To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies
致：刑事檢控科各律師/高級律政書記
裁判法院各法庭檢控主任
A Publication of the Prosecutions Division
of the Department of Justice
律政司刑事檢控科出版
律政司刑事檢控科出版的刊物
出版的刊物
CRIMINAL APPEALS BULLETIN
刑事上訴案判例簡訊
April Edition/2013
2013 年 4 月號
General Editor
總編輯
William Y H Tam
譚耀豪
Editors
編輯
Wesley W C Wong
黃惠沖
David C Y Leung
梁卓然
Fanny K H Wong
黃錦卿
Isaac S L Tam
譚思樂
Edmond C M Lee
李俊文
Martin S T Hui
許紹鼎
Vinci W S Lam
林穎茜
Virginia S Y Lau
劉少儀
Raymond H C Cheng
鄭凱聰
Ira T M Lui
雷芷茗
Franco B O Kuan
關百安
Peggy P K Leung
梁寶琦
Samantha P Y Chiu
招秉茵
2
Hermina W H Ng
吳穎軒
Rosa S Y Lo
羅心怡
Winnie W Y Mok
莫韻妍
Noelle Aileen Chit
戚雅琳
David H C Yim
嚴浩正
Betty Y Y Fu
傅悅耳
3
INDEX
Page
A.
Application for Review of Sentence
4
申請刑罰覆核
B.
Case-stated Appeal
6
以案件呈述方式上訴
C.
Criminal Appeal/Against Conviction
11
刑事上訴案件/針對定罪
D.
Criminal Appeals/Against Sentence
16
刑事上訴案件/針對刑罰
E.
Magistracy Appeal/Against Conviction
23
裁判法院上訴案件/針對定罪
F.
Magistracy Appeals/Against Sentence
裁判法院上訴案件/針對刑罰
[
] – denotes paragraph number in the judgment.
25
4
A. Application for Review of Sentence
申請刑罰覆核
SECRETARY FOR JUSTICE v LEUNG KWOK CHI (梁國熾)
梁國熾)
COURT OF APPEAL
CAAR 6/2012
Yeung VP, Barnes & McWalters JJ
Date of Hearing & Judgment: 20 March 2013
Date of handing down Reasons for Judgment: 18 April 2013
Counsel for the Applicant : David Leung Ag DDPP
Counsel for the Respondent: Chan Siu Ming
Criminal law and procedure – Sentence – Possession of arms and ammunition – Called for a
general deterrent sentence – Respondent’s obsession of guns only reduces but not eliminates
general deterrence – 5 years was appropriate starting point in this case
刑事法及訴訟程序–判刑–管有槍械及彈藥–須判處一般阻嚇性刑罰–答辯人沉迷槍
械只能減少但不能抹殺一般阻嚇性刑罰–5 年監禁是本案的恰當量刑起點
The Respondent, aged 65 and a retired CSD officer, injured his leg inside his residence in a
public housing estate. He claimed that he had accidentally injured himself while cleaning a rifle.
The police found in the Respondent’s home a shotgun, two rifles and an air pistol, all operative,
together with some deactivated weaponry in accordance with the Arms and Ammunition Licence held
by the Respondent since March 1985. The police further found additional items in the flat not covered
by the licence: (1) one US origin Thompson Contender firearm consisting of one “receiver assembly”
and one barrel; (2) eight silencers; (3) four firearm barrels; (4) one Crosman Classic pellet rifle (air
gun); (5) one ERMA WERKE Mod EGR 66 Kal 9mm revolver; (6) one RAM Combat cal.43 S/N
RC08F00305 (air gun); (7) one PTB revolver; (8) one Crosman air-gun; (9) one ORION 12Ga Calibre
flare pistol; (10) one piece of 38mm cartridge; (11) one piece of 1.5 inch Ferret liquid CS, Barricadepenetrating cartridge, complete; (12) 2,173 rounds of 0.22” calibre ammunition; (13) 940 rounds of
0.38” calibre ammunition; (14) 659 rounds of 9mm calibre ammunition and (15) 109 rounds of
357 Mag Calibre ammunition.
The Thompson Contender firearm (1) was capable of discharging 0.22” calibre ammunition.
The muzzle energy of the Crosman Classic pellet rifle (4), the RAM Combat cal. 43 S/N RC08F00305
(6) and the Crosman air-gun (8) were 5.89 joules, 3.39 joules and 10.7 joules respectively. The
ERMA WERKE Mod EGR 66 Kal 9mm revolver (5), with a partially blocked barrel was incapable of
discharging bulleted ammunition, but was designed to discharge 9 mm calibre blank, CS cartridges
and flare cartridges. The 38mm cartridge smoke yellow (10) was a live round projectile to be fired
from a device which was not present in the flat. On impact, smoke would be emitted over a large area
and it may detonate with high temperature or focused impact. The 1.5 inch Ferret liquid CS,
Barricade-penetrating cartridge (11), an 8-gram tear gas, was a projectile to be fired from a device
which was not present in the flat and was designed to break the glass surface on impact so that the
noxious liquid could penetrate and disseminate.
