiko [1987] HKLR 1233;
(2)
A person aged over 15 years cannot plead “extreme
youth”;
(3) An indication that the accused is a drug addict is also not
of itself sufficient to establish an exceptional circumstance :
AG v Poon Chi-tak [1987] HKLR 54;
(4) Given the multiplicity of offences and the seriousness of
the offences the fact that the rehabilitation process was
continuing successfully was not a matter to which regard could
properly be had;
(5) The guidelines contained in R v Mo Kwong-sang [1981]
HKLR 610, ought to have been applied and, had this been
done, the appropriate sentence could have been one of 8 years
imprisonment on each count.
Result - AG’s review allowed.
Training centre order
substituted with 6 concurrent sentences of 5 years
and 4 months imprisonment each.
CA 11/95
LEUNG Wai-man
Lift robbery/Starting point/Reduced discount for guilty
359
ccab 93/95
plea where accused caught red-handed
Power VP,
Mortimer JA
*D G Saw
The Applicant pleaded guilty to a lift robbery, in which a
knife was carried and in the course of which the victim was
injured. The judge, having taken a starting point of between 4
to 5 years, sentenced the Applicant to 3 years imprisonment.
On appeal
#I/P
Held :
(9.6.95)
(1) The judge had taken a lenient view as the offence would
normally call for a sentence in excess of 5 years;
(2) The judge’s lenient view was balanced, in part, by the not
very substantial discount - this was probably because the
Applicant was caught red-handed and had little alternative but
to plead. In the outcome she received a lenient sentence for a
serious offence;
(3) There was no merit in the contention that the offence was
committed for the sake of the mother.
Result - Application dismissed.
AR 6/95
Power VP,
Bokhary &
Mayo JJA
(1.9.95)
*I G Cross QC
& Lily Ho
AG v Kwok Yunhung
Conspiracy to rob/Maximum penalty/Seriousness of
offence/Culpability of conspirator/Probation reports
unnecessary in serious case
The Respondent pleaded guilty to the offence of
conspiracy to rob before the High Court on 28 February 1995.
The trial judge said that, as this was a common law robbery, the
maximum for which is seven years, he would take six years as
his starting point. He suggested that the maximum should be
revised upwards. He then imposed a sentence of five years
imprisonment. On review
#K J Oderberg
Held :
(1)
The judge was wrong in stating that the maximum
sentence is seven years. In consequence of s. 101 (I)(2) of the
Criminal Procedure Ordinance, the maximum is - and has been
since 1986 - life imprisonment. The trial judge was inevitably
in error when he imposed the sentence he did;
(2) It does not matter significantly that an offender at a late
stage in a conspiracy learns that some of the other conspirators
intend to use pistols. What is significant is that he continues
thereafter to participate in the conspiracy;
(3) An offence of conspiracy to rob which involves the use of
firearms, careful planning and the participation of a number of
persons can properly attract a starting point for sentencing of
18 years. From that, the Respondent was entitled to a
substantial discount for his plea. He was entitled to be dealt
with on the basis that he was not privy to the central planning
for the conspiracy and that, following AG v Wong Kwok-wai
[1991] HKLR 384, a discount can properly be given where the
360
ccab 93/95
sentence imposed on review is greatly in excess of the original
sentence.
Result - AG’s review allowed. Sentence increased to 10 years
imprisonment.
Per cur - In cases where a substantial term of imprisonment
must, inevitably, be imposed, probation reports
should not be called for, unless there are some quite
exceptional circumstances. They serve no real
purpose and impose an unnecessary burden on the
probation service : R v Wu Man-hon & Others
[1993] 2 HKC 267.
AR 1/95
AG v SZE Tingwah
Yang CJ, Power
VP, Mayo JA
Robbery/Young
appropriate
offender/Training
centre
order
not
The Respondent pleaded guilty, after a voire dire
proceeding, to three charges of robbery, one of false
imprisonment and one of taking a conveyance without
authority. Those offences occurred when he was aged 17 years.
He was sentenced to detention in a training centre. On review,
it was submitted that such an order was both wrong in principle
and manifestly inadequate.
(11.10.95)
*D G Saw & F
Veltro
#J McLanachan
Held :
(1) The sentence was a clear departure from the guidelines
laid down in R v Mo Kwong-sang [1981] HKLR 610 and AG v
Li Chi-ko [1987] HKLR 1233, as considered most recently in
AG v Yau Wing-hong [1995] 3 HKC 95;
(2)
It is clear from the authorities that the age of the
Respondent at the time of the commission of the offences could
not be described as that of “extreme youth”, though, as a
teenager, some consideration ought to be given to his age as
one of the mitigating factors;
(3)
Sentences of imprisonment were required. Sentences
totalling 6 years would, therefore, be substituted for the original
order.
Result - AG’s review allowed.
CA 232/94
Power Ag CJ,
Mayo JA, P
Chan J
(1) LAU Kam-fai
(2) WONG
Chung-lim
(3) LIU Ka-yung
(4) FUNG Waihon
Armed robbery/Shootout with police/Police and civilians
injured/Life imprisonment criteria
A1 pleaded guilty to 10 counts. A2 pleaded guilty to 5
counts, and was convicted after trial of a further 7 counts. A3
pleaded guilty to 12 counts. A4 pleaded guilty to 25 counts.
(6.10.95)
*I G Cross QC
& A Chan
#N Stirling (A1-
The charges included possession of arms and
ammunition without a licence, shooting with intent to resist
lawful arrest, taking a conveyance without lawful authority,
causing an explosion, robbery and possession of arms and
ammunition at the time of committing an offence. During a
361
ccab 93/95
3)
J Haynes (A4)
shootout incident in Kowloon on 24 April 1992, a total of 18
people, consisting of 4 police officers and 14 civilians, were
injured by either gunfire or fragments from hand grenades
which originated from the accused. Some of these injuries
were very serious, but none were fatal. The charges also
involved various armed robberies and shootings. Each accused
received various sentences of life imprisonment , inter alia.
On appeal, it was submitted that serious though these
sentences undoubtedly were, life imprisonment for the
Applicants was not justified as the criteria referred to in R v
O’Dwyer (1988) 86 Cr App R 313, and R v Pang Chun-wai
[1994] 1 HKCLR 137 had not been met.
Held :
(1) It was necessary to bear in mind the extremely violent acts
which the Applicants had perpetrated and their almost total
disregard for the safety of members of the public;
(2) The principles applicable to the imposition of a sentence
of life imprisonment were those adumbrated in R v Cheung
Hing-biu [1984] HKLR 87;
(3)
The conduct of A4 called for the sentence of life
imprisonment which was imposed. His actions in relation to
the shootout demonstrated that he was the ring-leader and
overall mastermind behind the robberies. It was he who
recruited the other culprits from China and arranged for them to
come to Hong Kong to commit these offences. In addition to
this the fact that he took an active part in 9 armed robberies
meant that he had to be treated for sentencing purposes much
more severely than the other accused. There were no grounds
for interfering with the sentences imposed on him so far as the
shootout was concerned. However, he did receive life
sentences on 3 counts which related to causing an explosion
and shooting with intent in relation to other robberies. The
correct approach to those sentences would be to treat them as
part of the relevant robberies and pass concurrent sentences in
relation to them. Although it made no difference in practice, a
starting point of 26 years would be adopted and reduced to 19
years on each count, thus giving credit for the guilty pleas;
(4)
It is only a most exceptional case that merits life
imprisonment. The offences committed by A1, A2 and A3 fell
short of this. However, very heavy sentences were required to
reflect the seriousness of the offences. The starting point for
each Applicant in relation to the shootout should be 30 years;
(5) A1 and A3 deserved some credit for their guilty pleas.
