Sentence (Quantum) Affray
Sentence (Quantum)
Affray
CA 208 210/89
NGUYEN Van Duong
LE Van Luong
Silke V-P, Hunter, Penlington JJA (7.11.89)
*D Pang
#N Mitchell
(A) Affray - Inside Vietnamese detention camp - Sentence
(The offence was premeditated in origin but later took on a degree of spontaneity. Some 100 persons were
involved and it lasted for 15 minutes. 16 were injured though none seriously. The Defendants pleaded guilty
and showed genuine remorse.)
1. Affray is an offence under the Common Law in Hong Kong and carries a maximum of 7 years'
imprisonment (s. 90, Cap. 1).
2. It is proper that sentences for affray in the detention camps be custodial and deterrent.
3. In arriving at the right sentence, however, consideration for the safety of the Correctional Services
Department officers must be balanced with the Boat People's conditions of confinement and lack of prospects
- and with any other substantial mitigating factors.
4. In the circumstances of the present case, 2 1/2 years would have been appropriate.
(B) Voluntary repatriation - Whether a factor for consideration in sentence
That a convicted Boat Person has applied for voluntary repatriation is not a factor to be considered by the
Court in arriving at a sentence.
Result - Appeal against sentence of 3 years allowed. 2 1/2 years substituted.
**********
AR 13/90
NGUYEN Ngoc-cuong others
Silke V-P, Power, Penlington JJA (29.4.92)
*I G Cross, QC, W S Cheung
#A Sedgwick QC, J McLanachan
Riot in Vietnamese refugee camps/Guidelines on sentence
Held :
(1) When sentencing for this type of public order offence emphasis is properly placed on the necessity for
deterrence and the prevention of a repetition : YIM Tak-wai v R [1967] HKLR 460 approved;
336
Sentence (Quantum) Affray
(2) The court has to pay regard to the level of violence used, the scale of the riot or affray, the extent to which
it is premeditated, or on the other hand spontaneously arises, and finally the number of people engaged in its
execution : Pilgrim (1983) 5 Cr. App. R. (S) 140;
(3) One of the principal objects of the criminal law in any civilized society is to prevent people taking the law
into their own hands;
(4) In the light of the general guidance given as to sentencing for the offence of unlawful affray, which carries
a maximum of 7 years imprisonment, in R v NGUYEN Van-dhong and others CAs 204, 208, 210/1989, the
sentence for riot, which is punishable with up to 10 years imprisonment, should be punished with 5 years;
(5) A clear record is something which does not prevent a sentence being a deterrent one.
Result - The sentences of 9 months imprisonment were manifestly inadequate. No orders made.
************
337
Sentence (Quantum) Arms/Ammunition
Arms/Ammunition
AR 2/88
JIM Chong-shing
Fuad V-P, Macdougall JA, Jones J (20.9.89)
*I G Cross, W S Cheung
#W Howard QC B Van Buuren for Respondent
A Sedgwick QC, A Hoo N Sarony for Bar AssociationA Bell as Amicus Curiae
(A) Illegal possession of firearms and ammunition - S. 13, Cap. 238 -Sentence
For this offence, a proper sentence, after trial, is in the region of 9 years.
Result - Application for review of sentence of 5 years for illegal possession of arms and ammunition allowed.
That sentence, after trial, was manifestly inadequate. 8 years substituted.
***********
AR 8/89
CHAN CHI Mei-wah
Cons, Silke V-VP, Kempster JA (22.9.89)
*I G Cross, G Forlin
#B Chainrai
(A) Illegal possession of firearms and ammunition - S. 13, Cap. 238 - Sentence
1. 6 years' imprisonment, on a plea of guilty, is usually the proper sentence for an offence contrary to s. 13,
Cap. 238.
(LI Kit-wai, [1988] 2 HKLR 286, applied)
2. The Courts must be alert to the danger that unlawful owners of firearms will entrust them for safekeeping to
those who, if apprehended, are likely to arouse sympathy.
(LAM Hak-hung, CA 724/72, considered)
3. In the balance which the court has to make between the mitigating factors and the need to deter persons
from accepting possession of unlawful guns, particularly when loaded, the mitigating factors can carry little
weight.
Result - Application for review of sentence
(a) allowed due to its manifest inadequacy (a) Illegal possession of
a)
firearm : 2 years
(b) Illegal possession of
b)
ammunition : 1 year
Sentence of 2 years increased to 4 years. 4 years in toto.
**************
338
)
)
concurrent
Sentence (Quantum) Arms/Ammunition
AR 5/89
SIU Kam-shing
Cons Ag CJ, Power, Macdougall JJA (11.8.89)
*I G Cross, P Li
#G J X McCoy
(A) Possession of imitation firearm - S. 20(1), Cap. 238 - Sentence
(1) A prison sentence is normally appropriate for this offence.
(2) By virtue of ss. 109B and 109G of the Criminal Procedure Ordinance and the Third Schedule thereto, such
a sentence cannot be suspended.
Result - Application for review allowed. Suspended sentence set aside and substituted by such term of
imprisonment as would have effected the Respondent's immediate release had he not been incarcerated for
another offence.
***********
MA 1258/88
TONG Yuen
Fuad V-P, Hunter, Power JJA (13.4.89)
*I G Cross, W S Cheung
#A King i/s DLA
Possession of imitation firearm - S. 20, Firearms and Ammunition Ordinance, Cap. 238 - Sentencing
powers of Magistrate under s. 20(2), Cap. 238 - Sentencisng powers of Magistrate generally
(Certain questions of sentencing procedure were referred by Duffy J. to the Court of Appeal for determination
pursuant to s. 118(1)(d), Cap. 227)
(1) A person convicted of this offence is liable to 7 years imprisonment in the Magistracy, notwithstanding
that it is summary, if he has been convicted of a scheduled offence or any offence in cap. 238 within the
previous 10 years - S. 20 (2), Cap. 238.
(2) There is no maximum sentencing term imposed on a Magistrate, in the Magistrates Ordinance, Cap. 227,
for summary offences. The penalty for a summary offence is to be found in the Ordinance creating the
offence. The maximum sentence for an indictable offence tried summarily is, however, 2 years by virtue of s.
92, Cap. 227.
(3) S. 20(2), Cap. 238, supercedes s. 57, Cap. 227 on the matter of the Magistrate's sentencing jurisdiction.
(4) A permanent Magistrate has power to pass a sentence exceeding 2 years for a single offence triable
summarily in certain circumstances.
(5) The statement of offence should specify the subsection under which the offence is punishable.
(6) A mathematical approach to sentencing is to be avoided in computing sentence under s. 20(2), Cap. 238.
Result - Matter remitted to Duffy J. who allowed the appeal against sentence of 21 months to effect the
Appellant's immediate release.
***********
339
Sentence (Quantum) Arms/Ammunition
AR 14/88**
TAM Kwok-chuen
Silke V-P, Power, Penlington JJA (13.1.89)
*I G Cross, W S Cheung
#S Ma
AG's review of sentence - Possession of a firearm and ammunition
2. 6 years after plea is an appropriate sentence for possession of a firearm and ammunition.
Result - AG's review allowed;
- Sentence increased from 3 years to 5 years.
**************
CA 331/88**
CHAK Shui-chung
Silke V-P, Power JA (13.1.89)
*D S Kilgour
#M Poll i/s DLA
Possesson of explosives - Possession of a firearm w/o licence - Injuries sustained at the time of the
offence - Loss of both arms - Sentence
1. Generally, injuries sustained at the time of the offence is not a relevant mitigating factor.
2. The fact that the appellant has lost both arms (as a result of the explosion occasioned by his possession of
explosives) constitutes an exception - 5 years is sufficient to reflect his criminality and public condemnation.
(R. v. Newton [1983] 4 Cr. App. R(S) 388 confirmed)
Result - Appeal against sentence allowed to the extent that 7 years for Possession of explosives reduced to 5
years; 4 years for Possession of a firearm w/o licence, concurrent, upheld.
***************
CA 553/89
WONG Shing-tung
Silke V-P, Kempster, Macdougall JJA (24.5.90)
*I G Cross QC, W S Cheung
#I/P
Sentence/Possession of firearms with intent to commit robbery/8 years
On appeal against a sentence of 8 years imposed after plea for possession of firearm with intent to commit
robbery, contary to S. 18, Cap. 238.
Held :
340
Sentence (Quantum) Arms/Ammunition
(1) 8 years after plea is not excessive;
(2) The guidelines for firearm sentencing prescribed in AG v JIM Chong-shing [1990] 1 HKLR 131, only
apply to an offence of simple possession of a firearm, contrary to S. 13, Cap. 238, (Maximum penalty : 14
years). They do not apply to an offence of possession of a firearm with intent to commit an arrestable offence,
contrary to S. 18, Cap. 238.
Result - Appeal dismissed
************
CA 522/89
WONG Kwai-pui
Yang CJ, Silke V-P, Macdougall JA (5.6.90)
*D G Saw
#P Nguyen
Sentence - Possession of firearm and ammunition - Approach in sentencing - Totality of sentence
Held :
1. The proper sentence on a plea of guilty for simple possession of a gun would be 6 years' imprisonment.
Where there is an intent to use the gun for an unlawful purpose a sentence in excess of 6 years is appropriate.
(AG v LI Kit-wai [1988] 2 HKLR 286 applied; AG v LAI Shu-piu, AR 12/85 considered)
Result - Appeal allowed. 11 years' imprisonment reduced to 9 years.
*************
CA 503/89
CHEUNG Hon-kwong
Cons Ag CJ, Clough JA, Barnes J (14.8.90)
*A Duckett QC, Ida Cheung
#M Poll
Sentence/Arms offences
Having pleaded guilty to these four charges, the applicant was sentenced as follows :
(1). Shooting with intent to resist lawful apprehension - 9 years imprisonment;
(2)(3)(4). Possesssion of arms - 6 years concurrent imprisonment on each. These sentences were ordered to
run consecutively to the 9 years - 15 years in toto. On appeal :
Held :
The effective sentence of 15 years imprisonment was justified because of the very serious offences committed
by an offender with a bad record. The shooting offence carries a maximum penalty of life imprisonment.
Although no one was injured or killed, the public and police officers were undoubtedly put in peril. Albeit
341
Sentence (Quantum) Arms/Ammunition
that the applicant had pleaded guilty and assisted police, the predominant public interest was that such serious
offences should receive a deterrent effective sentence of the magnitude imposed.
Result - Application dismissed.
**************
CA 225/90
LEE Wai-man
Yang CJ, Silke V-P, Power JA (14.11.90)
*C Coghlan
#I/P
Armed robbery/Firearm used/Mitigating features
Held :
(1) Illegal immigrants who commit armed robberies must face severe punishment. They must be deterred;
(2) The effect of the guilty plea at the first opportunity was weakened as the applicant was caught red-handed;
(3) Albeit that the applicant was only aged 17, ten years' imprisonment for an armed robbery in a restaurant,
and 5 years concurrent for possession of a firearm, was nonetheless on the lenient side.
Result - Application for leave to appeal against sentence refused.
************
CA 503/89
CHIU Shut (A3)
Cons Ag CJ, Clough JA, Barnes J (20.11.90)
*A Duckett QC, I Cheung
#Cheng Huan QC, S Au
Possession of a firearm/Effect of mitigation
Held :
1. As the applicant had pleaded not guilty to possession of a firearm, the judge was right to take 6 years as his
starting point;
2. Despite the gravity of the offence, leniency can still be exercised, and the guidelines departed from, if there
are special mitigating circumstances;
3. As the applicant acted under the influence of a man with whom she was infatuated, the judge was right to
show her a degree of leniency;
4. Even allowing for all mitigation, the public interest requires a sentence of at least 5 years imprisonment.
Result : Application for leave to appeal against a sentence of 5 years imprisonment refused.
342
Sentence (Quantum) Arms/Ammunition
CA 261/90
TAM Sum-lam
Silke V-P, Power Macdougall JJA (6.3.91)
*J Reading
#I/P
Robbery/Firearms carried/Discount
The applicant pleaded guilty to two counts : robbery and possession of firearms at the time of committing a
robbery. He received eleven years imprisonment on each, concurrent. On appeal :
Held :
The trial judge was right to arrive at a starting point of 13 years by taking 10 years as the starting point for a
robbery using but not firing a firearm and adding three years thereto on account of the aggravating factors.
The deduction of two years for a late plea of guilty was adequate in the circumstances. Application for leave
dismissed.
************
CA 330/91
HO Chun
Silke V-P, Power, Macdougall JJA (15.11.91)
*T Casewell
#I/P
Possession of arms and ammunition/S. 13, Cap. 238/Guidelines revised upwards
(1) The Court has previously stated that, after a guilty plea, a proper sentence for possession of arms or
ammunition, contrary to S. 13, Cap. 238, is at least six years;
(2) However, in the light of the spate of robberies now taking place in Hong Kong and in which the use of
guns is involved, trial judges could well consider an upward revision of that "at least six years" guideline.
After a guilty plea, the Court would be unlikely to interfere with sentences of at least eight years
imprisonment;
(3) Those who are minded to hold guns in safekeeping, or for any other purpose, must be made aware that
they will face a considerable period in prison.
Result - Application for leave to appeal out of time against a sentence of ten years imprisonment, imposed
after trial for possession of arms and ammunition, refused.
************
CA 520/91
CHOW Chun-fat
343
Sentence (Quantum) Arms/Ammunition
Silke V-P, Macdougall JA (4.6.92)
*W S Cheung
#I/P
Possession of arms and ammunition/6 years imprisonment
Held :
A sentence of 6 years imprisonment imposed after a guilty plea to possession of a firearm and 30 rounds of
ammunition, was entirely proper at the time it was passed. The tariff has since been revised to one of at least
8 years imprisonment : HO Chun CA 330/91.
Result - Application dismissed.
344
Sentence (Quantum) Arson
Arson
MA 173/91
YEUNG Sui-fat
Bewley J (15.5.91)
*D Saw
#J Hemmings
Minor arson/Starting point
Held :
For a minor offence of arson, caused recklessly by a man who had been drinking and who pleaded guilty, a
starting point of two years imprisonment was too high.
Result - Appeal allowed. 18 months reduced to 6 months.
**************
345
Sentence (Quantum) Assault/Wounding
Assault/Wounding
AR 11/92
CHAN Cheung-yip
Litton JA, Mortimer, Sears JJ (18.11.92)
*I G Cross QC, W S Cheung
#J Mullick
'Clang of the prison gates'/Applicability/AOABH
Held :
(1) As the offence was one of violence, and as the Respondent had numerous previous convictions and was no
stranger to prison, the trial judge erred in principle in adopting a 'clang of the prison gates' approach - that is
to say, a short sentence of imprisonment on the basis that this would provide a salutary lesson and help him to
mend his ways. That approach was wholly inappropriate;
(2) As the offence of AOABH occurred during a general attack, it was open to the judge to order that the
sentence imposed for that offence run concurrently to that imposed for the wounding of the other victim;
(3) Three months imprisonment for an offence of AOABH, imposed after trial, was grossly inadequate. It was
an unlawful attack upon a defenceless female which caused her actual bodily harm.
Result - AG's application allowed. Sentence of 3 months' imprisonment set aside and substituted with 6
months.
*****************
CA 344/89
CHEUNG Wai-wah
Silke CJ (Ag), Kempster JA (1.2.90)
*I G Cross, A Kwok
#I/P
S. 19 wounding - Sentence
The 15 months' imprisonment for an offence of Unlawful Wounding, contrary to s. 19, Cap. 212, imposed
after a guilty plea upon a defendant who inflicted minor injuries on a fellow prison inmate after a dispute, and
who had a bad criminal record for violence, was, if anything, too lenient.
Result - Leave to appeal against sentence refused.
**************
MA 1255/89
CHEUNG Man-shun
Wong J (16.11.89)
346
Sentence (Quantum) Assault/Wounding
*S Wong
#P Nguyen
S. 19 wounding - Sentence
For a s. 19 wounding which involves striking someone with a glass bottle, 12 months is an appropriate starting
point.
Result - Appeal against sentence of 6 months allowed. Reduced, as an act of mercy, to a term which enabled
the appellant's immediate release (nearly 3 months).
**************
CA 244/89
NGUYEN Quang Thong
Silke V-P, Hunter, Penlington JJA (7.11.89)
*D Pang
#M Murray
(A) S. 17 wounding - Inside Vietnamese detention camp - Sentence
1. If there is a rule of sentencing practice that a deterrent sentence should not be passed on a man with a clear
record, there are exceptions and an offence against public order is one of them.
(Mark Anderson other [1985] 7 Cr. App. Rep. (S) 210, considered)
2. Where offences of this nature happen inside a detention camp, where tension is considerable and tempers
heightened, the Courts are required, in considering the appropriate sentence in comparatively serious cases, to
emphasize the necessity for the maintenance of control.
3. If, however, the injuries are at the lower end of the scale, 3 years, after trial and without mitigation, would
be appropriate.
(B) S. 17 wounding - Sentence generally
Unless there are unusual matters of mitigation, sentences in s. 17 wounding cases should normally be
custodial; that is so even for those of youthful age.
(SIN Wai-lun [1988] 1 HKLR 580, considered)
Result - Appeal against sentence of 3 1/2 years allowed. 2 years substituted.
************
CA 52/89
Gordon HUTHART
Yang CJ, Hopkinson, Barnett JJ (12.5.89)
*I G Cross, C Fung
#G Rodway QC, G Alderdice
(A) AOABH - Doing an act tending to pervert the course of public justice - Sentence - 18 months in toto
(6 months for AOABH and 18 months for perverting the course of justice concurrent)
347
Sentence (Quantum) Assault/Wounding
(1) Where an offence occurs, and there is then an attempt to pervert the course of public justice, in relation to
the victim of that offence, then there are two separate and distinct offences which merit consecutive sentences.
(2) Any attempt to prevent the administration of justice taking its due course is an extremely grave matter.
After trial, 2 years' imprisonment would be an appropriate starting point.
(3) Taking into account the pleas of guilty and the Applicant's deplorable state of physical and mental health
when the offences occurred, a discount of one third, resulting in a sentence of 16 months, would be proper.
(B) Remission - Whether relevant in sentencing
Turner (1966) 51 Cr. App. R. 72, shows the court can take likely remission into consideration, in sentencing,
when it is primarily concerned with reform or treatment and is anxious that the offender should not be kept in
prison longer than the treatment warrants.
Result - As the Court of Appeal does not tinker with sentences, leave to appeal against sentences of 18
months was refused.
**************
MA 171/89**
WONG Fong-shing
Bewley J (4.5.89)
*A Bruce
#A Macrae
Common assault - Hawker on U.S.D. officer - Sentence
(1) Hawkers who assault U.S.D. officers must expect to go to prison, as it is in the public interest that these
incidents are deterred.
(2) 1 month's imprisonment is perfectly justified.
Result - Appeal against sentences of 1 month's imprisonment for each of 2 counts of common assault,
concurrent, dismissed.
***********
CA 473/88**
CHAN Chi-lun
Silke V-P, Power, Penlington JJA (7.4.89)
*I G Cross, W S Cheung
#G Plowman
Throwing corrosive acid with intent - Sentence
(1) With such offences, whether the injuries are serious or minor is of little significance to sentence.
(2) The fact that such an act occurs in revenge is no mitigation.
(3) 12 years as a starting point for this offence is not on the high side.
348
Sentence (Quantum) Assault/Wounding
(4) When sentencing, deterrence must loom large, and youth cannot be a ground for not imposing a long
prison term.
Result - Leave to appeal against sentence of 8 years refused.
*************
MA 1609/88
LI Kwok-cheung
Duffy J (9.3.89)
*M Sin
#C H Chan i/s DLA
S. 19 wounding - 18 months consecutive to existing sentence of 15 months - Co-accused separately tried
- 3 months concurrent to existing sentence of 6 years - Disparity
While the sentence for the co-accused can fairly be described as ridiculously lenient and 18 months for the
Appellant is in no way inappropriate, the Appellant's sense of grievance created by the disparity is justified.
Result -Appeal against sentence allowed. 18 months imprisonment reduced to 9 months.
*************
CA 540/88**
SZETO Chung-cheung
Silke V-P, Hopkinson J (3.3.89)
*I G Cross
#I/P
Burglary - A.O.A.B.H. - Sentence
Those with bad criminal records can expect little discount even when they plead guilty.
Result - Appeal against sentence (Burglary - 3 years and 3 months; A.O.A.B.H. - 3 months consecutive)
totalling 3 years and 6 months dismissed.
- 60 days loss of time ordered.
************
CA 521/88**
WONG Wing-ching
Silke V-P, Macdougall JA (19.1.89)
*I G Cross, Miss P Lee
#P Tse
349
Sentence (Quantum) Assault/Wounding
S. 19 unlawful wounding - Attempting to take a conveyance w/o authority - Tempering with a vehicle Mitigating factors - Criminal Records - Concurrent sentences
1. The allowance should be made in sentencing to a defendant who voluntarily surrenders to police - also to
assistance to police in recovering the proceeds of the theft in which he earlier participated.
2. A bad criminal record, while not increasing sentence, reflects on the discount to be attached to a plea of
guilty.
3. When offences arise out of the same incident then the sentences should be concurrent.
4. 4 months imprisonment for a man convicted on his own plea of a s. 19 wounding on a police officer is very
much on the low side.
Result - Leave granted but appeal against sentences of 4 months each consecutive (1 year in toto) dismissed.
************
MA1507/88**
TANG Kai-lam
Bewley J (23.12.88)
*S Wong
#R Forrest
Assault occasioning actual bodily harm - Sentence
6 months for a vicious attack (rendering the victim unconscious) committed by the appellant (together with
10 odd people surrending the victim) who was not a first offender is not manifestly excessive.
Result - Appeal against sentence of 6 months dismissed.
************
CA 421/89
CHAN Kin
Cons Ag CJ, Silke V-P, Macdougall JA (4.9.90)
*I G Cross QC, W S Cheung
#A. Allman-Brown
S. 17 Wounding/Hospital Order S. 45, Cap. 136/Practice and Procedure
The defendant, having pleaded guilty to two counts of Wounding with Intent, was diagnosed by two
psychiatrists as a schizophrenic. Although he knew what he was doing, and that it was wrong, he was
probably under the influence of his illness at the time of the offences. He was fit to plead. The Judge
imposed a hospital order, pursuant to S. 45, Cap. 136. As the doctors could only opine that treatment would
take "at least two years", no time limit was placed upon the order.
On appeal, it was submitted that the hospital order should be discharged, that a fixed prison term was
required, and that, since the defendant knew what he was doing, punishment was imperative.
Held :
350
Sentence (Quantum) Assault/Wounding
1. An order under section 45, Cap. 136, is made for the protection of the public and in the interests of the
offender : TSUI Chung-leung Cr.App. 414/79;
2. Although the offender was aware of what he was doing, it did not follow that punishment was imperative :
(Morris [1961] 2 Q.B. 236, distinguished);
3. It was proper that the hospital order be for an unspecified term, unless the psychiatrists concluded that the
offender could safely be released within a specific time;
4. As the offences involved violence, the protection of the public was the paramount consideration, and, as the
circumstances did not warrant imprisonment, the hospital order was proper.
Result : Application for leave to appeal against sentence dismissed.
***********
AR 1/91
CHENG Yau-leung
Fuad V-P, Penlington, Macdougall JJA (4.6.91)
*D G Saw, #H Y Wong
Assault with intent to rob/Victim alone in lift/Discount on review
Held :
(1) Where there is an assault with intent to rob, involving a violent attack by more than one man upon a lone
woman in a lift, who thereby sustained injury, a sentence of four years imprisonment would have been proper
after a guilty plea : MO Kwong-sang [1981] HKLR 610, WONG Sai-cheong AR 1/85, WONG Wai-por
Cr.App. 464/85, LUANG Po-chuen Cr.App. 107/87, and SHEK Sui-tai [1989] 1 HKLR 178 considered;
(2) A discount can properly be considered if a respondent is very close to the end of his sentence : AG v
WONG Kwok-wai AR 16/1990 applied.
Result - AG's application allowed. One year of imprisonment substituted with 3 1/2 years.
*************
AR 13/91
TAM Tung-sing
Yang CJ, Silke V-P, Power JA (18.2.92)
*A Bruce
#A Macrae
Wounding with intent/Gang attack/Victim's fingers amputated
Held :
(1) Where a defendant participated in an armed attack, in consequence of which the victim sustained multiple
injuries and had to have two fingers amputated, an appropriate starting point would have been 9 years
imprisonment;
351
Sentence (Quantum) Assault/Wounding
(2) The public interest, which requires the courts to impose sentences which will deter like minded persons,
must be given superior consideration in such cases :
R v CHAN Chi-wai AR 17/1983.
Result - AG's application allowed. 3 years imprisonment substituted with 5 1/2 years.
*************
CA 335/91
NGUYEN Thang-loi
Yang CJ, Silke V-P, Power JA (20.2.92)
*A Bruce
#M Poll
Serious wounding/Victim blinded
Held :
Where a man wounded with intent a woman with whom he was cohabiting by repeatedly stabbing at her right
eye, causing blindness in that eye, seven years imprisonment imposed after trial was not excessive.
Result - Application for leave to appeal dismissed.
***********
ARs 11 12/91
LAU Ching-yau, WU Si-ping
Silke V-P, Penlington JA, Barnett J (11.3.92)
*A P Duckett QC, Y Mahomed
# G McCoy
S. 17 Woundings/Relevance of English materials/ Premeditation/Discounts
Held :
(1) As LAU committed a violent attack upon his wife, deterrence to others must be a consideration in
determining the quantum of sentence;
(2) LAU was not the type of offender in respect of whom the "Clang of the prison gates" principle would be
effective, and materials prepared by the Home Office for English sentencing courts had little, if any, relation
to the sentencing mores of Hong Kong;
(3) Each case must relate to its own facts and be considered in the light of those facts and in the light of the
particular offender and the offence;
(4) As both offences were premeditated - WU, for his part, had violently attacked a fellow employee who had
bullied him - this was a major factor for the consideration of the court;
(5) Discounts can be granted on review where the respondent is very close to the end of his sentence, or where
the sentence imposed upon review was greatly in excess of the original sentence : AG v WONG Kwok-wai
[1991] 2 HKLR 384;
352
Sentence (Quantum) Assault/Wounding
(6) LAU, who had been sentenced to a period of 1 years imprisonment should have received 3 years;
(7) WU, who had been sentenced to 1 years imprisonment, should have received 4 years.
Result - AG's applications allowed. LAU's sentence for s. 17 wounding with intent increased to 2 years;
WU's sentence for s. 17 wounding with intent increased to 3 years.
**********
CA 241/91
WONG Kin-kwok
Penlington, Nazareth JJA, Kaplan J (9.4.92)
*C Coghlan, #J Pow
Claiming to be MOTS/AOABH
Held :
(2) A serious offence of AOABH can properly be visited with 18 months imprisonment.
Result - Application for leave to appeal against concurrent sentences totalling 2 1/2 years imprisonment
dismissed.
*********
353
Sentence (Quantum) Blackmail
Blackmail
CA 182/92
LEE Keng-kwong
Yang CJ, Power, Litton JJA (22.10.92)
*D G Saw, #H Mughal
Blackmail/Threats implicit in triad terminology
Held :
Any triad threat contains an implied threat of violence that triad retribution will be wreaked upon the victim if
he does not comply. Victims undoubtedly understand and are meant to understand that such a threat is
implicit in the words that were spoken and because of this are prepared to make payment to the blackmailer.
Result - Applications for leave to appeal against sentences totalling 2 years and 9 months for blackmail, etc.,
dismissed.
****************
CA 40/89**
WONG Yeu-kai
Yang CJ, Silke V-P, Power J (24.10.89)
*I G Cross, P Lee, #R Murray
Blackmail - Well-known and wealthy persons - Sentence
(Threats were made to harm a rich man and his son if $3.5 m was not paid. After a guilty plea, the judge,
having taken his starting point as 7 years, imposed 5 years.)
It is necessary to introduce an element of deterrence in such cases, having regard to the vulnerability of wellknown and wealthy persons.
Result - Leave to appeal against sentence of 5 years' imprisonment refused.
*************
CA345/89**
WONG Ka-po
Silke CJ (Ag), Kempster JA, Hooper J (16.1.90)
*I G Cross, D Pang, #A Bell
Blackmail and robbery of prostitute by minders - Sentence
Where a prostitute is detained by her minders, frightened and beaten, then, albeit that no weapons are used, 3
years, after trial, is not excessive., (YAU Kwok-tung [1987] HKLR 782, considered)
354
Sentence (Quantum) Blackmail
Result - Leave to appeal against sentences of 3 years in toto (2 years for Blackmail and 3 years for Robbery
concurrent) refused.
***********
AR 8/90
POON Kam-shing
Silke V-P, Power, Macdougall JJA (10.8.90)
*I G Cross QC, E Chan
#E Kwok
Blackmail/Sentence/Victim company's products threatened with contamination
Facts :
The respondent pleaded guilty to blackmail and received five months imprisonment. He admitted having
demanded $300,000 from a soft drinks company, coupled with the threat that, if not paid, contaminated soft
drinks would be placed in the markets. Upon arrest, police recovered five drink packets containing one to two
millilitres of concentrated hydrochloric acid - injection of more than one millilitre can be fatal. The AG
sought a review of the sentence as it was manifestly inadequate.
Held :
1. In a blackmail case, general deterrence is perhaps the most important consideration when sentencing, only
just after the question of punishment : Hadjou [1989] Crim.L.R. 390, approved;
2. It was unfortunate that the Judge's attention had not been drawn to the dicta of Barnes J in R v LAU Kwokhong HC 109/85, wherein it was stated that, for two related offences, (similar to the instant case), a totality of
nine years was an appropriate starting point;
3. Offences of this nature are heinous, can cause grave public disquiet, and enormous damage to the company
concerned;
4. Even for a minor blackmail offence, five months was clearly inadequate;
5. It was somewhat unusual that the case was brought in the District Court;
6. In all the circumstances, including the District Court venue, six years would have been warranted for this
offence.
Result - Application allowed. Five months imprisonment set aside, and substituted with five years.
************
MA 825/90
CHAN Lai-wah
Cons Ag CJ (16.8.90)
*J Reading
#P Dinan
Consecutive Sentence - blackmail
355
Sentence (Quantum) Blackmail
Held :
2. However, on the totality principle, 27 months imprisonment was not manifestly excessive.
Result : Appeal dismissed.
*************
CA 2/91
WONG Sik-yuen
Silke V-P, Penlington, Macdougall JJA (21.8.91)
*R Daley
#I/P
Blackmail of food company/Haemophiliac suffering from Aids
Held :
(1) Where a blackmailer threatened to poison the products of a food company, unless he was paid $500,000, a
sentence of four years imprisonment is not excessive;
(2) This type of threat is one which is both difficult to detect and, if successful, likely to lead to a proliferation
of such offences;
(3) Although the applicant was a haemophiliac who required constant and painful blood transfusions, and
although he was HIV positive, a prisoner's medical condition is, except in the rarest cases, not a matter for the
court but for the executive.
Result - Application for leave to appeal refused.
***********
CA 332/91
LIU Wan-wah
Yang CJ, Silke V-P, Power JA (12.12.91)
*T Casewell, #E Robertson
Blackmail/Extorting money from construction firms
Held :
It is all too easy for local "bully boys" to intimidate construction firms, and to seek to extort protection money
from them by blackmailing staff.
Result - Application for leave to appeal against a sentence of three years imposed after trial for blackmail,
refused.