5
The 2,173 rounds were part of the 2,573 rounds of 0.22” calibre ammunition found in the flat
and the Respondent was permitted only to have 400 rounds which fitted the Thompson Contender
firearm (1) and the Thompson Contender 0.22” calibre rifle, S/N 443522. The 9mm calibre
ammunition and the 0.38” calibre ammunition fitted a pistol and a revolver, which under the licence,
had to be stored in HKRA and the maximum rounds that the Respondent was permitted to have were
300 each.
The arms and ammunition were placed all over the flat. The safe in the flat was not large
enough for storing all the unlicensed firearms and ammunition. On the day when the incident
occurred, the safe was left open with just the magazine of a gun inside.
The Respondent pleaded guilty to one count of possession of arms and ammunition without a
licence, contrary to section 13 of the Firearms and Ammunition Ordinance (Cap 238).
The Judge emphasized that the very large number of items found in the flat were not properly
secured and accessible to anybody in the flat. The Judge took the view that the Respondent had turned
from an enthusiastic participant in shooting sports to an arms and ammunition fanatic, obsessed with
their collection. The Judge pointed out the absence of explanation for the presence and the source of so
many unlicensed and potentially dangerous materials, including the tear gas canister and the grenade
in the flat. The Judge questioned why the rifle that the Respondent was cleaning was loaded.
The Judge considered an immediate custodial sentence was called for, but having taken into
consideration that the Respondent had been detained in Siu Lam Psychiatric Centre for more than 70
days, his co-operation with the police, his pleading guilty to the charge and the Respondent’s financial
loss, the Judge considered 18 months’ imprisonment to be appropriate, with sufficient deterrent effect,
and yet not so severe as to destroy the Respondent’s life.
The Secretary for Justice applied to review the sentence pursuant to section 81A of the Criminal
Procedure Ordinance (Cap 221) on the ground that it was manifestly inadequate.
Held, allowing the application and substituting a sentence of 30 months’ imprisonment:
(1) Possession of arms and ammunition without a licence is always considered to be a very serious
offence in Hong Kong as they can create grave dangers to the public. If the arms and ammunition had
been used or intended to be used for any crime, the starting point would be 11 years and above. Even
if the arms and ammunition had not been used and were not intended to be used by the offender for
any crime, the offence can still attract a starting point as high as 6 years, depending on the nature of
the arms and ammunition and the circumstances in which the offence was committed [43].
(2) The Respondent’s obsession in arms cannot be said to be a psychiatric condition of such nature
and severity as to reduce or eliminate general deterrence as an appropriate purpose of punishment. It
does no more than reduce rather than remove the level of the Respondent’s moral culpability: SJ v Yan
Shen CAAR 10/2011 considered and applied [52].
(3) The offence called for a generally deterrent sentence and the proper starting point in this case
should at least be 5 years’ imprisonment. Giving one third discount for the guilty plea and reducing
the sentence further by 10 months in light of the mitigating factors as well as the fact that this was a
review application, the proper sentence should be 30 months [55].
