CCAB 2011
Sentence (Quantum) – Dangerous Drugs
Sentence (Quantum)
Dangerous Drugs
HKSAR v NG KWOK FAI
COURT OF FIRST INSTANCE
HCMA 726/2010
Mackintosh J
Date of Judgment: 8 December 2010
Counsel for the Respondent: Hermina Ng PP
Counsel for the Applicant: In person
Criminal sentencing – Trafficking in dangerous drugs – Trafficking outside a methadone clinic is to be
regarded as a very grave aggravation of the offence
刑事罪判刑－販運危險藥物－在美沙酮診所外販運危險藥物須視為該罪行的一項十分嚴重的
加刑因素
The Appellant was alleged to have sold and delivered a small packet of heroin to an undercover police
officer for $150 outside a methadone clinic. Two days later, the operation went overt. A number of persons
were arrested. The undercover police officer recognized the Appellant as the man who had sold him the package
of drugs. He appealed against conviction only.
After dismissing the appeal against conviction, the court added a postscript concerning sentence. The
Appellant’s conviction was for trafficking in dangerous drugs outside the methadone clinic where addicts go to
try to free themselves of their addiction. To traffick in a place such as that is a very grave aggravation of the
offence of trafficking. A starting point of not less than 2½ years’ imprisonment would have been appropriate. It
is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to
discourage them, particularly, where they commit such offences outside a methadone clinic [32].
HKSAR v PEI YUK KAM (畢玉錦)
畢玉錦)
COURT OF APPEAL
CACC 213/2010
Hartmann JA, Lunn & Line JJ
Date of Hearing: 24 February 2011
Date of Judgment (re: conviction): 24 February 2011
Date of handing down Reasons for Judgment (re: conviction) and Judgment (re: sentence): 9 March 2011
Counsel for the Respondent: Robert KY Lee SADPP
Counsel for the Applicant: Wong Hay Yiu
Criminal sentencing – Drug manufacturing most serious of all drug-related offences – Drug
manufacturing and doing an act preparatory to manufacturing a dangerous drug are viewed with similar
seriousness and should attract similar sentences
刑事罪判刑—在所有危險藥物相關罪行中以製造危險藥物為最嚴重—製造危險藥物與作出準
備製造危險藥物的作為在嚴重程度上兩者視為相若並應判處相若刑罰
The Applicant was convicted of doing an act preparatory to manufacturing a dangerous drug (together
with another offence) and was sentenced to 4½ years’ imprisonment. He appeals against both conviction and
sentence for this drug offence.
41
CCAB 2011
Sentence (Quantum) – Dangerous Drugs
The police raided an apartment and at that time, it was occupied by the Applicant and the co-accused
(“Wu”). Wu was seen stepping out of the apartment carrying garbage bags and when apprehended, he shouted a
warning to the Applicant who was inside the apartment. The Applicant was then seen running into the toilet
carrying a glass containing brown liquid with the clear intention to dispose of the glass and its contents. The
liquid was subsequently found to reveal traces of paracetamol.
Inside the apartment, various powders, liquids and chemicals were found. Basically, less only a couple
of ingredients, the raw materials were present for the manufacture of ‘ice’. In addition, other articles were found
including electronic scales, scissors, pots and bowls containing quantities or traces of chemicals used in the
manufacture of ‘ice’; a hot plate as means for heating and a freezer for cooling were found. A small quantity of
‘ice’ was discovered. There was also found a recipe for one method of manufacturing ‘ice’.
The judge was satisfied that the evidence proved that prior to the police raid the Applicant had done
acts preparatory to the manufacture of “ice”.
Held, leave to appeal against sentence refused:
(1)
As observed in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at 586, the offence of drug
manufacturing is the most serious of all drug-related offences, graver than trafficking and in all but the most
exceptional cases warranting a heavier sentence. Doing or offering to do an act preparatory to or for the
purposes of manufacturing a dangerous drug must be viewed with similar seriousness and should attract similar
sentences. The intention of the legislature in this regard is unmistakable. Both offences were created by s 6(1)
of the Dangerous Drugs Ordinance (Cap 134) and the same sentence was provided [33]-[34].
(2)
Even when the scale of operation is very limited, a minimum starting point for manufacturing should be
six years’ imprisonment [35] & [37]. Doing or offering to do a preparatory act may or may not reflect a lesser
degree of moral culpability than participating in the manufacturing process. Each case will depend on its own
facts [36].