**************
356
Sentence (Quantum) Bribery/Corruption/ICAC
Bribery/Corruption/ICAC
AR 3 4/89
A ARMITAGE
Y GURUNG
Yang CJ, Silke V-P, Penlington JA (3.5.89)
*I G Cross, C Fung
#N Sarony
Accepting advantage as an agent, S. 9, Cap. 201 - Soldiers accepted bribes to falsify documentation on
military boxes destined for Nepal - To enable illegal shipping of gold - Involved breaches of trust Suspended sentences with fines and restitution - Whether wrong is principle and/or manifestly
inadequate
(1) Immediate custodial terms are the norm in cases of corruption - unless the circumstances of the offenders
are exceptional. Here they were such.
(2) Although the reputation of the British Forces had suffered, this was not commercial corruption, and did
not involve an employee being corrupted in relation to his employer's business. The image of Hong Kong had
not severely been tarnished.
(3) Had the trial judge passed immediate custodial sentences, the Court would have been reluctant to interfere.
(4) These cases were clearly to be distinguished from instances of commercial corruption, or corruption by
government servants.
Result - AG's review dismissed with the following sentences upheld :
Armitage - 12 months on each of 3 counts, suspended and concurrent, plus fines of $31,000 and restitution of
$38,000.
Gurung - 12 months on each of 2 counts, concurrent and suspended for 18 months, plus fines of $80,000 and
restitution of $32,000.
************
AR 15/88 CA 401/88
AG v SL Turner; SL Turner v The Queen
Yang CJ, Silke V-P, Power JA (15.12.89)
*J K Findlay QC, M C Blanch-flower
#J Matthew QC, S Llewellyn
AG's review of sentence - Cross appeal - Accepting an advantage as an agent - S. 9(1)(c) of Cap. 201 Secret commissions - Multiple offences - Consecutive sentences - Totality principle
(1) Secret commissions which strike at the root of the probity of the financial institutions of this commercial
city are a breach of the trust that commercial enterprises are entitled to expect from those they employ.
(2) Sentencing on the totality principle is a proper approach - given that a sentencer should consider that two
separate similar offences attract a higher punishment than one and that such offences require consecutive
sentences to be imposed.
357
Sentence (Quantum) Bribery/Corruption/ICAC
(3) The sentence of 1 year in toto for 2 s. 9(1)(c) offences involving secret commissions of $300,000 and
$888,000 respectively upon the procuring of loans does not, allowing for all the strong mitigating
circumstances, reflect public condemnation of the activities nor their effect upon the finanical community.
The proper sentence would have been 2 years made up of 1 year sentence on each charge to run
consecutively.
Result - AG's review against sentence allowed;
- Appeal against sentence dismissed;
- Sentence of 18 months in toto substituted and the restitution orders unaltered.
**********
AR 9/89
CHAN Koon-kwok Arthur
Kempster, Hunter, Macdougall JJA (20.6.90)
*A P Duckett QC, F Lo
#B Bernacchi QC, K Yuen
S. 9(1) Prevention of Bribery Ordinance, Cap. 201 - Secret commissions - Sentence : 9 months
imprisonment, susp for 2 years and a fine - Whether sentence wrong in principle and manifestly
inadequate
Held :
1. There is ample authority that offences of corruption merit custodial sentences. If for some reason a judge
thinks it appropriate to impose a fine in addition, that should not go to reduce what is otherwise an appropriate
term of imprisonment.
(AG v KI Hon another [1988] 2 HKLR 220 considered)
2. Secret commissions are a breach of the trust that commercial enterprises in Hong Kong are entitled to
expect from those they employ and that convictions under s. 9(1) of Cap. 201 will be subjected to immediate
custodial sentences of a substantial character.
(R v Stuart Leslie Turner, CA 40/88 considered)
3. Attempts to inhibit the spread of corruption necessarily involve an element of general deterrence,
even in the case of a first offender.
4. A sentence of 18 months immediate imprisonment is appropriate.
Result - AG's Application for Review allowed.
substituted.
An immediate sentence of 12 months imprisonment
*************
CA 519/90
LI Fook-shiu
Fuad V-P, Clough, Penlington JJA (18.4.91)
358
Sentence (Quantum) Bribery/Corruption/ICAC
*M Kalisher QC, A Schapel
#A Scrivener QC, J Mok
Sentence/section 9, Cap. 201/Mandatory repayment
Held :
Two consecutive sentences of two years imprisonment, imposed upon the former Chairman of the Stock
Exchange for two offences of accepting an advantage in his official capacity, contrary to S. 9, Cap. 201, were
not manifestly excessive. This was despite the fact that S. 12(1), Cap. 201 makes it mandatory for the Court
to order the payment of at least part of the value of the advantage received.
Result - Application for leave to appeal against sentence totalling four years, refused.
************
359
Sentence (Quantum) Burglary
Burglary
CA 139/92
CHOI Hung-ki
Fuad V-P, Macdougall JA (4.8.92)
*N Bradley
#I/P
Burglary/Domestic premises/3 years proper starting point
Held :
(1) Since, by virtue of S. 67A, Cap. 221, the applicant would receive credit for the period of time he spent in
custody awaiting trial, the judge should not have taken that time into account when determining sentence;
(2) Since three years is about the proper starting point for an offence of burglary committed in domestic
premises by a first offender of full age, the judge erred in imposing 2 1/2 years concurrent for two such
offences after guilty pleas : CHAN Wing-ching CA 100/91;
(3) The case called for the exercise of the power conferred by S. 83I (3)(b) Cap. 221.
Result - Application granted and appeal allowed. The sentence of 2 1/2 years substituted with sentences of 5
years.
****************
AR 19/88
CHAN Wai-fai
Yang CJ, Silke V-P, Penlington JA (4.5.89)
*I G Cross, C Fung
#N Mitchell i/s DLA
3 counts of burglary - 1 count of robbery - 1 count of theft - Conviction after trial - All sentences
consecutive - 2 years and 10 months in toto - Whether wrong in principle and/or manifestly inadequate
(1) For a burglary in domestic premises, a sentence of 3 years after trial is proper.
(CHAN Yui-man CA 36/88, applied)
(2) For an unarmed robbery in domestic premises, 4 years after trial is proper.
(AG v. SHEK Sui-tai AR 9/88, applied)
(3) For a theft by finding, 6 months is proper.
(4) Having regard to totality, a sentence of 5 years' imprisonment would have been proper. As this was a
review, the totality was reduced to 4 years by ordering the sentences to run concurrently.
Result - AG's review allowed. The sentences were increased to 3 years on each burglary, 4 years for the
robbery, and 6 months for the theft, all to run concurrently.
360
Sentence (Quantum) Burglary
CA 540/88**
SZETO Chung-cheung
Silke V-P, Hopkinson J (3.3.89)
*I G Cross
#I/P
Burglary - A.O.A.B.H. - Sentence
Those with bad criminal records can expect little discount even when they plead guilty.
Result - Appeal against sentence (Burglary - 3 years and 3 months; A.O.A.B.H. - 3 months consecutive)
totalling 3 years and 6 months dismissed.
- 60 days loss of time ordered.
*************
CA 36/88**
CHAN Yui-man
Yang CJ, Silke V-P (23.2.89)
*I G Cross, Miss A Chung
#K Ramanathan
Burglary in domestic premises - Sentence
(1) 3 years is a proper starting point for burglary in domestic premises.
(2) Two separate burglaries should attract consecutive sentences.
Result - Appeal against sentence of 4 1/2 years in toto allowed to the extent that it was reduced to 3 years and
9 months in toto.
**************
MCA 73/91
WONG Tung
Barnes J (10.4.91)
*G Forlin
#K H Suen
Burglary/Remaining unlawfully/Totality of 18 months
Held :
A total of 18 months imprisonment imposed for the offences of burglary and remaining unlawfully in
Hong Kong was not excessive.
Result - Appeal dismissed.
361
Sentence (Quantum) Burglary
************
CA 74/90
(1) LEE Yuk-wah
(2) CHAN Ka-fan
Kempster, Power, Macdougall JJA (20.8.91)
*S R Bailey
#(1) A Ismail
(2) I/P
Killing during burglary/Youth and clear record/Distinguishing roles of offenders
Held :
(4) Where violence occurs during the commission of a burglary, no distinction can properly be drawn between
the culpability of the person who strikes the blows and that of the others who were otherwise involved in the
attack. Each harboured the same basic criminality and each was equally culpable : SIN Wai-lun [1988] 1
HKLR 580, approved.
Result - (1) LEE's appeal allowed, and ten years imprisonment reduced to nine; (2) CHAN's application for
leave to appeal against sentences totalling ten years for manslaughter and burglary, refused.
*************
362
Sentence (Quantum) C & E
C&E
MA 493/92
Broadway Sports Wear Ltd.
Power JA (25.8.92)
*M Crabtree
#A Macrae
Export quotas/False statements in application/Assessment of fine
Held :
The defendant, having been convicted of making a statement which was false or misleading in a material
particular in an application for an export licence under the Free Quota Export Authorization Scheme, was
properly fined 11% of the FOB value of the goods : Dutton Trading Ltd. [1988] 1 HKLR 565, Marble
Clothing Co. Ltd. [1984] HKLR 839 followed.
Result - Appeal against a fine of $200,000 dismissed.
******************
MA1406-8/89
KWOK Chiu
Tak Fat Swimwear Manufacturing
Barnes J (5.12.89)
*M Hartmann
#J Fenton
Making false applications - S. 36(1)(a), Import and Export Ordinance, Cap. 362 - Sentence
1. The sentencing guideline of 40% of the value of goods, in Marvel Clothings [1984] HKLR 839, is in
respect of a conviction after trial with no mitigating factor other than the lack of a criminal record.
2. Where there is a guilty plea at the earliest possible moment, a proper discount should be given. In the
present case, fines in the order of 30% of the value of goods were appropriate.
(Usian Fashion Manufacturing Ltd. MA 740/89 and CHOW Chi-wai MA 741/89, considered)
Result - Appeal against sentences allowed.
***********
MA 1458/88
HO Kwong-chuen
Duffy J (9.3.89)
*M Sin
363
Sentence (Quantum) C & E
#P Wong
Aiding and abetting the making of a false statement - S. 17(3), Trade Description Ordinance, Cap. 362 Sentence
The penalty for this offence ought to be a monetary one.
Result - Appeal against sentence allowed. 2 months imprisonment suspended for 12 months set aside. Fine
of $3,500 increased to $5,000.
***********
MA 95/90
WONG Kam-ming
Penlington JA (13.3.90)
*P Callaghan
#S Franklin
Sentence - Prevalent offence : watches bearing false trade marks - Youth : 18 - S. 109A(1), Cap. 221 Fines D has no prospect to pay - 12 months imprisonment in default of immediate payment
Held :
1. As the offences were prevalent a deterrent sentence was required.
2. Fines must not be so high that the defendant has no prospect of paying them and would inevitably have to
go to jail in default.
(CHAN Sam v. R. [1968] H.K.L.R. 401 considered)
per Curiam :
The correct way of approaching the question of sentence was first of all to decide whether or not there was
any form of punishment which would meet the facts of this case other than one of imprisonment. Here
however it seems that the Magistrate did consider that very substantial fines would be adequate and it was
therefore wrong in principle to make the fines so high that the Appellant could not possibly pay them.
Result - Appeal allowed. 3 months imprisonment, suspended for 2 years and a fine of $11,000 substituted.
**************
MA 1099/90
AU Kwok-kwan
Kaplan J (16.11.90)
*P Lavac
#G Rodway QC, A C Macrae
Forfeiture/Culpability of owner/Cap. 60
Held :
364
Sentence (Quantum) C & E
Owners of goods ignore the provisions of the Import and Export Ordinance at their peril. If an owner can be
shown to have taken steps to ensure compliance by the carrier of goods then a forfeiture order against him, in
the event of breach by the carrier, will be substantially less.
Result - Appeal allowed, to the extent that 70% of the goods seized were ordered to be returned.
*************
MA 442/91
LAU Wai-kin
Penlington JA (17.9.91)
*G Forlin
#V Lim
False trade marks/Owners to be protected/Judicial notice
Held :
(1) There is a clear distinction between a case involving the sale of fake watches bearing well known and
expensive brand names, and one involving export of goods stated to be made in Hong Kong which were in
fact manufactured in China : AG v Eagle Eye (HK) Ltd [1987] HKLR 839 distinguished;
(2) Although it is unlikely that any person purchasing such a watch in Temple Street would expect it to be
genuine, nevertheless the owners of the trade marks are entitled to protection and this necessitates severe
fines;
(3) The magistrate was entitled to use his own knowledge of the prevalence of the offence in Temple Street in
assessing the correct fines.
Result - Appeals against fines totalling $98,000, for three offences contrary to the Trade Description
Ordinance, Cap. 362, dismissed.
************
MA 1110/91
TSUI Shek-law and 3 others
Wong J (17.3.92)
*C Ravenscroft
#G Rodway QC, D Marash
Import and Export Ordinance/Assisting in carrying restricted articles/Deterrent sentence
Held :
S. 35A(1)(c), Cap. 60, was recently enacted to combat the rapid increase of smuggling activities between
Hong Kong and Mainland China. It is necessary to impose deterrent sentences in order to achieve this object.
Activities of this kind seriously affect Hong Kong's relationship with China and cause serious social and
security problems. Such blatant activities will, if unchecked, continue to undermine the authority of the law.
Result - Appeals against sentences of 9 months imposed for knowingly assisting with the carrying of
restricted articles, with the intent to assist another to evade the restrictions, dismissed.
365
Sentence (Quantum) C & E
****************
MA 89/92
MA Man-ho and 10 others
Bewley J (25.5.92)
*Tong Man
#K Egan, K Oderberg
Conspiracy to deal with cargo with intent to assist another person to export the cargo without a
manifest
Held :
(1) Immediate sentences of imprisonment, even for first offenders, are appropriate in such cases as a deterrent
to smugglers : TSUI Shek-law others MA 1110/91 followed; and
(2) Suspended sentences are inappropriate while smuggling continues on the present scale.
Result - Appeals against prison terms ranging from 4 to 6 months, imposed after guilty pleas, dismissed.
*************
MA 1690/88
Tsutsumi Motonobu, NGAI Hing-loon, Japan Materials Suppliers Limited (Part II)
Duffy J (28.2.89)
*I McWalters
#C Grounds
Possession of infringing copies of artistic works in which copyright subsisted - S. 5(1), Copyright
Ordinance, Cap. 39 - 2 counts - First offence - Sentence
(1) Fines which constituted the following percentages of the profit made out of the offences are considered
appropriate 4 to 5% : Owner of business
5 to 7% : Business itself
0.6 to 0.8% : Mere manager
(2) The offence relates closely to other copyright offences.
Result - Appeal against sentences of $15,000 fine per count for D1 (business owner)
$2,500 fine per count for D2 (mere manager)
$20,000 fine per count for D3 (business itself)
- dismissed.
**********
MA1331/88**
HWA Yuk-wai
366
Sentence (Quantum) C & E
Hooper J (29.12.88)
*R Dalgleish, #G Plowman
False trade marks - False trade descriptions - Infringing copies - Computer manuals and disketts Possession of - Sentence
1. An immediate custodial sentence of 10 months in toto for a defendant who had 2 previous similar records
(fines imposed) and was convicted after trial of 37 counts of possession of counterfeit computer manuals and
disketts with an agreed total discounted selling price of $360,660 and estimated profit of $180,330 is not
manifestly excessive.
2. It is not wrong in principle to have imposed consecutive sentences in respect of the 2 raids when the
counterfeits were seized.
Result - Appeals against sentence of
(a) 4 months each (concurrent) for the 2 counts under s. 9(2) of Cap. 362;
(b) 6 months each (concurrent) for the 16 counts under s. 9(2)/s. 7(1) of Cap. 362 consecutive to (a);
(c) 3 months each (concurrent) for the 19 counts under s. 5(1) of Cap. 39 concurrent with (b) - 10 months in
toto - dismissed.
*************
MCA 302/92
CHEUNG Wai-man
Barnett J (27.5.92)
*J Halley, #A Macrae
Forfeiture considerations/Court raising sentencing norms
Held :
(1) Goods which are intended to be smuggled are not properly used for facilitating the commission of an
offence in the sense in which that phrase is used in the English legislation. Goods intended to be smuggled
into another territory are integral to the offence, without which it could not be committed. The would-be
smuggler's lorry or other means of conveyance, however, would be a different matter;
(2) Magistrates, when dealing with applications for forfeiture, do not necessarily make orders for confiscation
of all the goods. Partial orders are sometimes made. A magistrate sentencing an offender would be hampered
in his approach to sentence if he had to try and guess whether or not a confiscation order for the goods would
be made, and, if so, as to what amount of the goods;
(3) A magistrate may increase the level of sentence which has hitherto been passed in respect of a particular
offence if he is aware that the type of offence is on the increase and is the cause of concern not only to him but
to the public generally. Before doing so he should make it clear that this is the course of action which he
proposes to adopt. Immediate custodial offences for smuggling offences by land are not unknown.
Result - Appeals against sentences of four months and one month imprisonment, imposed after guilty pleas
for offences of attempting to export unmanifested cargo, and of making use of the altered fittings of a vehicle
for the purpose of smuggling articles out of Hong Kong, contrary to Sections 18 and 14, Cap. 60, dismissed.
367
Sentence (Quantum) Child Abuse
Child Abuse
CA 86/89
CHEUNG Chin-hon
Yang CJ, Clough J (23.6.89)
*S Wong
#I/P
Manslaughter - Ill-treatment of a child (s. 27 of Cap. 212) - Sentence - Loss of time
7 years was entirely proper, if not too lenient, for the abuse and brutality on a 3 1/2 years old child who
ultimately died of rupture of intestines and peritonitis caused by blows inflicted by the Applicant.
Result - Application for leave to appeal against sentences of 7 years for Manslaughter and 2 years for Illtreatment of a child (concurrent) refused; loss of time ordered.
***********
CA104/89**
LEE Man-chung
Yang CJ, Clough JA (23.6.89)
*S Wong
#I/P
Exposing a child so that his life would be endangered - s. 26 of Cap. 212 - Sentence
Where a 7-month-old baby was abandoned and exposed in a place not easily discovered for one whole day, 18
months was a proper sentence.
Result - Application for leave to appeal against sentence of 18 months refused.
***********
368
Sentence (Quantum) Criminal Damage
Criminal Damage
MA 1244/90
YEE Kau-lam
Hooper J (6.11.90)
*D G Saw
#A A Souyave
Criminal damage - Windows and windscreens of 15 vehicles smashed and damaged - PG - Reason for
attack : to serve a warning - Whether 18 months too high a starting point
Held :
The starting point of 18 months was too high and that 12 months was more appropriate.
Result - Appeal allowed 8 months imprisonment substituted for 9 months.
*************
369
Sentence (Quantum) Criminal Intimidation
Criminal Intimidation
MA 1044/89
CHAN Ka-fai
Barnes J (30.11.89)
*P Li
#J Mullick
Criminal intimidation - Threatening witnesses - Sentence
(The Appellant was facing trial on a charge of careless driving when he threatened one of the witnesses with
physical harm for giving evidence. For this, he was convicted of criminal intimidation and sentenced to 12
months' imprisonment.)
1. A custodial sentence is required to mark the gravity of the offence.
2. There were, however, a number of mitigating factors in this case which rendered 12 months manifestly
excessive.
Result - Appeal allowed. 2 months suspended for 2 years substituted.
*************
370
Sentence (Quantum) Dangerous Drugs
Dangerous Drugs
MCA 206/92
(1) A Morris
(2) N Seely
Wong J (26.5.92)
*W S Cheung
#A1- I/P
A2 - E Toh
Tariff for cannabis resin/Foreign status irrelevant to sentence
Held :
(1) It was not valid mitigation for a foreigner to contend that he would suffer additional hardship from
imprisonment in Hong Kong, and that this should be taken into account for sentencing purposes. Every
person is equal before the law and there is no distinction between a foreigner and a local man;
(2) Where there are convictions for trafficking in large quantities of cannabis resin, 2 years imprisonment
must be regarded as a most lenient sentence at the very bottom of the tariff, and to impose a sentence below
that would defeat the intention of the legislature which had imposed a maximum sentence of life
imprisonment.
Result - Appeals against sentences ranging from 18 months to 2 1/2 years imprisonment dismissed.
***************
CA 171/92
B K Shreshta
Fuad V-P, Penlington, Litton JJA (23.10.92)
*D G Saw
#I/P
Conspiracy to traffick in cannabis resin
Held :
A sentence of 39 months after trial was proper for conspiracy to traffic in a large quantity of cannabis resin.
Result - Application dismissed.
***************
CA 314/92
NGUYEN Manh-hung
Silke V-P, Macdougall JA (27.11.92)
371
Sentence (Quantum) Dangerous Drugs
*P Li
#I/P
Herbal cannabis/40 kilos/5 years correct after plea
Held :
A sentence of 5 years imprisonment, imposed after a guilty plea, for trafficking in 40 kilogrammes of herbal
cannabis, was neither manifestly excessive nor wrong in principle : AG v CHAN Chi-man [1987] HKLR 221
followed.
Result - Application dismissed.
*************
AR 12/89
WONG Kwok-keung
Yang CJ, Silke V-P, Duffy J (23.11.89)
*I G Cross, P Lee
#G Holland
(A) Simple possession of a dangerous drug - Absolute discharge - Whether manifestly inadequate
(The Defendant, whilst on remand for another drugs offence, was found in possession of a small quantity of
dangerous drugs. The Magistrate, after noting that the Defendant had received 2 years imprisonment for that
other offence, imposed an absolute discharge. The AG applied to review that order.)
The sentence was manifestly inadequate. 9 months consecutive would have been appropriate - but, as this was
a review, the order would be set aside and 6 months consecutive substituted.
(B) Drugs recidivist - Whether absolute discharge appropriate
The conditions precedent to the imposition of an absolute discharge, as prescribed by S. 36, Cap. 227, do not
apply to a drugs recidivist. Such an order is wrong in principle.
(C) Persistent drug offenders - Sentence
Immediate custodial terms are proper for persistent drug offenders.
(AG v CHAN Tak-king, AR 21/88, approved)
(D) DATC report - S. 54A(1A)
Where the Defendant is already serving a sentence of more than 9 months for another offence, the new S.
54A(1A) has, since 1987, dispensed with the requirement of first obtaining a DATC report before a
Magistrate can sentence him to prison for simple possession or possession of apparatus fit and intended for
consuming dangerous drugs.
Result - Application for review allowed - as above.
**********
MA797/89**
LAM Kwai-po
372
Sentence (Quantum) Dangerous Drugs
O'Connor J (25.10.89)
*S Wong
#I/P
Possession of a dangerous drug for unlawful trafficking - 0.9 gramme - Sentence
Although 30 months for this quantity of drugs is on the high side, it is not manifestly excessive in the light of
the fact that the appellant committed the offence while he was on bail for another similar offence.
Result - Appeal against sentence of 30 months dismissed.
************
MA 1082/89
WILD Rudolf Christian
DJ Saied (13.10.89)
*C Ravenscroft
#I/P
(A) Simple possession - No. 4 heroin - Basis for sentence
Where the defendant's plea to simple possession is accepted by the Crown, thus effectively removing the issue
of the "ultimate commercial mixture", it is not necessary, for the purpose of sentencing, to "convert" the drugs
into No. 3 heroin.
(B) Conversion of No. 4 to No. 3 heroin - Proper procedure
Where such a conversion is necessary, it ought to be conducted on the basis of evidence adduced in the
presence of the defendant or by agreement of counsel that the said mixture is capable of being so converted.
(Suvit Utthayanwatane [1982] HKLR 323, followed)
Result - Appeal against sentence of 6 months in toto for 2 counts of simple possession dismissed.
*************
CA 44/89**
WONG Pui-ho
SZETO Man-keung
LI Hing-yin
Cons V-P, Macdougall JA, Mayo J (1.9.89)
*J Reading
#J Stephenson for WONG SZETO I/P
Conspiracy to traffic in dangerous drug - Sentence
4 years for conspiracy to traffic in a dangerous drug, in Stanley Prison, where WONG was a prison officer and
SZETO the organiser of the conspiracy, was neither manifestly excessive or wrong in principle.
Result - Leave to appeal against sentence of 4 years refused.
373
Sentence (Quantum) Dangerous Drugs
************
CA 173/89
LAI Sik-keung
Power, Macdougall JJA (10.8.89)
*P Li
#C Grounds i/s DLA
Simple possession - Sentencing principle - Relevance of quantity of drugs involved
When assessing sentence for simple possession, the amount of drugs involved is not of the paramount
importance that it is in trafficking charges. The significance of the offence is that the drugs, whatever the
amount, are for self-consumption and not for trafficking.
Result - Appeal against sentence of 18 months for 73.29 grammes of No. 3 heroin allowed. One of 9 months
substituted.
*************
CA146/89**
CHAN Chun-wai
Cons Ag CJ, Power JA, Hopkinson J (23.8.89)
*I G Cross, C Fung
#C Grounds
(A) Trafficking/cannabis - Sentence
The CHAN Chi-man [1987] HKLR 221 guidelines for cannabis sentencing are qualified when the offence
involves trafficking itself.
Result - Leave to appeal against the following sentences, 3 years 3 months in toto, refused (a) Trafficking in DD (6 months)
(b) Offering to traffic (21 months)
(c) Trafficking in DD (9 months)
(d) Resisting police officer (3 months)
***********
CA 587/89
CHAN Shun-wing
Cons Ag CJ, Power, Macdougall JJA (9.8.89)
*I G Cross, P Li
#C Grounds
(A) Possession of a dangerous drug for unlawful trafficking - Portion of it alleged to be for selfconsumption in mitigation - Basis for sentence
(1) Where there is mitigation, after a guilty plea for DDUT, that a portion of the drug was for the courier's
own consumption, that issue should be explored by the judge before sentence.
374
Sentence (Quantum) Dangerous Drugs
(2) If that is not done, the defendant is entitled to be sentenced on the basis of the amount he admits to
possessing for trafficking.
(B) Mitigation - Drug courier
The mitigation accruing to a drug courier for a guilty plea will be reduced where the evidence is
overwhelming and there is a bad criminal record.
Result - Leave to appeal against sentence of 7 years imprisonment refused.
***********
AR 21/88; AR 22/88
AG v. CHAN Tak-king; AG v. CHAN Pau-yau
Fuad V-P, Hunter, Power JJA (6.6.89)
*I G Cross, W S Cheung
#M Nunns (Amicus Curiae)
SS. 81A-B, Cap. 221 - Dangerous drugs - Simple possession - Sentencing guidelines
Preliminary issue
S. 81A and s. 81B of the Criminal Procedure Ordinance, Cap. 221 permit the Court of Appeal to decline to
enhance a sentence imposed by the lower court which it has held to be wrong in principle or manifestly
inadequate and, where appropriate, to issue guidelines.
Substantive issue
The appropriate range of sentences for offenders who persistently appear before the courts for offences under
s. 8 of the Dangerous Drugs Ordinance, Cap. 134 is, on pleas of guilty, immediate custodial sentence of 6 to 9
months, after the court having first complied with the provisions of s. 54A of the Ordinance where those
provisions are applicable, and decided whether or not to send the offender to a DATC depending upon the
contents of the Commissioner's report.
Result - No increase of sentence sought; no orders made.
***************
AR 25/88
AG v. SUEN Yuen-ming
Silke V-P, Kempster, Macdougall JJA (1.6.89)
*I G Cross, Miss C Fung
#Miss M Moosdeen
Possession of DD for the purpose of unlawful trafficking - Sentencing judge's discretion - Training
Centre Order
(1) The Court of Appeal will not lightly interfere with the discretion of a sentencing judge unless he can be
shown to have erred in principle, and this usually means "shown to be so manifestly wrong in passing the
sentence under contemplation so as to warrant the Court of Appeal's interference".
375
Sentence (Quantum) Dangerous Drugs
(2) It is only in very rare cases that a training centre order would be considered a proper sentence where
substantial quantities of dangerous drugs are involved.
Result - Application for review against the training centre order refused.
***********
CA 379/88
LEE Ho-wai
Silke V-P, Power, Penlington JJA (9.5.89)
*I G Cross, C Fung
#H Litton QC, C Grounds
Possession of a dangerous drug for the purpose of unlawful trafficking - Heroin base - Prominent role
of offender - Sentencing
(1) Where there is evidence of conversion, then a sentence in relation to heroin base, which goes beyond the
CHAN Chi-ming guidelines, is justified.
(2) A prominent role of the offender in the offence may likewise justify a sentence which goes beyond the
range in CHAN Chi-ming.
(Promechit CA 665/82 and CHENG Yeung CA 460/88, considered)
Result - Leave to appeal against sentence of 15 years for DDUT involving 2116.45 grammes of heroin base
refused.
***********
CA 530/88**
CHAN Ka-wai
Yang CJ, Cons, Hunter JJA (9.5.89)
*G Lugar-Mawson
#N De Bonville i/s DLA
Possession of a dangerous drug for the purpose of unlawful trafficking - No. 4 heroin - Sentencing
(1) CHENG Yeung, CA 460/88, which establishes how judges should sentence for possession of No. 4 heroin
for unlawful trafficking, does not lay down a new tariff of sentences for possessors of that variety of the drug.
(2) CHENG Yeung follows established sentencing principles laid down in Suvit Utthayanwatana and another
[1982] HKLR 323 and Pravit Pramechit, CA 665/82, that sentencing should be on the CHAN Chiu-ming tariff
after a notional conversion of what was possessed into the total weight of No. 3 heroin.
(3) Before such a notional conversion can be made by the sentencing judge, there should be before him
evidence either direct or by agreement that the seized mixture is capable of being converted into No. 3 heroin.
Result - Leave to appeal against sentence of 11 years dismissed.
**************
376
Sentence (Quantum) Dangerous Drugs
AR 21 & 22/88
CHAN Tak-king
CHAU Pah-yau
Fuad V-P, Hunter, Power JJA (13.4.89)
*I G Cross, W S Cheung - M Nunns as Amicus Curiae
Simple possession of dangerous drugs - S. 8, Cap. 134 - Preliminary issue of law
When the Attorney General seeks a review of sentence before the Court of Appeal, pursuant to s. 81, Cap.
221, on the ground that a sentence is manifestly inadequate and/or wrong in principle, it is open to the Court
so to hold, but then not to proceed to interfere with the sentence due, for example, to changed circumstances
in the supervening period between the dates of sentence and of review - but nonetheless to issue general
guidelines.
************
CA 460/88
CHENG Yeung
Silke V-P, Hunter, Penlington JJA (14.4.89)
*I G Cross, W S Cheung
#G Plowman
Hard drugs offences - Cap. 134 - Sentencing guidelines
(1) Quantity is the most important single factor in determining the proper sentence.
(CHAN Chi-ming [1979] HKLR 491, followed)
(2) As a general proposition, the criminality of direct trafficking (s. 4 offence), and of manufacturing (s. 6
offence), is greater than that of DDUT (s. 7 offence), and should attract a higher tariff.
(3) A s. 7 offence can range between possession in the context of a packing and distribution centre and
possession by a man providing for storage space or acting as a courier. It is appropriate to apply the s. 7
tariff, which is a possession tariff, to the latter and something close to a trafficking tariff to the former.
(4) There comes a point, however, when the quantities become so large that no very great distinction can be
made between particular possessors. 20 kg is the cut off figure.