6
B. Case-stated Appeal
以案件呈述方式上訴
律政司司長 訴 王嘉業
原訟法庭
HCMA 77/2013
原訟法庭法官馮驊
聆訊日期： 2013 年 4 月 12 日
判案日期： 2013 年 4 月 29 日
答辯人法律代表：高級檢控官周天行
上訴人法律代表：無律師代表，親自出庭
香港法例第200
200章
刑事罪行條例》
不誠實地獲益而取用電腦」
電腦」罪 ─ 香港法例第
200章《刑事罪行條例
刑事罪行條例》
刑事法及訴訟程序 ─「不誠實地獲益而取用電腦
第161(1)(c)條
161(1)(c)條 ─「電腦」
電腦」的定義
控辯雙方承認案發當日，答辯人在公司女廁擺放流動電話（P1），設定錄影模式，拍攝
坐廁範圍。女同事發現 P1，取出電停止錄影。電話內的錄像顯示答辯人在廁所調較電話位
置。警誡下，答辯人承認意圖在公司女廁以流動電話偷拍女同事。答辯人被控「不誠實地獲益
而取用電腦」罪，違反香港法例第 200 章《刑事罪行條例》第 161(1)(c)條。
控方專家證人供詞呈堂，專家證人指流動電話鏡頭的操作與數碼相機無異。被拍攝物的
光源進入電話的光學鏡片，聚焦於感光元網格器， 記錄為數百萬獨立數據點（像素），資料
以數碼檔案儲存於內置記憶體或外置記憶卡，由電話的操作系統控制，處理硬件、軟件及用戶
間的互動。專家證人指出， P1 能執行電腦所擁有的全部功能，符合「電腦」的定義。
裁判官認為「電腦」的字典定義足以包含答辯人的電話。但是，答辯人被控違反第
161(1)(c)條，因此法庭必須根據立法原意考慮該字典定義在本案中應否被收窄來決定是否有
罪。
裁判官認爲《證據條例》第 22A(12)條對「電腦」的定義具參考性，但是即使數碼相機符
合第 22A(12)條的定義，卻不應該將該定義直接套用於第 161 條之內。
裁判官認為當立法會訂立《證據條例》第 22A 條時，給予「電腦」一詞寬鬆的定義是可
以理解的，因為這些條文目的在將一些經已儲存或處理或可供索閱的資料在某些指定的情況下
可以被提取及運用。然而，相同的理念並不適用於第 161 條內「電腦」一詞，因為第 161 條訂
立刑事罪責和包括監禁罰則，過鬆的定義會令人在不知情下墮入法網，一些以往不會被視為犯
罪的行為會變成違反 161 條的犯罪行為。因此，在這些法理原則下，若法庭再給予「電腦」一
詞廣闊或沒有限制的定義，那一些根據傳統法理原則不會構成罪行的行為也會構成罪行。裁判
官認為若第 161 條的「電腦」與第 22A(12)條完全相同定義，這是過份寬闊，故此有必要將它
的範圍收窄。
裁判官認爲控方只能夠證明答辯人的作為構成「取用」及他當時目的是使其本人或他人
不誠實地獲益，但 P1 並不是第 161 條所指的「電腦」。
律政司司長針對判決提出案件呈述，並要求重新定罪。
7
裁決，推翻裁判官的裁決，裁定答辯人罪名成立。判刑將另行處理:
裁決
(1) 在銓釋法例條文時，應根據終審法院案例香港特別行政區 訴 張冠賢 (2009)12 HKCFAR
568 指引之「目的釋義」(purposive interpretation)，給予條文寬廣的定義[59]。
(2) 在詮釋法例條文時，應考慮到立法之後所發生的變化，特別是技術上的演變，法例應被
視作「一直發言」: HKSAR v Wong Yuk Man（黃毓民）FACC 10/2011。「一直發言」的原則，
就是將法例語言的自然意思，應用於新出現的情況，從而落實法例的真正精神、意圖及意義
[60]-[61]。
(3) 只要案件合理地符合法例的語言，將刑法的原則應用於立法時不預見的情況並非將刑法
擴大: B v Commissioner of ICAC (2010) 13 HKCFAR 1 [62]。
(4) 第 161 條需要證明犯罪或不誠實的特定意圖，是較嚴重的罪行。並非每種取用電腦均構
成罪行，第 161 條訂明四種構成罪行的情況: HKSAR v Tsun Shui Lun [1999] 3 HKLRD 215
[63]。
(5) 上訴法庭認爲以第 161 條控告使用手提電話偷拍裙底的行爲並無不妥: 律政司司長訴鍾
曜隆 CAAR 2/2012 [64]-[65]。
(6) 立法會對《刑事罪行條例》第 161 條之「電腦」一詞不作出定義，是因爲科技發展迅
速，「電腦」的定義廣闊和演變，不能盡錄。法庭應考慮專家意見，裁定有關的器材是否電腦
[69]。
(7) 詮釋法例條文時，應從法例的語言出發，不應從行爲倒看之前是否有罪。詮釋涉及科學
及技術的條文時，應視之為「一直發言」，按照法例的語言，給與廣義的詮釋，應用於立法後
演變的情況，除非超越了法例語言的自然釋義，或後果是荒謬或明顯不公義的 [73]。
(8) 考慮到立法會沒有對《刑事罪行條例》第 161 條之「電腦」一詞採用《證據條例》和其
他法例的有關定義，與及 R v Hilda Shephard 案(1991)93 Cr App R 139 的相關應地不作出
定義的評語，法庭同意裁判官不採納《證據條例》就「電腦」一詞定義的決定 [74]。
(9) 就「電腦」一詞的字典解釋，即「一個電子裝置，可以接收某一特定形式的資訊，並可
以按照預定但可變的程式指令執行一連串的運算，從而產生資訊或訊號形式的結果」，應為
《刑事罪行條例》第 161 條「電腦」一詞的釋義。這是符合國際的對「電腦」作爲電子數據儲
存、處理及重新獲取的定義，和其他國家的條文及判決。這個解釋並不會引致荒謬或明顯不公
義之處 [75]。
(10) 誠如 Tsun Shui Lun 案所指出，第 161 條訂明四種構成罪行的情況，並非每種取用電腦
均構成罪行。第 161(1)(c)條訂明目的在不誠實獲益而取用電腦，已將罪行置於合理範圍
[76]。
(11) 高等法院原訟法庭最終裁定裁判官錯誤地裁定《刑事罪行條例》第 161(1)條所提及的
「電腦」一詞不包括本案中答辯人的流動電話[78]。
8
[English Translation of HCMA 77/2013]
SECRETARY FOR JUSTICE v WONG KA YIP, KEN
COURT OF FIRST INSTANCE
HCMA 77/2013
Fung J
Date of Hearing: 12 April 2013
Date of Judgment: 29 April 2013
Counsel for the Appellant: Anthony Chau SPP
Counsel for the Respondent: In person
Criminal law and procedure – Offence of “obtaining access to a computer with a view to
dishonest gain” – Section 161(1)(c) of the Crimes Ordinance (Cap 200) – Definition of
“computer”
It was admitted that on the material day the Respondent placed a mobile phone (P1) inside a
female toilet of his office and set it to the video-recording mode to capture the toilet seat area. A
female colleague discovered P1, took it away and stopped the video-recording. A video in P1 showed
that the Respondent was adjusting the position of the mobile phone inside the toilet. Under caution,
the Respondent admitted the intention to take secret shots of female colleagues with his mobile phone
at the female toilet of the office. The Respondent was charged with “obtaining access to a computer