Their role was not quite as serious as that of A2. To arrive at
sentences which adequately reflected the seriousness of all the
offences part only of the shootout sentences should run
concurrently so that the totality of the sentences to be served by
A1 was 32 years, by A2 35 years, and by A3 34 years.
Result - Appeals allowed, in part.
362
ccab 93/95
CA 214/95
YU Man-wu
Bokhary &
Ching JJA,
Stuart-Moore J
Lift robbery/Weapon used/Victim and accused
injured/Discount for guilty plea
The Applicant pleaded guilty to the offences of robbery
and remaining in Hong Kong without authority having landed
unlawfully. He was sentenced to 6 years imprisonment for the
robbery, and to 15 months, concurrent, for the remaining.
(10.10.95)
The Applicant, an illegal immigrant from China, armed
himself with a chopper, followed a lone woman into a lift,
snatched her handbag and struck her several times with the
handle of the weapon. She sustained minor injures. In seeking
to make good his escape the Applicant fell from a parapet and
badly injured himself. He spent 6 months in hospital, although
there was no permanent disability.
*A Bruce
#R Wong
On appeal
Held :
(1) The starting point of 6½ years was too high. It failed to
recognise that the offence started off as a snatching and that,
even when the chopper was produced, the Applicant did not use
the blade on the victim;
(2) The humanitarian considerations occasioned by the severe
injuries which the Applicant sustained when trying to escape
had not been given sufficient weight;
(3) Robbery is always serious, and the offence is aggravated
by the carrying of a weapon even if, in the event, nobody is
actually chopped;
(4) A starting point of 6 years was appropriate. Even though
the case would have been difficult to defend, and although the
amount of time saved by the guilty pleas was not great, it is the
policy of the law to encourage guilty pleas by guilty persons. A
substantial discount would have been appropriate. A discount
of 18 months was appropriate.
Result - Appeal allowed. Sentence reduced to 4½years.
CA 557/95
NG Po-wah
Lift robbery/Appropriate starting point
Nazareth
VP,
Liu JA, Leonard
J
The Applicant, aged 24, pleaded guilty to an offence of
robbery in a lift. He threatened the victim with a fruit knife and
took $100 from her.
(29.11.95)
The judge took 6 years as his starting point, and reduced
this to 5 years on account of the ‘belated plea’.
*A Bruce
On appeal
#M Rattigan
Held :
Although the appellate judgments were not entirely
363
ccab 93/95
consistent, the trial judge could not be faulted for following the
guideline laid down in R v Mo Kwong-sang [1981] HKLR 610,
namely, that a starting point of 6 years is appropriate for a lift
robbery with a knife or other dangerous weapon.
Result - Application dismissed.
CHOW Yue
CA 457/95
Ching
Bewley
Wong JJA
JA,
&
Unmeritorious appeal/Serious allegations levelled/Loss of
time
(22.11.95)
The Applicant was convicted of three offences of
robbery, and one of remaining in Hong Kong unlawfully. On
appeal against sentences totalling 5 years and 5 months
imprisonment
*W Lam
Held :
#I/P
The application ought not to have been made. Not only
was it hopeless but the Applicant had seen fit to make serious
and unsubstantiated allegations against his own counsel, the
trial judge and the police.
Result - Application dismissed, and 3 months loss of time
ordered.
Selling liquor w/o Licence
MA 697/92
LEUNG Tak-chuen
Gall J (14.10.92)
*L Cross
#A Macrae
Selling liquor without a licence/Approach to suspended sentence
Held :
(1) Those who persistently sell liquor without a licence can expect sentences of imprisonment;
(2) It was a wrong approach for the magistrate to look more for reasons for not suspending the prison
term than for reasons upon which he could rely to suspend. The court should have looked at all the
circumstances and determined whether they were such as to warrant suspension.
Result - Appeal allowed. Sentence of four months immediate imprisonment ordered to be suspended.
Sexual Offence
AR 8/93
HO Yu-ping
364
ccab 93/95
Yang CJ, Power V-P, Macdougall V-P (10.9.93)
*I G Cross QC & D Lai
#K Oderberg
Indecent assault on girls/ Discount/Breach of trust/ Clang of prison gates sentence/ Deterrence/
Effect of legislature raising penalty
The Respondent, a school teacher, was convicted on his own pleas of five charges of indecent assault
on five schoolgirls for whom he was responsible. He received 6 months imprisonment concurrent on
each charge. The Attorney General sought a review of the sentences on the basis that they were
manifestly inadequate and/or wrong in principle.
Held :
(1) It is desirable for courts to follow the practice of indicating the degree of discount allowed upon a
plea of guilty : R v Wong Ping-yu [1987] HKLR 785;
(2) A case such as the present did not fall into the 'clang of the prison gate' category. It was aggravated
by the breach of trust : R v To Hak-kin Cr App 341/89; R v Chan Sum-ho Cr App 536/89; R v Cubitt
(1989) 11 Cr App R (S) 380;
(3) The offences were separate and distinct, involving different victims and different occasions. These
could not come within the 'one-transaction rule'. As such, subject to the totality principle, and to section
82 of the District Court Ordinance, concurrent sentences were wrong in principle : AG v Lee Chingkwong AR 5/87; AG v Cheung Pit-yiu [1989] 2 HKLR 12, 14. Further, where there is more than one
offence of a similar nature committed at different times, it is right for the court to award a higher
sentence than if there had been only one offence : R v Tong Hoi-fung [1988] 1 HKLR 610; R v Kwok
Chi-keung AR 5/93;
(4) The gravity of the offences, and the need that public abhorrence be reflected, meant that the weight
to be attached to the mitigation had to be reduced : R v Inwood (1974) 60 Cr App R 70; R v Prime
(1983) 54 Cr App R (S) 127; R v Yuen Chi-mo [1973] HKLR 84; In re Applications for Review of
Sentences [1972] HKLR 370;
(5) If the legislature raises the maximum penalty for an offence, this new view of the seriousness of the
crime should be reflected in the sentence imposed : R v Lawrence (1980) 12 ALR 72;
(6) The Court should keep a proper balance between the public interest in punishing the Respondent for
abusing his position of authority and trust by indecently interfering with small girls in his charge, and
the regard to be had to his remorse and guilty pleas, which obviated the trauma the girls would suffer in
having to give evidence. Had it not been for the guilty pleas the prosecution would have probably
encountered difficulty in establishing the offences;
(7) The starting point for sentence should have been 18 months imprisonment, and a discount of one
third would have been appropriate. Although the sentences were manifestly inadequate, the public
interest did not require that they be increased : AG v Chan Tak-king [1989] 2 HKLR 428.
Result - No order made.
CA 143/93
LIU Ping-kin
Power V-P, Penlington Litton JJA (20.8.93)
*A Bruce
365
ccab 93/95
#J Mullick
Starting point for rape/Psychological damage to victim/Alcohol not a mitigating factor
Held :
(1) A starting point, before considering aggravating or mitigating factors, after a contested trial for rape,
should be five years imprisonment : R v Billam (1986) 82 Cr App R 347 followed; AG v Ip Chunghang [1989] 1 HKLR 149 explained;
(2) The different social conditions existing between England and Hong Kong, and the different sexual
morals, did not, without more, justify a departure from the level of five years adopted in England as a
starting point for a rape offence;
(3) Although the court could not know if the undoubted psychological damage to the victim was
temporary or lasting, sentence could not be postponed indefinitely to determine that. The facts had to
be taken as they were, and the trial judge was right to take into account that at any rate on the evening in
question the victim was severely psychologically affected by what had been done to her;
(4) That the applicant had a problem with alcohol was not a mitigating factor.