(5) Nevertheless, since space must be left for the greater penalties appropriate to traffickers, manufacturers
and importers, the s. 7 tariff can, in practice, scarcely go higher than 20 years after trial. For quantities
between 1 kg and 20 kg, the basic range is 8 to 20 years.
(6) For cases involving No. 4 heroin, it is appropriate to effect a conversion to No. 3 heroin (street heroin) for
the purposes of sentencing.
Result - Appeal against sentence of 18 years, for a "warehouseman", of 23.7 kg, allowed, and reduced to 14
years as an act of mercy and for the element of novelty involved in the Court's revised approach.
***********
377
Sentence (Quantum) Dangerous Drugs
MA 1167/88
KO Leung-tao
Duffy J (21.3.89)
*E C Harris
#J Marray i/s DLA
Possession of dangerous drugs for the purpose of unlawful trafficking - Very poor medical condition Mitigation on sentence
Medical evidence to the effect that the Appellant is in very serious jeopardy of his life is a real mitigating
factor, particularly when the offence is not a serious one.
Result - Appeal against sentence of 18 months allowed to permit immediate release (Some 7 months served).
***********
CA 443/88
LAU Lun-fu (Part I)
Silke V-P, Kempster, Power JJA (15.2.89)
*A Bruce, S Lee
#G Rodway QC, A Chan
Possession of dangerous drug for the purpose of unlawful trafficking - 3 counts - Total of 60 to 70 kg of
No. 3 heroin - Quantity exceeding any category on which Court has given specific guidelines on
sentence - Disparity with other cases with lesser aggragate quantities - Relevance of huge fine
(1) Where such large quantities are involved, there can be no great distinction between lesser or greater
quantities in terms of sentence.
(See SUEN Shek others [1988] 1 HKLR 524, TSUI others [1985] Cr. App. No. 406, CHAN Ho-kue Cr.
App. No. 532 of 1987, CHAN Wai-shing Cr. App. No. 557 of 1987)
(2) The Court must however be concerned not to impose sentences which would incarcerate individuals for
life and an approximate ceiling is necessary. A sentence in the order of 20 years is to be expected.
(3) That the Defendant also incurs a fine a $100,000 fine is not of particular significance to the prison term.
Result - Leave to appeal against a sentence of 20 yers refused.
************
CA 471/88
CHAN Kwok-wah
Yang CJ, Silke V-P (23.2.89)
*I G Cross, A Chung
#R Buchannan
Possession of apparatus - S. 36, Cap. 134 - Sentence - Quantum - Procedure
378
Sentence (Quantum) Dangerous Drugs
(1) A sentence of 9 months imprisonment would be proper.
(2) It is no longer necessary for the Court to obtain a DATC report prior to sentencing for this offence.
Result - Appeal against sentence of 12 months allowed - reduced to 9 months.
***********
CA 383/88
POON Ching-duen
Silke V-P, Hunter, Power JJA (2.2.89)
*I G Cross
#I/P
Possession of dangerous drugs for the purpose of unlawful trafficking - Sentence - Mitigation
For a hardened drug addict of advanced years, with a series of previous drug convictions, who was convicted
of two counts of DDUT in relation to approximately 65 grammes of a mixture containing salts of esters of
morphine, a total of 4 years imprisonment was in no way excessive. It is no mitigation that he needed the
drugs to finance his own consumption.
Result - Appeal against sentence dismissed.
**************
CA 394/88**
LEUNG Wai-ngok
Yang CJ, Silke V-P (23.2.89)
*I G Cross, Miss A Chung
#I/P
Conspiracy to traffic in dangerous drugs - Sentence
(1) When there is a conspiracy to bring drugs into prison, it might not be proper to determine sentence
by reference to the guidelines in R. v. CHAN Chi-ming [1979] HKLR 491.
(2) Such offences must be severely punished.
Result - Appeal against sentences of 2 years (x 2) consecutive dismissed.
************
CA 472/88**
NG Yuk-kuen
Silke V-P, Macdougall JA 19.1.89)
*I G Cross, Miss P Lee
#I/P
379
Sentence (Quantum) Dangerous Drugs
Trafficking in DD - Quantity of drugs - Sentence
1. Trafficking is more serious than possession for the purpose of unlawful trafficking.
2. With trafficking, the actual quantity of the drugs is not an essential factor in sentencing.
3. For trafficking in a small quantity of DD (under 2 grammes), a prison term of 3 years after trial is no way
excessive - 5 years would have been appropriate for a trafficker.
(YEUNG Ying-kan CA 120/84 applied)
Result - Appeal against sentence of 3 years dismissed.
*************
CA 230/89, CA 269/89
LAU Tak-ming and another
YEUNG Wai-shing and another
Silke V-P, Kempster, Power JJA (29.5.90)
*G Lugar-Mawson, D G Saw
#K Ramanathan for 1st applicant in CA 230/89
G Plowman for 2nd applicant in CA 230/89 1st applicant in CA 269/89
Sentence - Guidelines - Dangerous drugs
Held :
1. The CHAN Chi-ming tariff should be retired and its guidelines replaced by a new one based on the weight
of the narcotic content of the mixture seized and not as before the total weight of the mixture.
2. The tariff is as follows :(a) Up to 10 grammes of narcotic : 2 to 5 years.
(b) Between 10 grammes and 50 grammes : 5 to 8 years.
(c) Between 50 grammes and 200 grammes : 8 to 12 years.
(d) Between 200 grammes and 400 grammes : 12 to 15 years.
(e) Between 400 grammes and 600 grammes : 15 to 20 years.
Amount of over 600 grammes fall into the "very large quantities" category. In appropriate cases which fall
into that category, there can be an upward increase in the "cut off sentence" there suggested bearing in mind
that the maximum sentence provided for by the legislation is life.
3. The tariffs are intended for imposition after trial.
4. Within the suggested bands factors which the sentencing judge may properly take into account are : the
profit which, because of adulteration, the place of ultimate sale, or otherwise, may reasonably be expected to
be derived from trafficking in the quantities of dangerous drugs involved; the number of packets; the type of
mixture containing the narcotic; the degree of involvement of the offender; his previous history of narcotic
offences and matters of mitigation which may be advanced on his behalf. It must be borne in mind that these
are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences
could lead to a discount, having little weight though extreme youth may call for special consideration.
5. There is no longer a need to do a notional conversion of No. 4 to No. 3 heroin and for all practical purposes
the difference between No. 3 and No. 4 heroin is no longer relevant for sentencing purposes.
380
Sentence (Quantum) Dangerous Drugs
6. Further the tariffs apply to both the offences of possession of dangerous drug for the purpose of unlawful
trafficking (S. 7, Cap. 134) and trafficking in dangerous drug (S. 4, Cap. 134).
*************
MA 6/90
HONG Yau-fat
Duffy J (30.3.90)
*A E Schapel
#S Franklin
Dangerous Drugs/Recidivist/Correct Sentence
Held :
Where an addict with an appalling record pleaded guilty to simple possession of a tiny quantity of dd, a
sentence in the range of 6 - 9 months is proper.
Result - Appeals allowed. 9 months replaced with 6 months.
************
MA 1479/89
KO Man-kam
Duffy J (30.3.90)
*A E Schapel
#A King
Keeping an opium divan
Held :
A proper sentence for this offence is one of 9 months imprisonment
Result - Appeal allowed. 15 months reduced to 6 months.
**********
CA 425/89
CHEUNG Cho-fai
Yang CJ, Power, Macdougall JJA (4.7.90)
*G J Lugar -Mawson
#V Eaton
Sentence - Principle - DDUT
Held :
381
Sentence (Quantum) Dangerous Drugs
The Court takes as settled law that the sentence for an offence should be in accordance with the practice
prevailing at the time of the commission of the offence.
(R v LAU Tak-ming, CA 230/89 affirmed)
Result : Appeal dismissed.
(Editor's Note : For dangerous drug cases, where the offence was committed before 29.5.90, when the
judgment of LAU Tak-ming, CA 230/89 was delivered, Courts should apply the CHAN Chi-ming guidelines
and the CHENG Yeung conversion principle in the case of offences involving No. 4 heroin.)
***********
MA 342/90
SDC O'Callaghan
Duffy J (11.5.90)
*A Sham
#G Alderdice
Trafficking in cannibas (120 grammes) - PG - Agent provocateur defendant provided police with
information
Held :
1. A starting point of 18 months was too high.
(R. v. Weerth and Yurchak, CA 491/88 considered)
2. The appropriate sentence, having regard to all the mitigating factors, should have been 2 months'
imprisonment.
Result - Appeal allowed.
*************
CA 476/89
HUNG Man-sing
Cons Ag CJ, Clough JA, Kaplan J (1.8.90)
*I G Cross QC, W S Cheung
#I/P
Drugs/Family circumstances
Held :
Family circumstances play virtually no part in mitigation for drugs offenders. Were it otherwise, those with
families would be regularly employed in illicit drug dealing.
Result - Application for leave to appeal out of time refused.
382
Sentence (Quantum) Dangerous Drugs
************
CA 625/89
CHEUNG Wai-yuen
Silke V-P, Power, Macdougall JJA (10.8.90)
*E Chan
#Lee Wing-kin
DDUT/Guilty plea/Discount when caught red-handed
Held :
1. Eleven years was a proper starting point where the offence involved 1770 grammes of a mixture containing
102 grammes of salts of esters of morphine in circumstances which indicated that the room in which the drugs
had been stored was being used as a packing station :CHEUNG Yeung [1989] 2 HKLR 258, applied;
2. HAN Man-fai [1989] 1 HKLR 290, did not lay down any mathematical formula for a 25% discount after
assistance to police and plea. Where a defendant is caught red-handed and pleads guilty, a judge when
sentencing is entitled to give a discount substantially less than that figure. The judge properly gave a discount
of 2 years.
Result - Application for leave to appeal against a sentence of nine years dismissed.
***********
CA 73/90 CA 496/90
WONG Chi-ling , LEUNG Kwan
Cons Ag CJ, Silke V-P, Macdougall JA (13.9.90)
*D G Saw
#Sze Kin
Dangerous Drugs/Notional conversion/Correct test
Held :
1. Nothing said in LAU Tak-ming and Another CA 230 of 1989, was to be construed as derogating from that
which was said in Pravit [1989] 2 HKLR, 169, namely, that provided there is evidence that the seized mixture
is capable of being converted into a substance of greater volume which can be sold directly for consumption,
then that is enough - and it is not necessary to produce direct evidence to show that the mixture was in fact
likely to be so converted;
2. Notional conversion did not spring from CHENG Yeung [1989] 2 HKLR 258. It had been in existence
since at least 1982 and has been used by courts both in respect of esters and of salts of esters, where evidence
had been given of it, since then. While CHENG Yeung and LAU Tak-ming revised the guidelines as to the
quantum of sentence, the principles as to conversion were not affected;
(3) It cannot be right that the courts should be required to ignore evidence that the quantity of drugs found is
capable of conversion into a very much greater quantity of a saleable mixture.
Result 1. WONG's application for leave to appeal against a sentence of 15 years imprisonment, imposed after plea on
one count of possession for the purposes of unlawful trafficking in 1684 grammes of a mixture containing
1548 grammes of salts of esters of morphine, and 3 years concurrent on a second count involving 363.33
grammes of a mixture containing 33.60 grammes of salts of esters of morphine, refused;
383
Sentence (Quantum) Dangerous Drugs
2. LEUNG's application for leave to appeal out of time against a sentence of 5 years imprisonment, imposed
after trial for an offence of possession for the purposes of unlawful trafficking in 31.81 grammes of a mixture
containing 25.63 grammes of salts of esters of morphine, refused.
*************
CA 594/89
CHAN Hing-hung
Cons V-P, Kempster, Macdougall JJA (11.10.90)
*I G Cross QC, W S Cheung
#A C Macrae
DDUT/Practice and procedure/Applicant criticising counsel/Sentence breaching tariffs
Held :
3. Albeit that the judge took a starting point in excess of that prescribed in CHAN Chi-ming [1979] HKLR
491, tariffs are guidelines not straitjackets, and in a serious case it is permissible to sentence outside the
guidelines.
Result - Application for leave to appeal against sentences totalling ten years for two offences contrary to S. 7,
Cap. 134, refused.
*************
CA 230/90**
HEUNG Chi-keung
Yang CJ, Silke V-P, Power J (14.11.90)
*C Coghlan
#G Hampton
Conspiracy to smuggle heroin into prison/prison officer
The appellant pleaded guilty in the District Court to one charge of conspiracy to traffic in dangerous drugs, by
conspiring with two prisoners to smuggle dangerous drugs into Stanley Prison, and to one charge of accepting
an advantage of $2,000 from one of the prisoners, as a reward. He received four years imprisonment for the
first charge, and six months consecutive for the second. On appeal :
Held :
Appeal allowed. As the appellant had pleaded guilty, and given evidence against the wife of one of the
prisoners for the conspiracy offence, the sentence would be reduced to 3 1/2 years in toto.
***************
CA 351/90
YU Chun-hoi
384
Sentence (Quantum) Dangerous Drugs
Silke V-P, Power, Penlington JJA (27.12.90)
*D Saw, M Tsang
#A Hoo QC, A Chow
DDUT/Young offender/S. 109A, Cap. 221/Effect of remorse
Held :
1. When the legislature laid down that the court should not sentence to imprisonment unless it was of the
opinion that "no other method of dealing with such persons is appropriate", it meant appropriate to all the
circumstances, including the nature and gravity of the offence and the interests of the community;
2. When considering the sentence to be imposed on a young offender, an important factor must be whether he
has shown real remorse and a genuine desire to rehabilitate himself;
3. Albeit that the reports indicated that the offender was suitable for DATC, this was outweighed by the
seriousness of the offence committed by the young person with a criminal maturity beyond his years, who was
prepared to cooperate with those who used him in their trafficking activities.
Result : Application by a 16 year old for leave to appeal against 6 years imprisonment, imposed after a guilty
plea for DDUT, refused.
*************
MA 1583/90
LAU Chi
Wong J (27.12.90)
*I McWalters
#F Wong
Drugs/DATC order/consecutive to prison term
Held :
It is wrong in principle to order that a DATC order take effect after the offender had served an activated
suspended prison term.
Result - Appeal allowed. DATC order set aside, and substituted with 9 months imprisonment.
*************
CA 282/90
CHAN Kin-mei
Fuad V-P, Power, Macdougall JJA (9.1.91)
*D G Saw
#A Macrae
Dangerous drugs/International trafficking/Discount for assistance
Held :
385
Sentence (Quantum) Dangerous Drugs
1. Trafficking which involves international smuggling of dangerous drugs is regarded as an offence of utmost
seriousness. A starting point of thirteen years for possession of 293.83 grammes of No. 4 heroin found on the
applicant after arrest at the arrival hall at the Lo Wu Terminal was appropriate;
2. A discount of 44% for the giving of information which led to the apprehension of another trafficker was
"not ungenerous".
Result - Application for leave to appeal against a sentence of 7 1/2 years, refused.
*************
CA 192/87
CHU Chun-wah (A1), HONG Tung-kwong (A2) WONG Tin-sang (A3)
Silke, Fuad VV-P, Macdougall JA (22.2.91)
*B Moorfoot
#G Plowman (A1), E Laskey (A2), J Hemmings (A3)
Dangerous drugs/Manufacturing/DDUT/Conspiracy
Held :
A starting point of 18 years imprisonment for a large scale operation involving the manufacturing of
dangerous drugs was not excessive. The offence of manufacturing a dangerous drug is more serious than one
of possession for the purpose of unlawful trafficking and of trafficking itself.
Result - Appeals allowed in part.
*************
CA 391/89
CHAN Koon-wing
Silke, Fuad VV-P, Macdougall JA (1.3.91)
*B Moorfoot
#G Plowman
Discount/Crown evidence/Solitary confinement/Manufacturing DD
Held :
2. A starting sentence of 18 years imprisonment for involvement in a sizeable drug manufacturing incident
was not excessive : R. v. CHUN Chun-wah Cr. App. 192/1989.
Result - Applications for leave to appeal against concurrent sentences of 7 years imprisonment for DDUT and
manufacturing DD, dismissed.
****************
CA 366/90
WONG Yiu-chook
386
Sentence (Quantum) Dangerous Drugs
Silke V-P, Power, Macdougall JJA (12.3.91)
*S Bailey
#I/P
Dangerous drugs/S.E.M. explained
Per Cur :
The reference in LAU Tak-ming [1990] 2 HKLR 370, to "S.E.M." was to a mixture containing the narcotic,
less pure than No. 4 and of a greater purity than No. 3. S.E.M. is not the narcotic but is the mixture.
**********
CA 337/90
LAU Yau-yuen
Clough, Power, Macdougall JJA (9.4.91)
*D Saw
#G Plowman
Conspiracy to traffic in dangerous drug - Sentence for Leading conspirator
Held :
In TSUI Lai-ling [1987] HKLR 857, a relatively light starting point of 20 years after trial had been adopted by
the sentencing judge for a principal conspirator involved in a "massive drug conspiracy". However, that case
did not set a guideline for all such cases and the quantity of drugs is not the sole criterion of culpability. That
case concerned the importation, not the exportation of drugs.
The instant case involved exportation, it was not crude, and the applicant was a leading conspirator. A
starting point of 25 years imprisonment was appropriate.
Result - Application for Leave to appeal dismissed.
***********
AR 15/90
CHING Kwok-hung
Silke V-P, Macdougall JA, Bewley J (7.5.91)
*I G Cross QC, D G Saw
#A Macrae
Guidelines/ICE, or methamphetamine hydrochloride/DDUT or trafficking
Held :
1. ICE has made a start in Hong Kong. It is necessary to attempt to nip that process in the bud : AG v
LEUNG Pang-chiu [1986] HKLR 608;
387
Sentence (Quantum) Dangerous Drugs
2. ICE is one of the most powerful stimulants known, and the progressive toxic effects of amphetamine abuse
may lead to death or there can be a rapid deterioration of physical and psychological health. It is cheaper to
produce than cocaine, and easier to produce because it is entirely synthetic;
3. On the sliding scale, because of its highly addictive nature, its ease of manufacture and its intense effect,
ICE comes in at the same level, if not slightly above, heroin;
4. The following tariffs, to be imposed after trial, for the possession for unlawful trafficking or trafficking in
ICE will apply :
(a) up to 12 grammes - 3 to 7 years imprisonment;
(b) between 10 and 70 grammes - 7 to 10 years imprisonment;
(c) between 70 and 300 grammes - 10 to 14 years imprisonment;
(d) between 300 and 600 grammes - 14 to 18 years imprisonment;
(e) over 600 grammes - 18 years and upwards.
5. Generally it would be proper for trial courts to bear in mind that the amounts required by the personal
abuser, as opposed to the trafficker, are considerably smaller with ICE than with heroin.
Result -Although the sentence of 7 years imprisonment was manifestly inadequate, the Respondent, who had
pleaded guilty to possession for the purpose of unlawful trafficking of 5,989 grammes of damp solid
containing 5,941 grammes of methamphetamine hydrochloride ought not to be subjected to the new
sentencing guidelines. No order would issue : AG v CHAN Tak-ming and Another [1989] 2 HKLR 428.
***********
CA 600/89
LAW Yiu-sang
Silke V-P, Power, Macdougall JJA (23.5.91)
*D Saw
#J Haynes
Manufacturing DD/70 kilos/Sentence after trial
Held :
If a man knowingly involves himself in a crime so grave as the manufacturing and possession of 70 kilos of
No. 3 heroin, worth more than $2 million, then, even though he may not have been the prime mover, the
gravity of the offence must be emphasized by a deterrent sentence.
Result - Application for leave to appeal against a sentence of 24 years imprisonment, dismissed.
***********
AR 16/90
Silke V-P, Power, Macdougall JJA (31.5.91)
*I G Cross QC, D G Saw
#A Souyave
Dangerous drugs/Relevance of mitigation/Principles applicable to discounts on reviews
Held :
388
Sentence (Quantum) Dangerous Drugs
A. Sentence
1. Although pleas of guilty are to be actively encouraged, if a person is caught red-handed this takes
something away from that point in mitigation : LEE Wai-man CA 225/90;
2. A mere promise of assistance, or the giving of information which is of little value, is not relevant to
mitigation. If a defendant later gives evidence, then it would be a matter for the Executive to act as it saw fit
in relation to the sentence;
3. As the respondent was caught in possession of over 1,000 grammes of No. 4 heroin, the trial judge erred in
taking 17 years as his starting point, and reducing it to 10 years. 20 years reduced to 15 years would have
been proper.
************
CA 105/90
(1) CHEUNG Chi-ling
(2) TSANG Yui-hung
Silke V-P, Power, Macdougall JJA (28.5.91)
*D G Saw
#(1) G Plowman
(2) D Marash
Trafficking/Couriers/Effect of mitigation
Held :
(1) Where an offender is caught delivering or receiving a consignment of drugs there is no obligation to
assume that he is a mere courier. Where, however, an offender pleads guilty and the prosecution accepts that
his role was no more than that of a courier the Court would be justified in sentencing him on that basis. But
mere assertions during the course of a contested trial by an offender found in possession of drugs that he was
unaware of their true nature do not entitle him to receive the same consideration;
(2) Since LAU Tak-ming [1990] 2 HKLR 370, those found guilty of possession of trafficking in large
quantities of dangerous drugs will not be able to pray in aid the mitigation that they were only couriers.
Result - Appeals allowed. 20 years reduced to 16 years for trafficking, as couriers, in 13.313 kilos of
No. 4 heroin.
***********
CA 198/91
CHU Man-chiu
Kempster, Power, Macdougall JJA (19.7.91)
*A Bruce
#K Egan, D MA
Prison term/Relevance of Article 6(3)
In seeking to challenge a sentence of 17 years imprisonment imposed for DDUT, the applicant submitted that
Article 6(3) of the Bill of Rights Ordinance has application to the length of sentences that can lawfully be
imposed. It reads thus :
389
Sentence (Quantum) Dangerous Drugs
"The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their
reformation and social rehabilitation..."
Held : The Article has no bearing whatever on the appropriateness of sentences imposed by the courts. It
relates only to the treatment of prisoners in a correctional institution while they are undergoing sentence.
Application for leave refused.
***********
AR 8/91
Graeme Mutton
Yang CJ, Silke V-P, Penlington JA (18.3.92)
*A P Duckett QC, W Lam
#A Macrae
Trafficking in No. 4 heroin/Culpability of courier/Principles applicable on reviews of sentence
Held :
(1) Although the tariff prescribes that a quantity of No. 4 heroin of between 400 and 600 grammes should
attract between 15 and 20 years imprisonment after trial, the upward curve begins to level off when it reaches
the plateau of 20 years. The prison term will be progressively less dramatic as compared with the increase in
the quantity of drugs as it goes beyond 600 grammes. Whilst the quantity of drugs here involved was about
twice that of 600 grammes, it does not follow that the starting point must necessarily be in excess of 20 years
imprisonment : R v LAU Tak-ming [1990] 2 HKLR 370 considered;
(2) Although the respondent's co-operation and assistance proved to be of little value to the police, they fell to
be considered under the rubric of remorse;
(3) Although a distinction may properly be drawn between a "direct" trafficker and a courier, couriers do play
a vital role and can expect little sympathy;
(4) Those who enter this nefarious trade can expect no mercy. Their actions knowingly go to the destruction
of their fellow men.
Result - AG's application allowed. A sentence of 12 years imprisonment, imposed after a guilty plea to
trafficking in 1,384.04 grammes of a mixture containing 1,205.81 grammes of salts of esters of morphine, was
manifestly inadequate. Sentence increased to 15 years.
Per curiam :
(a) Although guidelines are not strait-jackets, their purpose is to achieve consistency in the sentencing
process;
(b) It is no light matter to interfere with the discretion of a sentencing judge. The court will be jealous to
prevent encroachment on the discretion of judges and magistrates to impose as lenient a sentence as they may
think appropriate, provided the sentence is one which in all the circumstances could reasonably be passed.
The court will be much more easily persuaded a sentence is manifestly excessive than it will be that it is
manifestly inadequate because there is a presumption favorem libertatis which the Crown must overcome on a
review : AG v LAU Chiu-tak [1984] HKLR 23 approved.
************
390
Sentence (Quantum) Dangerous Drugs
AR 14/91
WONG Ma-tai
Penlington, Nazareth JJA, Kaplan J (15.4.92)
*C Coghlan
#K Egan
Manufacturing opium/Suspension wrong/Trafficking in opium
The respondent was convicted of manufacturing dangerous drugs, namely, 827.3 grammes of opium, and of
DDUT, in relation to 1,763.3 grammes of raw opium, and of possession of an instrument fit and intended for
the smoking of a dangerous drug. He was sentenced respectively to 18 months, 12 months and 3 months. All
sentences were concurrent and suspended for 3 years.
On review,
Held :
(1) As manufacturing dangerous drugs is an excepted offence under s. 109B, Cap. 221, it could not be
suspended;
(2) Whilst the tariff in LAU Yiu-nam [1986] HKLR 964, provided for a sentence of about one year for
possession of 827.3 grammes of opium, the manufacture of dangerous drugs attracts a much heavier sentence
than possession of the same quantity for the purpose of trafficking : WONG Chun-hing [1984] HKLR 247;
AG v MA Sai-tai AR1/1988;
(3) Possession of 1,763.3 grammes of opium for the purpose of unlawful trafficking should have attracted a
sentence approaching two years : AG v CHAN Chi-man [1987] HKLR 221;
(4) The departure from the guidelines had not been adequately explained by the trial judge.
Result - AG's review allowed. Sentences totalling 2 1/2 years substituted.
***********
391
Sentence (Quantum) False Instruments/Bank Notes
False Instruments/Bank Notes
MA 1284/89
CHAN Sik-kwan
O'Connor J (20.10.89)
*R Turnbull
#J Millar
Possession of forged credit cards - Sentence
1. Offences concerning forged credit cards are more serious then those concerning stolen credit cards as stolen
card offences are likely to come more quickly to the attention of the credit card company and the period of
time within which stolen cards can be used before the risk of using them becomes unacceptable is, therefore,
short.
2. In sentencing those possessed of forged credit cards, the court is entitled to draw the natural inference, in
the absence of explanation to the contrary, that the cards are intended to be used for the purpose for which
such cards are normally used, that is, to obtain credit.
(Jones (1974) Cr. L. R. 54, considered)
3. For this offence, 18 months is a correct starting point.
Result - Appeal against sentence of 12 months on a guilty plea to 3 counts of Possession of a Forged Credit
Card dismissed.
***********
CA 532/88
LEE Yan-chi
Silke V-P, Macdougall JA, Mayo J (21.4.89)
*G Lugar- Mawson
#I/P
Aiding and abetting another to use a forged passport - 2 counts - Aiding and abetting another to
possess a forged passport - 1 count - Sentence
Although it was accepted that the Applicant was a mere "runner" and "small fish" in the syndicate involved,
he was a full participant in the matters which involved the use of forged passports and the totality of the
sentence was in no way excessive.
Result - Leave to appeal against sentences of 3 years' imprisonment on each, to run concurrently, refused.
************
CA 403/88
CHAN Siu-sing
392
Sentence (Quantum) False Instruments/Bank Notes
Hunter, Power JJA (19.1.89)
*A A Bruce
#B Sceats
Execution of false letters of credit - Forgery with intent to defraud - Differences in criminality Sentence
Where the total loss amounted to $6.1 m from 18 charges, $29.2 m from 450 other offences taken into
consideration and the value totalled $19.8 m in 93 forged cheques, it is quite impossible to say the 5 years in
toto is manifestly excessive - despite the major differences in criminality between the appellant and the main
instigator (who received 9 years in toto).
Result - Application for leave to appeal against sentence refused.
*************
CA 342/88
WAN Ho-hung (A1)
CHEUNG Fai-leung (A2)
Fuad V-P, Hunter, Macdougall JJA (30.12.88)
*S Stone
#A1 - I/P
A2 - D Tolliday-Wright
Using forged travel document - Making false representation to Immigration Officer - Possession of
forged die - Possession of forgery implements - Remaining in HK w/o authority - Consecutive sentences
1. 18 months is an appropriate sentence for using a forged travel document on a guilty plea.
(YU Wing-wut CA 346/84; Berger CA 598/87 followed)
Result - A1's appeal against sentence of 3 years in toto (18 months X 2 concurrent and 18 months X 2
concurrent, consecutive) dismissed;
- A2's appeal against sentence of 18 months (18 months X 3 concurrent) dismissed.
************
CA 280/89
LAU Shiu-wah Stephen
Silke V-P, Power, Macdougall JJA (3.5.90)
*I G Cross QC, W S Cheung
#I/P
Forgery of document with intent to defraud - Breach of trust - No actual profit from dishonesty Whether a mitigating factor
Held :
1. Where a bank officer is grossly in breach of trust, the fact that the offender has made no actual profit from
his dishonesty is not a mitigating factor.
393
Sentence (Quantum) False Instruments/Bank Notes
2. 18 months for three such offences, by a person in a position of trust, is in no way excessive.
Result - Appeal dismissed.
**********
CA 549/89
CHAU Tin-wah
Power, Macdougall JJA, O'Connor J (26.7.90)
*T Casewell
#E Laskey
Sentencing/Possession of forged banknotes
Held :
Where there was a plea to possession of 15,763 forged banknotes, a sentence of 3 1/2 years was not
manifestly excessive. Decided authority supported the proposition that a starting point of 6 years was
warranted for possession or uttering of large quantities of forged banknotes.
Result - Application dismissed.
*************
CA 316/90
Suchai Pruksachat-ta worn
Silke V-P, Power JA, Liu J (7.3.91)
*S Bailey
#A Macrae
Possession of forged banknotes/Mitigating Factors
The applicant pleaded guilty to possession of 499 forged banknotes each purporting to be a Bank of America
US$500 Travellers Cheque. He appealed against a sentence of three and a half years imprisonment on the
ground that full consideration was not given to the fact that he was only a courier who was to be paid a fixed
sum of $2,000 and was not involved in negotiations or disposal of the forgeries. On appeal :Held :
Five years was a proper starting point for possession by a courier and that a sentence of three and a half years
gave due account to the mitigating factors. Application for leave dismissed.
***********
MA 216/91
BUI Duc-thanh
Yang CJ, Silke V-P, Power JA (21.5.91)
394
Sentence (Quantum) False Instruments/Bank Notes
*I G Cross QC, D Saw
#G J X McCoy
Vietnamese escape/Forging stolen Vietnamese refugee card
Held :
A Vietnamese boat person who escapes from a detention centre, and then uses a stolen Vietnamese refugee
card, which he had forged, is not necessarily in the same position as an illegal immigrant from China - except
within the broad consideration that the dictates of social and economic order require Hong Kong to take a
stringent view of those who came from other territories or remain here to the detriment of this society,
particularly in such matters as housing, employment, medical services. A sentence totalling 14 months for
someone who deliberately and actively took steps to contravene the law was not excessive.
Result - Appeal dismissed. (Barnes J referred this appeal pursuant to S. 118(d) Cap. 227).
*************
CA 21/91
LUI Kwok-wai
Silke v-P, Penlington, Macdougall JJA (3.9.91)
*R M Daley
#L Lok, V Lim
Perjury/Manufacturing false defence
Held :
The deliberate manufacturing of a false document and the calling of a false witness to support it elevates the
culpability from the category of a defendant simply giving untruthful evidence in his own defence. The
evidence disclosed a deliberate course of conduct entered into for the apparent purpose of bolstering the
applicant's evidence : WU Wing-keung Cr.App. 202/1988, POON Sau-tin Cr. App. 633/1990 considered.