with a view to dishonest gain” contrary to s 161(1)(c) of the Crimes Ordinance (Cap 200).
The statement of the prosecution’s expert witness was produced in evidence. The expert
witness explained that mobile phone cameras worked in much the same way as digital cameras. Light
from the photo subject entered the mobile phone’s optical lens and was focused upon an image sensor
made up of a grid of light-sensitive cells. These cells recorded information for millions of individual
data points (pixels). This information was then stored in digital file format. The digital files were
saved to the mobile phone’s internal memory or an external media card. The above processes were
controlled by the mobile phone’s operating system which managed the interaction between hardware,
software and the user. The expert witness opined that P1 met the definition of “computer” since it
could perform all the functions of a computer.
The Magistrate was of the view that the dictionary definition of “computer” was sufficient
to cover the Respondent’s phone. However, since the Respondent was charged with an offence under
s 161(1)(c), the court must consider whether the dictionary definition should be restricted in the
context of the statutory purpose when determining guilt.
The Magistrate accepted that the definition of “computer” in s 22A(12) of the Evidence
Ordinance carried some reference value but considered that it should not be directly applied to s 161
even if a digital camera fitted such a definition under s 22A(12).
The Magistrate found it understandable that a wider definition was given to the term
“computer” when s 22A of the Evidence Ordinance was enacted. The reason was that the purpose of
the provision was to enable the retrieval and use of some stored, processed or retrievable data under
specified circumstances. Nevertheless, the same notion was not applicable to the term “computer” in
the context of s 161. Since s 161 provided for criminal liability which carried penal sanctions, the net
if thrown too wide would catch people who had innocently fallen foul of the law; and conduct that had
previously been regarded as non-criminal would become a breach under s 161. The Magistrate took
the view that the ambit of the term “computer” would be too wide if s 161 and s 22A(12) shared
exactly the same definition and so it was necessary to narrow its scope.
9
The Magistrate found that the prosecution only managed to prove that the Respondent’s act
constituted “access” and that it was with a view to dishonest gain for himself or another but P1 was
not a “computer” stated in s 161.
The Secretary for Justice appealed by way of case stated against the decision and asked for a
conviction.
Held, the Magistrate’s decision overturned, the Respondent convicted and sentence to be dealt with
separately:
(1)
When construing a statutory provision, its context should be taken in its widest sense by
adopting the “purposive interpretation” according to the guidelines laid down by the Court of Final
Appeal in HKSAR v Cheung Kwun Yin (2009)12 HKCFAR 568 [59].
(2)
The courts should construe statutory provisions to take into account changes, in particular
technological changes that have taken place subsequent to the passing of the statute. A statute should
be taken to be “always speaking”: HKSAR v Wong Yuk Man FACC 10/2011. The principle of “always
speaking” was to apply the natural and ordinary meaning of the statutory language to newly emerged
situations so as to best ensure the attainment of the statutory object according to its true spirit, intent
and meaning [60]-[61].