(3)
The judge recognized that the intended manufacturing operation put in place in the apartment was
small-scale and unsophisticated. The quantity of chemicals was limited and a number of necessary chemicals
were still missing. Nevertheless, on the authorities, no matter how limited and no matter how crude the intended
operation, he was obliged to take as his starting point a sentence similar to the starting point of six years that
would have to be applied if the Applicant had been convicted of manufacturing. Having taken all mitigating
factors into account, the judge was prepared to give a discount of 25%; hence the sentence of four years and six
months. The judge did not condescend to state why he had chosen that discount. But, whatever the reason, it
was a substantial discount and, in the circumstances, the sentence could not be considered in any way manifestly
excessive [38]-[39].
42
CCAB 2011
Sentence (Quantum) – Driving under Influence of Drugs
Driving under Influence of Drugs
SJ v CHAN HON HOI (陳瀚海)
COURT OF APPEAL
CAAR 8/2010
Yeung & Yuen JJA, Lunn J
Date of Judgment: 22 December 2010
Counsel for the Applicant: Alex Lee SADPP & Jasmine Ching SPP
Counsel for the Respondent: Victor Ho
Criminal sentencing – Driving motor vehicle under influence of drugs – Inhaling dangerous drugs on two
occasions – Defendant taxi driver consumed ketamine before starting to drive – Second occasion occurred
whilst defendant on bail in respect of first occasion – Defendant's conduct indicated deliberate and
blatant disregard for public safety – Drug-driving problem increasingly prevalent – Whether total
sentence of 18 months' imprisonment and two-year disqualification manifestly inadequate
刑事罪判刑－在藥物影響下駕駛汽車－兩次吸服危險藥物－被告人是的士司機－在開始駕駛
前服用氯胺酮－被告人在第一次的保釋期間犯第二次－被告人的行為顯示蓄意並公然罔顧公
眾安全－藥物駕駛的問題愈趨普遍－總共監禁18個月及取消駕駛資格2年是否明顯不足
The Respondent, a 30-year-old taxi driver, was charged with two counts of driving a motor vehicle
under the influence of drugs (ketamine) and two corresponding charges of inhaling a dangerous drug. The
second incident happened while he was on bail for the first incident. The Respondent pleaded guilty to all four
charges in the District Court. For the 1st and 2nd charges, the judge adopted starting points of 12 months and 15
months respectively, and for the 3rd and 4th charges, a starting point of 6 months. The judge reduced the starting
points by one-third on account of the guilty pleas to 8 months, 10 months and 4 months respectively. After
considering the principle of totality, the judge imposed an overall sentence of 18 months’ imprisonment and a
disqualification period of 2 years. He was also ordered to take a driving improvement course.
Held, application for review of sentence allowed; total sentence was increased to 30 months’ imprisonment and
the disqualification period to 3 years.
(1)
Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the
catastrophic consequences of serious traffic accidents. Driving is a very complex skill determined by changes in
physical, emotional and mental conditions all of which can be impaired by the use of drugs. In many ways,
driving under the influence of drugs can be more serious than dangerous driving. When someone sets out to
drive whilst under the influence of drugs, he must be aware, at the outset, of the risk associated with his driving.
It can be a deliberate anti-social and dangerous act, and not just a spontaneous irrational one. Drivers who
knowingly drive a car whilst under the influence of drugs must expect a heavy sentence [23]-[27],
(2)
This is a very bad case of the type. It was not a case of unwittingly consuming drugs. The respondent
was not under the influence of prescription or non-prescription over-the-counter medications, or herbal drugs
that the effect of which might not be fully and readily appreciated. The respondent took ketamine before he
started driving. As revealed from his criminal record, the respondent was a drug abuser and he must be aware of
the effect of ketamine, yet he decided to drive a taxi after consuming it and when he was still under its influence,
not once, but twice, and on the second occasion whilst he was on bail in respect of the first one [28]-[29],
(3)
From the nature of the accidents and the respondent’s post-accident behaviours on both occasions, the
respondent must have been so overwhelmed by the effect of the ketamine he took that he could not properly
drive a taxi on a busy road in Hong Kong. Driving under the influence of drugs is an issue of growing concern
world-wide [30]-[33].
(4)
Bearing in mind that this is a sentence review and there has not been previous warning that the court
will take a serious view of the offence of driving under the influence of drugs, the appropriate starting points for
the 1st and 2nd charges of driving under the influence of drugs are 2 years and 2½ years respectively. On account
43
CCAB 2011
Sentence (Quantum) – Driving under Influence of Drugs
of the pleas of guilty, the court ordered a total sentence of 30 months’ imprisonment. The main purpose of
disqualification is forward looking and preventive. The court ordered a concurrent disqualification period of 3
years on the 1st and 2nd charges, and further ordered that he shall not drive after the disqualification period until
he passes a test of competence to drive. In view of the re-test requirement, the order requiring him to take a
driving improvement course was set aside [35]-[40].