Result - Appeal allowed. Sentence of 6 years imprisonment reduced to one of 4 1/2 years.
CA 19/93
LI Ming-kwong
Power V-P, Penlington JA, Sears J (17.8.93)
*W S Cheung
#J Poon
Unlawful sexual intercourse with girl under 16 years/Sentencing considerations
Held :
(1) Although the fact that the accused puts the victim in a sexual case through the ordeal of giving
evidence is not a reason for increasing the penalty, it means that no mitigation can be taken into account
for his conduct after his arrest;
(2) The judge was entitled to take into account that the two offences occurred in a course of conduct;
(3) The judge was entitled to take into account that the appellant must have known that the victim was
of tender years;
(4) The maximum sentence of 5 years imprisonment for an offence of unlawful sexual intercourse with
a girl under the age of 16 years, contrary to section 124 of the Crimes Ordinance, was relevant in
determining sentence.
Result - Application for leave to appeal against concurrent sentences of 2 years imprisonment refused.
MA 466/93
MAN Ming-hing
Bewley J (29.9.93)
366
ccab 93/95
*L Chi
#J Mullick
Unlawful sexual intercourse with a defective/12 months proper
The appellant was convicted on his own pleas of unlawful sexual intercourse with a defective, and of
attempted intercourse with a defective, and received 12 months imprisonment. On appeal
Held :
(1) Although the starting point of 18 months was on the high side, a discount of 6 months was generous
considering that the appellant was caught in the act and that a conviction was inevitable even without
the victim's evidence : R v Leung Kwong Cr App 76/93 distinguished;
(2) Although the sentence was heavy, it was not such as to warrant the interference of the court.
Result - Appeal dismissed.
AR 11/93
Ng Sai-man
Bokhary JA, Wong & Ryan JJ (25.1.94)
*I G Cross QC & C Coghlan
#G Watson
Indecent assault on train/Prevalence of offence/Duty of courts to protect females
The Respondent, after trial, received a fine of $3000 for the offence of indecent assault on a female on a
train. On review :
Held :
(1) The offence is prevalent and, although the circumstances of the present case were not such as to put
it at the most serious end of the scale, this did not count for much as the maximum penalty is now 10
years imprisonment;
(2) Although the guidelines established in AG v Wai Yan-shun [1991] 2 HKLR 209 were created
before the increase in the maximum sentence for the offence of indecent assault from 5 to 10 years
imprisonment, and whilst the courts should not be unmindful of such developments, those guidelines
would not be revised upwards. That revision upwards of the maximum penalty was probably a
reflection of the reality that at the top end of its seriousness the offence borders upon rape;
(3) In broad terms no court wishes to impose a short term of imprisonment if this can be avoided,
because if it is not necessary to send a man to prison for very long, it may well not be necessary to send
him to prison at all. However, this approach has its limitations;
(4) The endeavour of the courts to afford to women adequate protection against this kind of behaviour
is an earnest one. Actions speak louder than words;
(5) A mere fine was manifestly inadequate and wrong in principle.
Result - AG's review allowed. Sentence of 28 days imprisonment substituted.
MA 838/93
367
ccab 93/95
LEE Wing-sang
Keith J (4.1.94)
*S Chiam
#L Lee
USI with girl under 16/Repeat offender/Close relationship/Prison proper
The Appellant, aged 20 years, pleaded guilty to unlawful sexual intercourse with a girl under the age of
16 years, and whom he impregnated. The charge covered an 8 month period, in the course of which the
girl turned 15 years of age. The Appellant had been convicted of a like offence with the same girl when
she was aged 14 years, and on that occasion he was placed on probation. On this occasion he received
4 months imprisonment.
Held :
(1) This was a serious offence. Girls under the age of 16 years have to be protected from older men
taking advantage of their immaturity, even if that advantage is taken of them in the context of a genuine
and affectionate relationship;
(2) The Appellant should have resisted the temptation of resuming sexual intercourse with her. It was
his lack of self-control which showed that he had not learnt his lesson, and it was his irresponsibility
which resulted in her pregnancy.
Result - Appeal dismissed.
CA 480/92
WONG Man-hung
Yang CJ, Litton & Bokhary JJA (15.4.94)
*C Coghlan
#W Chan
Attempted rape of child/Use of weapon/Effect of mitigation
The applicant pleaded guilty to the attempted rape of an 11 year old girl. He used a screwdriver to
threaten the girl. He appealed against a sentence of 10 years imprisonment.
Held : A sentence of 10 years imprisonment was appropriate as a starting point, having regard to the
age of the victim and the threat used. However, the mitigation was such that the sentence could be
reduced to 5 1/2 years.
Result - Appeal allowed.
CA 426/93
(1) SUNG Kwok-man
(2) LAU Hon-kai
Silke V-P, Macdougall V-P, Bokhary JA (12.7.94)
*D G Saw
#W Stirling (1)
D Keane QC & J Mullick (2)
368
ccab 93/95
Gang rape and robbery/English guidelines not binding/Local conditions relevant
The applicants appealed against sentences of, respectively, 18 and 23 years imprisonment, imposed
after trial for offences of robbery and rape.
Held :
(1) While it is correct to say that the court agrees with that said in R v Billam (1986) 82 Cr App R 347
as to the relative gravity of different circumstances of rape and the factors which aggravate the crime, it
must be borne in mind that the guidelines there laid down as to the proper length of sentence in any
particular type of case are no more than general indications of what was considered to be appropriate at
that time in England. The courts in Hong Kong are entitled to take into account local conditions and to
pass sentences that vary from those referred to in the Billam sentencing guidelines : R v Wong Manhung Cr App 480/92 explained;
(2) The rape and robbery of the victim called for consecutive sentences for each applicant;
(3) These were undoubtedly heavy sentences but they were entirely appropriate. Nocturnal marauders
who hunt in packs can expect to receive sentences of this severity.
Result - Applications dismissed.
CA 492/93
LAU Yuk-ming
Silke Ag CJ, Macdougall V-P, Litton JA (23.8.94)
*J Reading
#A Woodcock
Rape/Observations on sentencing levels
Held :
(1) Sentences in Hong Kong for rape have tended to be on the low side and courts are in no way tied to
the quantum of sentence as set out in R v Billam (1986) 82 Cr App R 347;
(2) Since the instances of the aggravating features set out in Billam (above) are so varied, it is
inadvisable to indicate specific guidelines, save to say that the starting point in Billam is not one which
necessarily should be used as a starting point in Hong Kong;
(3) Pleas of guilty merit a greater discount in cases of rape than perhaps they do in any other types of
offence for the obvious reason that the victim is not subjected to the pressures of giving evidence in a
public court.
Result - Appeal allowed. Sentences totalling 13 years for offences of kidnapping and rape reduced to
11 years.