(3)
It was not an extension of a penal law to apply its principle to circumstances unforeseen at
the time of its enactment, so long as the case was fairly brought within its language: B v Commissioner
of ICAC (2010) 13 HKCFAR 1 [62].
(4)
As s 161 offence required proof of a specific criminal or dishonest intent, it was a relatively
serious offence. It followed that not every kind of access to a computer constitutes an offence. Section
161 stipulated four situations where access to a computer became a crime: HKSAR v Tsun Shui Lun
[1999] 3 HKLRD 215 [63].
(5)
The Court of Appeal held that there was nothing improper to bring a charge against the act
of secretly taking upskirt images with mobile phones under s 161: Secretary for Justice v Chong Yao
Long Kevin CAAR 2/2012 [64]-[65]
(6)
The Legislative Council did not define “computer” under s 161 of the Crime Ordinance
because science and technology were fast-developing, the definition of “computer” was broad and
ever-evolving and could never be exhaustive. The court should take into account the expert opinion in
determining whether the device in question was a computer [69].
(7)
In construing a statute, the court should start with the statutory language rather than working
all the way back from the conduct to determine the guilt or otherwise. Scientific and technological
provisions should be construed to be “always speaking”. Its context should be taken in its widest
sense according to the statutory language and applied to the evolving circumstances since its
enactment, unless such construction went beyond the natural and ordinary meaning of the statutory
language or might result in absurdity or manifest injustice [73].
(8)
Having regard to the fact that the legislature did not adopt the relevant definitions provided
by the Evidence Ordinance or other statutes for the term “computer” under s 161 of the Crimes
Ordinance, and the corresponding comments made in R v Hilda Shephard (1991)93 Cr App R 139
about the hesitation to define the term, the Court agreed with the Magistrate’s decision not to adopt the
definition of “computer” given in the Evidence Ordinance [74].
10
(9)
The term “computer” under s 161 of the Crimes Ordinance should be construed according to
its dictionary meaning which reads “an electronic device which is capable of receiving information in
a particular form and of performing a sequence of operations in accordance with a predetermined but
variable set of procedural instructions to produce a result in the form of information or signals”. This
also accorded with the internationally accepted definition of “computer” as a device for storing,
processing and retrieving electronic data and came in line with the provisions and judgments of other
countries. This interpretation would not produce any absurdity or manifest injustice [75].
(10)
As stated in Tsun Shui Lun, s 161 stipulated four situations in which access became a crime
and not every kind of access into a computer constituted an offence. By the express stipulation of
obtaining access to a computer with a view to dishonest gain, s 161(1)(c) had already confined the
offence within a reasonable scope [76].
(11)
The Court of First Instance thus found that the Magistrate had erred in finding that the term
“computer” under s 161(1) of the Crimes Ordinance did not include the Respondent’s mobile phone in
the present case [78].
11
C. Criminal Appeal/Against Conviction
刑事上訴案件/針對定罪
HKSAR v CHIANG LILY AND OTHERS (蔣麗莉及另兩人
蔣麗莉及另兩人)
及另兩人)
COURT OF APPEAL
CACC 238/2011
Cheung JA, Barnes & Macrae JJ
Date of Hearing: 5-7 March 2013
Date of Judgment: 17 April 2013
Counsel for the Respondent: Lord Macdonald of River Glaven QC & Anthony Chau SPP
Counsel for A1: Clare Montgomery QC, Michael Blanchflower SC, Maggie Wong & Isaac Chan
Counsel for A2: Joseph Lee
Counsel for A3: Peter Duncan SC and Shahmim K Khattak (Kelly Lam)
Criminal law and procedure – New evidence – The task of the Court of Appeal is to perform a
risk assessment itself to see if the verdict is safe when new evidence is relied upon
Criminal law and procedure – Coaching – It was not appropriate for ICAC officers to
summarize each paragraph of the statements
Criminal law and procedure – Credibility of witnesses – A better approach is for the Judge to
defer stating his views on the credibility of the prosecution witnesses until after his assessment of
the defence evidence
Conviction – Fraud – The question of commercial motive or reasonableness of the share option
schemes has to be put in its context
Criminal law and procedure – Credibility of witnesses – Attitude and behavior of A1 are proper
factors to be taken into account by the Judge – The criticism in Winnie Lo v HKSAR FACC
2/2011 was not a general observation that such an approach is not permissible in all cases
刑事法及訴訟程序–新證據–當有新證據作依賴，上訴法庭在職務上須自行評估風險
查看裁決是否穩妥
刑事法及訴訟程序–指導證人–廉署人員為每段陳述作撮要並不恰當
刑事法及訴訟程序–證人的可信性–較佳處理方法是法官留待評估辯方證據後才表述
對控方證人可信性的看法
定罪–欺詐罪–商業動機或認股權計劃是否合理的問題須按案件具體情況考慮
刑事法及訴訟程序–證人的可信性–第一申請人的態度和行為是法官須予考慮的恰當
因素–該處理方法在盧蔚恩訴香港特別行政區 FACC 2/2011 一案雖受到批評，但不
是一概而論指所有案件都不容許該處理方法
12
A1, Chiang and A2, Hussain were convicted after trial of one count of conspiracy to fraud
(Charge 1). A1 and A3, Pau were also convicted in the same trial of one count of fraud (Charge 4) and
one count of ‘authorising the issue of a prospectus relating to shares in a company incorporated
outside Hong Kong containing an untrue statement’ (Charge 5) [1]-[2].