Result - Application for leave to appeal against concurrent sentences of nine months, imposed for perjury and
uttering a forged document, refused.
************
395
Sentence (Quantum) Gambling
Gambling
MA808/89**
TAM Kwok-keung (A1)
TAM Tung-keung (A2)
Yang CJ (6.7.89)
*J McMaster
#R Mayne
Engaging in bookmaking - S. 7(1)(a) of Gambling Ordinance, Cap. 148
Where the defendant, who had a clear record, pleaded guilty to an offence under s. 7(1)(a) of Cap. 148,
involving betting slips in excess of HK$500,000, 6 months immediate and a fine of HK$12,000 is a proper
sentence.
(AG v. LI Wai-ming [1984] HKLR 327 considered)
Result - A1's appeal against sentence refused.
***********
396
Sentence (Quantum) Going Equipped
Going Equipped
CA 315/89
TSANG Wing-ming
Cons V-P, Clough, Power JJA (3.1.90)
*M Hartmann
#P Fok
Going equipped for stealing - Sentence
(The Applicant, who was caught climbing scaffolding late at night with a screwdriver and a small torch, had a
"deplorable" record, consisting mostly of burglaries.)
1. In sentencing a crime of a preventive nature such as this, the nature of the equipment carried is a matter for
consideration. The nature and background of the offender involved is, however, of more importance.
2. The Applicant in this case was a professional burglar and the sentence of 2 1/2 years, after trial, was not
manifestly excessive.
Result - Leave to appeal against sentence refused.
***********
CA 403/89
WONG Siu-wah
Yang CJ, Silke V-P, Bewley J (6.10.89)
*I G Cross, W S Cheung
#A Macrae
Going equipped for stealing - Basis for sentence
1. S. 27(1), Cap. 210, limits the intended use of any article carried for stealing to "burglary, theft or cheat".
2. The judge was in error in accepting, for the purpose of sentencing, that the articles (bread knives) were
intended to be used for robbery, as was asserted in the admitted facts.
Result - Appeal against sentence of detention in a Detention Centre allowed. 18 months' probation with
special conditions substituted.
***********
MA 609/89
TAM Kwok-ying
de Basto J (4.9.89)
*S Bailey
#A Hoosen
397
Sentence (Quantum) Going Equipped
Going equipped to steal - Sentence
Recent statistics indicate no tariff for this offence. 6 months is the highest where an immediate custodial
sentence is ordered.
Result -Appeal against sentence of 9 months allowed. One which would effect the appellant's immediate
release substituted.
*************
398
Sentence (Quantum) Hawker
Hawker
MA 303/89
HO Ping-yan
Bewley J (1.6.89)
*S Kelly
#I/P
Hawking commodities not specified in licence - By-law 5(2) of Hawker (UC) By-laws Cap. 132 Imprecise classification of goods permitted to be hawked under a "Haberdashery" licence - Special
reasons for not making forfeiture order
Until the Urban Council introduces a more precise classification of goods permitted to be sold under the
category of "haberdashery", Magistrates should be alert to the injustice that may be caused by making
forfeiture orders.
Result - Appeal against the forfeiture of leather goods allowed.
*************
MA 1705/88, MA 1706/88, MA 1714/88, MA 1715/88, MA 1716/88, MA 13/89, MA 15/89
CHU Yu-sun, SIU Kam-lam, SIU Kam-lam, CHU Yu-sun, CHUNG Kam-cheung, TANG Yin-kat
HO Pak-kui
Bewley J (13.1.89)
*I C McWalters
#I/P
Hawking obstruction - By-laws 53 56(2) Hawkers (UC) By-laws, Cap. 132 - Sentence
1. $600 fine would have been a proper sentence for a first offender of hawking obstruction.
2. However, multiple offenders should be dealt with more severely.
(SIU Ng MA 800/88; LEE Kam others MA 1008/88; CHENG Foon MA 1158/88 followed)
Result - MAs 1705, 1706, 1716 and 15 - Appeal against sentences allowed - fines of $1,000 each reduced to
$600;
- MAs 1714 and 1715 - Appeal against sentences of $1,000 fine each dismissed on the ground that
these offences were committed by the appellants 6 days after their first convictions in MA 1706 and
MA 1705;
- MA 13 - Appeal against sentence of $1,000 allowed - Fine reduced to $400 on the ground that the
obstruction was minimal in a cul-de-sac.
***********
399
Sentence (Quantum) Homicide
Homicide
CA 439/91
SO Ching-kwa n
Fuad V-P, Penlington, Nazareth JJA (7.7.92)
*T H Casewell
#P Wong
Manslaughter/Death in the course of armed robbery
Held :
(1) The courts in Hong Kong have for many years considered that a sentence of life imprisonment should not
be passed unless the accused is particularly dangerous either from a mental disorder or because of his criminal
propensity;
(2) Although the applicant suffered from no mental instability, and had no previous convictions, he and the
other robbers had been brought in from mainland China to commit offences which involved the actual use of
firearms to carry out a robbery of a goldsmith shop and to evade arrest. The taking hostage of a young passerby, the threat to kill her, and the use of a gun in an MTR station with many innocent people present, showed a
total disregard for human life. There is a very strong feeling that the perpetrators of such offences should be
shown no mercy whatsoever;
(3) The applicant's actions were such as to show there was a real risk that they might be repeated on his
release from a fixed term of imprisonment. He showed no remorse for his actions which resulted in the death
of a perfectly innocent member of the public.
Result - Application for leave to appeal against a sentence of life imprisonment, imposed for the
manslaughter of a bystander who was killed by a ricocheting bullet from a police revolver, dismissed.
*************
CA 69/92
NG Hung-sheung
Power JA, Mayo, Bokhary JJ (1.10.92)
*C Grossman
#F Chan
Manslaughter/Lethal weapon purchased before killing
Held :
The applicant was not entitled to be dealt with as if he had gone to the scene unarmed and had, after being
provoked, spontaneously seized a knife which happened to be lying to hand. As the applicant had deliberately
purchased and brought the knife to the scene, the judge rightly treated this as being in the more serious class
of manslaughter offences.
Result - Application for leave to appeal against 9 years imprisonment dismissed.
********************
400
Sentence (Quantum) Homicide
CA390/88**
CHONG Chiu-wo
Silke V-P, Penlington, Macdougall JJA (16.6.89)
*I G Cross, Miss C Fung
#W N C Stirling
Attempted murder - Robbery - Cold blooded attacks
Where the applicant committed 2 offences of the highest gravity - cold blooded attacks in the course of
robbery - 25 years concurrent is not manifestly excessive.
Result - Application for appeal against sentences of 25 years @ concurrent for attemtped murder (x 2) and 20
years for robbery concurrent refused.
**************
CA 513/88
WONG Tak-sing
Silke V-P, Bewley & Ryan JJ (9.11.89)
*M Hartmann
#F Wong
Manslaughter - Sentence
1.The range of sentence for manslaughter is very wide; it depends entirely on the criminality attaching to the circumstances o
each case.
2. A brutal killing with a degree of premeditation to cause harm is at the high end of the scale - 18 years' imprisonment woul
be proper.
Result -18 years imposed - after quashing the Murder conviction and substituting Manslaughter
******************
CA126/89
WONG Wo-ping
Yang CJ, Silke V-P & Power JA (31.10.89)
*I G Cross & W S Cheung
#G J X McCoy
Manslaughter
Sentence : 5 years, after trial, is a proper sentence for manslaughter resulting from a gang fight.
Result - Appeal against sentence of 6 years allowed. 5 years substituted
****************
401
Sentence (Quantum) Homicide
CA 86/89
CHEUNG Chin-hon
Yang CJ & Clough J (23.6.89)
*S Wong
#I/P
Manslaughter - Ill-treatment of a child (s. 27 of Cap. ÿ_212) - Sentence - Loss of time 7 years was entirely proper, if no
too lenient, for the abuse and brutality on a 3 1/2 years old child who ultimately died of rupture of intestines an
peritonitis caused by blows inflicted by the Applicant.
Result -Application for leave to appeal against sentences of 7 years for Manslaughter and 2 years for Ill-treatment of a chil
(concurrent) refused; loss of time ordered.
******************
CA 332/88
HO Sun-wai
Silke V-P, Kempster & Power JJA (16.2.89)
*I G Cross
#I/P
Provocation - Manslaughter - Wounding with intent - Sentence - Loss of time
Where a man is convicted after trial of manslaughter of his wife after a frenzied chopping, by virtue of provocation which th
judge accepted when sentencing was not of the most extreme, a sentence of 7 years was not excessive.
The applicant was fortunate that the sentence for wounding with intent on another victim, which occurred just prior to th
manslaughter, was not consecutive or partly consecutive to the manslaughter sentence.
Result -Appeal against sentences of 7 years for manslaughter and 3 years concurrent for wounding with intent dismissed; months loss of time ordered.
***********
AR 4/90
TAM Ka-lok (D1), CHOI Choi-ho (D3), WU Wai-kwong (D4), KO Kwok-hung (D5), FU Choi-chung (D6)
Hunter, Penlington JJA & Sears J (7.6.90)
*I G Cross QC & W S Cheung
#D Percy (D1, D5, D6) D3, D4 in person
Manslaughter - Joint enterprise in gang attack - PG - Admissions of different degrees of participation - Discrepanc
between sentences
Held : 1.A starting point of 6 years' imprisonment was on the low side but was not so low as to be manifestly inadequate.(AG
SIN Wai-lun [1988] 1 HKLR 580 considered)
Result -AG's application in respect of D1, D5 and D6 allowed. Sentences of 18 months' imprisonment set aside and 3 year
imprisonment substituted in each case.
402
Sentence (Quantum) Homicide
****************
CA 599/89
TSANG Chiu-hung
Yang CJ, Fuad V-P & Barnes J (24.7.90)
*I G Cross QC & W S Cheung
#A King
Manslaughter/Provocation/Spouse
After announcing her intention to seek a divorce and to remove the child, the wife was strangled by ligature by the husband
The relationship had hitherto been harmonious. Although the jury convicted of manslaughter rather than murder, after
defence of provocation had been raised, the trial judge considered the killing close to murder, and took ten years as his startin
point for sentence. Due to remorse and the early offer of a manslaughter plea, he imposed a sentence of 8 years.
Result - Application to appeal against sentence dismissed. The starting point of 10 years was not manifestly excessive. Th
discount was adequate
***************
CA 502/89
TSOI Wah-chai (A1)
LEUNG Kwok-fai (A2)
LEUNG Kui-tai (A3)
Cons Ag CJ, Clough JA & Kaplan J (1.8.90)
*I G Cross QC & W S Cheung
#G Mackay (A1)
R Forrest (A2)
E Laskey (A3)
Manslaughter/Robbery/Youth/Judge disregarding guilty pleas/Significance of pleas
Held : 1. Youth of itself is of little importance to sentencing in crimes of this nature;
Result -Appeal allowed. Sentences of 10 years for manslaughter reduced to 8 years for each appellant
***************
CA 85/90
KAU Wah-cheung
Silke V-P, Power & Penlington JJA (4.1.91)
*A Schapel
#A King
Manslaughter/Fight involving more than one attacker/Public place
Held : 1.The time may well have come when disputes which degenerate into fights, with or without the protagonists bein
armed, and in a public place - or more seriously in the close confines of a housing estate - from which a death results, shoul
attract, upon conviction for manslaughter, a sentence of at least 5 years' imprisonment after trial;
403
Sentence (Quantum) Homicide
2. Such sentence should be increased depending upon the degree of violence, the nature of the weapons used, the deliberat
nature of the attack and the number of the attackers;
3. Any person who attaches himself to such an attack, whether or not he himself inflicts blows, faces such a sentence;
4. Although S. 109A, Cap. 221, should be borne in mind by sentencing judges, youth, unless it be extreme youth, of itself ma
not be a strong mitigating factor.
Result -Appeal allowed. Four years, on the facts, reduced to three
*****************
CA 248/90
CHOW Wing-kin
Silke V-P, Kempster & Power JJA (25.4.91)
*I G Cross QC & D G Saw
#B Sceats
Manslaughter/Provocation/Husband killing wife
Held : Albeit that there had been discord between the couple over a long period, culminating in the wife using a knife to caus
superficial cuts to the husband as he slept, and after which she abused him, five years imprisonment imposed was an appropriat
sentence after the husband, who then strangled the wife, pleaded guilty to manslaughter on the basis of provocation. (Donachi
4 Cr.App.R. (S) 378 considered).
Result - Application for leave to appeal refused.
****************
CA 587/90
KO Kam-hung
Cons V-P, Clough & Macdougall JJA (10.7.91)
*A Schapel
#A Macrae
Manslaughter/Gang attack/Grossly excessive violence
Held : Since the victim did not die as a consequence of a typical gang attack involving kicks and punches, but by a deliberat
act of jumping on a dustbin lid which had been placed over the victim's head and chest, a sentence of 8 years imprisonment wa
appropriate - despite the age (19), the guilty plea and the voluntary surrender to police.
Result - Application for leave to appeal refused.
******************
CA 471/91
KO Yuk-ching
Cons V-P, Silke V-P, Power JA (31.1.92)
404
Sentence (Quantum) Homicide
*C Coghlan
#A Sedgwick QC & M Poon
Manslaughter/Person in charge of train/Competing factors
Held : Where the applicant was the person in charge, but not the driver of one of the locomotives involved in a collision whic
caused a death, and he was personally negligent, the court had to balance the demands of society that such criminal misconduc
be properly punished against the character and circumstances of the offender and the unusual nature of the offence : Morga
(1990) 12 Cr.App.R. (s) 504 considered.
Result - Appeal against a sentence of 12 months imprisonment imposed after trial for manslaughter allowed. 9 month
substituted.
****************
CA 439/91
SO Ching-kwan
Fuad V-P, Penlington & Nazareth JJA (7.7.92)
*T H Casewell
#P Wong
Manslaughter/Death in the course of armed robbery
Held : (1) The courts in Hong Kong have for many years considered that a sentence of life imprisonment should not be passe
unless the accused is particularly dangerous either from a mental disorder or because of his criminal propensity;
(2) Although the applicant suffered from no mental instability, and had no previous convictions, he and the other robbers ha
been brought in from mainland China to commit offences which involved the actual use of firearms to carry out a robbery of
goldsmith shop and to evade arrest. The taking hostage of a young passer-by, the threat to kill her, and the use of a gun in a
MTR station with many innocent people present, showed a total disregard for human life. There is a very strong feeling that th
perpetrators of such offences should be shown no mercy whatsoever;
(3) The applicant's actions were such as to show there was a real risk that they might be repeated on his release from a fixe
term of imprisonment. He showed no remorse for his actions which resulted in the death of a perfectly innocent member of th
public.
Result - Application for leave to appeal against a sentence of life imprisonment, imposed for the manslaughter of a bystande
who was killed by a ricocheting bullet from a police revolver, dismissed.
************
405
Sentence (Quantum) Immigration
Immigration
AR 8/92
CHUNG Kwan-wai
Yang CJ, Jones, Wong JJ (5.8.92)
*I G Cross QC, W S Cheung
#L Lee
Illegal immigrant at place of employment/Staying not working
As the illegal immigrant was not working at the time he was arrested in the factory, but was simply residing
there, the magistrate concluded that he was outwith the scope of the existing prosecution policy, and departed
from the tariff by imposing a sentence of one month's imprisonment. On review,
Held :
(1) The existing policy was aimed at those found at places of employment, and was directed at those illegal
immigrants who came to Hong Kong for economic reasons;
(2) The respondent came within the existing policy, and the magistrate erred in holding otherwise : SO Manking [1989] 1 HKLR 142, NG Tung-fong [1992] 1 HKLR 114 considered.
Result - AG's review allowed. 15 months' imprisonment substituted.
*************
CA 359/91
M Ayivor
Yang CJ, Rhind, Wong JJ (30.7.92)
*A E Schapel
#I/P
Possession and uttering forged passports/Sentence after trial
Held :
A sentence totalling 3 years imprisonment for four charges of possession and uttering of six forged passports
was proper on conviction after trial.
Result - Application refused.
******************
AR 5/91
Shun Shing Construc- tion Co. Ltd.
Silke V-P, Penlington, Macdougall JJA (11.9.92)
406
Sentence (Quantum) Immigration
*H Macleod
#P Graham
S. 38A Cap. 115/Illegal immigrants on construction sites/Deterrence
Held :
(1) It is necessary for deterrence to prevent the employment of unlawful entrants on construction sites or
elsewhere;
(2) As the Respondent's culpability was minimal, a fine of $15,000 for controlling a construction site whereon
was found an illegal immigrant, was neither wrong in principle nor manifestly inadequate.
Result - Application refused.
***************
MCA 336/92
Obi Christian
Keith J (15.7.92)
*A Macrae
#J Lee
Using a false passport/Offender unconnected with territory/Concurrent term for false declaration
Held :
(1) The isolated use of a false passport by a person unconnected with Hong Kong or China should attract a
starting point for sentence of 9 months imprisonment. Such an offence fell within the fourth category
described in Bhagwant Singh Padda MCA 1447/88;
(2) The charge of making a false representation to the Immigration Officer did not aggravate the charge of
using the fake passport, as the use thereof necessarily involved the commission of the offence of making a
false representation. The sentences should be concurrent;
(3) The discount for the guilty pleas should not be substantial as the Appellant was caught red-handed.
Result - Appeal allowed. Sentences reduced from 15 months imprisonment to 8 months.
**************
CA 6/92
CHAN Wan-sang
TAM Kam-keung
Cons Ag CJ, Kempster, Litton JJA (9.10.92)
*A P Duckett QC, W L Kwok
#S Westbrook
Sentencing II's/Use of another's ID card/Change in executive policy
Held :
407
Sentence (Quantum) Immigration
(1) The circumstances in which illegal immigrants make use of another's identity card do justify an increase in
the standard sentence of 15 months imprisonment : OR Chun-ping and others MA 334/91, disapproved in
part;
(2) The attitude of the executive, in no longer prosecuting those who entered Hong Kong illegally on an
earlier occasion and were then repatriated, is irrelevant. Once the legislature has decided that particular
conduct shall be criminal it is the duty of the courts to enforce that law by passing appropriate sentences upon
those convicted of that conduct. There is no justification to depart from those principles merely because the
Attorney General, in whom the discretion to prosecute exclusively lies, has adopted a selective policy; or
because the absence of proper grounds might lead, in some cases, to a lesser sentence than that properly
deserved. Accordingly, the fact that each appellant had made a previous unlawful entry into Hong Kong
justified an increase in the standard sentence of 15 months imprisonment : OR Chun-ping (Supra), LAM Chiwah MA 949/91 overruled; LEE Yuen-shing MA 154/92 approved.
Result - Appeals against sentences of 18 and 15 months imprisonment dismissed.
**************
MA 672/92
CHAN Kwong
Leonard J (28.10.92)
*C Coghlan
#I/P
Illegal immigrant/Wife unable to care for children/Mitigation
Held :
Even if it were the case that the appellant's wife was not able to look after their children, this would not give
rise to strong humanitarian grounds such as to justify a departure from the tariff prescribed in SO Man-king
[1989] 1 HKLR 142.
Result - Appeal against a sentence of 18 months imprisonment for remaining unlawfully in Hong Kong,
dismissed.
***************
CA 175/92
LAM Mo-kwong
Kempster, Litton JJA, Wong J (20.11.92)
*H Macleod
#C Grounds
Disparity/Member of crew bringing II's to HK
Held :
(1) 3 1/2 years imprisonment for a defendant who pleaded guilty to being a crewman of a vessel which entered
Hong Kong waters with six illegal immigrants on board, in circumstances where the vessel was seaworthy and
there was no risk to life or limb, was wholly proper;
408
Sentence (Quantum) Immigration
(2) Although the applicant might well feel a sense of grievance as his fellow crewman received 3 years
imprisonment from another judge, since different judges were involved the disparity would not avail him.
Result - Application dismissed.
***************
CA 287/92
HUI Lan-chak
Silke V-P, Macdougall JA (27.11.92)
*W S Cheung
#I/P
Family hardship/Crewman bringing II's to HK/Time in custody
Held :
(1) Regrettable though it was that the applicant's family members would suffer in consequence of his offence,
this was not a factor which the court would take into consideration in reduction of sentence;
(2) 4 years imprisonment was proper after a guilty plea to being a crewman of a ship which entered Hong
Kong with unauthorised entrants on board : R v LAM Kong-man [1991] 1 HKLR 333; R v NG Kit-yuen
[1992] 1 HKCLR 170;
(3) A discount should have been granted as the applicant had spent one month in custody before being
brought before a court.
Result - Appeal allowed. Sentence of 4 years imprisonment reduced to one of 3 years and 11 months.
****************
MA 764/92
R M Chandra
Duffy J (20.11.92)
*C Ravenscroft
#L Lee
Forged passports/Overstayer using unlawfully obtained travel document when leaving HK
Held :
Although the sentencing norm for offences relating to false passports is approximately 18 months
imprisonment, this case involved the isolated use of an unlawfully obtained travel document by a person
leaving Hong Kong who, for family reasons, had had to overstay and had to cover up the fact he had
overstayed.
Result - Appeal allowed. Sentences totalling 12 months imprisonment substituted with sentences totalling 6
months.
******************
409
Sentence (Quantum) Immigration
MA 786/92
LEE Yuk-ying and 2 others
Litton JA (1.12.92)
*L Cross
#E Toh
Illegal immigrants/Pregnancy as mitigation
Held :
As the applicants would, if their appeals were dismissed, give birth in prison, without the comfort and support
of their family members, and as this represented a considerable personal hardship to them and their unborn
babies, the sentences passed on these illegal immigrants would be varied to allow of their immediate release
and repatriation. (The pregnancies were not made known in the magistracy at the sentencing stage).
Result - Appeals allowed. Sentences of 15 months for unlawfully remaining and using another's identity card
varied accordingly.
******************
MA 590 597/92
LO Yuk-keung
CHU Man-sik
Duffy J (4/12.92)
*D G Saw, #L Lee
MA 658/92
NG Sau-ling
Duffy J (4.12.92)
*C Ravenscroft, #L Lee
(Consolidated appeals)
Illegal immigrants/Upward adjustment of sentences for prior unlawful entries
Held :
Although it initially seemed that the Court of Appeal had delivered itself of mutually inconsistent statements
of principle in two separate judgments in circumstances where illegal immigrants were sentenced after a
change in prosecution policy, the statement of principle enunciated in R v TAM Kam-keung MA 6/92 was
relevant to these appeals. Accordingly, the upward adjustment of sentences was not wrong in principle in
circumstances where the defendants had all previously come to Hong Kong. (R v SO Man-king others
[1987] 1 HKLR 142, R v NG Tung-fong [1992] 1 HKLR 114 considered and distinguished).
Result - Appeals against sentences ranging from 18 months to 20 months, for unlawfully remaining in Hong
Kong and using false identity cards, dismissed.
****************
410
Sentence (Quantum) Immigration
AR 1/90 & AR 2/90
CHAN Chun-lap & 7 others
Cons v-P, Kempster JA & Barnes J (16.3.90)
*J Reading & G E Forlin
#L Lee LIU Chi-ping
(A) Possession of a forged Chinese Permit - S. 42(2)(c)(i) of Cap. 115
Held :
1. A sentence of 15 months imprisonment is appropriate after a plea of guilty; the purpose of sentencing for
such offences being deterrence.
2. That such a sentence of imprisonment may properly be imposed upon an offender of less than 21 years of
age. Members of this age group are particularly prone to enter unlawfully into Hong Kong. It must be
accepted that no method of dealing with such persons otherwise than by imprisonment is normally
appropriate. (AG v. SO Man-king & others [1989] 1 H.K.L.R. 142 applied).
Result -12 months imprisonment in substitution for that of one day.
(B) Unlawfully remaining in Hong Kong - s. 38(1)(b) of Cap. 115 - Arrest on construction site
Held :
1. A guideline of 15 months imprisonment after a plea of guilty is appropriate. (R. v. SO Man-king & others;
AG v. CHAN Shu-mui & others AR 13/89 applied).
2. That the Respondent came to Hong Kong with knowledge that his father was dangerously ill is not a strong
humanitarian consideration.
Result - 12 months imprisonment in substitution for that of 3 months.
***************
MA 129/90
CHONG Yuk-lun
Ryan J (19.2.90)
*H Macleod
#A Chung
Sentence - Breach of condition of stay - 10 weeks imprisonment
Held :
It is neither wrong in principle nor manifestly excessive to impose an immediate custodial sentence on a first
offender who had pleaded guilty. The cumulative effects of the breaches, that is, the overstaying and the
taking up of unapproved employment, warranted the sentence.
Result : Appeal dismissed.
***************
411
Sentence (Quantum) Immigration
CA 440/89
NG Chi-mo
Fuad V-P & Penlington JA (16.2.90)
*C Coghlan
#I/P
Sentence - Being a member of a crew of a ship which entered Hong Kong waters with unauthorised
entrants on board - PG - 3 1/2 years' imprisonment
Held :
The appropriate sentence after trial would have been 5 years' imprisonment. (R. v. HO Siu-lun [1987]
H.K.L.R. 1086 applied).
Result - Appeal dismissed.
***************
AR 13/89
CHAN Shu-mui, CHAN Kwong-chiu, CHEUNG Yung-sing, YUEN Chan-koon
Silke CJ (Ag), Jones & Sears JJ (17.1.90)
*G Lugar -Mawson
#D Law i/s DLA
Remaining unlawfully in Hong Kong - Sentence
1. 15 months remains the proper guideline for offences of this kind. (SO Man-king [1989] 1 HKLR 142,
affirmed)
2. A guilty plea, clear record and coming to Hong Kong to earn a living are not matters which fall within the
ambit of strong humanitarian considerations which justify a departure from the guideline.
Result - Applications granted. Sentences of 6 months set aside. 12 months substituted.
**************
CA255/89
NG Fai
Silke CJ (Ag) & Wong J (24.1.90)
*I G Cross & P Li
#I/P
Arranging passage to HK of unauthorised entrants - S. 37D (1)(a), Cap. 115 - Sentence
1. Where a crew member of a boat arranges the passage to Hong Kong of illegal immigrants, 3 1/2 years'
imprisonment, after a guilty plea, cannot be faulted.
412
Sentence (Quantum) Immigration
2. Illegal immigration is a serious threat to Hong Kong's welfare and existence. As illegal immigrants
regularly receive 15 months' imprisonment, those involved in bringing them to Hong Kong for gain must
receive more substantial penalties
Result : Leave to appeal against sentence refused.
***************
MA 1003-1005/89
LAM Yuet-mo, WONG Mei-hung, CHEUNG Kin-hoi, LO Fat-lam
Wong J (1.12.89)
*C Coghlan
#D Tang i/s DLA
Possession of a forged travel document - Chinese permit for travelling - Sentence
1. Where the permit is intended to be used as proof of identity to show that the holder is entitled to be in Hong
Kong, the offence is no different from that of possession of a forged identity card for which the tariff is 15
months.
2. If there is evidence that the permit has been used as a travel document for entering into or exiting from
Hong Kong, a sentence of 18 months would be appropriate.
Result - Appeal against sentences of 18 months allowed. 15 months substituted.
***************
MA 1207/89
NG Hok-ping
Wong J (30.11.89)
*E Chan
#M K Wong
Aiding and abetting an illegal immigrant to remain - Sentence
(The appellant was related to the 3 illegal immigrants whom he had employed in his goldsmith's shop for
about a month, although there was no suggestion that he benefited financially from the arrangement. He
appealed against a sentence of 9 months on each count to be served concurrently.)
1. This offence is as serious as the principal offence and, in normal circumstances, should attract the same
sentence.
2. An immediate custodial sentence was imperative but the interests of justice would best be served by
reducing the sentence on each charge to 6 months concurrent.
Result - Appeal against sentence allowed.
***************
413
Sentence (Quantum) Immigration
MA950/89
WONG Yiu-kwan
Ryan J (14.11.89)
*S Wong
#I/P
Using a forged travel document - Two-way Permit - Sentence
Given the similar nature and purpose of a Two-Way Permit and an ID Card, the proper sentence for using a
forged Two-Way Permit should be similar to that for using an ID card belonging to another, in which case 15
months is the norm.
Result -Appeal against sentence of 18 months allowed. 15 months substituted.
***************
MA 1198/89
LOU Kao-chon
Bewley J (5.10.89)
*M Hartmann
#J Mullick
Possession of an unlawfully obtained travel document - Sentence
1. There can be no meaningful distinction between 'using' and 'possessing' an unlawfully obtained travel
document in terms of sentence - the document must have been intended for use and the fact that it would be
used by someone other then the Defendant does not make it a less serious offence.
2. 9 months is not wrong in principle for this category of offence.
Result - Appeal against sentence of 9 months allowed. 6 months substituted. (The reduction was made in
view of several mitigating factors).
***************
CA118/89
Yang CJ, Silke V-P & Power JA (25.10.89)
*I G Cross & C Ma
#I/P
CHAN Ka-wah
Assisting unauthorised entrants to remain in Hong Kong - Assisting mainland girls to work as
prostitutes
For an offence of this nature, a sentence of 2 years, after trial, is proper.
Result - Leave to appeal against sentence of 2 years' imprisonment refused.
414
Sentence (Quantum) Immigration
***************
MA 585/89
LAM Siu-tung
de Basto J (4.9.89)
*S Bailey
#D Tang i/s DLA
Remaining in Hong Kong without authority - Multiple offender - Not previously prosecuted - Sentence
The 15 months guideline can be increased where the offender has previously entered Hong Kong unlawfully,
despite there being no prosecution or conviction for the earlier entry. (See SO Man-king, MA 408/89)
Result -Appeal against sentence of 18 months dismissed.
***************
MA 589/89
TO Yee-sang
Bewley J (7.6.89)
*J Cagney
#G Alderdice
Aiding and abetting an illegal immigrant to remain in Hong Kong unlawfully - Strong mitigating factor
That the appellant sheltered his girlfriend was a strong mitigating factor - it is asking a lot of a young man to
expect him to kick his girlfriend out or to report her to the police. (R. v. LAW Chuen-fook MA 593/88,
considered)
Result - Appeal against sentence allowed to the extent that the sentence of 9 months reduced to permit
immediate release after 2 months.
***************
MA 409/89
Pina Nadia M
Bewley J (17.5.89)
*J Abbott
#I/P
Breach of a condition of stay - S. 41 of Cap. 115 - Sentence
Where the appellant pleaded guilty to an offence of overstaying, 9 months was manifestly excessive and
wrong in principle. (R. v. Savasit MA 323/88 followed)
Result - Appeal against sentence allowed on Crown concession to the extent that 9 months was reduced to 2
months; activation of the suspended sentence of 4 months for Possession of a false passport (consecutive)
upheld.
415
Sentence (Quantum) Immigration
***************
CA 532/88
LEE Yan-chi
Silke V-P, Macdougall JA, Mayo J (21.4.89)
*G Lugar- Mawson
#I/P
Aiding and abetting another to use a forged passport - 2 counts - Aiding and abetting another to
possess a forged passport - 1 count - Sentence
Although it was accepted that the Applicant was a mere "runner" and "small fish" in the syndicate involved,
he was a full participant in the matters which involved the use of forged passports and the totality of the
sentence was in no way excessive.
Result - Leave to appeal against sentences of 3 years' imprisonment on each, to run concurrently, refused.
***************
MA 1742/88
MA Sek-kam
Duffy J (22.3.89)
*T Casewell
#L Tong i/s DLA
Remaining in Hong Kong without authority - S. 38(1)(b), Cap. 115 - Surrendering to police on day of
arrival - Mitigation
Where an illegal immigrant surrenders himself on the same day as he arrives in Hong Kong, he is entitled to a
substantial discount in sentence.