Failure to Provide Breath Specimen
SJ v AMINA MARIAM BOKHARY
COURT OF APPEAL
CAAR 10/2010
Tang ACJHC, Stock VP, Yeung JA
Date of Hearing and Judgment: 11 January 2011
Date of handing down Reasons for Judgment: 11 March 2011
Counsel for the Applicant: Kevin Zervos SC DDPP & Hermina Ng PP
Counsel for the Respondent: Peter Duncan SC
Criminal sentencing – Failure to provide a specimen of breath (s 39B(2) and (6), Road Traffic Ordinance
(Cap 374)) – Whether the sentences of a fine of $5,000, a disqualification order for 12 months and the
attendance of a driving improvement course manifestly inadequate and/or wrong in principle – Noncustodial sentence normally imposed on a first time offender where no one injured and no evidence of
serious impairment due to intoxication – Custodial sentence falls within permissible range where there is
evidence of serious impairment resulting from intoxication
Criminal sentencing – No one is accorded favour because of wealth or connections – No extra punishment
to defendant from privileged background simply to make sure it cannot possibly be said that such a
person is being favoured
刑事罪判刑—沒有提供呼氣樣本（香港法例第374章《道路交通條例》第39B(2)及(6)條）—
罰款5,000元、取消駕駛資格12個月及修習駕駛改進課程的判刑是否明顯不足及/或原則上錯
誤—如無人受傷亦無證據顯示因神智不清而嚴重損害能力，則初犯者通常被判處非監禁刑
罰—如有證據顯示神智不清引致嚴重能力受損，則監禁刑罰屬可容許的範疇之內
刑事罪判刑—無人因財富或關係可獲得優待—不會純粹為確保免被指責優待來自有特權背景
的被告人而對該人施加額外懲罰
The Respondent’s car swerved onto the opposite lane and collided head-on with a coach travelling in
the opposite direction. When police officers later arrived at the scene, the Respondent was requested to undergo
a Screening Breath Test (“SBT”) for she smelt of alcohol. She became emotional and attempted to leave the
scene. When she was stopped from doing so by a police officer, she slapped him once on his left cheek with her
right hand. The Respondent was arrested and taken back to the police station. Despite repeated explanations
and warnings, she refused to take a SBT.
The Respondent was charged with and pleaded guilty to 3 offences, namely careless driving, assaulting
a police officer acting in due execution of his duty and failure to provide a specimen of breath. For the last
charge, she was fined $5,000, disqualified from driving for 12 months and ordered to attend a driving
improvement course. The Secretary for Justice applied to review this particular sentence.
44
CCAB 2011
Sentence (Quantum) – Failure to Provide Breath Specimen
Held, application for review allowed to the extent that the disqualification period is extended:
(1)
Offences under ss 39, 39A and 39B(6) of Road Traffic Ordinance are serious offences for which a
person could be prosecuted on indictment or summarily. In deciding which way to proceed, the prosecution
would take into account, inter alia, the degree of intoxication and the consequence of the offence [15].
(2)
The sentence for failing to provide a specimen of breath can and should, in most cases, be more
severe than drink driving in order to discourage drivers, who had been drinking heavily, from refusing to
supply specimens for testing. The circumstance of each individual case must be examined to determine
the proper penalty [52].
(3)
It was however possible that the Respondent had swerved not because she was unable to control her car,
but because she improperly had tried to take a short cut. One could not infer from the fact that the accident
occurred on the wrong side of the road that the Respondent was unable to control her car due to intoxication
[29].
(4)
The Magistrates’ Court Sentencing Guidelines published by the Sentencing Guidelines Council in
England have no application in Hong Kong and the English legislative provisions are different [16]-[17]. But
the said guidelines in terms of the particular sentences suggested are useful in highlighting the different levels of
criminality [41].
(5)
In the absence of previous decisions or statistics to that effect, it cannot be said that the norm for failure
to provide a specimen of breath was an immediate custodial sentence [27], [41] & [52]. It is indeed the case that
a non-custodial sentence would normally be imposed on a first time offender where no one was injured and
where there is no evidence of serious impairment due to intoxication [27]. Where there is evidence of serious
impairment as a result of intoxication a custodial sentence on a first time offender would fall within a permissible
range of sentences. If that person has been involved in an accident resulting in serious injuries, there is no
reason why if he/she is prosecuted on indictment, a substantial custodial sentence should not be imposed [17]. If
the deliberate refusal or failure to provide a specimen of breath was prompted by a desire to avoid the
consequence of a serious traffic accident due to the effect of heavy drinking, the proper sentence could well be
an immediate imprisonment even for a first offender [53].