A1, A2 and A3 were sentenced to 3½ years’, 2 years’ and 19 months’ imprisonment respectively.
All three Applicants applied for leave to appeal against conviction. A3 also applied for leave to appeal
against sentence [3]-[4].
Charge 1 was related to a company called Pacific Challenge Holdings Ltd (‘PCH’) and Charges 4
and 5 were related to another company called Eco-Tek Holdings Ltd (‘Eco-Tek’) [5]-[6].
In June 2001, Eco-Tek applied for a listing on the Growth Enterprise Market of the Hong Kong
Stock Exchange (“SEHK”). Both A1 and A3 were obliged to comply with a moratorium period in
relation to the disposal of any Eco-Tek shares following the listing of the company [9]-[10].
The Prosecution alleged that A1 and A3, being the Initial Management Shareholders of Eco-Tek,
between 16 January and 5 December 2001, made false representations to the SEHK about the true
interest in the 8,844,800 shares of Eco-Tek which were nominally held by Yip Yuk Chun, PW1
(“PW1”), personal assistant to A1. SEHK was induced not to impose any moratorium period upon the
shares held in the name of PW1 which resulted in a fraudulent benefit to A1. PW1 in reality
beneficially held the said shares for A1. The Prosecution further alleged that at Eco-Tek’s board
meeting held on 21 November 2001, A1 and A3 authorized the issue of the prospectus of Eco-Tek
which included the untrue statement in relation to the shareholding of the said 8,844,800 shares of
Eco-Tek [11]-[13].
PCH was listed on the SEHK in 1998. Since the company was listed on the SEHK, there was in
place a share option scheme by which the Board of Directors might grant share options to any full
time employee of PCH or its subsidiaries as an incentive measure [15]-[16].
By Board Minutes dated 4 February 2002, PCH showed that under the approval of the Board of
Directors, share options were granted to 10 of its employees or its subsidiaries for each of them to
subscribe 2,388,000 shares at the exercise price of HK$0.32 per share with a face value of
HK$764,160. The ten grantees of the share options included several Hong Kong support staff, three
grantees who were employed by a PCH subsidiary in the Mainland and four grantees in Taiwan. The
Prosecution said that these individuals were mainly low level employees with modest incomes, so that
the value of the share options purportedly granted to them was plainly out of all proportion to their
means [20]-[21] & [28].
The Prosecution alleged that at least five grantees (i.e. two Hong Kong and three Mainland
grantees) were mere nominees of A1. At the request of A1, PW1 allowed her personal bank account to
be used to receive the proceeds of the share options on behalf of the Mainland grantees, totalling
around HK$2.5 million. On 13 August 2002, PW1 withdrew the HK$2.5 million cash from her bank
account and passed it to A1 so that A1 could deposit this money in her safe deposit box facility, which
had been opened in the same bank on the same day [23]-[27].
The Prosecution alleged that the granting of the share options to the five grantees was a fraud
perpetrated against PCH, the potential investors and the regulatory authorities and that A1 and A2
were acting in concert in committing this fraud. The evidence against A2 is that he instructed PW1 to
prepare Board Minutes in relation to the grant of the share options, and the offer and acceptance letters
to the option grantees. PW1 said that this was the first time she had ever prepared Board Minutes and
that she worked on a draft version provided by A2. In addition, it was alleged that A2 made a
representation to the SFC that Tang Wai-shing (“PW3”) was an investment manager, when in fact he
was only a driver [29].
13
A1 denied the grant of Eco-Tek shares to PW1 was a sham. She also denied that she had
instructed PW1 to sell the option [31.1]-[31.4].