Result -Appeal against sentence of 15 months allowed and reduced to 9 months.
***************
MA 1775/88
CHAN Siu-leung
Duffy J (22.3.89)
*T Casewell
#L Tong i/s DLA
Remaining in Hong Kong without authority - S. 38(1)(b), ÿCap. 115 - Age of 15 - Mitigation
No sentencing policy, even one designed to provide a deterrence against a prevalent offence, can justify
incarcerating 15 year-olds in prison, save perhaps for the most serious offences.
Result - Appeal against sentence of 15 months allowed so as to permit of the Appellant's immediate
release/repatriation.
416
Sentence (Quantum) Immigration
***************
MA 214/89
LI Hong-wei
**O'Connor J (18.4.89)
*D Pang
#P Wu
Using an unlawfully obtained travel document - Mainland Chinese trying to enter Hong Kong at Lowu
with Thai passport - PRC travel documents deliberately left in China - Admitted intention to emigrate
to Thailand - Sentence
(1) For this offence, the guideline of 18 months in YU Wing-wut, CA 346/84, remains the proper starting
point.
(2) It is important that people do not use illegally obtained travel documents to travel from one territory to
another in this part of the world.
(3) 1/3 off the guide-line for a guilty plea is more than enough.
Result - Appeal against sentence of 12 months dismissed.
***************
MA 1447/88
Bhagwant Singh-Padda
Bewley J (18.1.89)
*C D F Coghlan
#I/P
Using an unlawfully obtained travel document - S. 42 of Immigration Ordinance, Cap. 115 - Sentence
(1) Whilst there is no tariff sentence for an offence contrary to s. 42 of Cap. 115, and each case must be
judged on its own merits, the previous authorities seem to suggest there are 4 categories :
(a) the passport forgery business, which is the most serious form of the offence;
(b) use of false passports by persons seeking to leave China via Hong Kong;
(c) repeated use of false passports by businessmen travelling in South East Asia; and
(d) isolated use of a false passport by persons unconnected with Hong Kong or China.
(2) The last category, into which the appellant falls, seems to attract a lesser sentence than the other three. It
nonetheless merits a prison sentence which will indicate that the Hong Kong Courts are alive to the dangers of
tolerating unauthorised use of travel documents in the present era of world-wide terrorism. (Sae Tang Somsak
CA 964/80; CHAN Sau-kin & others CA 934/81; YU Wing-wut CA 346/84; CHAN Wai-chuen MA 820/84;
Surasak Strichairat & another CA 124/85; WONG Kwai-pui MA 796/87; Gafni Zvi CA 229/88 and WANG
Ju-wen CA 272/88 considered)
Result - Appeal against sentence of 18 months allowed to the extent that it was reduced to 9 months.
***************
417
Sentence (Quantum) Immigration
AR 16/88, AR 17/88, AR 20/88
Man-bing, NG Kwok-ping & CHEUNG Wah-chiu, CHEUNG Sai-keung & CHEUNG Hoi-wing
Yang CJ, Silke V-P & Power JA (16.11.88)
*G J Lugar -Mawson
#CHENG Huan QC & L Tong i/s DLA
TAI AG's review of sentence - Remaining in HK w/o authority having landed unlawfully - Young age Mitigation - Sentence
1. The Coruts must take a severe view of offences of this kind - 15 months immediate imprisonment is the
proper sentence.
2. The fact that 4 of the respondents were 18 years of age is not a humanitarian ground for departing from that
sentence as it is this group which is particularly inclined unlawfully to enter Hong Kong.
3. As the respondent in AR 16 was 16 years of age, arrested working in a restaurant within the immediate
vicinity of the Hong Kong/China border, went home each night after his work and had been in custody for 8
weeks, it would not, in the special circumstances, be appropriate to review & his sentence. (AG v. LAM
Ping-chun AR 10/88 followed)
Result - AR 16/88 - AG's review of the sentence of 1 day refused; AR 17 and 20/88 - AG's review of the
sentence of 1 day allowed - 12 months substituted.
***************
CA 342/88
WAN Ho-hung (A1)
CHEUNG Fai-leung (A2)
Fuad V-P, Hunter & Macdougall JJA (30.12.88)
*S Stone
#A1 - I/P A2 - D Tolliday -Wright
Using forged travel document - Making false representation to Immigration Officer - Possession of
forged die - Possession of forgery implements - Remaining in HK w/o authority - Consecutive sentences
1. 18 months is an appropriate sentence for using a forged travel document on a guilty plea. (YU Wing-wut
CA 346/84; Berger CA 598/87 followed)
Result - A1's appeal against sentence of 3 years in toto (18 months X 2 concurrent and 18 months X 2
concurrent, consecutive) dismissed;
- A2's appeal against sentence of 18 months (18 months X 3 concurrent) dismissed.
***************
CA 421/88
CHONG Chung-hoi
Silke V-P & Macdougall JA (19.1.89)
*I G Cross & Miss P Lee, #I/P
418
Sentence (Quantum) Immigration
Being a member of the crew of a ship entering HK with unauthorised entrants on board - S. 37C (1)(a)
of Cap. 115 - Sentence
4 years on a plea of guilty is a proper sentence for an offence of this kind.
Result - Appeal against sentence of 4 years dismissed.
***************
CA 434/88
TAM Chi-wai
Fuad V-P, Hunter JA & Macdougall J (30.12.88)
*S Stone
#E Knos
Remaining in HK w/o authority having landed unlawfully - Repeated offenders - Sentence
1. Repeated offenders must expect to receive heavier sentences than the 15 months laid down in the guideline.
2. Where the offence was committed by a persistent offender (with 3 similar convictions within 2 years) who
pleaded not guilty, and aggravated by the fact that his object in coming to Hong Kong was to commit crime,
the maximum custodial sentence of 3 years would have been appropriate. (SO Man-king MA 408/88
confirmed)
Result - Appeal against sentences of 2 years 3 months for Unlawful remaining and 1 month consecutive for
Going equipped for stealing dismissed.
***************
MA1439/88
FAN Kai-yuen
Wong J (10.1.89)
*S Wong & Miss P Lee
#I/P
Unlawful transfer of HK ID card - Making a false statement to officer alleging loss of ID card Sentence
9 months on a guilty plea for offences of this sort is a proper sentence. (LEUNG Shun-tim MA 429/88
applied)
Result - Appeal against sentences of 9 months (X 2 concurrent) dismissed.
***************
MA 224/90
WONG Wing-tong
Duffy J (6.4.90)
419
Sentence (Quantum) Immigration
*A E Schapel
#E Kwok
Unlawfully transferring a travel document - S. 42 2(a) (ii) Cap. 115/Making false statement to obtain a
travel document - S. 42 (1)(c) Cap. 115
Held :
A person convicted of selling his passport to another, contrary to S. 42 (2) (a) (ii), could expect a starting
point of 12 months imprisonment.
Result - Appeal allowed. Sentence of 15 months reduced to 6 months on the facts. (The concurrent 6 months
imprisonment imposed for making a false statement to obtain a travel document, was not disturbed).
***************
MA 83/90
MA Kam-ming
Yang CJ (10.5.90)
*S Chui
#C Grounds
Illegal immigrant/Repeat offender
The appellant was convicted of using an i/d card belonging to another, and remaining in HK without the
authority of the Director of Immigration. He received consecutive sentences of 6 months and 15 months
respectively.
Held :
Since the appellant had entered HK illegally three times, and as he had used an i/d card relating to another for
the second time, a total sentence of 21 months was not excessive.
Result - Appeal dismissed.
***************
MA 144/90
LEUNG Hon-wah & 7 others
Yang CJ (14.5.90)
*S Chui
#C Grounds
Illegal immigrants/Attempt to land/Policy not publicised/Proper sentence
The defendants having been found in a vessel heading towards Hong Kong, pleaded guilty to a charge of
attempting to land without permission, contrary to S. 38(1)(a), Cap. 115 and S. 81, Cap. 1. The magistrate,
following the guideline in R v SO Man-king MA 408/1988, sentenced most of the defendants to 15 months
imprisonment.
Held :
420
Sentence (Quantum) Immigration
(1) On 10th May, 1988, pursuant to government policy, it was decided that illegal immigrants arriving in
Hong Kong in groups, whether self-organised or organised by others, would be prosecuted for attempting to
land even if it was their first attempt. No publicity was given to this policy. None of the defendants had
attempted to enter HK before;
(2) As no publicity had been given to the new policy, sentences of 15 months were not proper; (R v SO Manking MA 408/88 and R v CHEUNG Kwok-hoi MA 794/88, applied);
(3) It made no difference that the offence was one of attempted illegal landing rather than the completed
offence.
Result - Appeals allowed. Sentences reduced to 6 months.
***************
MA 400/90
TAM Kam-keung
O'Connor J (20.7.90)
*M Holmes
#A Macrae
Illness contracted in custody
As there was a possibility that the appellant contracted typhoid whilst in custody, a reduction in a sentence of
15 months imposed for illegally remaining in Hong Kong was permissible.
Result - Appeal allowed. 15 months reduced to 9 months.
***************
AR's 5, 6, 7, 9, 12 of 1990 consolidated with MA's 276 and 669/90
NG Kin-hong & 27 others
Cons Ag CJ, Clough, Power, Penlington & Macdougall JJA (15.8.90)
*A P Duckett QC & W S Cheung
#M Lee QC, S C Poon & L Lok
Sentence/Immigrants entering and unlawfully remaining in Hong Kong/S. 38, Cap 115
Held :
1. The substantial element in sentencing for these offences is the unlawful presence of the offender in Hong
Kong. [R v SO Man-king & others [1989] 1 HKLR, 142 - this confirmed the basic guideline of imprisonment
for fifteen months];
2. Whilst noting the AG's policy for initiating prosecutions of only certain categories of illegal immigrants,
which resulted in many not being prosecuted at all, the Court re-emphasised that, in SO Man-king (supra), it
had been observed that the disparity of treatment in prosecuting would cause an understandable sense of
grievance to the man sentenced to 15 months. However, the Court did not have the power to remedy that;
3. Prison terms, while not being a complete deterrent, would still have some deterrent effect, and should not
be abandoned in favour of a simple caution. It was clear that the legislature intended that such offences be
dealt with seriously - hence the three years maximum;
421
Sentence (Quantum) Immigration
4. Although illegal immigrants accounted for a third of the prison population, this was no reason for the
Courts not to impose what were considered to be appropriate sentences. It was the duty of the Executive to
carry out the orders of the Court. (R v Bibi [1980] 1 W.L.R. 1193, R v WONG Ching-sim and others Cr.App.
153/72 considered);
5. Youth in itself is no excuse : AG v TAI Man-bing and others [1989] 1 HKLR 533. But extreme youth
cannot be 8 ignored : R v WONG Siu-chung MA 1599/89.
6. Before the sentence can be suspended, there must be very strong humanitarian considerations : AG v LAM
Ping-chun [1989] 1 HKLR 161 confirmed.
Result - Sentences of 15 months affirmed as being the correct sentence for the bulk of those before the Court.
Per Curiam : On review, the Court has always granted discounts since 1975. That practice is not supported by
the wording of S. 81A, Cap. 221. Its propriety was questionable. In England and 9 Wales, no such practice
had been adopted. The Court would welcome submissions on this at the next opportunity.
***************
CA 423/89
TAM Wun-wai & TSUI Kon-lam
Silke V-P, Power & Macdougall JJA (15.8.90)
*I G Cross QC & W S Cheung
#I/P
Sentencing/Ships crew bringing illegal immigrants into Hong Kong
Held :
Four years is a proper sentence after trial for those: convicted of being members of the crew of a ship which
entered Hong Kong with unauthorised entrants on board. (R v HO Siu-lun [1987] HKLR 1086, and R v NG
Chi-mo Cr.App. 440/89, approved).
Result - Application dismissed.
***************
MA 891/90
TONG Hung-hong
Bewley J (29.8.90)
*S Lee
#G Alderdice
Forged travel document - Appellant fleeing China to escape prosecution for political activity - Court
should not consider merits of prosecution
Held :
1. Although the appellant was fleeing from China on account of an impending prosecution, which derived
from political activity, the magistrate was right not to grant a reduction in sentence for that reason.
Magistrates would be placed in an intolerable situation if they had to pronounce upon such matters;
422
Sentence (Quantum) Immigration
2. The magistrate could not be faulted for taking eighteen months as his starting point for an offence of
possession of a forged travel document, contrary to S. 42 (c)(i), Cap. 115 : See R v YU Wing-yut, Cr.App.
344/84 and R v WANG Yu-wen Cr.App. 272/88;
3. The magistrate erred in giving no credit for the guilty plea, nor for the fact of the offender's transit status in addition, although the appellant was aware of his wife's pregnancy before he left China, which must devalue
the mitigating effect thereof, it still carried some weight in the circumstances.
Result - The proper sentence, which was one of twelve months, would, as an act of mercy, be reduced to nine
months. Appeal allowed.
***************
MA 223/90
LAM Hung
Wong J (5.9.90)
*D G Saw
#A Wong
Using another's identity card to obtain employment/Aggravating feature
Held :
The judgment of the Court of Appeal in AG v LAM Ping-chun [1989] 1 HKLR 161 is clear and
unambiguous, and cannot be interpreted in any other manner than that the use of an identity card belonging to
another person by an illegal immigrant for the purpose of obtaining employment is an aggravating feature.
Earlier magistracy appeals which suggested otherwise were no longer good law.
Result - As an act of mercy, the appeal was allowed to the extent that the three months imprisonment imposed
for using another's identity card, and ordered to run consecutively to the fifteen months imprisonment for
unlawfully remaining in Hong Kong, was ordered to run concurrently. (The court emphasised that, but for the
particular circumstances here prevailing, the original sentence of eighteen months was perfectly proper).
***************
CA 329/90
LAM Kon-man
Cons V-P, Kempster & Penlington JJA (11.10.90)
*I G Cross QC & W S Cheung
#H Y Wong
Ship's captain bringing illegal immigrants into Hong Kong/Sentence on plea in District Court
Held.
Albeit that the defendant was the captain of a vessel which brought nine unauthorised entrants into Hong
Kong contrary to S. 37C, Cap. 115, for which he had received financial gain, a starting point of 6 years after a
guilty plea was out of line on the authorities : LAW Man CA 101/83, HO Siu-lun [1987] HKLR 1086, CHAN
Kwok-keung [1988] 1 HKB LR 279, and TAM Hon-wai Cr.App. 423/89 considered.
Result - Appeal allowed. Five years imprisonment reduced to four years.
423
Sentence (Quantum) Immigration
***************
MA 472/90
LIN Chun-fai
O'Connor J (30.10.90)
*G E Forlin
#C N Ong
Attempting to land illegally in Hong Kong/Relevance of Pregnancy
Held :
1. When the appellant, who pleaded guilty to attempting, with others, to land in Hong Kong without
permission, was sentenced, it was not known that she was pregnant. A medical check later revealed her
condition. The sentencing tariff of 15 months imprisonment was therefore correctly applied on the
information available to the magistrate;
2. The developments since sentencing were such as to justify a departure from the tariff.
Result - Appeal allowed. 15 months imprisonment substituted with such period of imprisonment as to allow
the appellant's immediate release and repatriation.
***************
CA 232/90
CHAN Pai-hung
Silke V-P, Power & Macdougall JJA (5.10.90)
*D G Saw
#R Wong
Crew member bringing an illegal immigrant into Hong Kong/Starting point : s. 37C, Cap. 115
Held :
As the applicant pleaded guilty to being a member of the crew of the ship which brought only one
unauthorised entrant into Hong Kong, and as his financial gain therefore was minimal, a sentence of four
years imprisonment was excessive. (R. v. HO Siu-lun and others [1987] HKLR 1086), considered.
Result - Appeal allowed. Sentence of three years substituted.
***************
MA 1051/90
WONG Chung-hon
Hooper J (9.11.90 & 13.11.90)
*A Sham
#J Kwong
Possession of unlawfully obtained Portuguese passports
424
Sentence (Quantum) Immigration
Age 56 - Clear record - Passports for family as an escape from Hong Kong should that become necessary after
1997 - Whether immediate custodial sentence appropriate
Held :
1. It was not wrong in principle for the magistrate to impose an immediate custodial sentence of 6 months'
imprisonment.(The Queen v. WENG En-xing and others MA 409/90, considered).
2. The legislature makes no distinction between sentences imposed for possession of forged passports and
possession of unlawfully obtained passports. Clearly the mischief is that a person in possession of such a
passport, whether it is forged, or whether it was unlawfully obtained, is in possession of a document or is
using a document which entitles him to travel freely between one country and another which, if the true facts
were known, he would not be permitted to do.
Result : Appeal against sentences dismissed.
***************
MA 1352/90
NG Yuet-cheong
Hooper J (2.11.90)
*E CHAN
#A Kan
Employing a person not lawfully employable/S. 117(1), ÿCap. 115/First offender
Held :
1. A starting point of 12 months was wrong in principle.
2. The court should not impute dishonesty where no facts had been admitted which gave rise to an inference
of dishonesty and the offence to which the appellant pleaded guilty was one of absolute liability.
3. Punishment by imprisonment for a first offender should be a last resort.
4. The mere fact that the appellant had stated that his business was running at a loss did not mean that it was
not possible for him to pay a reasonable fine.
Result - Appeal allowed, sentence of 6 months imprisonment substituted with such term as to allow of his
immediate release.
**************
CA 1296/90
NG Tung-fong
Silke V-P Power & Macdougall JJA (19.4.91)
*D Kilgour
#D Fung QC
Prosecuting policy/prosecuting II's outside existing policy/Quantum of sentence/Departure from
guidelines justified
425
Sentence (Quantum) Immigration
It is currently the policy to prosecute an illegal immigrant for unlawful remaining if he is also charged with
some other offence, such as possession of a forged identity card. The appellant, as he was also charged with
P.O.O.W., was accordingly charged with unlawful remaining. At trial, the Crown offered no evidence on the
former charge, and the appellant pleaded guilty to the latter. He thus became in effect an illegal immigrant
prosecuted for his first entry into Hong Kong. Notwithstanding that, the magistrate, in accordance with the
guidelines in SO Man-king [1989] 1 HKLR 142, imposed a sentence of 15 months imprisonment. The appeal
against sentence was referred to the Court of Appeal by Duffy J pursuant to S. 118 (d) Cap. 227.
Held :
(1) The laying down and implementation of executive policy are matters for the executive in which the
judiciary, adhering to the doctrine of separation of powers, ought not to intervene - and is powerless to
intervene;
(2) The Courts are the masters of their own house and they may rightly consider the proper exercise of
executive power where that exercise operates to a defendant's detriment. The M Courts do not blindly apply
executive policy but pay regard and attach importance to question of public interest where they perceive
public interest lies. If the Courts feel that executive policy has been applied unfairly to an individual then it is
proper for the Courts to mitigate that unfairness by reducing the length of the sentence it thinks fit to impose but always bearing in mind that an offence contrary to law has been committed. To effect this sentencing
courts have a discretion to depart from guidelines. (CHEUNG Wing-cheong MA 1223/90 disapproved);
(3) Once the appellant had been acquitted of the second charge, it was open to the magistrate to discount the
normal guideline sentence;
(4) It is to be hoped that in future a much closer scrutiny will be applied to prosecutions under the
Immigration Ordinance so as to avoid manifest unfairness.
Result - Appeal allowed.
***************
MA 216/91
BUI Duc-thanh
Yang CJ, Silke V-P, Power JA (21.5.91)
*I G Cross QC & D Saw
#G J X McCoy
Vietnamese escape/Forging stolen Vietnamese refugee card
Held :
A Vietnamese boat person who escapes from a detention centre, and then uses a stolen Vietnamese refugee
card, which he had forged, is not necessarily in the same position as an illegal immigrant from China - except
within the broad consideration that the dictates of social and economic order require Hong Kong to take a
stringent view of those who came from other territories or remain here to the detriment of this society,
particularly in such matters as housing, employment, medical services. A sentence totalling 14 months for
someone who deliberately and actively took steps to contravene the law was not excessive.
Result - Appeal dismissed. (Barnes J referred this appeal pursuant to S. 118(d) Cap. 227).
****************
426
Sentence (Quantum) Immigration
MA 863/90
NG King
Ryan J (8.2.91)
*P Chapman
#C Grounds
Immigration offences/Calculating sentence/S. 67A, Cap. 221/Sentence after trial
Held :
1. When imposing sentence for an offence contrary to S. 38(1)(b), Cap. 115 for being an illegal immigrant,
and related offences of using a forged identity card or the identity card of another person, contrary to S. 42,
Cap. 115, magistrates should take into account the period spent in custody between the date of arrest and the
date of detention pursuant to a court order; (S. 67A, Cap. 221, considered);
2. It is proper for a magistrate following conviction after trial in such cases to impose a sentence in excess of
15 months, which is the tariff after a plea of guilty.
Result - Appeal allowed.
***************
MA 212/91
WONG Keung
Yang CJ (24.4.91)
*S Chui
#A Hoo QC & R Mayne
Immigration offences/Tariffs not applicable to residents
Held :
The tariff of 15 months imprisonment, prescribed to deter illegal immigrants from China, is not applicable to
Hong Kong residents, for these are not in Hong Kong illegally and the purpose of the 15 months tariff, which
is to discourage illegal immigrants, is not relevant to those who are entitled to be in Hong Kong.
Result - Appeal allowed against sentences totalling 15 months for using an unlawfully obtained Portuguese
passport, and making a false representation to an immigration Officer. (The appellant had a right of stay in
Hong Kong, and held a senior position in a local company).
***************
CA 73/91
WONG Tung
Barnes J (10.4.91)
*U G Forlin
#K H Suen
Burglary/Remaining unlawfully/Totality of 18 months
427
Sentence (Quantum) Immigration
Held :
A total of 18 months imprisonment imposed for the offences of burglary and remaining unlawfully in Hong
Kong was not excessive.
Result - Appeal dismissed.
***************
CA 1700/90
FAN Ming-suen
Barnes J (1.4.91)
*G Forlin
#M Ko
Aiding and abetting remaining of illegal immigrant
Held :
1. Notwithstanding that the illegal immigrant was the appellant's cousin, and that he had pleaded guilty, he had
nonetheless been a party to undermining the policy of deterring illegal immigrants from putting their
intentions into practice. He had both accommodated and employed the illegal immigrant;
2. If an intended illegal immigrant knew that his hope of employment was unlikely to be fulfilled, he would be
much less inclined to take the gamble of smuggling himself here : LAW Chuen-fook [1989] 1 HKLR 164;
3. Those who offer opportunities of employment to illegal immigrants must expect to receive sentences not
W less than those imposed upon the illegal immigrants themselves;
4. The magistrate had not erred in taking 18 months imprisonment as his starting point. The discounted
sentence of 12 months imprisonment was generous.
Result - Appeal dismissed.
***************
CA 517/90
WONG Cho-chop
Fuad V-P, Clough & Macdougall JJA (12.7.91)
*J Halley & G Forlin
#A Macrae
Forfeiture of ship/Effect on sentence/Failure to specify starting point
Held :
(1) The fact that the captain would forfeit the boat which illegally brought immigrants into Hong Kong,
contrary to S. 37C(1) Cap. 115, was not to be taken into account in determining the length of the prison term.
428
Sentence (Quantum) Immigration
****************
MA 181/91
Ahmed Parves
Bewley J (17.5.91)
*P Li
#D Law
Possession of forged passport/Defendant in transit
Held :
Although 18 months imprisonment is appropriate for an offence contrary to S. 42 (2)(e)(i), Cap. 115, the
defendant, who was in transit from Pakistan to USA when he produced a forged British passport, was a young
man guilty of a one-off infringement. He thus fell into the least serious of the four categories adumbrated in
Bhagwant Singh-padda MA 1447 of 1988.
Result - Appeal allowed. 18 months imprisonment reduced to 9 months.
***************
AR 4/91
(1) CHAN Wai-ming
(2) HO Tak-muk
Macdougall JA, Mortimer & Barnett JJ (2.8.91)
*J Halley
#S Westbrook
Illegal immigrants/Departure from guidelines/Effect of secondary offence
Held :
(1) Nothing in the Court of Appeal's judgment in NG Tung-fong MA 1296/90 encourages, let alone
authorises, a magistrate to depart from the established sentencing guideline simply because executive policy
that has been fairly applied does not produce a result that accords with his concept of fairness;
(2) As made clear in CHAN Shu-mui AR 13/89, the fact that an illegal immigrant came to Hong Kong in
order to earn money to assist his family or to improve his own lot in life does not constitute a strong
humanitarian consideration that would justify a departure from the guideline;
(3) The magistrate erred in concluding that, where the accompanying offence that triggers the prosecution of
an illegal immigrant for an offence against S. 38, Cap. 115, is not of a serious nature, there was a discretion to
depart from the basic sentencing guideline. The guideline in SO Man-king [1989] HKLR 142 is perfectly
clear and should continue to be followed.
Result - AG's reviews allowed. Suspended prison terms substituted with 15 months imprisonment on each
respondent.
****************
MA 123/91
LI Ming
429
Sentence (Quantum) Immigration
Macdougall JA (29.8.91)
*P Leung
#A Ma
Unlawful remaining/Secondary charge not pursued/Whether grievance arises
Held :
There was a clear distinction to be drawn between the situation where a charge is laid, in addition to the
unlawful remaining charge under S. 38(1)(b) Cap. 115, and then dropped in consequence of the plea to the
immigration charge, and the situation where the second charge cannot be proceeded with because the
principal witness is absent. In the former situation, the defendant might feel that the additional charge was a
mere device to enable his prosecution for a S. 38 offence. In the latter situation, as the intention to proceed
was only frustrated by the absence of the victim, the appellant could not be said to have a justifiable
grievance : NG Tung-fung MA 1296/90 distinguished.
Result - Appeal against a sentence of fifteen months for unlawful remaining, dismissed.
***************
MA 750/91
WONG Ying
Leonard J (9.10.91)
*A Luk
#K Oderberg
Illegal immigration offences/Starting point after trial
Held :
Since the Court of Appeal, in SO Man-king and others [1989] 1 HKLR 142, held the proper sentence for
unlawful entry offences to be 15 months after a guilty plea, which plea is likely to be tendered at the earliest
opportunity and is made in anticipation of almost certain conviction, the Court must have contemplated a
sentence after trial of about 21 months.
Result - Appeals against sentences totalling 18 months for possession of a forged identity card, and unlawful
remaining, dismissed.
**************
AR 7/91
WONG Kam-ching
Power, Penlington JJA & Ryan J (19.11.91)
*A Duckett QC & F Lo
#G Plowman
Ship's captain bringing unauthorised entrants into Hong Kong/Starting point
Held :
430
Sentence (Quantum) Immigration
(1) A starting point of seven years imprisonment is proper after trial for a ship's captain who unlawfully
brought ten unauthorised entrants into Hong Kong, contrary to S. 37 C(1) Cap. 115;
(2) The tariff of four years, prescribed by CHAN Kwok-keung [1988] 1 HKLR 279, has no application to
offences in which there was danger to the illegal immigrants by reason either of their being hidden in a sealed
compartment or because the vessel was unseaworthy : NG Kit-yuen Cr.App. 118/91 followed. It was an
admitted fact that the vessel was poorly maintained and unsafe.
Result - AG's application allowed. Three years imprisonment, imposed after a guilty plea, increased to five
years.
**************
AR 5/91
NG Shui-mei
Power, Penlington JJA & Ryan J (19.11.91)
*A Duckett QC & F Lo
#G Plowman
S. 37 (1) Cap. 115/Ship's captain/Starting point/Relevance of youth
Held :
(1) Although the vessel was not in any way unseaworthy, the nine illegal d immigrants, whom the defendant
admitted bringing unlawfully into Hong Kong on the ship of which he was captain, were concealed in a sealed
compartment. This was an aggravating factor;
(2) Although the defendant was aged only seventeen years, the judge erred in treating this as a mitigating
factor in an offence contrary to S. 37 C(1) Cap. 115;
(3) The correct starting point of seven years could be reduced to five years because of the guilty plea.
Result - AG's application allowed. Three years increased to five years.
***************
CA 118/91
NG Kit-yuen
Power, Penlington JJA, & Ryan J (19.11.91)
*A Duckett QC & F Lo
#G Plowman
S. 37 C(1) Cap. 115/Captain of ship/Aggravating factors/Nine Years starting point
Held :
Where unauthorised entrants were concealed in circumstances such that there was a grave risk to their lives, or
the vessel was unseaworthy, a starting point of seven years imprisonment would be appropriate for the
captain. Where both of those factors existed, a starting point of nine years would be appropriate.
Result - Appeal against six years imprisonment, imposed after a guilty plea, dismissed.
431
Sentence (Quantum) Immigration
***************
CA 149/91
B J Plum
Silke V-P, Power & Macdougall (20.12.91)
*D Saw
#B Sceats
Totality/Possession of a forged passport
Held :
(2) 18 months imprisonment after a plea of guilty is not, on the authorities, excessive for possession of a
forged passport : R v WONG Ja-wen [1989] 2 HKLR 26.
Result - Application for leave to appeal refused.
***************
MA 902/91
LUONG Manh-hung
Bewley J (24.12.91)
*D Saw
#G J X McCoy
VBP unlawfully using Vietnamese identity card/Situation of II's contrasted
Held :
Where a VBP who is unlawfully at large used a Vietnamese identity card relating to another person, contrary
to S. 7A (1A), Cap. 178, a prison sentence will usually be appropriate which should include a deterrent
component. Magistrates should however realise that the situation of VBP's is different to those from China
and appropriate factors should be taken into account in individual cases : R v BUI Duc-thanh, MA 216/91
followed.
Result - Appeal allowed. Twelve months, imposed after a guilty plea, reduced to nine months.
***************
CA 906/91
CHAN Tat
Leonard J (31.12.91)
*A Sham
#B Yuen
General sentencing principles/Sentencing of illegal immigrants
Held :
432
Sentence (Quantum) Immigration
(4) If the Court of Appeal, in SO Man-king [1989] 1 HKLR 142, took 15 months imprisonment as a normal
sentence after a plea of guilty to remaining in Hong Kong after having landed unlawfully, it probably had in
mind that the normal sentence after trial should be about 21 months for a first offender;
(5) As the defendant was a repeat offender, he could not expect a reduction to the usual 15 months.
Result - Appeal allowed. 2 years reduced to 18 months.
***************
MCA 811/91
LAM Sai-ying
Leonard J (12.2.92)
*P Lavac
#W Allan
Illegal immigrant/Whether terminal illness of parent a ground for departing from tariff
Held :
(1) The fact that an illegal immigrant came to Hong Kong to earn money to pay for the medical expenses of a
very sick relative in China is not a strong humanitarian reason to depart from the tariff in R v SO Man-king
[1989] 1 HKLR 142;
(2) Nothing said in SO Man-king (supra) is to be construed as meaning that anyone with a very sick relative in
China can come illegally to Hong Kong in the expectation of receiving a suspended sentence of imprisonment
in the event of conviction;
(3) Where some unexpected disaster strikes, such as the severe illness of the appellant or a close relative, the
situation is different and a suspended term may be appropriate. However, there must be many cases where
there is a death or impending death of a close relative, and that would not normally be regarded as a reason
for setting aside a proper sentence.
Result - Appeal against sentences totalling 20 months for offences of unlawfully remaining and using the
identity card of another allowed in part.