MA 716/94
IP Lung-fai
Litton JA
*J To
369
ccab 93/95
#G J X McCoy
Indecent assault by police officer/Consequences of conviction/Appellate court interfering in
absence of fault by magistrate/Fine appropriate
The Appellant, a serving police officer, was in uniform and on traffic duty on a motor-cycle when he
stopped the victim's car, alleging that she had driven dangerously. He then, as the magistrate found
after trial, indecently assaulted her. He was sentenced to two months imprisonment. On appeal
Held :
(1) The consequences of the conviction were profound, and involved dismissal from the police force,
loss of the police married quarters, and loss of pension accrued from 10 years service;
(2) Although the actual incident itself lay at the low end of criminality for this offence, the Court could
not ignore the fact that the Appellant was a police officer on duty at the time and he took advantage of
his position to perpetrate the crime;
(3) The Appellant was a first offender and therefore some form of punishment other than an immediate
custodial sentence ought to be considered. As indecent assault is an expected offence for the purpose of
suspended sentences, the only viable alternative to an immediate custodial sentence is a fine. This was
one of those rare cases where, without concluding that the magistrate had either erred in principle or
imposed an excessive sentence, it was nevertheless open to an appellate court to interfere, particularly
where, on the fact of the record, the adoption of a fine does not appear to have been considered by the
magistrate as an option.
Result - Appeal allowed. Fine of $15,000 substituted for prison term.
CA 222/94
MAK Chi-hung &
Another
Rape/Gang
attack/
Five
years
inadequate/Increase of sentence on appeal
after
trial
Macdougall VP,
Penlington &
Liu JJA
Held :
(8.12.94)
(1) As the Applicant had taken part in a gang rape, he was
extremely fortunate to have received only five years
imprisonment, after trial. He had a bad criminal record;
*D G Saw
#I/P
(2) Although the Applicant complained that two of his codefendants received marginally lighter sentences than those
imposed on him, one of these was only aged 16 years at the
time of the offence and had a clear record - and the other,
although a year older than the Applicant, had only minor
previous convictions which the judge rightly disregarded.
Result - Application dismissed.
Per cur :
This was a particularly bad case which called for the
imposition of very heavy sentences. The sentences were
manifestly inadequate. The court would have had no hesitation
in substantially increasing the Applicant’s sentence but for the
fact that his co-accused had wisely decided not to appeal
against their sentences. The effect of increasing his sentence
would have been to single him out from others of equal
culpability for condign punishment.
370
ccab 93/95
CA 406/94
NG Yukming
Macdougall
VP,
Penlington
& Liu JJA
Rape/Aggravating features/Billam
binding/Absence of remorse
guidelines
not
The Applicant was convicted after trial of rape and
administering an overpowering drug with intent to commit an
indictable offence contrary to section 21 Cap. 212. Having
been sentenced to consecutive sentences of seven and four
years imprisonment respectively, he appealed against those
sentences.
(24.2.95)
*A A Bruce
Held :
#J Mullick
(1) Where there are aggravating features in a case of rape
then, as stated in R v Billam (1986) 82 Cr App R 347, the
sentence should be substantially higher than that which
would otherwise be imposed;
(2)
This was a particularly brutal rape in which the
victim was beaten into submission, her breathing stifled by
the application of a corrosive fluid to her nose and mouth,
and in which she sustained severe injury to her face;
(3) Crimes vary infinitely in the variety of circumstances
in which they are committed. The court had recently been
at pains to emphasise that it was not bound by the
guidelines suggested in Billam as to the quantum of
sentence;
(4)
The Applicant was no stranger to violence. Apart
from having a triad background, he had previous
convictions for violence. Moreover, by contesting the
issue of guilt he demonstrated a lack of remorse;
(5)
An overall sentence, after trial, of 11 years
imprisonment was well merited.
Result - Application refused.
AR 3/95
YU Yuen-hei
Indecent assault/Very young victims/Deterrence
Yang CJ, Power
VP, Mortimer
JA
The Respondent faced two counts of indecent assault.
He pleaded guilty to both and was sentenced to 15 months on
each, to be served concurrently.
(24.5.95)
The facts showed that, while under the influence of
alcohol, the Respondent forced his way into the premises
wherein were the two victims, who were aged, respectively, 8
and 9 years. He forced each girl to the floor, removed their
lower garments, and forced his finger into their private parts.
*D G Saw
#W Chan
On review, it was submitted that the sentences were
manifestly inadequate and wrong in principle, and that a
starting point for each offence of 18 months was too low.
Held :
371
ccab 93/95
(1) The facts were such as would outrage any right-minded
person. A deterrent sentence was called for;
(2) The starting point of 18 months for two offences was too
low, but the discount for the pleas - 3 months - was less than it
should have been;
(3) Although the sentence was at the very bottom of the
proper range it was not outside that range and was therefore not
wrong in principle : AG v Ho Yu-ping AR 8/93, R v Osmond
CA 453/94 considered.
Result - AG’s review dismissed.
CA 387/94
CHEUNG Yiukwan
Litton VP,
Bokhary &
Mayo JJA
Indecent assault on child aged under 16 years/Public
require protection from deviant behaviour
The Applicant pleaded guilty to the offence of indecently
assaulting a child under the age of 16 years. He was sentenced
to 18 month imprisonment.
(27.6.95)
Not only did the accused have previous convictions for
indecent assaults, but, at the time of sentence, he was receiving
treatment at Siu Lam as a result of an earlier conviction for the
same type of offence.
*J To
#P Wan
On appeal, it was submitted that the trial judge failed to
obtain a psychiatric report and had insufficient background
information concerning the Applicant.
Held :
In view of the Applicant’s background, it was not
surprising that further background material was not called for.
The public at large requires protection from this type of
behaviour.
Result - Application dismissed.
CA 525/94
Power Ag CJ,
Bokhary &
Ching JJA
(16.8.95)
*A A Bruce & F
Veltro
#L Lok QC & H
Y Wong
LAM Kwok-wai
Rape/ Multiple offences/
imprisonment appropriate
Continuing
danger/
Life
The Applicant faced 18 counts - seven of robbery, eight
of rape and three of murder. All were committed during the
course of ten attacks upon women in the Tuen Mun and Hung
Hom areas between 24 April 1992 and 5th August 1993. The
Applicant pleaded guilty to the robbery and the rape counts and
was found guilty after trial on the three murder counts.
The Applicant was sentenced to (mandatory) life
imprisonment in respect of three murder counts, to
(discretionary) life imprisonment on the eight rape counts, and
to seven years imprisonment on the robbery counts.
In imposing the sentences he did in respect of the rape
372
ccab 93/95
offences, the judge said that the nature of the offences and the
Applicant’s history indicated that he was of unstable character
and likely to commit such offences in future. That posed an
unacceptable threat to the women of Hong Kong.
On appeal, it was submitted that life imprisonment is a
sentence which should only be used where the mental condition
of the accused is such that he would probably commit grave
offences in future. Further, there was no evidence that the
Applicant’s hitherto unstable character could not be cured by
proper medical treatment and that the imposition of life
imprisonment on the rape counts was therefore wrong in
principle.
Held :
It might be that the Applicant would at some future time
respond to treatment. However, as things stood, his condition
was such that he was wholly unable to control his sexual
impulses. There was, further, nothing to indicate that he would
respond to treatment.
Result - Application dismissed.
CA 205/95
Power Ag CJ,
Mayo JA & P
Chan J
CHOW Kan-shing
Rape/Young girls/Breach of trust/Deterrence
The Applicant pleaded guilty to two counts of rape. He
was a friend of the mother of the two victims, who were sisters,
and he was virtually in loco parentis. He received sentences
totalling 10 years.
*D G Saw
#K J Oderberg
On appeal, it was submitted that the judge failed to give
proper weight to the totality principle and that he did not give
sufficient weight to his clear record, to his plea of guilty, and to
the absence of evidence of psychological damage.