As for the PCH shares, A1 denied receiving any money from any of the grantees directly or
indirectly. A1 also called Chan (“DW2”), one of the Mainland grantees. He testified that he was a
genuine grantee [31.5]-[31.6].
A2’s defence as revealed in his cross-examination of PW1 was that he denied he had asked PW1
to type up the minutes of the Board meeting of 4 February 2002 which approved the grant of share
options. Through the cross-examination of PW1, A3 denied that he had ever told PW1 if she could
hold shares for the company [33]-[35].
A1 appealed on the grounds that (i) the Judge erred in his approach in assessing the evidence; (ii)
the Judge erred in his assessment of PW1’s evidence; (iii) the evidence was insufficient to support the
charges; (iv) the strict liability argument.
A2 appealed on the grounds that (i) the unreliable nature of PW1’s evidence on identity; (ii) the
evidence was insufficient against A2; (iii) the Judge was wrong to draw inference against A2; (iv) the
Judge was wrong to reject A2’s explanation in the interview.
A3 appealed on the grounds that the Judge erred in his assessment of PW1’s evidence.
Held, applications by the three Applicants for leave to appeal against conviction were dismissed:
The Judge’s assessment of PW1’s evidence
(1) A1’s challenge was on the Judge’s finding of fact on the exact location of A1 inside the Bank of
China (“BOC”), based on PW1’s evidence. According to the well established principle, an appellate
court would not lightly interfere with this finding unless it is plainly wrong: Ting Kwok Keung v Tam
Dick Yuen (2002) 5 HKCFAR 336; HKSAR v Egan (2010) 13 HKCFAR 314 [38].
(2) When new evidence is relied upon, the task of the Court is to perform a risk assessment itself to
see if the verdict is safe: HKSAR v Ling Kam-wah, CACC 88/2001 [52].
(3) Plans of the lobby area and safe deposit box area of BOC and the statement of a BOC staff who
handled customers’ access to safe deposit boxes (“PW10”) were admitted as new evidence. A site
inspection of the lobby area and the safe deposit box section was also carried out by the Court at BOC.
Neither the plans nor the site inspection revealed any flaw in the Judge’s reasoning on considering
PW1’s evidence as credible in relation to the exact location of A1 inside BOC [50]-[51]&[53]-[54].
(4) Also, the site visit confirmed that the banking hall was not large and it was a short distance to
walk from the private room where PW1 received the cash to the stairs and the escalator which led to
the lower floor where the safe deposit box section was situated. The parties confirmed that the location
had not been changed after the events in 2002. The Court was of the view that the Judge’s finding on
the time needed for PW1 to hand over the cash to A1 was correct [64].
(5) It really was too much of a co-incidence for both PW1 and A1 to be in the same bank, on the
same day and at the same time if not for the pre-arranged purpose of PW1 withdrawing the cash and
handing it to A1 who had just opened a safe-deposit box there [65].
Coaching
(6) A1 also relied on the fact that ICAC officers read back PW1’s statements to her and complained
about the Judge’s finding that the officers did not do anything improper [80].
14
(7) Training or coaching of witnesses, which is not permitted is different from witness
familiarisation about the court process, which is permitted. It was not appropriate for officers to
summarize each paragraph of the statements and this practice must stop: HKSAR v Lee Wing Kan
[2007] 3 HKC 368; Lee Wing Kan v HKSAR FAMC 28/2007 [82]-[84].
(8) In HKSAR v Tse Tat Fung and others CACC 167/2008, the Court commented that law
enforcement officers, “must not put words into the witness’s mouth or subvert his true recollection
with another version of events, whether by repetitive reading of the statement to the witness or by
otherwise “influencing” the witness so as to attempt to ensure the witness will, in evidence, simply
regurgitate the contents of his statement. ” [85]
(9) In this case the ICAC officers read back PW1’s statements to her. However, there was no
‘repeated reading back’ for the purpose of ensuring that she would ‘simply regurgitate the contents’ of
her statements. In this case the cardinal principle that a witness should not be coached had not been
breached by the ICAC officers reading the statements to PW1 instead of letting her read the statements
herself [86].
(10) There was also no evidence that PW1 had been coached or pressured to give false evidence by
the ICAC in an unrecorded 47 minute meeting [89].
(11) The Judge must have been satisfied that overall PW1’s evidence was credible. It would be most
unlikely that if PW1 was advancing a false case against A1, the essence of her case could find support
from the evidence of other PWs [94].
The Judge’s approach in assessing evidence
(12) There was no fundamental flaw in the Judge’s approach and he had not prejudged the issue or
had not reversed the burden of proof or ignored the presumption of innocence [99].