***************
AR 15/91
TAM Shek-chuen
AU Po-piu
Silke V-P, Power & Penlington JJA (13.3.92)
*T Casewell
#L Lok
Illegal immigrants/Effect of mitigation/Consecutive sentences/Discounts on Review
Held
433
Sentence (Quantum) Immigration
(1) Where offenders are not indigenous residents of Shau Tau Kok and cross the border for the purpose of
committing an offence, even though they might have an intention of immediate return, the tariff of 15 months
is applicable : R v SO Man-king and others [1989] 1 HKLR 142;
(2) Consideration should nonetheless be given to the age of the second respondent, who was 17 years old;
(3) As the first respondent entered Hong Kong with knowledge of his mother's illness, no strong humanitarian
consideration arose : AG v LIU Chi-ping Arí1/90;
(4) As the respondents committed offences of unlawful remaining and attempted theft, which were of a quite
different character, albeit proximate in time, the sentences should have been consecutive;
Result - AG's applications allowed. Sentences for unlawful remaining increased from 6 to 12 months for
TAM and from 6 to 9 months for AU, and the sentence of 6 months imposed upon each respondent for
attempted theft was ordered to run consecutively thereto.
***************
MA 133/92
LEE Kit-shing
Bewley J (6.5.92)
*J LEE
#K C LEE
Possession of another's identity card/Keeping in wallet not aggravating factor
Held :
The keeping of an identity card in a wallet, without evidence as to its future use, is not an aggravating factor
within the terms of SO Man-king [1989] 1 HKLR 142, 145 : R v CHEUNG Tak-yee MA 104/91 followed.
Result : Appeal against sentences totalling 20 months allowed in part. 18 months substituted.
****************
434
Sentence (Quantum) Kidnapping/Procure Ransom
Kidnapping/Procure Ransom
CA 84/89
CHAN Pin-chung
Silke V-P, Power, Penlington JJA (6.9.89)
*I G Cross
#B Sceats
(B) Kidnapping - Sentence
Kidnapping, contrary to common law, is punishable with a maximum of 7 years' imprisonment as it is a
common law misdemeanour under s. 90, Cap. 1.
Result - Appeal against sentence of 8 years for kidnapping allowed. 5 years substituted.
Leave to appeal against sentence of 10 years for rape, concurrent, refused.
10 years in toto stands.
************
AR 17/91
David LEE Po-man
Silke V-P, Macdougall JA, Bewley J (17.6.92)
*I G Cross QC, W S Cheung
#J Kwong
Kidnapping/Use of chloroform/Immediate custodial sentence on 19 year old
Held :
(1) Kidnapping can cause great harm to the victim and enormous distress to his family. The youth of an
offender, while a factor to be borne in mind, is not a pre-dominate one. Deterrence is. The degree of planning
and aggravating circumstances have weight in the sentencing process;
(2) Where a 19 year old youth kidnapped and chloroformed an 8 year old boy, and used threats to obtain
money from the family, a starting point of 10 years would not have been inappropriate. The mitigating factors
would have resulted in a sentence at trial of 7 years imprisonment: SHIU Kwok-kwan CA 760/87, KAU Kushing CA 148/85, CHAN Yuk-lun CA 394/84 considered.
Result - AG's review allowed. Training Centre Order set aside. 5 years imprisonment substituted.
Per cur - It was unfortunate that the trial judge did not receive the assistance to which he was entitled from
Crown Counsel.
***********
435
Sentence (Quantum) Marine
Marine
MA 507/89
CHEUNG Lee-wah
MIU Lap-hung
Cons V-P (29.8.89)
*S Leung
#R Spicer i/s DLA
Failing to stop vessel without reasonable excuse - Reg. 20(1) and (3), Shipping and Port Control
Regulations, Cap. 313 - Sentence
(The defendants, being joint-masters of a speedboat, refused to stop their vessel on demand by a police craft.
Two collisions occurred during the chase. On the second occasion, the speedboat rode up over the stern of
the police craft and its bottom scraped the head of one of the officers on board. The defendants were
convicted and sentenced to 3 months' imprisonment for failing to stop. Another charge of endangering the
safety of others was also laid.)
There could not be a more blatant or deliberate refusal to obey police instructions. 3 months might have been
considered inadequate if the Crown had taken any action in relation to the sentence.
Result - Appeal against sentence of 3 months dismissed.
(See previous section for appeal against conviction)
*************
436
Sentence (Quantum) Obsence Article
Obscene Articles
MCA 107/92
LO Hok-yee
Sears J (1.4.92)
*P LI
#R WONG
Possession of pornographic tapes/Factors relevant to sentence
Held :
(1) The practice of making people pay their bail money as a fine without inquiring into their means is to be
deprecated;
(2) The phrase "hard porn" is generally descriptive of gross or offensive behaviour often involving brutality or
sadism. The bulk of the pornographic video tapes fell into a lesser category;
(3) It was not clear how judicial notice could be taken that the trade in pornography was "prevalent in Hong
Kong" when there was no evidence to this effect;
(4) A fine or a period of imprisonment not exceeding 3 months was proper for possession of 182
pornographic videos, of which 5 or 6 were "hard porn".
Result - Appeal allowed against sentence of 9 months imprisonment. Sentence varied to allow of the
immediate release of the defendant.
**************
437
Sentence (Quantum) Obstruction
Obstruction
MA 1123/90
FUNG Chi-wood
Bewley J (8.2.90)
*C Coghlan, G Forlin
#M Lee QC, SC Poon
Unlawful money collecting/Failure to produce proof of identity/Obstruction
Held :
1. As the appellant was entitled to be dealt with on the basis that his was the first such prosecution for many
years, it was appropriate to set aside the fine imposed for collecting money without a permit, and to substitute
an absolute discharge;
2. Given the circumstances in which the offence of failure to produce proof of identity occurred, it was
appropriate to set aside the fine and substitute an absolute discharge;
3. The fine for obstructing police while they were monitoring a political procession in a busy street was
proper.
Result - Appeals allowed in part.
***********
438
Sentence (Quantum) Perjury/False Statement & Information
Perjury/False Statement & Information
MA 234/89
TONG Kwok-wah
Bewley J (9.5.89)
*A A Bruce
#P Wan
Wilfully giving false testimony - S. 100, Cap. 227 - To be used against lying defendants only in
exceptional circumstances
(1) It appears that, unlike s. 39, s. 100 of Cap. 227 does not create an offence - its purpose is to encourage
truthfulness in witnesses for whom an oath has no religions sanction.
(2) The Magistrate had a discretion under s. 100 to penalize the appellant who had wilfully given false
testimony and s. 100 should be used against lying defendants only in exceptional circumstances.
Result - Appeal against sentence allowed to the extent that the fine imposed under s. 100(2) was reduced from
$2,000 to $100.
************
CA 553/90
POON Sau-tin
Yang CJ, Fuad V-P, Macdougall JJA (13.2.91)
*I G Cross QC, A Sham, #G Plowman
Making a contradictory statement of fact on oath/Level of sentence
Held :
1. Sentences for this offence, which is punishable, under s. 39, Cap. 200, with seven years imprisonment plus
a fine, should be in line with those for perjury;
2. This type of offence arises in three different circumstances : Firstly, where a defendant gives false evidence
in his own defence; Secondly, where a member of the family gives support to another member; Thirdly, and
this is the most serious, where a third party gives false evidence in support of a defendant : WU Wing-keung
Cr. App. 202/1988, approved;
3. As this case fell within the second of the three categories, the sentence of 18 months imprisonment, plus a
fine of $5,000, imposed after trial, was too severe.
Result - Appeal allowed. Sentence reduced to 12 months.
************
CA 21/91
LUI Kwok-wai
439
Sentence (Quantum) Perjury/False Statement & Information
Silke v-P, Penlington, Macdougall JJA (3.9.91)
*R M Daley
#L Lok, V Lim
Perjury/Manufacturing false defence
Held :
The deliberate manufacturing of a false document and the calling of a false witness to support it elevates the
culpability from the category of a defendant simply giving untruthful evidence in his own defence. The
evidence disclosed a deliberate course of conduct entered into for the apparent purpose of bolstering the
applicant's evidence : WU Wing-keung Cr.App. 202/1988, POON Sau-tin Cr. App. 633/1990 considered.
Result - Application for leave to appeal against concurrent sentences of nine months, imposed for perjury and
uttering a forged document, refused.
************
MA 70/89
TSANG Shui-fai
Duffy J (12.4.89)
*M Sin, #K Chow
Giving false information to pawnbroker - 2 counts - Escaping from lawful custody - Sentence - Totality
(1) One month's imprisonment for each count of giving false information and 6 months' imprisonment for
escaping from lawful authority are, when individually considered, neither wrong in law nor manifestly
excessive.
(2) When they are ordered to run consecutively to each other, giving a total of 8 months, they are excessive.
Result - Appeal against sentence allowed to the extent that the sentence for escaping from lawful authority
reduced to 4 months, giving a total of 6 months.
*************
MA 1581/90
TOO Hung-fong
Kaplan J (22.11.90)
*A Sham, #E Robertson
Wasteful employment of police - False report of murder - 969 wasted hours - Whether detention centre
order proper and appropriate
Held :
A "short-sharp-shock" term of imprisonment for an offence of this nature is appropriate.
Result - 4 months imprisonment substituted.
*************
440
Sentence (Quantum) Pervert the Course of Justice
Pervert the Course of Justice
AR 6/91
(1) POON Ping-kwok
(2) LEE Hang-yuk
Cons, Fuad VV-P, Kempster JA (27.8.92)
*A P Duckett QC, S Stone
#(1) D Keane QC, A King
(2) J Hingorani
Perverting course of justice by police officers/Gravity thereof/Mitigating factors
Held :
(1) The loss of pension rights and other service benefits by policemen convicted of crimes can be taken into
account as mitigating factors. What weight they should be given is a matter for the judge's discretion in the
particular circumstances;
(2) Whilst the offence of attempting to pervert the course of justice is always a serious one, the actual gravity
will vary widely according to the circumstances : AG v YEUNG Sau-shing AR 21/80;
(3) Whilst it may be right that the further the offence is removed from an offender's duties as a police officer,
the less is the weight to be attached to the official status of the offender, in the instant case the conduct which
it was sought to conceal occurred while the respondents were supposed to be on duty and was inextricably
linked to their responsibilities as police officers, for which they showed cynical disregard.
Result - AG's applications for reviews of sentences, totalling 8 months for R1, and 12 months for R2,
allowed. The offences merited sentences of 18 months and 2 years respectively.
**************
CA 52/89
Gordon HUTHART
Yang CJ, Hopkinson, Barnett JJ(12.5.89)
*I G Cross, C Fung
#G Rodway QC, G Alderdice
(A) AOABH - Doing an act tending to pervert the course of public justice - Sentence - 18 months in toto
(6 months for AOABH and 18 months for perverting the course of justice concurrent)
(1) Where an offence occurs, and there is then an attempt to pervert the course of public justice, in relation to
the victim of that offence, then there are two separate and distinct offences which merit consecutive sentences.
(2) Any attempt to prevent the administration of justice taking its due course is an extremely grave matter.
After trial, 2 years' imprisonment would be an appropriate starting point.
(3) Taking into account the pleas of guilty and the Applicant's deplorable state of physical and mental health
when the offences occurred, a discount of one third, resulting in a sentence of 16 months, would be proper.
(B) Remission - Whether relevant in sentencing
441
Sentence (Quantum) Pervert the Course of Justice
Turner (1966) 51 Cr. App. R. 72, shows the court can take likely remission into consideration, in sentencing,
when it is primarily concerned with reform or treatment and is anxious that the offender should not be kept in
prison longer than the treatment warrants.
Result - As the Court of Appeal does not tinker with sentences, leave to appeal against sentences of 18
months was refused.
*************
442
Sentence (Quantum) POOW
POOW
MA 1348/88
CHAN Siu-mui
Duffy J (21.2.89)
*J Cagney
#I/P
Possession of knife - s. 17, Cap. 228 - 17-year old first-offender - Very unfavourable probation report "really a marginal subject for probation" - Training Centre Order - Whether appropriate
(1) A Training Centre Order for a first-offender for an offence which is normally adequately dealt with by a
fine may be excessive and inappropriate.
(2) Behavioural problems revealed in background reports ought not per se persuade the Court to seek radical
solutions if others are available, even though the history of the affair suggests that the Defendant may not
respond.
Result - Appeal against Training Centre Order allowed; 16-month probation with special conditions
substituted.
*************
MA 1572/88
WONG Chi-ming
Duffy J (3.3.89)
*A Bruce
#S Tsui i/s DLA
Offensive weapon - S. 33(1), Cap. 245 - 22cm fruit knife tucked inside trousers - Looking for target to
rob - Sentence - 2 years
(1) This is a case in the upper range of seriousness.
(2) A term of 2 years imprisonment with no mitigating factors is appropriate.
Result - Appeal against a sentence of 2 years, after allowance given to plea of guilty and co-operation with
police, allowed; 15 months substituted.
*************
443
Sentence (Quantum) Public Order
Public Order
MA 1751/90
LUI Koon-man and 2 others
Sears J (11.1.91)
*M Ip
#I/P
Sentencing practice/Sentences after pleas and after trial
Held :
The difference between the fines and the bind overs imposed upon those defendants who pleaded guilty to
unlawful assembly, and the three months imprisonment imposed upon those who were convicted after trial,
was such that the appellants were apparently punished for their pleas of not guilty.
Result - Appeals allowed.
************
444
Sentence (Quantum) Resist Arrest, Assault Police
Resist Arrest/Assault Police
AR 6/89**
LAM Sau-yee
Cons Ag CJ, Power, Macdougall JJA (11.8.89)
*I G Cross, P Li
#G J X McCoy
Resisting arrest/Assaulting a police officer - Sentence
(1) Resisting arrest, contrary to s. 36(b), Cap. 212, is an excepted offence, within the terms of ss. 109B and
109G of the Criminal Procedure Ordinance, and the Third Schedule thereto, and a suspended sentence cannot
in law be passed.
(2) The parallel offence, contrary to s. 63, Cap. 232, is not likewise restricted. (It is punishable with a
maximum of 6 months imprisonment, whereas s. 36, Cap. 212, is punishable with up to 2 years)
(3) It is always a serious matter to assault a police officer acting in the course of his duty. A term of
imprisonment is usually called for.
Result - Application for review of a sentence of 1 month's imprisonment suspended for 18 months for s.
36(b), Cap. 212, allowed. Such sentence of imprisonment as to allow the Respondent's immediate release
substituted.
*************
MA 360/89
TRAN Quang-tuan
Bewley J (5.5.89)
*A Maxwell
#G Plowman i/s DLA
Pickpocket resisting arrest - Consecutive sentences
(1) Resisting arrest where a pickpocket is being intercepted is a separate matter and should be punished by a
consecutive sentence, the length of which will be determined by the degree of resistance and any injury to the
police.
(2) Where the appellant acted alone, he did not use a razor blade and nothing was stolen, 2 years was too high
a starting point and 12 months would have been a proper sentence after trial.
Result - Appeal against sentence of 18 months for pickpocketting allowed to the extent that it was reduced to
10 months.
*************
MA 1769/88
WONG Kam-choi and 4 others
445
Sentence (Quantum) Resist Arrest, Assault Police
Wong J (16.1.89)
*S Wong
#S Westbrook, P Wu
Verdict- Unsafe and unsatisfactory - Duty of magistrates - Assaulting a police officer - Sentence
(2) Assaulting a police officer in the execution of his duty is a very serious matter which would invariably
carry an immediate prison sentence even for a first offender.
Result - Appeal against convictions dismissed;
- A3's appeal against sentence allowed to the extent that the immediate prison sentence of 6 weeks be
suspended for 18 months.
**************
MA 1124/90
(1) WONG Ka-ching
(2) WONG Chak-kit
(3) WONG Tik-hon
Wong J (13.9.90)
*D Pang
#G J X McCoy (A1)
J Matthews (A2 A3)
AOABH/Practice and procedure/Defendants sentenced in absence of lawyers/Revenge attack on police
officer/Youth
The appellants were convicted of AOABH. The first and third appellants were sent to the detention centre
and the second appellant received six months imprisonment.
Held :
2. Although the sentences were not light, the offence involved a vicious, deliberate and cowardly revenge
attack upon an off-duty policeman. Such conduct could not be tolerated in a civilized society and the
sentences must clearly demonstrate to the public that there must be no repetition. The youth of the offenders
was not a good excuse - people in their age groups had to be deterred and taught to obey the law.
Result - Appeals dismissed.
************
446
Sentence (Quantum) Road Traffic
Road Traffic
MA 21/90
LAU Hon-tung
Ryan J (14.2.90)
*D G Saw
#P Wan
Sentence - Driving while disqualified - Driving without Third Party Insurance
Held :
1. Driving while disqualified is a serious offence. A sentence of 3 months' imprisonment, suspended for 12
months, is not manifestly excessive.
2. The two offences did arise from the same transaction. Consecutive disqualifications were wrong in
principle.
Result - Appeal allowed to the extent that the 12 months disqualification, imposed in respect of the 2nd
offence, was to run concurrently with the disqualification imposed in respect of the 1st offence.
*************
MA666/89**
LEE Yiu-lung
Penlington JA (16.8.89)
*J Reading
#J Cheung
Refusing to take a hirer to his destination - Jail sentence
Only in the most exceptional circumstances should a defendant be jailed for this offence. A heavy fine and a
period of disqualification will usually be appropriate.
Result - Appeal against sentence of 1 month's imprisonment refused (as it had already been served) but the
totality of sentence, including that for another offence, reduced.
**************
MA 179/89
NG Tsang-man
Bewley J (11.5.89)
*Miss C Fung
#V Eaton i/s DLA
Using a heavy good vehicle without insurance - Disqualification - Special reasons
447
Sentence (Quantum) Road Traffic
The fact that the appellant, like the owner who purchased the HGV, believed that the vehicle was not a HGV,
and indeed had no reason to believe otherwise, clearly amounted to special reasons for not disqualifying.
Result - Appeal against sentence allowed; disqualification order set aside.
***************
MA 362/89
LEUNG Ka-hing
Bewley J (26.5.89)
*A A Bruce
#A Wong
Permitting unlicensed driver to drive - "in connexion with the driving of a motor vehicle" Disqualification under s. 69 of Cap. 374 - Public interest
(1) The phrase "in connexion with the driving of a motor vehicle" as set out in s. 69(1)(a) of Cap. 374 must
catch someone who hands over his car to be driven by another and thereby permits him to drive.
(2) If vehicle owners realize they themselves are at risk of disqualification, pursuant to s. 69(1)(a), Cap. 374,
when they permit their vehicles to be driven by persons without licence, they will think twice before
permitting - in this connexion the public interest is served by keeping incompetent drivers off the road.
Result - Appeal against sentence of disqualification for 12 months dismissed.
*************
MA 139/89
CHAN Kwok-cheung
Hooper J (2.2.89)
*A Bruce
#G J X McCoy
Using a motor vehicle without third party insurance - Disqualification - Special reason not to - S.
4(2)(a), Cap. 272
Where the Magistrate accepts that the Defendant believed on reasonable grounds that his insurance policy had
been renewed, it is wrong for him to hold that the belief is not capable of establishing a special reason.
Result - Appeal against disqualification allowed.
*************
MA 862/90
TSANG Kei-bun
Bewley J (29.8.90)
448
Sentence (Quantum) Road Traffic
*S Lee
#E Robertson
Overloading vehicle/Prison sentence/Fixed penalty notices
Held :
1. It was wrong in principle to impose imprisonment, albeit suspended, upon a driver who pleaded guilty to
driving an overloaded goods vehicle, contrary to Regulations 54(1) and 61(1) of the Road Traffic
Regulations, Cap. 374;
2. It was well-established that fixed penalty notices should not be drawn to the Court's attention, nor taken into
account for the purposes of sentencing : R v SIN Yiu-kong [1979] HKLR 294.
Result - Appeal allowed : sentence of one month's imprisonment, suspended for eighteen months, quashed.
(Fine of $7,500 to stand).
*************
AR 2/91
CHAN Chun-yuen
Yang CJ, Silke V-P, Power JA (21.5.91)
*I G Cross, D G Saw
#J Hagon
Causing death by reckless driving/Correct sentencing approach
Held :
1. Where the offender pleaded guilty to causing death by reckless driving, and the offender was drunk, had
disregarded warnings, and had failed to stop after hitting the victim, a starting point of 3/4 years imprisonment
was proper : Boswell [1984] 3 AER 353, CHUNG Yim-chow [1986] HKLR 109, Dennis CHIU Tat-shing CA
238/84 considered;
2. The weight to be accorded to the mitigation in such circumstances is limited : AG's Reference No. 2 of
1990 [1990] 2 Cr.App.R. 194;
3. It was wrong to impose a suspended prison term. Two years imprisonment was called for.
Result - AG's review allowed. Sentence of 2 years imprisonment, suspended for 3 years, substituted with 18
months imprisonment.
***********
MA 265/91
CHAN Chiu-pang and 4 others
Bewley J (3.7.91)
*C Coghlan
#E Mumford QC, R Wong
Road racing/Deterrent sentences required
449
Sentence (Quantum) Road Traffic
Held :
Road racing is a menace to law abiding motorists and those found guilty must expect to be punished to the
extent that they will not do it again. Short prison terms are required as a deterrent : YUEN Kwok-hung CA
539/83.
Result - Appeals against sentence of two months imprisonment, refused.
************
MCA 1094/91
TSUI Kwan-fai
Leonard J (2.1.92)
*P Leung
#I/P
Road traffic/Order to re-sit driving test/Relevant considerations
Held :
(1) Section 70(2), RTO, Cap. 374, empowered the magistrate, whether or not the driver was disqualified for
careless driving, to disqualify him until he had passed a driving test. She was mistaken in thinking it
necessary to impose the three months disqualification first;
(2) The magistrate had no power to impose a fine and to order that the defendant re-sit the driving test;
(3) If a valid order had been made ordering disqualification until the appellant passed a driving test, then it
would have been necessary to note that such an order is not meant to be punitive and should be used where the
offender is aged, infirm or inexperienced and where the public interest requires that the offender should be
disqualified until he passes a driving test : Donnelly (1965) 60 Cr.App.R. 250;
(4) As there was nothing to indicate that the driver did not know how to drive properly if he wanted to, this
was not a suitable case for a disqualification pending the passing of a driving test.
Result - Appeal allowed. Order to re-sit the driving test quashed.
************
MA 978/91
CHOI Siu-wah
Bewley J (22.1.92)
*D Saw
#G Plowman
Causing death by reckless driving/Absence of aggravating factors/Suspended sentence
Held :
(1) Albeit that the appellant had caused death by reckless driving, and his driving did not involve merely a
momentary reckless error of judgment, that driving did not include any of the aggravating features described
by Lord Lane L.C.J. in R v Boswell [1984] 2 AER 353;
450
Sentence (Quantum) Road Traffic
(2) The appellant had been seriously affected by the accident, he had spent a night in custody, and was
unlikely to drive again.
Result - Appeal allowed. Sentence of 6 months imprisonment suspended for 12 months.
***********
MA 217/92
LAM Tak-kin
Bewley J (5.5.92)
*M IP
#I/P
Careless driving/Period of disqualification
Held :
Although the Appellant was convicted of a bad case of careless driving, he did not have a bad traffic record.
A fine of $2,000 and disqualification for 12 months was too severe.
Result - Appeal allowed. Disqualification reduced to three months.
*************
MA 169/92
YEUNG Ching-man
Bewley J (5.5.92)
*M IP
#P Wacks
Permitting use of uninsured vehicle/Period of disqualification
Held :
Although the Appellant was convicted of permitting a person to use a vehicle without third party insurance, he
had reasonable grounds for believing that the driver was duly insured. The fine of $1,000 and disqualification
for 12 months was too severe.
Result - Appeal allowed. Disqualification order quashed.
***********
MA 288/12
WONG Ting-yiu
Wong J (28.5.92)
*P Leung
451
Sentence (Quantum) Road Traffic
#K Oderberg
Disqualification/Special reasons
Held :
As the Appellant had reasonable grounds for believing that the insurance of the vehicle would be attended to
by his former partner, there were special reasons for not imposing disqualification : LEE Kam-to CA
430/1980, CHEUNG Chu-bor MA 655/1988, YEUNG Ching-man MA 169/92.
Result - Appeal against order of disqualification allowed.
***********
452
Sentence (Quantum) Robbery
Robbery
CA 58/92
CHEUNG Kan-po
Yang CJ, Macdougall JA (15.7.92)
*W S Cheung
#I/P
Robbery and possession of imitation firearm at the time thereof/Guilty pleas
Held :
Where a man of good character purchased an imitation pistol and used it to rob the staff of a supermarket of
$32,460, sentences totalling seven years for robbery and possession of an imitation firearm at the time of
committing the robbery, were appropriate after guilty pleas.
Result - Application for leave to appeal refused.
CA 504/91
KAM Chun-pang
Yang CJ, Silke V-P, Macdougall JA (14.7.92)
*A A Bruce
#I/P
Armed robbery/25 years starting point approved
Held :
(1) Where a person embarks on a robbery in which firearms are carried, the fact that he himself is not armed
with a weapon but acts in the capacity of driver of the get-away car is not of itself a mitigating factor. His role
is a central part of the enterprise to which he willingly lends his assistance;
(2) Where there were offences of robbery of a jewellery shop, and possession of a firearm and ammunition at
the time of committing the robbery, a proper starting point would have been 25 years. Such crimes demanded
very heavy sentences.
Result - Application for leave to appeal against sentences totalling 17 years refused.
Per Cur : In determining whether to interfere with a sentence, the court is solely concerned with whether it
was excessive in all the circumstances of the case, not with whether it is heavier than one which was imposed
on another offender in an entirely different case.
******************
AR 7/92
YAN Chun-fong
Cons, Fuad VV-P, Kempster JA (4.9.92)
453
Sentence (Quantum) Robbery
*I G Cross QC, W S Cheung
#S H Cotsen
Armed robbery/Excepted offences and probation/Exceptional mitigation/Deterrence
Held :
(1) The judge erred in suspending prison terms for offences of robbery and possession of a firearm at the time
thereof, as these are excepted offences within S. 109B(1) Cap. 221;
(2) The judge erred in ordering probation after imposing suspended prison terms, as this is contrary to S.
109B(2) Cap. 221;
(3) The judge erred in not allocating the sentence or the probation order to either count;
(4) Armed robbery is a grave offence and the courts cannot completely abdicate their responsibility to protect
the public as best they can. Even where the pistol used in the robbery is only an imitation, the public is at
risk : NG Ka-ling [1989] 1 HKLR 64, 67;
(5) The interests of the community are such that, whatever mitigation there might be, circumstances cannot be
imagined in which robbery of a jewellery shop with a simulated firearm would not inevitably attract an
immediate custodial sentence. It is also necessary to deter others, even those with happy family backgrounds
and successful children, who might, in severely straitened circumstances, be tempted to resort to crime to
solve their difficulties.
Result - AG's review allowed. Two years imprisonment substituted.
**************
CA 57/92
JOU Wing-hung
Fuad V-P, Macdougall JA (4.8.92)
*N Bradley
#I/P
Robbery with firearms/Sentence for getaway driver
Held :
(1) Although the defendant, who was a young man of hitherto good character, had pleaded guilty to armed
robbery of a goldsmiths shop, the judge erred in taking 12 years as his starting point and reducing this to 7
years. This was unduly lenient and a more severe sentence should have been imposed;
(2) When there is a robbery in which firearms are carried, the fact that the getaway driver himself is not armed
is not of itself a mitigating factor, as his role is essential to the enterprise : LAM Chun-pang Cr.App. 504/91
followed.
Result - Application dismissed. Loss of time ordered, pursuant to S. 83 W(1) Cap. 221.
***************
CA 354/89
CHAN Man-kit
454
Sentence (Quantum) Robbery
Silke V-P, Power, Macdougall JJA (7.3.90)
*S Chui
#H Y Wong
Sentence - Multiple lift robberies - Youth : 20 - Immediate confessions - PG to 12 counts
Held :
1. Where there is a multiplicity of offences of this nature, the public interest must be served over and above
the individual interests of the appellant, despite his youth.
(R. v. KWOK Man-hung others, CA 17/83 (unreported) and R. v. CHAN Chi-fai others, CA 593 643/83
(unreported) considered)
2. These offences were serious but not the most serious form of robbery. A starting point after trial of in
excess of 12 years was too high.
3. A starting point in the region of 10 years was appropriate.
4. In the light of the pleas of guilty, the age, and in particular the immediate confessions to the police, a total
sentence of 7 years imprisonment was appropriate.
Result - Appeal allowed. Sentence reduced from 9 years' to 7 years' imprisonment.
************
CA 426/89
POON Ping-keung
Silke CJ (Ag), Kempster JA (1.2.90)
*I G Cross, A Kwok
#I/P
Robbery with the aid of a bomb - Causing an explosion - Sentence
1. Where a man, acting alone, over a protracted period, attempted to rob, or succeeded in robbing, numerous
banks, by stating he was possessed of a bomb or a gun, and in addition attempted to, and actually did cause an
explosion, and secured $171,070, 16 years' imprisonment was not excessive after guilty pleas - albeit that
there was a clear record.
2. Sentences for such crimes as these are primarily determined by reference to the gravity of the crimes
committed.
3. Those concerned for their families' welfare should demonstrate this before committing the offences, and not
by praying this in aid in mitigation before the courts.
Result - Leave to appeal against the following sentences refused (a) 11 attempted Robberies - 10 years concurrent on each
(b) 9 Robberies - 12 years concurrent on each
(c) Attempt to cause an explosion - 4 years
(d) Unlawfully and Maliciously causing an explosion - 3 years
(e) Possession of an explosive - 2 years
((a) and (b) to run concurrently; (c), (d) and (e) to run concurrently - but consecutively to (a) and (b): 16
years in toto)
455
Sentence (Quantum) Robbery
*************
CA 367/89
LAM Siu-po
LAU Wai-fan
Cons V-P, Clough, Power JJA (29.12.89)
*C Coghlan
#D Percy for LAM
L Lee for LAU
Bad case of robbery - Sentence/Discounts
(This was a planned invasion, at night, of a jewellery factory by three men who threatened the victims with
choppers, and did not surrender, when discovered by police, until the officers attempted to break down the
door.)
1. For a bad case of robbery such as this, a starting point of 9 years is fully justified.
2. A discount can properly be made for young age but, in such a case, youth is not in itself an exceptional
circumstance.
3. Where an accused had played a full part in a robbery, only a modest adjustment in his sentence would be
appropriate because a co-accused was the instigator of the crime.
(MO Kwong-sang [1981] HKLR 610, considered)
Result - Leave to appeal against sentences of 6 1/2 years for LAM and 7 years for LAU refused.
*************
CA345/89**
WONG Ka-po
Silke CJ (Ag), Kempster JA, Hooper J (16.1.90)
*I G Cross, D Pang
#A Bell
Blackmail and robbery of prostitute by minders - Sentence
Where a prostitute is detained by her minders, frightened and beaten, then, albeit that no weapons are
used, 3 years, after trial, is not excessive.
(YAU Kwok-tung [1987] HKLR 782, considered)
Result - Leave to appeal against sentences of 3 years in toto (2 years for Blackmail and 3 years for Robbery
concurrent) refused.
**************
CA 75/89
WONG Kwok-keung
Cons V-P, Power, Macdougall JJA (8.9.89)
456
Sentence (Quantum) Robbery
*I G Cross, C Fung
#G J X McCoy
Sexual assault on robbery victims - Sentence
1. Where robbery victims are subjected to sexual assault of any sort, the sentence for that attack will run
consecutively to that for the robbery, and the overall sentence will be substantial.