Held :
(1) Although this was neither a case of excessive violence, nor
of sexually humiliating conduct, in such circumstances as these
it is rare to find those elements. The perpetrator of such
offences conducts himself so that the child will be unlikely to
make a complaint which will lead to the discovery of the
misconduct. Although the above elements were not present, it
was nonetheless a very bad case involving young children and
appalling conduct by a person in a position of trust. There was
no suggestion of any mental abnormality. The offences were
carried out by a person in full control of his faculties with full
knowledge of what was being done for his own sexual
gratification;
(2) In such offences the deterrent element must loom large.
This is particularly so in Hong Kong which is full of busy
working parents who must entrust their children to the care of
others. If such people abuse that position of trust, the courts
must take a very severe view of such conduct. The overall
sentence was not a day too long.
373
ccab 93/95
Result - Application dismissed.
WONG Yiu-fat &
Another
CA 221/95
Ching
Bewley
Wong JJA
JA,
&
(22.11.95)
*D G Saw
#I/P
Rape/Victim threatened with weapon/Two attackers/10
years proper after trial
The Applicants were convicted after trial of rape and
sentenced to imprisonment for 10 years.
The victim was an 18 year old sales girl. The
Applicants, one of whom she knew previously, threatened her
with a chopper, forcibly undressed her, and took it in turns to
rape her. Her resistance was not successful. Before parting,
A1 told her that he and A2 had been paid $60,000 to do what
they did, and threatened her not to report to the police. On
appeal
Held :
(1) The judge was right to say that the only mitigating factor
for consideration was that there was no physical injury to the
victim, although the mental trauma was difficult to assess. The
use of the chopper and the separate rapes of the victim
constituted aggravating factors;
(2) The sentence of 10 years was a severe one and was meant
to be severe.
Result - Applications dismissed.
Theft/Handling/Deception
CA 243/92
YAU Yu
TSANG Kwong-wah
Fuad V-P, Power & Nazareth JJA (10.2.93)
*D G Saw
#A Sedgwick QC & M Poon
Handling stolen goods/Relevance of violence at time of taking
Held :
Although the stolen goods which the applicants handled had been taken in violent circumstances, unless
there was evidence from which the inference could be drawn that the applicants knew the facts
surrounding the taking, it would be wrong to visit them with the consequences of the violence offered
and used.
Result - Application for leave to appeal against sentences of 4 years imprisonment for handling stolen
goods allowed. 3 years substituted.
374
ccab 93/95
MA 556/93
TRAN Quang-tiep
Leonard J (2.9.93)
*K Browne
#J Necholas
Pickpocketing by drug addict/Repeat offender
Held :
A sentence of 12 months imprisonment was appropriate for a drug addict guilty on his own plea of a
pickpocketing offence, and who repeatedly offended because of his addiction.
Result - Appeal allowed. Sentence of 18 months set aside. 12 months substituted.
CA 16/93
WONG Kwong-hei
Yang CJ, Power V-P, Macdougall V-P (21.10.93)
*I G Cross QC & D Lai
#K B Egan
Sentences for handling a stolen car and exporting unmanifested cargo (cars)
Held :
Sentences totalling 4 1/2 years imprisonment, for one offence of handling stolen goods, namely, a car
destined for some place out of Hong Kong, and six other offences of exporting unmanifested cargo, also
cars, were not unreasonable : R v Chiu Ko-wai [1992] 2 HKLR 219, considered.
Result - Application for leave to appeal out of time refused.
MA 874/93
MAC Minh-quang
Keith J (7.1.94)
*K Zervos
#P H Wong
Pickpocketing by organised gang/Starting point/Prevalence
Held :
(1) The offence of pickpocketing is prevalent in Hong Kong, and a proper starting point was between
12 to 15 months imprisonment : R v Vy Van-kien [1991] 1 HKLR 422;
(2) It is an aggravating feature if the Appellant is part of an organised gang, and this justifies raising the
starting point to 18 months imprisonment;
375
ccab 93/95
(3) A small discount only was appropriate for, although the Appellant pleaded guilty, he had been
caught in the act and had not pleaded guilty at the earliest opportunity.
Result - Appeal allowed. Sentence reduced from 18 to 15 months imprisonment.
AR 13/93
WONG Shu-kan
Yang CJ, Macdougall V-P, Kaplan J (20.1.94)
*I G Cross QC & J Fung
#C S Fu
Separate and distinct offences of fraud/One transaction rule/Relevance to mitigation of noncharging of co-conspirator
The Respondent was convicted after trial of four charges of fraud. The sum defrauded was in the
region of HK$685,000. The District Judge imposed concurrent sentences of 6 months imprisonment on
each charge. On review
Held :
(1) The offences were quite separate and distinct. There were four charges involving three separate
victims and spanning a period of two months. It was not a case where the one transaction rule should
apply;
(2) Although the judge had acknowledged that where a series of frauds are committed the sentence
imposed should be higher than in a situation where there was a one-off fraud, the concurrent sentences
of six months imprisonment on each charge were manifestly inadequate;
(3) The judge should not have taken as a mitigating factor the fact that a co-conspirator who was more
deeply involved in the deceptions was called as a prosecution witness : R v Helen Yeung Mei CA 65/88
approved.
Result - AG's review allowed. Sentences increased to 18 months imprisonment.
CA 452/93
KWOK Yee, William
Silke V-P, Penlington Nazareth JJA (4.3.93)
*M Blanchflower
#A Macrae
Offences by solicitor/Breach of trust/Deterrence/Attempted restitution/Guilty plea to be
encouraged
The applicant, a solicitor, received sentences totalling 6 1/2 years imprisonment for offences of theft,
false accounting, and forgery of a public document with intent to defraud or deceive. On appeal
Held :
(1) Hong Kong is a business city and its people are entitled to expect honesty in their dealings in those
who carried on their business here : AG v Lee Kun-wai AR 6/92. A solicitor, as an Officer of the
376
ccab 93/95
Court, has a duty to uphold the standards of his profession : AG v Tai Chin-wah AR 5/92. The highest
standards of integrity are required of people carrying on business or practising a profession : AG v
Shamsudin [1987] HKLR 826;
(2) A breach of trust such as shown by the applicant betrays the community in which he lives, the
special status accorded to lawyers as protectors of the rule of law and violates his professional oath.
The element of general deterrence must play a large part in sentencing;
(3) An attempt at restitution, even though here the payment was made by others, is a factor to be taken
into consideration. It is not a factor of great weight : R v Kwok Lai-ling [1989] 1 HKLR 418
considered;
(4) Circumstances of commercial fraud vary infinitely. Each case depends very much on its own facts.
However, for offences of serious commercial crime the appropriate sentence may be at least six years :
R v Bernard Kuit Shu-yip [1990] 1 HKLR 459;
(5) Guilty pleas are to be encouraged and that encouragement can only be given by a substantial
reduction in sentence from that which would have been imposed after a full trial. Pleas of guilty save a
great deal of taxpayers money, the time of witnesses and the time of the court, and these are potent
considerations in commercial crime cases.
Result - Appeal allowed. Sentence reduced to 5 1/2 years imprisonment.
MA 855/93
CHEUNG Kam-chiu
Stock J (1.2.94)
*J Lee
#D Law
Theft from motor vehicle/Six months imprisonment proper after plea
Held :
Four months imprisonment for a single offence of theft from a motor vehicle after plea and in the
absence of any other mitigating factors is on the low side. A sentence in the order of six months is more
appropriate.
Result - Appeal allowed, in part.