(6)
In the present case, however, (1) the offender had not previously committed any traffic offences; (2)
though there can be no question but that she had been drinking, the uncontradicted evidence was that the
offender suffered at the time of the offence from a significant mental ailment and the evidence did not in this
special context establish that there was, as a result of drink, serious impairment; (3) the offender was, at the date
of the hearing of the review before the magistrate, serving a term of imprisonment for allied conduct on the same
occasion [43] and (4) there being no injury to anyone except to the Respondent herself [53]. Absent any
statistics suggesting that a custodial sentence was a norm for a first offence with such factors at play, it could
hardly be said that the failure to impose a term of imprisonment was outside the range of sentence permissible to
a sentencing court [44].
(7)
The disqualification for a period of 12 months is unduly lenient. For the sake of the community (the
protection of members of the public) and the Respondent’s own sake (given her drinking problem aggravated by
bipolar depression), the Respondent should be disqualified for a much more substantial period, namely 3 years
[35], [36], [39] & [56].
(8)
The Road Traffic Amendment Ordinance 2010 is not applicable to the present case (as they came into
effect after the offence), but no doubt the amendments show the Legislature’s increasingly strong view against
drink driving and connected offences [12]-[14].
(9)
The fact that the Respondent had assaulted a police officer in the course of his duties is of course a very
serious matter. Police officers, in the proper execution of their duties, are symbols of law and order and must be
respected and protected from abuse. If contemptuous and abusive behavior towards police officers were
tolerated, law and order would be compromised. However, the Respondent had already been separately dealt
with in this regard by way of a separate charge [54]-[55]. It would not be right to punish her again [31].
(10)
All judicial officers have taken an oath to administer the law without fear, favour, affection or ill will
[50]. The Respondent comes from a highly respected and affluent family and she is also well-educated. These
45
CCAB 2011
Sentence (Quantum) – Failure to Provide Breath Specimen
are certainly not reasons to treat her leniently. The doctrine of equality before the law mandates the court to treat
all persons, regardless of wealth, social status, or the political power wielded by them or their families, the same.
No individual or group is entitled to special legal privileges [50]-[51]. It is a central tenet of our system of
justice that no one is accorded favour because of wealth or connections. A ‘good’ background is not dictated by
wealth or connection and the vast majority of young people in Hong Kong come from caring families. By reason
of the same principles of levelheadedness and fairness which must drive judicial decision-making, the courts do
not visit extra punishment upon, or brush aside true mitigating factors in respect of, a defendant who happens to
be from a privileged background simply to make sure that it cannot possibly be said that such a person is being
favoured [46]-[47].
Immigration
HKSAR v ZHONG MING JING (鍾明青
鍾明青)
鍾明青)
COURT OF APPEAL
CACC 180/2010
Stock VP, Lunn J
Date of Judgment: 5 November 2010
Counsel for the Respondent: Noelle Chit PP
Counsel for the Applicant: Robert Andrews
Criminal sentencing – Assisting passage to Hong Kong of unauthorized entrants – Endangering safety of
others at sea – Being person in charge of sampan, failing to stop as required by light signal displayed by
police vessel – Applicant coxswain of motorized sampan which carried 8 unauthorized entrants – Sampan
not equipped with fire-fighting or life-saving equipment – Whilst being pursued by police vessel,
Applicant manoeuvred sampan into path of police vessel
刑事罪判刑－協助未獲授權進境者前來香港的旅程－在海上危及他人的安全－身為掌管在航
舢舨的人，沒有按水警小艇展示燈號的要求停船－申請人是載有8名未獲授權進境者的機動
舢舨的船長－舢舨沒有裝設滅火器具或救生裝置－被水警小艇追逐時，申請人將舢舨駛入水
警小艇的航道
The Applicant pleaded guilty to 3 charges, namely, assisting the passage to Hong Kong of unauthorized
entrants (charge 1), endangering the safety of others at sea (charge 2) and being the person in charge of the
sampan, failing to stop as required by light signal displayed by police vessel (charge 3). The sentencing judge
imposed a total sentence of 5 years’ imprisonment. The Applicant applied for leave to appeal against sentence.