2. 14 years' imprisonment is an appropriate total sentence for a man who embarks on a campaign of robbery
and of sexual assault of his victims (2 counts of robbery, 1 count of attempted rape and 2 counts of indecent
assault).
Result - Appeal against totality of 16 years allowed. 14 years substituted by reducing the rape sentence from
7 to 5 years.
(See previous section for appeal on conviction)
*************
CA 268/89
LAM Bun
Silke V-P, Power, Penlington JJA (6.9.89)
*I G Cross
#G Plowman
Highway robbery - Sentence
For a middle ranking member of a gang who, in a highway robbery, hijacked a lorry carrying $2.5 m HK's
worth of silver bullion, carried knives and tied up the victims, a sentence of 9 years, upon a plea of guilty, is
appropriate.
(CHIN Sin-fu, CA 191/88, applied)
Result - Appeal against sentence of 11 years allowed. One of 8 years substituted.
************
CA427/88**
LAU Wai-hung
CHIA Kin-shing
Kempster, Penlington JJA, Mayo J (24.8.89)
*I G Cross, C Fung
#C Grounds for CHIA
(A) Taxi robbery - Sentence
(1) Robberies of taxi drivers must normally result in 5 to 6 years imprisonment.
(2) If actual violence is used, this figure must be increased.
(3) 10 years for 2 robberies of taxi drivers, in which no injury is caused, is not excessive.
457
Sentence (Quantum) Robbery
(B) Defendant testifying against co-accused - Credit
Even though a defendant's evidence against a co-accused may not be accepted by the jury, he is still entitled to
some credit in sentencing.
Result - CHIA's appeal against sentence of 8 years in toto for 2 counts of robbery allowed. The total was
reduced to 6 years.
*************
CA508 514/88**
CHUI Chi-keung
CHAN Ping-kwong
WONG Wai-hung
Cons Ag CJ, Power Macdougall JJA (2.8.89)
*I G Cross
#M Nunns for CHUI and CHAN, R Forrest for WONG
Armed robbery - Sentence
(1) 14 years is not an appropriate starting point for an armed robbery (knives) in domestic premises, albeit that
there are aggravating features.
(2) That sentence is more suitable for a robbery involving firearms on, for example, a goldsmith's shop.
Result - Appeal against sentences allowed. They were reduced as follow :
CHUI 10 years to 7 years
CHAN 12 years to 9 years
WONG 6 years to 3 years.
**************
CA 17/89
YAU Shing-por
HO Kin-wing
Cons Ag CJ, Power, Macdougall JJA (11.8.89)
*I G Cross, P Li
#J Shaw i/s DLA
Robbery - Firearm discharged - By accident or to subdue or frighten victim - Conviction after trial Sentence
(1) Those who use firearms in the course of committing robbery can expect no mercy from the courts which
are concerned primarily with deterrence, not rehabilitation, in cases of this kind.
(2) Where there is no injury, and the firearm is discharged either accidentally or merely to subdue or frighten
the victim, 17 years imprisonment is too severe.
Result - Appeal against sentence of 17 years allowed. One of 15 years substituted.
458
Sentence (Quantum) Robbery
**************
CA390/88**
CHONG Chiu-wo
Silke V-P, Penlington, Macdougall JJA (16.6.89)
*I G Cross, Miss C Fung
#W N C Stirling
Attempted murder - Robbery - Cold blooded attacks
Where the applicant committed 2 offences of the highest gravity - cold blooded attacks in the course of
robbery - 25 years concurrent is not manifestly excessive.
Result - Application for appeal against sentences of 25 years @ concurrent for attemtped murder (x 2) and 20
years for robbery concurrent refused.
************
CA 528/88
CHAN Che-fong
Silke V-P, Kempster
Penlington JJA (19.5.89)
*A A Bruce
#A Macrae
Bank robbery - Sentence
It is necessary in the interest of the public that those who commit robbery at banks, even if at the time they do
so their judgment is impaired, should have sentences imposed which show the public disapprobation of such
conduct.
Result - Application for leave to appeal against sentence of 6 years refused.
*************
AR 19/88
CHAN Wai-fai
Yang CJ, Silke V-P, Penlington JA (4.5.89)
*I G Cross, C Fung
#N Mitchell i/s DLA
3 counts of burglary - 1 count of robbery - 1 count of theft - Conviction after trial - All sentences
consecutive - 2 years and 10 months in toto - Whether wrong in principle and/or manifestly inadequate
(1) For a burglary in domestic premises, a sentence of 3 years after trial is proper.
(CHAN Yui-man CA 36/88, applied)
(2) For an unarmed robbery in domestic premises, 4 years after trial is proper.
459
Sentence (Quantum) Robbery
(AG v. SHEK Sui-tai AR 9/88, applied)
(3) For a theft by finding, 6 months is proper.
(4) Having regard to totality, a sentence of 5 years' imprisonment would have been proper. As this was a
review, the totality was reduced to 4 years by ordering the sentences to run concurrently.
Result - AG's review allowed. The sentences were increased to 3 years on each burglary, 4 years for the
robbery, and 6 months for the theft, all to run concurrently.
**************
240/88
LEUNG Chu-kwong
Silke V-P, Kempster, Power JJA (16.2.89)
*I G Cross
#I/PCA
Staircase robbery - offensive weapon - Different occasions - Sentence
For a Defendant who has an appalling record and committed the offences shortly after being released from
prison, a total of 6 years imprisonment is not improper. If the sentences err, they err on the side of leniency.
Result - Leave to appeal against sentences of 5 years for robbery and 1 year for P.O.O.W. to run
consecutively, refused.
************
CA 494/88**
CHEUNG Chi-kong
Yang CJ, Silke V-P, Penlington JA (28.2.89)
*I G Cross, Miss C Fung
#I/P
Robbery - Arrested red-handed - Committed shortly before the expiry of a previous suspended
sentence - Sentencing - Loss of time
(1) Little credit can be given to a man who pleads guilty when he had been caught red-handed.
Result - Appeal against sentence of 6 years in toto (5 years each (x 2) with 1 year of the second sentence
consecutive to the first) dismissed;
- 60 days loss of time ordered.
*************
CA 545/88**
CHAN Sai-chiu
460
Sentence (Quantum) Robbery
Yang CJ, Silke V-P (23.2.89)
*I G Cross
#I/P
Lift robbery - Sentence - Loss of time
For a lift robbery, after a guilty plea, 3 years is very lenient.
Result - Appeal against sentence dismissed;
- 60 days loss of time ordered.
************
CA 225/90
LEE Wai-man
Yang CJ, Silke V-P, Power JA (14.11.90)
*C Coghlan
#I/P
Armed robbery/Firearm used/Mitigating features
Held :
(1) Illegal immigrants who commit armed robberies must face severe punishment. They must be deterred;
(2) The effect of the guilty plea at the first opportunity was weakened as the applicant was caught red-handed;
(3) Albeit that the applicant was only aged 17, ten years' imprisonment for an armed robbery in a restaurant,
and 5 years concurrent for possession of a firearm, was nonetheless on the lenient side.
Result - Application for leave to appeal against sentence refused.
**************
CA 228/90
CHAN Kwai-to
Silke, Fuad VV-P, Penlington JA (23.1.91)
*J Reading
#R Tang
Robbery/Practice and procedure/Separate counts
Held :
When violence resulting in injury is inflicted during a robbery, the prosecution has a discretion whether or not
to include a count specifically charging the appropriate degree of assault. Provided the violence, and its
effect, is proved or conceded the sentencing count will always take it into account against all active
participants whether they actually inflicted the injuries or not. The fact that no evidence was offered against
the applicant on the charge of causing grievous bodily harm, should not be taken to derogate from the
461
Sentence (Quantum) Robbery
seriousness of the robbery on the facts admitted by the applicant. (Penlington J.A. delivered certain
dissenting dicta as to whether a separate count was necessary. He cited : French (1982) 75 Cr.App.R. 1;
CHAN Kin-chung [1980] HKLR 642.)
Result - Application for leave to appeal against 8 years imprisonment for robbery, refused.
************
CA 364/90
(1) TSE Kai-chung
(2) TSUI Yiu-lam
SilkeV-P, Power JA, Liu J (7.3.91)
*S R Bailey
#Tse Hon
Armed robbery/Bank or shop/Real and toy pistols compared
Held :
1. Where a person takes part in an armed robbery upon a bank or upon a jewellery or upon a similar shop the
normal sentence is one of twelve to fifteen years : AG v. MAN Yiu-to AR 6/1984 approved;
2. When, in the course of the robbery, a pistol is displayed, it matters little whether it is real or a toy since the
same alarm is caused to those who see it.
Result - Appeals allowed. Sentences of 8 and 10 years respectively, imposed for attempted robbery, reduced
to 7 and 9 years.
*************
CA 261/90
TAM Sum-lam
Silke V-P, Power, Macdougall JJA (6.3.91)
*J Reading
#I/P
Robbery/Firearms carried/Discount
The applicant pleaded guilty to two counts : robbery and possession of firearms at the time of committing a
robbery. He received eleven years imprisonment on each, concurrent. On appeal :
Held :
The trial judge was right to arrive at a starting point of 13 years by taking 10 years as the starting point for a
robbery using but not firing a firearm and adding three years thereto on account of the aggravating factors.
The deduction of two years for a late plea of guilty was adequate in the circumstances. Application for leave
dismissed.
*************
462
Sentence (Quantum) Robbery
AR 18/90
CHAU Chung
Silke V-P, Power JA, Mortimer J (31.5.91)
*I G Cross QC, D G Saw
#D Tang
Armed robbery/Business premises/Clear record/Age of offender
Held :
1. When sentencing for robbery, courts can give little account to a clear record. It is not, however, something
to be disregarded;
2. Those who take part in serious and violent crimes, such as robbery, must expect heavy sentences whether
they are young or not;
3. The phrase "private premises" in MO Kwong-sang encompasses business premises.
Result - AG's application for review allowed. Sentence of two years imprisonment increased to four years.
**************
AR 1/91
CHENG Yau-leung
Fuad V-P, Penlington, Macdougall JJA (4.6.91)
*D G Saw
#H Y Wong
Assault with intent to rob/Victim alone in lift/Discount on review
Held :
(1) Where there is an assault with intent to rob, involving a violent attack by more than one man upon a
lone woman in a lift, who thereby sustained injury, a sentence of four years imprisonment would have been
proper after a guilty plea : MO Kwong-sang [1981] HKLR 610, WONG Sai-cheong AR 1/85, WONG Waipor Cr.App. 464/85, LUANG Po-chuen Cr.App. 107/87, and SHEK Sui-tai [1989] 1 HKLR 178 considered;
(2) A discount can properly be considered if a respondent is very close to the end of his sentence : AG v
WONG Kwok-wai AR 16/1990 applied.
Result - AG's application allowed. One year of imprisonment substituted with 3 1/2 years.
************
CA 552/90
LAM Chun-po and 3 others
Cons Ag CJ, Macdougall JA, Barnes J (2.8.91)
*A Schapel
#D Percy
463
Sentence (Quantum) Robbery
Rape and robbery/Consecutive sentences/Rape sentencing/Youth
Held :
(1) Where there are offences of rape and robbery, consecutive sentences are called for;
(2) Previous good character is only of minor relevance both in robbery and rape cases;
(3) The starting point for sentence for a rape in which there was a single act of intercourse perpetrated by one
man with the assistance of one or more accomplices, is eight years : Billam 82 Cr.App.R. 347, and IP Chunghang [1989] 1 HKLR 149 applied;
(4) In the case of a youthful rapist the proper length of sentence should be that which is appropriate for an
adult, "but making some reduction to reflect the youth of the offender" : Billam (Supra).
(Per cur : The Court has said repeatedly that the sentence in each case must be passed in the light of the
particular facts of that case. Little, if any assistance can be obtained from a study of comparables.)
Result - Applications for leave to appeal against total sentences ranging from eight to nine years, refused.
************
CA 586/90
LAM Chor-man
Macdougall JA, Mortimer, Barnett JJ (26.7.91)
*J Halley
#B Sceats
Robbery/Private premises
Held :
The systematic invasion of three floors of rooms occupied by various people in a guest house by eight men
armed with knives in the middle of the night is a much graver offence than a robbery confined to one unit in a
building.
Result - Application for leave to appeal against a sentence of eleven years, refused.
*************
CA 56/91
(1) YU Wai-lam
(2) LEE Hung-kwong
Yang CJ, Power JA (31.10.91)
*D Saw
#(1) S Cotsen
(2) J Mullick
Armed robbery/Business premises
Held :
464
Sentence (Quantum) Robbery
(1) Where a man participated in the armed robbery of business premises, and firearms were produced, and the
robbery and firearms counts attracted consecutive sentences totalling 16 1/2 years imprisonment, the Court
would not interfere on appeal - this after a 50% reduction of sentence due to assistance to police and guilty
pleas.
(2) Where a secondary party participated in a robbery of business premises, unaware that firearms were
carried, and discharged a subordinate role, 10 years imprisonment was proper after giving full weight to the
mitigation.
(3) For the robberies, a starting point of 15, not 20 years would have been proper. The discounts were too
generous.
Result - Appeals dismissed.
*************
CA 328/91
CHAN San-keung
Silke V-P, Power, Macdougall JJA (5.11.91)
*D G Saw
#I/P
Robbery/Taxi driver
Held :
(1) Taxi robberies are to be regarded in the most serious light. By reason of their occupation taxi drivers are
easy prey for those who seek to take advantage of their vulnerability. They deserve the full protection of the
Courts.
(2) A starting point of five years, reduced after a guilty plea to four years, was not excessive.
Result - Application for leave to appeal dismissed. Three months loss of time ordered.
************
CA 472/91
LO Kwok-hung
Cons V-P, Clough JA, Hooper J (7.2.92)
*M McMahon
#A Macrae
Armed robbery of goldsmith shop/Guns carried but not fired/Hijacking
Held :
(1) Robbery of a goldsmith shop, in which firearms are carried, but not used, merits sentences in the region of
15 years : R v YU Wai-lam Cr.App. 56/91;
(2) As there was a hijacking of a van at gunpoint, which resulted in another life being put at risk, this was
separate conduct which amounted to an aggravating factor.
465
Sentence (Quantum) Robbery
Result - Application for leave to appeal against sentences totalling 13 years for offences of robbery,
possession of a firearm and ammunition, and TCWA, refused.
************
CA 58/92
CHEUNG Kan-po
Yang CJ, Macdougall JA (15.7.92)
*W S Cheung
#I/P
Robbery and possession of imitation firearm at the time thereof/Guilty pleas
Held :
Where a man of good character purchased an imitation pistol and used it to rob the staff of a supermarket of
$32,460, sentences totalling seven years for robbery and possession of an imitation firearm at the time of
committing the robbery, were appropriate after guilty pleas.
Result - Application for leave to appeal refused.
*************
466
Sentence (Quantum) Sexual Offence
Sexual Offence
CA 463/91
CHAN Chi-keung
Silke V-P, Macdougall JA, Bokhary J (12.6.92)
*C Coghlan
#L Remedios
Rape of child/Protection of public paramount consideration
Held :
A violent and carefully planned rape upon an 11 year old school girl was properly visited with 10 years'
imprisonment after a guilty plea. It was vital to protect the public, and the child had been subjected to a
terrible experience. 15 years was a proper starting point.
Result - Application dismissed.
Per Cur - The Court was not bound by Crown Counsel's concession that the sentence was too high.
**************
CA330/89**
NG Koon-tai
YUNG Mo-ping
Silke CJ (Ag), Wong J (24.1.90)
*I G Cross, P Li
#W Allan for NG
M K Wong for YUNG
(A) Rape - Sentence
As a guideline, the worst category of gang rape, or multiple rapes by a single offender, will attract a sentence
in the region of 15 years' imprisonment.
(AG v. IP Chung-hang [1989] 1 HKLR 49; Billam 82 Cr. App. R. 347; YAU Wai-hung [1988] 1 HKLR 452,
considered)
(B) Guilty pleas in sexual cases - Discount
Guilty pleas, which avoid the presence of the victim in the witness box, should attract a more substantial
discount in a sexual case than in other cases.
Result - Appeals allowed.
NG - 12 years reduced to 9 years
YUNG - 12 years 9 months reduced to 10 years
**************
467
Sentence (Quantum) Sexual Offence
MA 988/89
CHEUNG Yan-chee
Cons V-P (20.9.89)
*S Leung
#M Lunn
(A) Indecent assault - On passenger by taxi driver - Victim taken first to lonely spot in Sai Kung where
offence took place then to villa in Kowloon Tong where she escaped - No serious indecency - Sentence
In all the circumstances, 15 months' imprisonment, after trial, was too heavy - the Appellent had a previously
clear record.
(B) Sentencing - Whether circumstances surrounding offence may be taken into account
1. It is well accepted that the court may take into account the surrounding circumstances in which an offence
is committed - although they may amount to circumstances which could found other charges which have not
been brought.
2. It is, however, not so clear how far the court may go when the circumstances take place after the offence
and are to some extent independent of it.
(C) Deterrent sentences - First offender
Unless there are special circumstances, sentences that are intended to deter others as well as the defendant
himself should not generally be imposed upon a first offender.
(Curran, 57 Cr. App. Rep. 945 HO Kau [1978] HKLR 197, followed)
Result - Appeal against sentence of 15 month's imprisonment allowed. 9 months substituted.
************
CA 75/89
WONG Kwok-keung
Cons V-P, Power, Macdougall JJA (8.9.89)
*I G Cross, C Fung
#G J X McCoy
Sexual assault on robbery victims - Sentence
1. Where robbery victims are subjected to sexual assault of any sort, the sentence for that attack will run
consecutively to that for the robbery, and the overall sentence will be substantial.
2. 14 years' imprisonment is an appropriate total sentence for a man who embarks on a campaign of robbery
and of sexual assault of his victims (2 counts of robbery, 1 count of attempted rape and 2 counts of indecent
assault).
Result - Appeal against totality of 16 years allowed. 14 years substituted by reducing the rape sentence from
7 to 5 years.
(See previous section for appeal on conviction)
468
Sentence (Quantum) Sexual Offence
*************
CA 84/89
CHAN Pin-chung
Silke V-P, Power, Penlington JJA (6.9.89)
*I G Cross
#B Sceats
(A) Gang rape on kidnapped victim - Sentence
A gang rape, following a violent kidnapping, can properly be visited with 10 years' imprisonment upon a
guilty plea.
(Billam, [1986] 1 ALL ER 985, considered)
Result - Appeal against sentence of 8 years for kidnapping allowed. 5 years substituted.
Leave to appeal against sentence of 10 years for rape, concurrent, refused.
10 years in toto stands.
*************
AR 1/89**
MAU Man-yiu
Cons Ag, CJ, Power, Macdougall JJA (15.8.89)
*I G Cross, W S Cheung
#G Alderdice
Rape - With aggravating factors - On prostitute - Sentence
(1) The involvement of more than one man, and the infliction of additional sexual indignities, are aggravating
factors which lift the starting point for rape sentencing above 5 years.
(Billam [1986] 1 All ER 985 approved)
(2) It is no mitigation that, since a prostitute returned after the rape to prostitution, the trauma must have been
minimal. There may be no other profession open to her.
Result - Application for review of the following sentences allowed on the ground of being manifestly
inadequate (a) Rape )
)
)
) 3 1/2 years
concurrent
(b) Rape )
)
(c) AOABH ) 2 months
Sentences on each rape increased to 5 years concurrent.
**************
CA 26/89**
LAW Foon
469
Sentence (Quantum) Sexual Offence
Yang CJ, Clough JA (23.6.89)
*S Wong
#I/P
Incest - Own daughter - Multiple incidents - Sentence - Loss of time
Where a father had sexual intercourse with his own daughter who was at the first incident aged about 12, 4
years was entirely proper, if not too lenient.
Result - Application for leave to appeal against sentence of 4 years, 3 years and 1 year (concurrent) refused;
loss of time ordered.
*************
CA 457/89
Barry Summers
Silke Ag. CJ, Kempster JA (2.2.90)
*D Pang
#C Grounds
Sentence - Buggery - PG - Victim aged 16 - Victim with experience of homosexual activity
Held :
1. The starting point of 3 1/2 years was a proper general starting point for an offence of this nature. The
previous conviction for similar offences was relevant and sentences passed should contain an element of
deterrence to others as well as the offender.
2. The matter of emotional and psychological damage is a matter which must be borne in mind when the age
of the boy concerned is taken into account even if he had had previous homosexual experience.
3. For the future, and in the context of the protection of the young - and, in this type of case, youths, willing or
unwilling, must be protected from themselves - this should be a matter to be borne in mind by sentencing
courts.
(R. v. Willis [1975] 1 W.L.R. 292; SZETO Sit-ming v. R. CA 1104/77 (unreported) considered)
Result - Appeal dismissed.
**************
AR 18/88
FONG Ming-yuen
Silke V-P, Kempster, Power JJA (9.3.88)
*I G Cross, E Chan
#Sze Kin
Rape - Defendant 19-year old - Victim 13-year old - Training Centre
470
Sentence (Quantum) Sexual Offence
(1) In determining sentence, a Court must consider four classic principles : retribution, deterrence, prevention,
rehabilitation.
(2) Even in very serious cases, there is no sentencing practice that there can never be a Training Centre Order
unless the offender is of extreme youth.
(3) In sentencing for rape, regard should be had to the severe degree of emotional and psychological trauma to
the victim.
(4) It must be remembered that incarceration in the Detention and Training Centres involves a deprivation of
liberty and is custodial in nature. In the latter, the offender can be detained for up to 3 years, and, upon
release, placed under continuing supervision.
Result - AG's review of Training Centre Order refused.
*************
AR 23/88**
CHAN Chi-wah
Silke V-P, Kempster, Power JJA (14.2.89)
*I G Cross, Miss E Chan
#K Ramanathan
AG's review of sentence - Rape - Violent attacks against single women - Robbery - Consecutive
sentences - Multiple similar offences
(1) A man who perpetrates a series of violent attacks against single women, cannot, even on a plea, expect to
get less than 12 years imprisonment.
(2) Separate offences, not part of a single transaction, should attract wholly or partly consecutive sentences.
(3) A series of like offences should attract longer, but concurrent sentences.
Result - AG's review allowed;
- Sentences for counts 1 (Rape) and 2 (Robbery) increased from 7 years concurrent to 10 years
concurrent; 4 years for count 3 (Robbery) unaltered but commences after 4 years have been served; 5
years each concurrent for counts 5 (Robbery) and 6 (Robbery) unaltered but to be served after 5
years have been served;
- Sentence of 7 years in toto increased to 10 years in toto.
*************
CA 536/89
CHAN Sum-ho
Yang CJ, Power, Macdougall JJA (3.7.90)
*A A Bruce
#G J X McCoy
Indecent Assualt/Prison supervisor upon inmate/No discount for loss of pension and benefits
471
Sentence (Quantum) Sexual Offence
The applicant, a prison supervisor, was convicted after trial of two charges of indecent assault upon a female
inmate. He was sentenced to 10 months and 20 months respectively, the sentences to be consecutive. On
appeal it was contended that the sentences were manifestly excessive, and that consecutive sentences were
wrong in principle.
Held :
(1) As the offences were separate and distinct, consecutive sentences were proper.
'overlapping' sentences called for);
(Neither were
(2) These offences involved a gross abuse of trust;
(3) Notwithstanding that the applicant had lost his lump sum gratuity and his monthly pension, which seemed
unfortunate, a prison term commensurate to the seriousness of the offences had to be imposed.
Result - Application dismissed.
****************
AR 17/90
WAI Yan-shun
Silke V-P, Power, Macdougall JJA (7.3.91)
*I G Cross QC, D G Saw
#G Plowman
Indecent assault on MTR/Sentencing principles and guidelines
Held :
1. A term of imprisonment will ordinarily be appropriate for men who indecently assault women on the MTR.
This is not to say that fines will never be appropriate in rare cases;
2. The offence is prevalent, it is an affront to the dignity of the female victim, and, in view of that prevalence,
a "clang of the prison gates" approach is proper : Smedley (1981) 3 Cr. App. R. (S) 117 applied;
3. There are four classical principles of sentencing : retribution, deterrence, prevention and rehabilitation :
Sargeant (1974) 60 Cr. App. R. 75.
In such offences as the present, because of the prevalence and the difficulty of detection, the main sentencing
element should be one of deterrence to both the offender and others of a like kind. Public abhorrence of such
conduct in the crowded environment of Hong Kong had also to be borne in mind. A short sharp sentence of
imprisonment can express that abhorrence, bring an offender to his senses, and deter potential offenders;
4. Henceforth, prison terms of between 14 and 28 days will be appropriate for a first offender, and terms of 2
to 6 months for second offenders; (The maximum penalty in the Magistracy is 2 years imprisonment and a
fine of $10,000).
Result - The sentence of $4,000 was manifestly inadequate, but no order would issue against the Respondent,
aged 44 years, who had suffered public humiliation and would be very loath to re-offend. (AG v. CHAN Takking another [1989] 2 HKLR 428, applied).
**************
472
Sentence (Quantum) Sexual Offence
CA 153/90
HUI Yee-chun
Yang CJ, Silke V-P, Power JA (28.2.91)
*D G Saw
#N Sarony
Incest/Sentencing scale/Discount
Held :
AG's Reference No. 1 of 1989 [1989] 1 W.L.R. 1117 correctly sets out the factors to be considered when
sentencing for incest. The sentence should be about 8 years when the victim was aged 10. Other aggravating
factors, which included intercourse over a long period, which resulted in pregnancy, would warrant a sentence
of 9 years after trial. The plea of guilty, plus the remorse, plus the genuine affection on the part of the
defendant, rather than the intention to use the girl simply as an outlet for his sexual inclinations, justified a
discount of 2 years.
Result - Application for leave to appeal against a sentence of 8 years for two counts of incest, allowed. 7
years substituted.
************
CA 552/90
LAM Chun-po and 3 others
Cons Ag CJ, Macdougall JA, Barnes J (2.8.91)
*A Schapel
#D Percy
Rape and robbery/Consecutive sentences/Rape sentencing/Youth
Held :
(1) Where there are offences of rape and robbery, consecutive sentences are called for;
(2) Previous good character is only of minor relevance both in robbery and rape cases;
(3) The starting point for sentence for a rape in which there was a single act of intercourse perpetrated by one
man with the assistance of one or more accomplices, is eight years : Billam 82 Cr.App.R. 347, and IP Chunghang [1989] 1 HKLR 149 applied;
(4) In the case of a youthful rapist the proper length of sentence should be that which is appropriate for an
adult, "but making some reduction to reflect the youth of the offender" : Billam (Supra).
(Per cur : The Court has said repeatedly that the sentence in each case must be passed in the light of the
particular facts of that case. Little, if any assistance can be obtained from a study of comparables.)
Result - Applications for leave to appeal against total sentences ranging from eight to nine years, refused.
***********
473
Sentence (Quantum) Sexual Offence
CA 533/91
YEUNG Lau-fat
Silke V-P, Penlington JA, Barnett J (11.3.92)
*A P Duckett QC, Y Mahomed
Incest/Multiple offences/Totality
Held :
Where a defendant repeatedly committed incest with each of his three daughters, one of whom gave birth in
consequence, a total of nine years imprisonment was appropriate after guilty pleas to 8 counts. That overall
sentence took due account of the totality principle : AG's Reference (No. 1 of 1989) (1989) 11 Cr. App. R.
409, R v WONG Kwai-pui Cr. App. 522/89 considered.
Result : Appeal allowed. Sentences totalling 12 years for incest reduced to 9 years. (A consecutive sentence
of 1 year imposed for doing an act intended to pervert the course of public justice was not disturbed).
************
CA 463/91
CHAN Chi-keung
Silke V-P, Macdougall JA, Bokhary J (12.6.92)
*C Coghlan
#L Remedios
Rape of child/Protection of public paramount consideration
Held :
A violent and carefully planned rape upon an 11 year old school girl was properly visited with 10 years'
imprisonment after a guilty plea. It was vital to protect the public, and the child had been subjected to a
terrible experience. 15 years was a proper starting point.
Result - Application dismissed.
Per Cur - The Court was not bound by Crown Counsel's concession that the sentence was too high.
**************
MA 31/90
CHAN Man-kit
Bokhary J (25.1.90)
*S Wong
#J McLanachan
Sentence - Unlawful sexual intercouse with a girl under 16
Held :
474
Sentence (Quantum) Sexual Offence
An immediate custodial sentence of 6 months is not wrong in principle nor manifestly excessive for an
employer, with no previous record, who had sexual intercourse with a willing employee aged 14 years and 8
months.
Result - Appeal dismissed.
************
475
Sentence (Quantum) Theft/Handling/False Accounting/Deception
Theft/Handling/False Accounting/Deception
CA 498/91
CHIU Ko-wai
Silke V-P, Jones, Sears JJ (7.7.92)
*P Leung
#E Toh
Car theft/Smuggling to China/Deterrent sentences
Held :
(1) As the offence of stealing cars and smuggling them to China is prevalent, the public require protection and
substantial prison sentences should be passed on those who steal or assist in the disposal of cars;
(2) Although the instant sentence of 3 years' imprisonment, imposed after a guilty plea to handling stolen
goods, namely, a Mercedes Benz, would be reduced by 6 months, in future courts would be entitled to
consider passing substantial prison terms to deter those who engage in the stealing and disposal of cars. If
there are such aggravating features as organised criminal syndicates, yet greater sentences would be proper.
Result - Appeal allowed. 2 1/2 years substituted.
******************
CA 207/91
CHAN Shu-keung
Yang CJ, Bewley, Barnett JJ (30.4.92)
*D G Saw
#P Nguyen
Theft from bank/Bank official stealing from client's funds/Breach of trust
Held :
As the applicant was in a position of trust, as the Operations Manager of a bank, and as he abused that trust
over two years by stealing some $8.5 million from client's accounts by the signing of cheques which he
himself then endorsed, a sentence totalling 6 years imprisonment after pleas of guilty to 109 charges of theft
was correct.
Result - Application dismissed.
*****************
MA 781/92
NGUYEN Van Anh
Sears J (4.11.92)
476
Sentence (Quantum) Theft/Handling/False Accounting/Deception
*L Cross
#D Law
Pickpocket/Proper sentence/Bad criminal record
Held :
Albeit that the defendant had an appalling criminal record, a proper sentence after trial for pickpocketing
would have been 15 months' imprisonment. However, as he pleaded guilty and saved court time, he was
entitled to a discount.
Result - Appeal allowed. Sentence reduced from 18 months to 12 months.
***************
CA 290/92
IP Kwan-shun
Silke V-P, Macdougall JA (27.11.92)
*W S Cheung, #M Poon
TCWA/Professional car thief/Totality
Held :
Sentences totalling 3 years and 9 months for a professional vehicle thief could not be criticised. Car owners
are entitled to protection. The sentences did not, in the circumstances, fall foul of the totality principle : R v
WONG Kwai-pui Cr App 522/89 considered.
Result - Application dismissed.
***************
MA 780/92
L L David
Sears J (20.11.92)
*Y Mahomed, #I/P
Pickpocketing/Whether guidelines binding/All circumstances require examination
Held :
(1) Although there is a "tariff" for the offence of pickpocketing, magistrates are still required to look at all the
circumstances of the case. The appellant was a married woman, she had five children, and had not long been
in Hong Kong;
(2) A court can always depart from the guidelines if the circumstances justify that course : R v YING Lai-chau
[1991] 1 HKLR 48;
(3) Albeit that a custodial sentence was here required for attempted pickpocketing, an appropriate sentence
would be one of 6 months, instead of the original 12 months.