CA 471/93
HUI Kam-ming
Silke V-P, Macdougall V-P, Bokhary JA (25.3.94)
*J Reading
#S Chui
Handling goods stolen in major theft or robbery/Upward revision of starting point/5 to 7 years
proper
Held :
377
ccab 93/95
Sentences in Hong Kong for handling stolen goods have hitherto been unduly lenient and the time has
come for a revision upwards of the level of sentencing in cases where the defendant has handled the
goods that have been taken in a major theft or robbery. A starting point for sentence of between 5 and 7
years would not be inappropriate in similar cases in the future.
Result - Appeal allowed. Sentence reduced from 4 to 3 years imprisonment.
AR 3/94
F. NG Tze-kin
Silke V-P, Macdougall V-P, Bokhary JA (17.6.94)
*D G Saw
#J Mullick
Breach of trust/Factors for consideration/Separate offences
Held :
Where there are separate offences of dishonesty, sentences should be consecutive but the totality
principle may necessitate an adequate sentence being imposed on one charge without the other
sentences being made consecutive, given the sentencing judge shows himself to be aware of the nature
of consecutive sentences and when they are required.
Result - AG's review allowed. Sentences totalling 13 months imprisonment imposed after trial for 8
offences involving forgery and theft in relation to the employer increased to 2 1/2 years.
MA 247/94
H MAQBUL
Keith J (19.7.94)
*W S Cheung
#I/P
Pickpocketing/Aggravating features
Held :
(1) In R v Vy Van-kien [1991] 1 HKLR 422, Penlington JA said that the offence of pickpocketing was
prevalent in Hong Kong, and a proper starting point was 12-15 months imprisonment. If aggravating
features existed, an increase in the usual level of sentence would be justified;
(2) The aggravating features in the Appellant's case were that he was acting in a team of pickpockets,
and the offence occurred on public transport. The magistrate would therefore have been justified in
taking 18 months imprisonment as his starting point.
Result - Appeal against a sentence of 14 months imprisonment imposed after trial for an offence of
theft, dismissed.
CA 174/94
HUI Kwok-ho
378
ccab 93/95
Yang CJ, Power VP, Macdougall VP (4.11.94)
*G Di Fazio
#C Grossman QC & C Lam
Credit card fraud/Breach of trust/Prevalence of offence need not be proved by evidence
The Applicant pleaded guilty to conspiracy to obtain property by virtue of a forged instrument contrary
to common law and section 75(a) of the Crimes Ordinance and was sentenced to 4 years imprisonment.
The conspiracy encompassed an agreement to use forged credit cards.
On appeal, it was submitted that the sentence was both manifestly excessive and wrong in principle.
The judge was said to have erred in failing to give the Applicant credit for not having been convicted of
any offences since 1982; for categorising the offence as one of "breach of trust" when the potential loss
was to the bank, not to the Applicant's employer; and in stressing, without the benefit of evidence, the
increase in the use of forged credit cards, the difficulty of detecting credit card offences and prosecuting
offenders, and the serious undermining of the economic stability of Hong Kong and other places by the
use of the forged credit cards.
Held :
The sentence was entirely consistent with sentences passed in other cases of credit card fraud and
approved by various divisions of the Court of Appeal. Plainly, the present fraudulent conduct
constituted a breach of the trust reposed in the Applicant by his employer. It was a matter of complete
irrelevance that it was the bank that ultimately suffered the financial loss. Moreover, there was no need
for the prosecution to produce evidence of the prevalence of this type of offence. It is only too well
known, as made clear in R v Wong Fu-keung Cr App 5/91, R v Kwai Ying-ho Cr App 527/92, AG v
Chan Piu-sang AR 16/93.
Result - Application dismissed.
CA 293/94
LUNG Wei-cheong
Yang CJ, Macdougall VP, Keith J (8.11.94)
*L Ho
#J Marray
Handling stolen goods/Handler as culpable as burglar/Mitigation attaching to late plea/Whether
disparity submission open when confederate wrongly sentenced
The Applicant pleaded guilty to two charges of handling stolen goods. He received concurrent terms of
33 months imprisonment on each charge. On appeal
Held
(1) This was not the usual case of handling stolen goods in which the handler plays no part in the theft,
but simply receives part of the proceeds after the theft has taken place. As the Applicant had played a
significant part in setting up the burglary by providing the burglars with the means of access to the flat,
his role was such that, albeit that he had not been charged with burglary, his criminality was no less than
that of the two burglars : R v Chan Wing-kwan CA 121/85 distinguished;
(2) As the Applicant played a significant part in setting up the burglary it was more difficult for his
sentence to ignore the aggravating features of the burglary, namely, that it took place in a residential
flat, admittedly during the day, but while the elderly occupant, though asleep, was there;
379
ccab 93/95
(3) Although the judge was correct to take as his starting point for the Applicant a term of imprisonment
not less than the one he imposed upon the burglar at the same time, a starting point of 3 years for both
was lenient, and 3 1/2 years would have been proper;
(4) In reducing the sentence he would otherwise have imposed by only 3 months on the basis that the
Applicant had not pleaded guilty at the earliest available opportunity, the judge had given too little
discount for the pleas. Although it is true that, in most cases, the earlier a defendant pleads guilty, or
announces his intention to plead guilty, the greater will be the discount he can legitimately expect, a late
plea of guilty should rarely reduce the discount to the small extent to which the judge reduced it here.
As the correct starting point should have been 3 1/2 years imprisonment, a proper discount to reflect the
Applicant's late pleas of guilty was 9 months;
(5) Although the Applicant contended that he had a genuine sense of grievance as a result of the modest
disparity between his sentence and that of the burglar, who received 2 1/2 years imprisonment, in reality
the burglar may have been fortunate in that the judge wrongly thought that he had pleaded guilty to the
burglary at an earlier opportunity than the Applicant had tendered his pleas of guilty. But the fact that
one defendant is the beneficiary of a mistake in his favour does not justify reducing the sentence on
another defendant to give him the benefit of the same windfall.
Result - Application dismissed.
CA 429/94
LAW Yiu-pan
Power VP, Bokhary JJA (17.11.94)
*V Hartstein
#M Moosdeen
Handling stolen cars/Smuggling to China/Prevalent offence/Deterrent sentence necessary
The Applicant, a man in his early twenties, pleaded guilty to one count of handling stolen goods,
namely, 10 cars, and was sentenced to 4 years imprisonment. The judge took 6 years as his starting
point. On appeal
Held
(1) The theft of motor cars, and their subsequent smuggling to China, is very prevalent in Hong Kong
and has been for some time. Deterrent sentences are necessary for such offences : R v Chiu Ko-wai
[1992] 2 HKCLR;
(2) The starting point of 6 years was correct, and a deterrent sentence was appropriate even though the
Applicant had not been to prison before.
Result - Application dismissed.
CA 476/94
Power
VP,
Macdougall
VP
(17.2.95)
*V Hartstein
TANG
Wing-hong
Theft of luxury cars/Sense of grievance occasioned by
failure to consider cooperation with authorities
The Applicant pleaded guilty to two charges of car
theft, and was sentenced to 18 months imprisonment on the
first charge and to 6 months consecutive on the second,
making 2 years in total.
The Applicant submitted that he had been willing
to give evidence against the accomplice and that the police
380
ccab 93/95
#I/P
had promised to inform the court as to his cooperation with
them. However, because of his involvement in a traffic
accident, the trial of the accomplice proceeded in his
absence and the Applicant was unable to testify for the
prosecution. Secondly, contrary to their undertaking, the
police failed to tell the judge about his cooperation which
led to the arrest of the accomplice. The Applicant was
therefore denied the benefit of a discount in sentence to
give effect to that factor.