In relation to charge 1, the Applicant was the person in charge of the sampan. It was carrying 8
unauthorized entrants with no safety equipment, such as life-saving devices, and no fire-fighting equipment.
Charge 2 alleged that the Applicant steered the sampan in a dangerous manner when being pursued by the police
vessel. In particular, on many occasions, the Applicant deliberately altered the course of the sampan to put it
directly in the path of the police vessel thereby causing the police vessel to alter course and decelerate sharply.
The pursuit lasted only 4 minutes due to the failure of the engine of the sampan and not to any conduct of the
Applicant. At that time, the sea state was slight and the wind was light.
Held, leave granted and appeal allowed:
(1)
In relation to charge 1, previous authorities indicated that a starting point of 5 years’ imprisonment
would be appropriate in the circumstances of the present case where the Applicant was the person in charge of
the sampan, that it was carrying no less than 8 unauthorized entrants and it carried no appropriate safety
46
CCAB 2011
Sentence (Quantum) – Immigration
equipment [15]. Accordingly, the starting point of 6 years adopted by the sentencing judge was reduced to 5
years.
(2)
Henceforth, the courts should regard the absence of life-saving equipment and fire-fighting equipment
as aggravating factors [20].
(3)
For charge 2, the most important aggravating feature in the commission of the offence was the manner
in which the sampan was steered by the Applicant during its flight from the pursuing police vessel. 18 months’
imprisonment was an appropriate starting point for this offence [24] & [26].
(4)
The sentence of four years’ imprisonment imposed in respect of charge 1 was quashed and substituted
by a sentence of 3 years and 4 months’ imprisonment. The 12 months’ sentence for charge 2 to be served
concurrently with the 2 months’ sentence for charge 3 was ordered to run consecutively with the sentence for
charge 1, making a total reduced sentence of 4 years and 4 months [32].
Indecent Assault
HKSAR v LI KA MAN (李家文))
COURT OF FIRST INSTANCE
HCMA 824/2010
Bokhary J
Date of Judgment: 2 February 2011
Counsel for the Respondent: Winston Chan SPP
Counsel for the Appellant: Gerard McCoy SC & Nisha Mohamed
Criminal sentencing – Indecent assault – Touching the complainant’s buttocks – Being playful not
necessarily renders the touch less than highly offensive
刑事罪判刑－猥褻侵犯－觸摸投訴人的臀部－即使是嬉戲式觸摸未必絶不令人高度反感
On the night of 8 October 2009 at the nightclub of the Club House at the Lai Chi Kok Reception
Centre, the Appellant, a Correctional Services Officer, indecently assaulted the complainant, who was working
there as a waitress, by intentionally touching her buttocks. The Appellant was charged and later convicted in the
Magistrates’ Courts on a charge of indecent assault and sentenced to two weeks’ imprisonment.
Held, appeal against sentence dismissed:
(1)
The touch may have been as fleeting and playful as contended on the Appellant’s behalf. But the whole
incident lasted quite a long time. A touching being playful does not necessarily render it less than highly
offensive. As to the contention that the touch was to “a non-intimate area of the body”, it is not anything less
than highly offensive to touch a woman on her buttocks even though there are parts of her anatomy where
touching her would be even more offensive [15].
47
CCAB 2011
Sentence (Quantum) – Murder
Murder
HKSAR v CHU YIU KEUNG & ORS (朱耀强及其他人
朱耀强及其他人)
朱耀强及其他人)
COURT OF APPEAL
CACC 27/2009
Hartmann JA, Lunn & Barnes JJ
Dates of Hearing: 14-16 July, 6 September & 17 December 2010
Date of handing down Judgment: 20 January 2011
Counsel for the Respondent: Wesley Wong SADPP & Hermina Ng PP
Counsel for A1: John Hemmings (re: conviction) & In person (re: sentence)
Counsel for A2: Paul Loughran (re: conviction & sentence)
Counsel for A3: William NC Stirling (re: conviction)
Counsel for A4: William NC Stirling (re: conviction & sentence)
Counsel for A5: John Haynes (re: conviction & sentence)
Criminal sentencing – Murder – Defendants killed victim in course of gang fight – Defendants aged
between 15 and 18 – Whether sentences imposed manifestly excessive
刑事罪判刑－謀殺－被告人在集體打鬥中殺死受害人－被告人15至18歲－判刑是否明顯過
重
At all material times, the 5 Applicants (A1-A5) were associated in a group of young men identified as
Billy’s group in the course of trial. The apparent leader of this group was Lai King Pong known as Billy or Ah
Pong.