Result - Appeal allowed.
477
Sentence (Quantum) Theft/Handling/False Accounting/Deception
*************
CA206/88**
LAM Pui-chun
Cons Ag CJ, Power, Macdougall JJA (25.8.89)
*I G Cross
#R Mayne
Obtaining property by deception - 6 counts - Totalling $180,000 - No restitution - Conviction after trial
- Sentence
4 years imprisonment, after trial, for 6 offences of obtaining $180,000 by deception, where there is no
restitution, is not manifestly excessive.
Result - Leave to appeal against sentence of 4 years in toto refused.
*************
CA43/89**
LEE Wing-leung
Kempster, Penlington JJA, Mayo J (24.8.89)
*I G Cross, C Fung
#R Forrest
(A) Obtaining property by deception - By using false credit card - Sentence
For obtaining property by deception by using a false cretit card, 12 months after trial is a proper sentence.
Result - Appeal against sentence of 15 months allowed. One of 12 months substituted.
************
MA 440/89
Bewley J (9.6.89)
CHAN Wai-keung (A1)
CHAN Wai-ping (A2)
*A Maxwell
#A Macrae
Theft - Compensation order - Magistrate to enquire into defendant's means to pay
The Magistrate should have made enquiry into the defendant's means to pay before he made the compensation
order.
Result - Appeal against sentence allowed to the extent that A1's compensation order was quashed and
sentence for theft (x 15) with one activated sentence (3 months) reduced to 2 years and 3 months in toto; A2's
sentence for handling stolen goods (x 1) with one activated sentence (3 months) reduced to 15 months in toto.
***********
478
Sentence (Quantum) Theft/Handling/False Accounting/Deception
AR 19/88
CHAN Wai-fai
Yang CJ, Silke V-P, Penlington JA (4.5.89)
*I G Cross, C Fung
#N Mitchell i/s DLA
3 counts of burglary - 1 count of robbery - 1 count of theft - Conviction after trial - All sentences
consecutive - 2 years and 10 months in toto - Whether wrong in principle and/or manifestly inadequate
(1) For a burglary in domestic premises, a sentence of 3 years after trial is proper.
(CHAN Yui-man CA 36/88, applied)
(2) For an unarmed robbery in domestic premises, 4 years after trial is proper.
(AG v. SHEK Sui-tai AR 9/88, applied)
(3) For a theft by finding, 6 months is proper.
(4) Having regard to totality, a sentence of 5 years' imprisonment would have been proper. As this was a
review, the totality was reduced to 4 years by ordering the sentences to run concurrently.
Result - AG's review allowed. The sentences were increased to 3 years on each burglary, 4 years for the
robbery, and 6 months for the theft, all to run concurrently.
**************
AR 24/88**
LI Ka-leung
Silke V-P, Kempster, Macdougall JJA (11.4.89)
*I G Cross, C Fung
#J Marray
(A) Theft - Stealing from employers' clients - Totalling $391,507 - Breach of trust - 3 counts - 1 year
imprisonment on each - Concurrent - Suspended for 18 months
(1) A breach of trust of this kind demands an immediate custodial sentence in the public interest.
(2) Guilty pleas, a failure by the victim to report the offences immediately to police, and some restitution do
not constitute such exceptional circumstances as to warrant not imposing a custodial sentence.
(3) Had this not been a review, 2 1/2 years immediate imprisonment would have been appropriate.
(AG v. KI Hon and another [1988] HKLR 220, applied)
Result - AG's review allowed. Suspension lifted. A sentence of 1 year on counts 1 and 2, concurrent, and 1
year consecutive on count 3 - 2 years in toto - substituted.
***********
479
Sentence (Quantum) Theft/Handling/False Accounting/Deception
CA 579/88
WONG Hung-biu
Silke V-P, Power, Penlington JJA (9.3.89)
*J McNamara
#F Eddis QC, R Yuen
Theft and related offences - 7 charges involving a total of $5 million - Breach of trust - Junior partner
in firm of sharebrokers - Clear record - Money to cover losses in stock market - Efforts to rehabilitate
himself before arrest - No restitution - Guilty plea - Sentence
(1) As laid down in Barrick (1985) 81, Crim. App. Rep. 78, a custodial sentence for persons who use their
position of trust to obtain large sums of money is almost inevitable.
(2) The sentencing guidelines in Barrick, though useful, are by no means exclusive. There may be other
factors which can be relevant to a particular Defendant.
(3) One of the factors which is always relevant is restitution. Restitution which comes from the Defendant
himself is a stronger mitigating factor than restitution promised or made by others.
(4) That the losses are covered by insurance is not a mitigating factor.
(5) How the stolen money was used matters very little.
(6) A sentence of 6 years imprisonment after trial would have been appropriate on the facts of this case.
Result - Appeal against concurrent sentences of 5 years on each allowed. 4 years concurrent on each
substituted.
************
MA 1255 - 1257 1230/88
CHAU Wai-hong
Duffy J (16.2.89)
*A Maxwell
#I/P
Obtaining property by deception - Four separate occasions - One cheating spree - Same kind of goods Separately tried - Clear record - Guilty pleas - Totality
The argument that had the cases been heard together, the total sentence would not have been so high has
merit.
Result - Appeal against sentences of a total of 2 years and 9 months allowed - reduced to a total of 1 year and
10 months.
*************
CA 238/88
Navaratnam Vijayaratham (A1)
LEE Nam-kwong Michael (A2)
480
Sentence (Quantum) Theft/Handling/False Accounting/Deception
Silke V-P, Power Penlington JJA (12.1.89)
*M McMahon
#N Sarony (A1)
M Lunn (A2)
Causing property to be delivered on false instruments - Possession of forged documents - Ss. 75 and
76(3) of Cap. 200 - Inferences of guilt - Sentence - Disparity
(1) The evidence was strong and, in the absence of any explanation, the inferences of guilt were the only
susceptible ones properly drawn from the proven facts by the trial judge.
(2) 2 years on each of the 4 offences, concurrent, to which A2 (who was 70 years of age and had clear record)
pleaded guilty is not by itself in any way excessive.
Result - A1's application for leave to appeal against convictions refused;
- A2's appeal against the sentence of 2 years in toto allowed; 18 months in toto substituted.
*************
CA 526/88**
KWONG Yun-wing
Silke V-P, Hunter, Power JJA (2.2.89)
*I G Cross
#I/P
Theft by finding - Sentence
8 months imprisonment for a theft by finding is on the high side but not manifestly excessive.
Result - Appeal against sentence dismissed.
************
CA 408/88
HO Yim-sum
Hunter JA, Macdougall J (22.12.88)
*S Wong
#I/P
Obtaining property by deception - Sentence
5 years in toto as a starting point for 5 counts of obtaining by deception (involving $762,000) committed by a
defendant who pleaded guilty and had clear records was unduly excessive.
Result - Appeal against sentence allowed;
- 4 years in toto (4 years X 5, concurrent) was reduced to 3 years in toto.
*************
481
Sentence (Quantum) Theft/Handling/False Accounting/Deception
AR 10/89
WONG Kwai-fun D1, CHAN Shek-hung D2, WONG Kwai-wing D4, YEUNG Pui-yuk D6
CHOW King-chu D7
Silke V-P, Power, Macdougall JJA (10.4.90)
*A P Duckett QC, D G Saw
#C Ching QC, H Lo for D1, G McCoy for D2, D6 D7 E Laskey for D4
Furnishing false information/False accounting/Conspiracy to furnish false information and to falsify
accounts/Executing a valuable security by deception
3. Where there was protracted and massive dishonesty, involving huge sums of money with which the banks
had been induced to part, albeit that their interests were secured, then the object of that dishonesty, to fund
loansharking, constituted illegal activity which was parasitic upon the body politic. The trial judge should
have accorded this proper emphasis, notwithstanding that no loansharking charges were preferred.
4. Whilst there was no intention to cause loss to the banks, and there was no charge of conspiracy to defraud
the banks, the gross and cynical dishonesty disclosed struck at the heart of daily commercial transactions in
Hong Kong, and could not be tolerated.
Obiter dictum : Summaries of facts should be drafted by counsel.
Result - Application for review allowed D1 - 4 years imprisonment in substitution for that of 18 months.
D2 - 2 1/2 years imprisonment in substitution for that of 6 months.
D4 - 2 1/2 years imprisonment in substitution for that of 9 months.
D6 - 1 year imprisonment, suspended for 3 years in substitution for that of 6 months, suspended for 2 years.
Application for review of sentence against D7 refused.
***************
CA 279 360/89
WONG Ling-lung
Yang CJ, Power JA (12.4.90)
*T H Casewell
#I/P
Calculated fraud - over $3m - Possession of forged travel documents
The applicant pleaded guilty to two sets of calculated fraud involving $1.66 million and $1.46 million and one
charge of possessing forged travel documents. There was no restitution. He received 6 years in toto. On
appeal :
Held :
Consecutive terms of 2 1/2 years (fraud), one year (forged travel documents) and 2 1/2 years (fraud), were "by
no means too severe".
*************
482
Sentence (Quantum) Theft/Handling/False Accounting/Deception
CA 122/89
KO Kam-ying
Silke V-P, Kempster, Macdougall JJA (24.5.90)
*I G Cross QC, W S Cheung
#I/P
Breach of trust/Restitution/Family situation
Held :
(1) In cases involving breach of trust, sentences of imprisonment cannot be bought off by repayment of sums
stolen - albeit that restitution may be indicative of remorse;
(2) Family circumstances ought to be considered before the commission of the crime, rather than advanced in
mitigation thereafter.
Result : Appeal against 2 years concurrent for 10 offences of theft from the employer dismissed.
*************
CA 559/89
YING Lai-chau
Yang CJ, Power, Macdougall JJA (29.6.90)
*Bailey
#N S Mitchell
Sentence - Breach of trust - Former employee : obtaining property by deception (20) - Calculated
scheme of deception over 4 1/2 months - Property involved valued $466,175 - Forged chops were used PG - Overall sentence of 4 years' imprisonment
Held :
1. The sum involved was obviously not the only factor to be considered in sentencing.
2. In determining what the proper level of sentence should be, a court may pay regard to the factors such as :
"(i) the quality and degree of trust reposed in the offender, including his rank;
(ii) the period over which the fraud or the thefts have been perpetrated;
(iii) the use to which the money or property dishonestly taken was put;
(iv) the effect upon the victim;
(v) the impact of the offences on the public and public confidence;
(vi) the effect on fellow-employees or partners;
(vii) his own history;
(viii) the effect on the offender himself;
(ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive
responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years,
483
Sentence (Quantum) Theft/Handling/False Accounting/Deception
between his being confronted with his dishonesty by his professional body or the police and the start of his
trial; finally, any help given by him to the police."
(Barrick (1985) 81 Cr. App. R. 83 considered)
3. The suggested sentences in Barrick (1985) are relevant to social and economic conditions in England and
as such have no application to Hong Kong.
4. That decisions on sentencing are no more than examples of how a court has dealt with a particular offender
in relation to the particular circumstances of his offence. They may be useful as an aid to uniformity of
sentence but they are not authorities or binding precedents.
5. Even CA suggests guidelines for sentences the sentencing judge may depart from them if the particular
circumstances of the case justify such a course.
Result - Appeal dismissed.
*************
CA 334/90
CHEUNG Chi-on
Cons V-P, Clough, Penling- ton JJA (9.10.90)
*I G Cross QC, W S Cheung
#I/P
Obtaining by deception/18 charges spanning 16 months/$200,000 involved
Held :
1. 21 months imprisonment was not excessive for a man who pleaded guilty to eighteen charges of obtaining
property by deception over a period of sixteen months.
2. The defendant issued post-dated cheques which were not honoured on presentation and, but for the
mitigation upon which he could rely, a substantially longer term would have been appropriate.
Result - Application for leave to appeal against sentence dismissed.
*************
CA 214/90
LI Chung-yuk
Yang CJ, Silke V-P, Power JA (15.11.90)
*G Forlin
#J Poon
Gold scam/Dealer tricked into parting with gold worth $1M
Held :
1. Gold scams are common and must be restrained in this commercial city;
484
Sentence (Quantum) Theft/Handling/False Accounting/Deception
2. Since the applicant had three previous convictions, none of which was for dishonesty, the judge was correct
in not treating him as a person with a clear record. He was a mature man of 27 years, who knew precisely
what he was doing. He did not plead guilty.
Result : Application for leave to appeal against a sentence of 5 years imprisonment for obtaining $1M by
deception refused.
*************
MA1722/90**
KING Sun-chun
Duffy J (18.12.90)
*S L Opai
#G Alderdice
Theft/Breach of trust/Mitigation
Held :
1. For offences of this nature, imprisonment is the norm;
2. Although the appellant had stolen $201,900 from her employer, had it not been for her confession the
employer would not have appreciated the extent of the loss. The appellant had pleaded guilty, cooperated and
made full restitution. On the facts, immediate imprisonment would not serve any useful purpose.
Result : Appeal allowed. A sentence of 12 months imprisonment was suspended for 3 years.
*************
MA 1580/90
LOK Chi-shing
Wong J (27.12.90)
*I McWalters
#H Y Wong
Theft from the person/Sentence after trial
Held :
Six months imprisonment was a proper sentence after trial, for a man caught stealing from the person of a
somnolent victim in a public place.
Result - Appeal allowed. Nine months reduced to six months.
*************
CA 420/90
CHEUNG Yau-kwong
485
Sentence (Quantum) Theft/Handling/False Accounting/Deception
Yang CJ, Mayo, Sears JJ (13.9.91)
*D G Saw
#A Chan
Theft/Repayment of moneys stolen/Remorse as mitigation
Held :
Where a defendant has made some attempt to repay the moneys stolen, thus showing his true remorse, he can
properly be given some credit for this.
Result - Appeal against sentences totalling 3 1/2 years for eleven charges of theft, and seven charges of
forgery, allowed. 3 years substituted.
************
CA 598/90
CHAN Kar-wang
Macdougall JA, Mortimer, Barnett JJ (26.7.91)
*J Halley
#S Westbrook
Fraud/Restitution as mitigation
Held :
(2) There is no pattern emerging in cases involving credit card or charge card frauds of suspending sentence
where victims are obtaining recompense. All judges must remember that these are prevalent offences which
are easy to commit;
(3) As the offences involved a deliberate and carefully executed series of offences, committed with great
tenacity and producing considerable gains, immediate terms of imprisonment were merited.
Result - Application for leave to appeal against sentences totalling two years, imposed after guilty pleas to
twenty offences involving obtaining advantages by deception, false accounting, and procuring the making of
false entries in bank records, refused.
************
CA 443/91
NG Yan
Penlington, Nazareth JJA, Wong J (19.5.92)
*J Halley
#P Wu
Handling stolen goods/Identity cards
Held :
Identity cards are important and extremely valuable documents and many lost or stolen identity cards have
found their way into the hands of illegal immigrants who have used them to enter Hong Kong illegally, to
486
Sentence (Quantum) Theft/Handling/False Accounting/Deception
obtain employment or to avoid lawful apprehension. The normal range of sentences for handling stolen goods
is between two to four years : CHAN Wing-kwan and CHAN Yen-ching CA 121/1985.
Result - Application for leave to appeal against sentences of 2 years imprisonment, imposed concurrently for
three charges of handling stolen goods, dismissed.
*************
AR 11/89
WU Chi-sing
Yang CJ, Silke V-P, Duffy J (10.11.89)
*I G Cross, P Lee
#G Holland
(B) Shoplifting - Sentence
In the realm of shoplifting, the range of sentences is wide. There may be cases where an immediate prison
term is justified for a first offender.
(AG v CHUNG Kun-wai [1989] 1 HKLR 91, considered)
Result - Application for review of sentence dismissed.
*************
MA 247/89
CHIANG WU Ming-hsiang
Bewley J (7.3.89)
*T Casewell, A Sedgwick QC, E Toh
Shopshifting - First offender - Sentence
A custodial sentence should normally be imposed only where there is evidence of planning or involvement in
a syndicate.
(CHAN Chi-man MA 488/86 distinguished; AG v CHUNG Kum-wai AR 8/88 considered)
Result - Appeal against sentence allowed. 4 months imprisonment set aside and a fine of $2,000 substituted
thereof.
************
MA 1622/90
CHAN Pak-lok
Hooper J (28.12.90)
*D Pang
#L Lee
487
Sentence (Quantum) Theft/Handling/False Accounting/Deception
Shoplifting/Previous convictions
Held :
Albeit that the appellant had previous similar convictions for theft, he pleaded guilty, the value of the goods
was small, and the sentence of six months imprisonment was too high.
Result - Appeal allowed. Four months substituted.
************
MA 1012/89
TRINH Quang-hung
Bokhary J (31.8.89)
*M Arthur
#P W Wong i/s DLA
Pickpocketing - Sentence
1. Where a single pickpocket abstracts property, a sentence of 9 to 15 months, after trial, is appropriate.
2. The width of the range indicates the flexibility required in sentencing in these cases.
3. Sometimes the aggravating features may make a sentence beyond 15 months appropriate. (Examples
provided - e.g. the use of a razor to effect the crime)
Result - Appeal against sentence of 2 years allowed. 15 months substituted.
************
MA 360/89
TRAN Quang-tuan
Bewley J (5.5.89)
*A Maxwell
#G Plowman i/s DLA
Pickpocket resisting arrest - Consecutive sentences
(1) Resisting arrest where a pickpocket is being intercepted is a separate matter and should be punished by a
consecutive sentence, the length of which will be determined by the degree of resistance and any injury to the
police.
(2) Where the appellant acted alone, he did not use a razor blade and nothing was stolen, 2 years was too high
a starting point and 12 months would have been a proper sentence after trial.
Result - Appeal against sentence of 18 months for pickpocketting allowed to the extent that it was reduced to
10 months.
*********
488
Sentence (Quantum) Theft/Handling/False Accounting/Deception
MA 1684/88
YING Yu-fai
Bewley J (3.3.89)
*M Wilson
#A Sakrani i/s DLA
Pickpocketing - Sentence
(1) The starting point should be in the region of 15 months.
(See LEUNG Kin-bor MA 774/88 and CHUNG Chi-kuen MA 285/88)
(2) Organised pickpocketing with no mitigating circumstances should be at the top of the range.
Result - Appeal against sentence of 2 years allowed - reduced to 15 months.
***********
MA 1230/89
KONG Sze-kan
Duffy J (16.3.90)
*Q Ford
#J Kynoch
Sentence - Pickpocketing - Persistent offenders
Held :
That a sentence of 12 months is manifestly inadequate, and that, particularly in cases of persistent offenders,
when no factors in mitigation are available a sentence of 18 months to 2 years ought to be considered.
Result - Appeal dismissed.
**************
MA 126/90
YIP Wai-shan
Yang CJ (1.5.90)
*G Forlin
#J Wright
Sentence - Pickpocketing - Caught red-handed - PG - D 9 convictions of dishonesty - To what extent
D's record relevant
Held :
1. A sentence of 15 months after trial was proper.
489
Sentence (Quantum) Theft/Handling/False Accounting/Deception
2. The way in which the appellant's record is relevant, is as follows : Having regard to all the circumstances,
including the record and the circumstances in which the plea of guilty came to be tendered, his record cancels
out any discount to which the appellant might otherwise be entitled in light of his plea.
Result - Appeal allowed. 20 months reduced to 15 months imprisonment.
*************
MA 108/90
Vu Dinh-ly and Another
Duffy J (29.3.90)
*D G Saw
#P Nguyen
Attempted pickpocketing/prevalance
Held :
(1) On a plea of guilty to pickpocketing, 9 months' imprisonment is appropriate;
(2) A prevalent offence should attract special sentencing attention, and sentence of deterrence are appropriate.
Result - Appeals allowed - sentences of 15 months and 12 months, imposed after trial, reduced to 12 months
and 9 months respectively.
***********
MA's 1162 and 1179/90
(A1) Vy Van Kien
(A2) Pham Van Hoa
Penlington JA (25.10.90)
*C Ravenscroft
#G Plowman
Pickpocketing/Guidelines/Aggravating features/Recidivism
Held :
1. The offence of pickpocketing was prevalent in Hong Kong, and a proper starting point was between 12 and
15 months;
2. The usual sentencing level should be increased if a weapon was used, or if the offence was committed in
places where the public was particularly at risk, such as on public transport and in crowded places;
(3) A substantial increase in sentence was justified if the offender was part of an organised gang;
4. Recidivism is not an aggravating factor, and it did not warrant an increase in sentence.
convictions will, however, affect any discount which can properly be given.
Previous
Result - Appeals allowed. Vy's sentence of 18 months for attempted theft was reduced to 13 months; Pham's
sentence of 21 months for theft was reduced to 14 months.
490
Sentence (Quantum) Theft/Handling/False Accounting/Deception
***********
MA 676/91
LAI Shea-sang
Duffy J (19.11.91)
*A Sham
#D Tang
Pickpocketing/Sentencing features/Effect of mitigation
Held :
(1) Where a man with a bad criminal record was caught in the act of pickpocketing in a crowded public place,
a starting point of 18 months imprisonment was proper : R v VY Van-kien MCA 1179/90 considered;
(2) Although the appellant pleaded guilty, the discount accruing thereto would be minimal as he was caught
red-handed and the offence occurred in a busy public area.
Result - Appeal allowed. 18 months reduced to 17 1/2 months.
*************
MCA 976/91
TONG Siu-wang
Bewley J (18.12.91)
*P Lee
#G Holland
Persistent pickpocket/Multiple charges/Totality principle
Held :
Albeit that the defendant was convicted of ten charges of theft and one of attempted theft, and had been
caught red-handed when attempting to steal from a tourist in the MTR, a sentence totalling 35 months
imprisonment offended against the totality principle.
Result - Appeal allowed. Sentence of 2 1/2 years imprisonment substituted.
***********
491
Sentence (Quantum) Triad
Triad
MA 1540/89
LAI Kong-hoi
Ryan J (27.2.90)
*E Chan
#I/P
Sentence - Claiming to be a member of a triad society and inviting persons to become members of an unlawful society consecutively
Held :
While the magistrate was wrong in principle to impose consecutive sentences in respect of two charges which arose from
imprisonment was not manifestly excessive.
Result - Appeal dismissed.
************
CA 241/91
WONG Kin-kwok
Penlington, Nazareth JJA, Kaplan J (9.4.92)
*C Coghlan
#J Pow
Claiming to be MOTS/AOABH
Held :
(1) The offence of claiming to be a member of a triad society is different from that of membership simpliciter, and diffe
imprisonment for a serious offence of claiming was not excessive : R v WONG Kwok-kin [1986] HKLR 9, R v TSANG Chu C
Result - Application for leave to appeal against concurrent sentences totalling 2 1/2 years imprisonment dismissed.
**************
492
Sentence (Quantum) Vice
Vice
MA 783/89
CHOY Chi-man
Bewley J (27.9.89)
*P Lee
#R Murray i/s DLA
(A) Managing unlicensed massage establishment - S. 4(1), Cap. 266 - Sentence
(There was no evidence of any sexual activity in the establishment. The appellant, who was 18 and had no
previous conviction of a similar nature, pleaded guilty and was sentenced to Training Centre. He appealed.)
A custodial sentence was wrong in principle.
(TAI Wai-hang AR 15/84, considered)
(B) Managing unlicensed massage establishment - Enhanced penalties - S. 4(4), Cap. 266
(There had been one similar conviction in respect of the same premises within the previous 3 years of the
present offence. S. 4(4), Cap. 266 provides for the enhancement of the penalty in such circumstances.)
A magistrate is under a duty to consider enhancing the penalty where the circumstances fall within the
provision of s. 4(4).
(TAI Wai-hang AR 15/84, followed)
Result - Appeal against sentence of Training Centre allowed. Fine of $5,000 substituted.
*************
MA 956/89
SIU Wai-yin
Barnes J (6.9.89)
*S Chui
#Cheng Huan QC, B Chung
Living on the earnings of prostitution - 2 counts - Girls experienced and mature - Defendant mere
usher - Sentence
1. This offence invariably attracts an immediate custodial sentence.
2. 6 months, after trial, is at the lower end of the usual scale for this offence.
3. Where a person is convicted of such an objectionable offence, it must be extremely rare that a plea of
mercy can succeed.
Result - appeal against sentence of 6 months in toto dismissed.
************
493
Sentence (Quantum) Vice
AR 2/89
MA Kwok-ying
Yang CJ, Hopkinson, Barnett JJ (2.5.89)
*I G Cross, C Fung
#J Hemmings i/s DLA
Permitting a girl to be on premises for prostitution - Counts (A) (B) - 9 months on each concurrent Man living on earnings of prostitution - Counts (C) (D) - 9 months on each concurrent - Sentences on
(C) (D) consecutive to (A) (B) - Total of 18 months - Suspended for 2 years - Underaged girls involved
- Whether wrong in principle and/or manifestly inadequate
(1) If an adult is convicted of vice offences involving underaged girls, a term of immediate custody will
ordinarily be appropriate. This will be so even if the role of the offender is not central to the offences.
(2) The fact that the underaged prostitutes volunteer, is not a mitigating factor. The law is there to protect the
young and the foolish, and others who might fall victim to prostitution.
(AG v. CHAN Sham-fu AR 18/85, applied)
Result - AG's review allowed. New sentences of 12 months' immediate imprisonment ordered.
(4 months on (A) (B) - concurrent. 8 months on (C), 4 months on (D) - concurrent. (C) (D) consecutive to
(A) (B))
Had this not been a review, 15 months' immediate imprisonment would have been appropriate.
*************
MA 1259 1384/88
PANG Kwok-hung
Duffy J (9.3.89)
*M Sin
#E Lim i/s DLA
Managing unlicensed massage establishment - No evidence of vice activities - Appellant only 19 - Bad
probation report - Training centre
(1) It is wrong in principle to decide, as a result of background reports, that a young person requires a period
of institutional training simply because that is in his or her best interest, if the crime of which he or she has
been convicted does not, of itself, merit such a punishment.
(2) So far as a 19 year-old is concerned, the Court should not look for detention until it is absolutely satisfied
that there is no possibility of a response to a less extreme form of supervision.
Result - Appeal against sentence allowed. Training Centre Order set aside and substituted by 18 months
probation with conditions.
**********
MA 1665/88
TANG Wing-sum
494
Sentence (Quantum) Vice
Bewley J (7.3.89)
*T Casewell
#W Chan i/s DLA
Managing a vice establishment - Sentence - First-offender - Fine to penalise organization behind
(1) Where the Defendant is a first-offender and no aggravating features exist, the proper sentence is in the
range of 3 to 6 months imprisonment.
(See LEUNG Lim-man others MA 214/85, CHANG Mu-hur others MA 1172/88 and KWAN Wah-sang MA
1324/88)
(2) It may be true that the bail money in this type of case is put up for the Defendant by the backers of the vice
establishment, but to impose a fine to be taken from the bail money where there is no evidence of the
Defendant sharing in the profits is to penalise persons not convicted of the offence and is therefore wrong in
principle.
Result - Appeal against sentence of 12 months imprisonment allowed and reduced to such term (nearly 5
months) to allow immediate release; fine of $20,000 set aside.
***********
CA 119/88
NG Kam-yin
Cons, Fuad VV-P, Kempster JA (13.12.88)
*D S Kilgour
#A King
Keeping a vice-establishment - Living on the earnings of prostitution - Sentence
5 years in toto for a defendant who was convicted of
(a) Keeping a vice-establishment (own plea);
(b) Criminal intimidation;
(c) Unlawful sexual intercourse with a girl under 16;
(d) Living on the earnings of prostitution (underage prostitute) (own plea), and who had 7 previous
convictions with one similar to (c) is not manifestly excessive.
Result - Appeal against convictions dismissed;
- Appeal against sentences of 3 years for (a), 2 years for (b) concurrent with (a); 2 years each for (c)
and (d) concurrent but consecutive to (a) and (b) dismissed.
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MA 1597/89
YAU Chi-keung
Ryan J (27.2.90)
495
Sentence (Quantum) Vice
*E Chan
#E Robertson
Sentence - Man living on the earnings of prostitution - PG - 6 months imprisonment
Held :
1. The starting point of 9 months imprisonment was too high.
2. 6 months imprisonment would have been a proper sentence after trial.
(R. v. SUI Wai-yin, MA 966/89 and R. v. TAM Yui-kwong CA 323/88 considered)
Result - Appeal allowed. Reduced to 4 months imprisonment.
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MA 579/91
LO Han-quan
Power JA (28.8.91)
*G Forlin
#A Hoosen
Massage Establishments Ordinance/Procedure under Section 4 Cap. 266/Determining level of fines
Held :
(1) Certificates prepared by police for the purposes of sentencing under the Massage Establishments
Ordinance, Cap. 266, should be properly so described, should be sent to the prosecutor and not the court, and
should expressly be signed by an officer of at least the rank of superintendent;
(2) It is entirely proper, when a person is charged under S. 4, Cap. 266, and he is also liable to the enhanced
penalties provided for by S. 4(4), for the Crown to give the person charged notice in a separate document that
a certificate may be tendered : TAI Wai-hang AR 15/1984 distinguished;
(3) A heavy fine will be appropriate for an offence contrary to S. 4 if it will punish the real culprits, the
owners of the establishment. However, if that cannot be guaranteed, then the Court must take into account the
defendant's capacity to pay.
Result - Appeal allowed, in part. Fine of $50000 set aside. Sentence of six months, imposed in lieu of
payment, to be served.
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MA 774/91
TANG Tin-sang
Power JA (28.8.91)
*G Forlin
#A Hoosen
Massage Establishments Ordinance/Magistrate fixing sentencing scale/Prison correct for recidivist
496
Sentence (Quantum) Vice
Held :
(1) The magistrate erred in fixing, as a starting point for sentencing a person convicted of an unlicensed
massage establishment offence, contrary to S. 4, Cap. 226, and who was liable to the enhanced penalties
provided for by S. 4(3)(6) on account of having previous convictions, an immediate custodial range of 3 to 6
months. Each case must be looked at in the light of its own circumstances;
(2) Unlicensed massage establishments are a serious problem in Mongkok, and the legislature has provided
for higher penalties for repeat offenders.
Result - Appeal against a sentence of three months imprisonment dismissed.
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CA 243/91
LAW Kin-ming
LUI Kin-kong
Silke V-P, Power, Macdougall JJA (7.2.92)
*T Casewell
#E Toh
Vice offences involving II's/Bringing II's to HK for prostitution
Held :
(1) The measure of control that can be exercised over an illegal immigrant is manifestly far greater than that
which can be exerted over a female who is legally entitled to be in Hong Kong. The two prostitutes were kept
in a flat by the applicants in a state of virtual captivity and subjected to economic exploitation;
(2) An overall sentence of two years imprisonment, imposed after guilty pleas, was not excessive in respect of
two offences of keeping a vice establishment and living on the earnings of prostitution;
(3) Whilst it was inexplicable why the judge had imposed a longer term of imprisonment for the offence of
living on the earnings of prostitution than that of keeping the vice establishment, the overall sentences were
correct in terms of totality;
(4) The second applicant, who had been involved in bringing the two women to Hong Kong, had been
properly given a consecutive sentence for aiding and abetting the remaining of illegal immigrants, contrary to
S. 38 (1)(b) Cap. 115.
Result - Applications refused.
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497