Held :
(1) Although the Applicant suffered a sense of grievance,
the overall sentence of 2 years imprisonment was unduly
lenient. It is a notorious fact that car theft, particularly that
of luxury cars, has become increasingly prevalent. Those
who commit such offences must be severely dealt with as a
deterrent to others;
(2)
Despite the Applicant’s understandable sense of
grievance, and even taking into account his assistance to the
police, the overall sentence could not properly have been
less than two years imprisonment.
Result - Application dismissed.
AR 8/94
Power VP,
Litton &
Bokhary JJA
(15.2.95)
*K S Kripas
#E C Mumford
QC & R Lau
AG v SHEK Waiip
Fraud/Gross breach of trust/Two-thirds discount too
generous/Concurrent terms not appropriate/Observations
as to the assessment of proper starting point in District
Court
The Respondent pleaded guilty to three charges of theft
and one of obtaining property by deception. The criminality
involved a gross breach of trust over a period of 18 months
which occasioned loss of about $15.5M. He received
concurrent terms of imprisonment of 28 months upon each
charge.
When sentencing, the judge took seven years as his
starting point. He was seemingly influenced by the fact that
this was the maximum which he could properly impose by
reason of section 82 of the District Court Ordinance. He
stated that this was his global starting point for the four
offences as he took the view that they were “one continuing
criminal venture”. He then gave a discount of one-third for
good character and clear record and a further discount of onethird for the plea of guilty. That reduced the sentence to one
of 28 months.
On review
Held :
(1) The approach of the judge illustrated how a sentencer can
be misled by the adoption of a mathematical approach. The
judge doubtless considered that each step in his approach was
a correct one. Even so, when he saw the figure which the
381
ccab 93/95
approach produced, he should have realised that he must look
at the matter again. An approach which threw up a sentence
which was, by any measure wholly inadequate, must be
flawed;
(2) It was wrong in this case to deal with the four offences as
though they were all part of “one continuing criminal venture”.
The judge was wrong to fix the seven years, which he took as
his global starting point, by reference to the seven years
maximum which he was authorised to impose by virtue of
section 82. Section 82 does no more than state the maximum
sentence that can be imposed in the District Court. It is true
that a discount for plea must be made from the seven years but
that is not to say that the seven years becomes the appropriate
starting point : R v Ho Sik-yin Cr App 126/91. A judge in the
District Court should make his determination as to the correct
starting point without any reference to the maximum sentence
allowed by section 82 : Mo Kwong-sang v R [1981] HKLR
610. If the starting point is in excess of the seven years, then
he will have to observe that he is bound by section 82 and
cannot impose a sentence of more than seven years and that he
is further bound to make any deduction for plea from the
figure of 7 years;
(3) Although the modus operandi of offences is the same, if
the victims and the time of commission are not the same there
is no warrant for treating them as part of a “continuing
criminal venture”;
(4) The discount of two-thirds was wholly inappropriate. A
correct application of the totality principle would have
produced an overall sentence of 4 1/2 years imprisonment.
Result - AG’s review allowed. Sentence increased to 4 1/2
years imprisonment.
Per cur :
(1) The trial judge was correct to disregard mitigation based
on the Respondent’s family circumstances and the fact that he
had not pocketed any money;
(2)
The court is not assisted by reference to sentences
imposed in cases decided years ago when the sentencing
climate was much more lenient as regards offences of this kind
than it is today. Sentences in cases where the Court of Appeal
has refused to intervene upon an appeal against sentence are of
very limited assistance. Fraud cases depend very much upon
their own facts as seen, in their entirety, by the sentencing
court.
CA 375/94
Litton VP,
Bokhary &
Mayo JJA
(18.5.95)
FONG Chungchung
Handling stolen cars/Offences on bail
The Applicant pleaded guilty to two offences of handling
stolen goods. Both offences occurred on the same day and, in
each instance, the stolen property was a Mercedes Benz motor
car. The trial judge imposed concurrent terms of 3 years
imprisonment upon each charge, but made that term
382
ccab 93/95
consecutive to a 2 1/2 year sentence which the Applicant was
then serving and which had been imposed one week earlier in
respect of one charge of handling four Mercedes Benz motor
cars. The totality was thus 5 1/2 years imprisonment.
*J Reading
#J Mullick
On appeal, it was submitted that the total sentence was
too severe, and that such severity resulted from the judge’s
failure to take totality into account.
Held :
(1) As the offences occurred while the Applicant was on bail
for the earlier offences, he had demonstrated a determination
to offend which the court could not ignore when it came to
assessing the punishment needed in order to arrive at a
deterrent proportionate to such determination;
(2) The traffic in stolen motor cars in Hong Kong is prevalent
and serious and has been prevalent and serious for some time;
(3) The mitigation was essentially the guilty pleas. Although
these entitled the Applicant to some credit, the cases brought
against him did not seem to have been easy to fight;
(4) The 5 1/2 years, while on the high side, was still within
the appropriate range. It was high only in that it was at the top
of the range and not in the sense that it was beyond the range.
Result - Application dismissed.
MA 453/95
DOMINGO
Gerardo D
Ryan J
Pickpocketing/Serious offence/12 months proper after trial
(27.7.95)
The Appellant was convicted after trial of a charge of
pickpocketing and sentenced to 12 months imprisonment. On
appeal
*J To
Held :
#J McGowan
This type of offence is serious and would justify a
starting point of 15 months imprisonment and a reduction of 3
months for the clear record would be sufficient.
Result - Appeal dismissed.
Obiter - It would have been better had the magistrate indicated
his starting point for sentence and then deducted a
period of time for the clear record.
MA 602/95
Gima MALLQIU
Shop
theft/Organised
guidelines applicable
foreign
gang/Pickpocketing
Leong J
(22.8.95)
*W S Cheung
The Appellant, a Peruvian female, was convicted on her
own plea of theft. The facts were that she and three others went
to a shop. Two of them enticed the shopkeeper to go outside
the shop to see the displayed items, whilst the Appellant and
383
ccab 93/95
#P Cheng
the remaining one went behind the counter. The Appellant was
caught and the others fled. Some cash was stolen. Later, under
the direction of the Appellant, the money was recovered intact
from a rubbish bin.
The Appellant came to Hong Kong as a tourist and she
had three children back home. The magistrate in sentencing
considered that this was a planned raid involving at least 4
persons working in concert. He equated this to pickpocketing
for the purpose of sentence. He considered immediate custodial
sentences inevitable and, following the guidelines in R v
Nguyen Piran-lin CA 454/89 and R v Tran Quang-tuan MA
360/89, and giving little credit for the plea of guilty since she
was caught red-handed, he imposed the sentence of 18 months
imprisonment. No starting point was indicated.
On appeal, it was submitted that the present case of theft
was not the same as pickpocketing especially when it was not
in a public place. In imposing the sentence of 18 months the
magistrate must have decided on a starting point higher than 18
months and this was too high.
Held :
The sentences in respect of pickpocketing offences are
equally applicable in a case of theft in circumstances such as
the present. The Appellant acted in concert with other culprits
some of whom acted as a decoy to enable the Appellant to steal
the money from under the counter. R v Vy Van-kien [1991] 1
HKLR 22, provides the guidelines for sentencing such
offences.
As a starting point, taking into account the
aggravating factor of acting in concert with others and in a shop
which was open to the public, 18 months would have been
appropriate. The Appellant was caught red-handed. Her plea
of guilty in the face of such evidence, even though of little
merit, entitled her to some discount.