Late on the night of 25 August 2007, within the precincts of a housing estate, Billy’s group (a number of
whom armed with metal water pipes) ambushed a second group of youths seemingly led by Lo Shu Fat. As a
result of the ambush, a 17-year-old young man Wu Yu Hei of Lo Shu Fat’s group tripped and fell. He was then
set upon by Billy’s group, receiving multiple blows to his head from the metal pipes carried by his attackers.
Wu subsequently died of his injuries.
Following a jury trial, A1, A2, A4 & A5 were convicted of the murder of Wu while A3 was acquitted of
murder but convicted of manslaughter. A1, aged 18 at the time of the murder, received life imprisonment.
However, as A2, A4 & A5 were under 18, the judge sentenced A2 to 20 years’ imprisonment, A4 to 16 years’
imprisonment and A5 to 18 years’ imprisonment. A3, who was convicted of manslaughter, was sentenced to 5
years’ imprisonment.
Each of the Applicants sought leave to appeal his conviction. With the exception of A3, each also
sought leave to appeal the sentence imposed upon him.
Held, A3’s application for leave to appeal his conviction having been granted, his conviction was quashed and
the sentence of 5 years’ imprisonment set aside whereas all the other Applicants failed in their applications for
leave to appeal against conviction; each of their applications for leave to appeal against sentence was refused:
(1)
As A1 was 18 at the time of the offence, the only and mandatory sentence the court could impose is one
of life imprisonment. There being no merit in his application for leave to appeal against sentence, the Court of
Appeal refused leave for such application [186].
(2)
When considering the appropriate sentences in relation to A2, A4 & A5, even though their young age is
of grave concern to the court, it must not be forgotten that the courts have a duty to impose a sentence which has
both the punitive and the deterrent elements. Here, a group of persons – many armed with metal water pipes –
ambushed and set upon an unarmed rival group, brutally attacked and killed one of the youths who tripped and
fell while being chased. The attack was well-planned and took place within the precincts of a housing estate,
turning the place into a battle field. While the attack took place late at night, there might well have been passersby going about their lawful business who were affected by this shocking incident. In view of the circumstances
48
CCAB 2011
Sentence (Quantum) – Murder
of this case, a sentence severe enough to be both punitive and deterrent is warranted [197].
(3)
The participation of A2, A4 & A5 was not identical. In a nutshell, A2 armed himself with a metal pipe
and physically attacked the deceased, though not delivering any fatal blow; A4 did the reconnaissance and did
not take part in the actual attack; A5 chased the rival group while armed with a metal pipe, though there was no
evidence that he physically attacked the deceased [198]. Taking into account the different roles played by A2,
A4 & A5, the trial judge was of the view that the role played by A5 was less serious than that of A2, and that the
role played by A4 was less serious than that of A5. The different sentences imposed on A2, A4 & A5 properly
reflect their culpability [200].
Theft of “Incense Tree”
HKSAR v XIE JINBIN (謝錦彬)
謝錦彬
COURT OF FIRST INSTANCE
CACC 195/2010
Yuen JA, To J
Date of Hearing and Judgment: 19 January 2011
Date of handing down Reasons for Judgement: 28 January 2011
Counsel for the Respondent: Andrew Cheng PP
Counsel for the Applicant: Andrew Allman-Brown
Criminal sentencing – Applicant and three other mainlanders cutting tree – Theft of wood blocks of
“incense tree” of the endangered species Aquilaria sinensis – Value, quantity or weight not the only
considerations – Different considerations where stolen property involved protected endangered species –
Injury to the protected flora – Starting point of three years for theft of “incense tree” by mainlanders
cannot be faulted
刑 事 罪 判 刑 － 申 請 人 與 其 他 3 名 內 地 人 砍 伐 樹 木 － 偷 取 瀕 危 物 種 Aquilaria sinensis「 牙 香
樹」樹木－價植、數量或重量並非唯一考慮因素－贓物如涉及受保護瀕危物種有不同的考慮
因素－損害受保護植物－以3年為量刑起點判處偷取「牙香樹」的內地人並無犯錯
The Applicant and three other males were seen cutting a tree using tools at the hillside on Lamma
Island. They fled when police officers arrived to intercept them. The Applicant and two of the other males were
later found and arrested. The Applicant was carrying a saw and a wood block of about 8 inches in length in his
rucksack. There were also found in the rucksacks carried by the other two males an iron hoe, a knife and six
wood blocks of about 4 to 7 inches in length. The wood block found in the Applicant’s possession weighed
0.677 kilogram and the total weight of all the wood blocks was 1.181 kilograms. They were found to be of the
species Aquilaria sinensis, commonly known as “incense tree”. The Applicant and the other two males were
mainland residents who had come to Hong Kong on two way permits.