Result - Appeal allowed. Sentence of 15 months substituted.
Throwing Corrosive Acid
CA 270/92
CHAN Sang
Silke V-P, Power & Macdougall JJA (20.3.93)
*S Wong
#I/P
Throwing corrosive acid and wounding/Attack on wife after quarrel/Mitigation
The accused pleaded not guilty to charges of throwing corrosive acid and wounding with intent. He
was convicted after a trial in which the evidence showed that he had attacked his wife after a quarrel
over her alleged infidelity, and had burned and stabbed her. Although the burn marks were not
permanent the cut scars were. He received 7 years imprisonment, after the judge had taken 8 years as
his starting point.
384
ccab 93/95
Held :
(1) The attack was a vicious one which warranted a sentence of that severity;
(2) The accused had shown no remorse during the trial, and had persisted in a defence in which it was
suggested that his former wife was lying in her evidence as to the attack made upon her;
(3) Although the accused found himself in desperately sad circumstances, some of those were a direct
consequence of the vicious attack which he made upon his former wife.
Result - Application for leave to appeal dismissed.
CHOW Kwokfung
CA 511/94
Power Ag CJ,
Mayo JA, P
Chan J
Throwing corrosive acid with intent/Gravity of offence
The Applicant was convicted after trial of throwing
corrosive acid with intent, contrary to s. 29 Cap. 212. The
Applicant and the victim had had a long standing but somewhat
turbulent relationship.
(12.9.95)
The trial judge observed that throwing corrosive liquid is
one of the most unpleasant ways of causing grievous bodily
harm that can be imagined. The victim had said the pain was
indescribable. The conduct of the Applicant was ‘uncivilised,
cruel and inhuman’. Although the Applicant was aged only 17
years, the judge, who felt that a proper starting point was in the
region of 12 years, imposed a sentence of 7 years. On appeal
*D G Saw
#T Chan
Held :
The judge took the age and personal circumstances into
account. He was perfectly entitled to come to the conclusion
that this was an inhuman offence that deserved a substantial
period of imprisonment.
Result - Application dismissed.
Town Planning
MA’s 864
1389/94
&
TANG Ying-yip
YEUNG Fook-mui
TANG Ying-hei
Town Planning Ordinance/Failure to comply with
enforcement
notices/Sentencing
considerations/Deterrence
Litton JA
(17.3.95)
*W Wong
The Appellants were land owners in the New Territories.
They were convicted on charges brought under section 23(6)
of the Town Planning Ordinance, on account of their failure
to comply with enforcement notices issued under section
23(1). Section 23(6) reads :
#D P H Wong
“(6) Where, by the date specified in that regard in a
notice under this section (a) the development has not been discontinued,
a person who is served with the notice commits
an offence and is liable to a fine of $100,000
385
ccab 93/95
and a fine of $10,000 on each day during which
the offence is proved to have continued”.
Tang King-yip and Yeung Fook-mui were fined $25,000
each, plus a daily fine of $100 for 147 days. Tang Ying-hei
was fined $20,000. On appeal
Held :
(1) Magistrates have far greater experience in dealing with
prosecutions brought under section 23(6) than the High
Court. Unless the sentences are shown to be wrong in
principle or manifestly excessive, the court will not interfere;
(2)
Deterrence is an important consideration if the
legislation is to be effective. Heavy fines could encourage
land owners to be more vigilant to prevent unauthorised
development. On the facts before the magistrates, it is clear
that the Appellants envisaged at the outset that container
storage operations would take place on their land. They must
have known that, for this to be lawful, there had to be an
authorised change of use. It would have been a simple
matter to apply to the Board first, if they had really thought
that there was a real prospect of the Board allowing use for
container storage. But these owners made no application;
(3) The magistrates referred to sentences imposed in similar
cases and pitched the punishments accordingly.
They had not erred in principle. Nor were the sentences
manifestly excessive. The court could not interfere.
Result - Appeal dismissed.
Triad
CA 65/93
YUE Man-sang
Yang CJ, Bewley & Sears JJ (7.12.93)
*D G Saw
#K B Egan
MOTS and blackmail/Severe punishment required
Held :
As the applicant was convicted after trial of claiming to be a member of a triad society, blackmail, and
membership of an unlawful society, and as the facts showed that the applicant had represented himself
as a triad in order to extort money from a restaurant, sentences totalling three years imprisonment were
entirely proper : R v Chan Shui-cheung CA 167/92 considered.
Result - Application for leave to appeal refused.
386
ccab 93/95
Vice
CA 498/92
LAI She-hung
Macdougall, Litton & Bokhary JJA (6.7.93)
*A A Bruce
#I/P
Managing a vice establishment/Related vice offences/Starting point
Held :
A starting point of two years imprisonment for offences of managing a vice establishment, permitting a
girl under the age of 16 years to be on the premises for the purposes of prostitution, and knowingly
living on the earnings of prostitution, was not manifestly excessive.
Result - Application for leave to appeal against sentences totalling 21 months refused.
CA 5/94
CHAN Hor-nam
Silke V-P, Penlington & Litton JJA (8.3.94)
*J Reading
#I/P
Bringing woman to HK for prostitution/Living on immoral earnings
Held :
Consecutive sentences of 2 1/2 years imprisonment and 4 months imprisonment, for offences of
bringing a woman into Hong Kong for the purposes of prostitution, and of living on the earnings of her
prostitution, imposed on a 59 year old man after trial, were correct.
Result - Application for leave to appeal dismissed.
CA 377/94
Litton VP,
Bokhary &
Mayo JJA
KWOK Tai-tai
Assisting
in
the
management
of
a
vice
establishment/Maximum penalty/15 months not excessive
(19.5.95)
The Applicant was convicted after trial of one charge of
assisting in the management of a vice establishment, contrary to
S. 139 (1)(b) Cap. 200. She received 15 months imprisonment.
On appeal
*D G Saw
Held :
#G Plowman
QC & R Wong
(1)
The authorities, particularly on appeal from the
magistracy, indicate that upon summary conviction the
sentences imposed in the magistrates courts have generally
been lower than 15 months. However, the maximum sentence
for this offence upon indictment is 7 years imprisonment;
(2) The Applicant was not entitled to any benefit on account
387
ccab 93/95
of her record. She had a previous similar conviction in 1986,
for which she was sentenced to imprisonment for 18 months
suspended for 2 years, and fined $5,000;
(3) The judge had asked himself whether there were grounds
for suspending the sentence and concluded that in the
circumstances he could not do so. The sentence, whilst on the
high side, was not manifestly excessive.
Result - Application dismissed.
CA 380/95
Power VP
Mayo JA
(6.10.95)
HUI Wai-man
Managing a vice establishment/Organised brothel
operation/Living on earnings of prostitution
The Applicant was convicted after trial of the offences of
managing a vice establishment and living on the earnings of
prostitution. He received consecutive prison sentences of,
respectively, 12 months and 4 months.
*K H Wong
#I/P
The trial judge observed that, although there was no
evidence of the forcible detention of women or the use of
underage girls, it was nonetheless an organised brothel
operation. He said that, having regard to the offence, a
suspended sentence was not appropriate and that the second
charge merited a sentence by itself of 6 to 9 months. He added,
however, that because that offence largely formed part of the
facts pertaining to the first offence, he would take a lower
starting point in relation to it and reduced that starting point to
4 months, to run consecutively to the 12 months. On appeal
Held :
The sentences were not in any way wrong or
inappropriate.
Result - Application dismissed.
388