The Applicant and the other two males pleaded guilty to theft in the District Court. There was expert
evidence before the judge that “incense tree” was a vulnerable species and in danger. The sentencing judge
adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea. She then enhanced the
sentence by 25% pursuant to s 27(2) of the Organized and Serious Crimes Ordinance (Cap 455), making a total
term of imprisonment of two years and six months. The Applicant appealed against that sentence.
Held, appeal against sentence dismissed:
(1)
While the quantity of stolen goods in a case of theft is usually an important factor in determining the
appropriate sentence, it is not necessarily the only and determinative factor. In the ordinary cases of theft from
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Sentence (Quantum) – Theft of “Incense Tree”
supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected
endangered species, value or quantity or weight may be the only considerations. But where the stolen property
involved is a protected endangered species, the considerations are wholly different. The end which the law seeks
to achieve is protection of the endangered flora. Thus, the evil which the law seeks to prevent is not theft as such
but injury to the protected flora. The focus, therefore, should be on protection of the plant rather than the value
of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profitmotive, the manner of commission and the gravity of the offence [16].
(2)
A clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or
illegally, specifically for the purpose of exploiting protected and endangered flora for profit. A starting point of
three years for extraction of wood from an “incense tree” by mainlanders could not be faulted [17].
(3)
Though only 1.181 kilograms of “incense tree” was recovered from the Applicant and the codefendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the
offence. The Applicant is not to be punished only according to the weight of the wood block he has stolen, but
according to the enterprise he and the other three offenders had collectively participated in and the seriousness of
the offence. The Applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit
the endangered flora for profit. The offence is one which calls for deterrence. Weight is therefore not the
determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury
caused to the tree [23].
Town Planning
香港特別行政區訴鄧金大及其他人
高等法院原訟法庭
HCMA 572/2010
原訟法庭暫委法官陳慶偉
聆訊日期： 2010年11月18日
裁決日期： 2010年12月31日
答辯人代表律師：檢控官吳穎軒
上訴人代表律師：陳永豪
刑罰─沒有遵從規劃署強制執行通知書
章 《 城市規劃條例》
條 ─ 罰款金額
刑罰 沒有遵從規劃署強制執行通知書─香港法例第
沒有遵從規劃署強制執行通知書 香港法例第131章
香港法例第
城市規劃條例 》 第 23(6)條
($30,000至
至$100,000不等
不等)是否明顯過重或違反原則
不等 是否明顯過重或違反原則
各上訴人在裁判法院承認一項「沒有遵從規劃署強制執行通知書」罪，即未有按規定終止將一幅
土 地 作 儲 存 及 修 理 貨 櫃 的 用 途 ， 違 反 《 城 市 規 劃 條 例 》 第 23(6) 條 ； 當 中 八 名上訴人各被判罰款
$30,000；一名上訴人被判罰款$60,000，另外三名上訴人則各被判罰款$100,000。各上訴人就刑罰提出
上訴。
裁決，上訴駁回；
裁決
(1)
裁判官在處理各上訴人的罰款金額時，只以各上訴人有一次相同紀錄作考慮 (而事實上部分的上
訴人有多次相同的紀錄)；罰款的金額僅是最高罰款額的 3%至 10%；裁判官亦沒有就每日的違反處以罰
款，實屬非常寬大的處理[7]。
(2)
此等案件純是經濟上的犯罪；要阻止土地擁有人將土地違規改作其他用途的最有效方法，便是
剝奪他們從更改土地用途中取得的得益。就此，控方有責任協助裁判官作出適當的量刑。當日後處理此
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CCAB 2011
Sentence (Quantum) – Town Planning
等案件時，控方應向裁判官提供資料，顯示原有土地用途與違規土地用途每月每呎租金上的差額。若控
方能在調查過程中取得租客繳付的租金資料，這當然最好不過。若未能取得的話，此等租金上的分別理
應可從差餉物業估價署取得。若規劃署曾批出許可予更改土地用途的人士，控方亦可一併提供政府收取
此等費用的數據予裁判官考慮。此等案件判刑的首要考慮是要剝奪非法更改土地用途的得益，另外亦需
加上一定懲罰，以阻嚇以身試法的人士[8]。
(3)
除了上述釐訂基本罰款金額的基礎外，裁判官亦應考慮其他加重/減低刑罰的因素，這包括：
-
對環境的影響：包括對附近居民生活的影響；景觀上的障礙；噪音的增加；空氣質素的
下降；道路交通流量的上升；水源、泥土的污染；動植物生態環境的負面影響；
過往相同的紀錄；
過往同一幅土地的相同紀錄；
若裁判官不打算就每日的違反作出罰款，則需考慮違規時間的長短；
事後有否補救措施；
事後有否獲批更改土地用途的臨時許可/許可等。
日後罰款金額的釐訂理應更具理性(rational)及邏輯性(logical)[9]。
(4)
各上訴人被控是次違規的情況長達年半(563 天)，實際的日子可能更遠超此數。土地被改作貨櫃
修理/儲存工場，其內更儲存風煤樽等危險物品，各上訴人理必全然知悉 [10]。現今的香港，社會大眾對
城市規劃、環境保育的意識日益加強，法庭亦有責任對純因一已私利公然違反法律的人士頒布更具阻嚇
力的刑罰。就本案情況而言，裁判官就各上訴人所判處的刑罰原則上無犯錯，罰款金額亦絕非過高
[11]。
[English Digest of HCMA 572/2010 above]
HKSAR v TANG KAM TAI & ORS
COURT OF FIRST INSTANCE
HCMA 572/2010
Deputy Judge Andrew Chan
Date of Hearing: 18 November 2010
Date of Judgment: 31 December 2010
Counsel for the Respondent: Hermina Ng PP
Counsel for the Appellant: Charles Chan
Sentence – Failure to comply with Enforcement Notice of the Planning Department – Section 23(6) of the
Town Planning Ordinance (Cap 131) – Whether fines (ranging from $30,000 to $100,000) manifestly
excessive or contrary to principle
Each of the Appellants pleaded guilty at the Magistracy to one charge of “failure to comply with an
enforcement notice issued by the Planning Department”, namely, failing to discontinue the use of a piece of land
for the storage and repair of containers as required by the notice, contrary to s 23(6) of the Town Planning
Ordinance. Eight of the Appellants were each fined $30,000. One was fined $60,000 while the other three were
each fined $100,000. They appealed against sentence.
Held, appeal dismissed:
(1)
In determining the amount of the fines, the magistrate merely took into consideration that all the
Appellants had one similar conviction record (when in fact some of the Appellants had a number of similar
convictions). As the fines were merely 3% to 10% of the maximum penalty and no daily fine was imposed by
the magistrate, the sentences were already very lenient [7].
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CCAB 2011
Sentence (Quantum) – Town Planning
(2)
This case involved a purely economic crime: the best way to deter land owners from unauthorized use of
land was to deprive them of any financial gain they obtained from changing the land use. In this regard, the
prosecution had the duty to assist the magistrate to impose an appropriate sentence. When dealing with this kind
of cases in the future, the prosecution should provide the magistrate with information regarding the difference in
rent (per month per square feet) between the original and unauthorized land use. It would be best if the
prosecution could obtain information on the rent paid by the tenant in the course of investigation. If not, such
difference in rent could supposedly be obtained from the Rating and Valuation Department. If the Planning
Department had granted permission to people to change the land use, the prosecution could also provide the
magistrate with the data of the charges collected by the Government. The primary consideration for sentencing
in this kind of cases is to deprive the land owner of financial gains from illegal change of land use and to impose
a punitive sentence so as to deter people from committing such offences [8].
(3)
Apart from the above basis of determining the amount of the fines, the magistrate should also take into
account other aggravating/mitigating factors including:
-
-
environmental impact: including the impact on the lives of nearby residents; obstruction to views;
increase in noise pollution; deterioration in air quality; increase in traffic flow; water and soil
contamination; adverse effects on animals and plants in the ecosystem;
previous similar record;
previous similar record in relation to the same piece of land;
if the magistrate did not intend to impose a daily fine for the contravention, he should take into
account the duration of breach;
any remedial measures taken;
whether temporary permission/permission to change the land use was subsequently granted, etc.
In the future, the determination of the amount of the fines should be more rational and logical [9].
(4)
The duration of breach by each of the Appellants was as long as one and a half years (563 days). The
actual number of days might have far exceeded that. The Appellants should be fully aware that the land had
been used as container storage and repair depot and dangerous goods such as gas cylinders were stored inside
[10]. In today’s Hong Kong, there is a heightened social awareness and concern about town planning and
environmental protection. The court has a duty to impose a deterrent sentence on those who for their personal
selfish gains blatantly flouted the law. In the circumstances of this case, the sentences imposed on the
Appellants by the magistrate were neither wrong in principle nor the fines excessive [11].
52