(13) While it might be said that a better approach was for the Judge to defer stating his views on the
credibility of the prosecution witnesses until after his assessment of the defence evidence, the Judge
had not prejudged the issue. He must have considered and assessed the credibility of the prosecution
and defense witnesses in his mind first before he committed his thoughts to words [102].
(14) The Judge’s references to ‘not being convinced’ by some aspect of the defence case or ‘not
necessarily’ doubting some aspect of the prosecution case or accepting some part of the prosecution
case as possible, must be considered in the context of the judgment as a whole. The words used were
part of the narrative and analysis of the evidence and finding in a lengthy judgment. The Judge was in
substance saying that he was satisfied that the prosecution had proved the charges beyond reasonable
doubt and he did not accept the defence’s case [106].
(15) The share allotment to PW1 was wholly out of proportion to her salary and she was not told the
shares belonged to her, but merely told to hold the shares. On the day of the listing, PW1 transferred 8
million shares to a company that she had no knowledge of. Shortly afterwards, she disposed of the
remaining shares on the instruction of A1 and later gave the bulk of the proceeds to her [115].
(16) Although the share option scheme had been in place for many years, this was the first time PCH
had ever granted the options. The proceeds from the option by the Mainland grantees and PW4
totalling $31 million were handed to A1. Considered in the light of this evidence, the issue of an
honest, but unreasonable and mistaken, view of A1 was simply not engaged in the present case [119].
(17) The question of commercial motive or reasonableness of the share option schemes had to be put
in its context. The Judge clearly was not substituting his own concept of reasonableness for the
commercial decision made by the Board of Directors. Having regard to the nature of the employment
15
and contribution of the staff who received the benefits and the overall circumstances of the case, there
were clear indications pointing to the gross unreasonableness of the allotment and option arrangements
[113]-[114].
Rejecting A1’s evidence on the basis of her attitude
(18) Attitude and behavior of A1 were proper factors to be taken into account by the Judge. The
criticism of the Judge’s approach in Winnie Lo v HKSAR FACC 2/2011 was based specifically on the
state of the evidence adduced in that case. It was not a general observation that such an approach is not
permissible in all cases. The evaluation of a witness is often done by testing his or her response or
attitude towards some specific events: HKSAR v Egan (2010) 13 HKCFAR 314 [123].
16
D. Criminal Appeals/Against Sentence
刑事上訴案件/針對刑罰
HKSAR v CHAN CHUN TAT (陳駿達
陳駿達)
COURT OF APPEAL
CACC 317/2012
Cheung CJHC, McWalters J
Date of Hearing and Judgment: 27 March 2013
Date of Reasons for Judgment: 11 April 2013
Counsel for the Respondent: Alice Chan SADPP
Counsel for the Applicant : Paul Lougram
Criminal sentencing – Wounding with intent – Unusual type of domestic violence – Out of
character attacks under influence of ketamine during a peaceful reconciliation talk – Need for
deterrence and denunciatory sentence not as great as would otherwise be the case
Criminal sentencing – Wounding with intent – Gravity of the offence lies in the deliberate resort
to violence with the intent to inflict grievous bodily harm – Whether the intent was fully realised
in the injuries sought to be inflicted only of secondary significance
Criminal sentencing – Wounding with intent – Victim’s forgiveness and plea for leniency must
give way to the need for a deterrent sentence in domestic violence cases – Victim’s opinions on
the appropriate level of punishment not a matter to which a sentencing court can properly have
regard – Although the victim’s attitude may help the court understand the crime’s psychological
and mental impact on the victim
刑事罪判刑–有意圖而傷人–不尋常的家庭暴力–和平商討復合之際受氯胺酮影響而
違反常性襲擊對方–本案情況若並非如此，則有需要判處阻嚇性及譴責性刑罰
刑事罪判刑–有意圖而傷人–罪行的嚴重性在於蓄意訴諸暴力，意圖對他人身體加以
嚴重傷害–所尋求造成的傷害是否完全體現傷人意圖只屬次要
刑事罪判刑–有意圖而傷人–即使受害人在家庭暴力案件中表示寬恕及代為求情，首
先仍必是有需要判處阻嚇性刑罰–受害人認為什麼才是恰當刑罰等級並非判刑法庭可
予適當考慮的事項–但受害人的態度有助法庭瞭解罪行對受害人的心理和精神上的影
響
The Applicant pleaded guilty to one count of wounding with intent. He was sentenced to 8
years’ imprisonment. The Applicant appealed against that sentence.
The 23-year-old Applicant’s addiction to ketamine often led to quarrels between him and his 23year-old wife which, ultimately, led to a proposed divorce as a result of the victim having a date with
another man. On one evening, the couple had an 8-hour long talk at home in which the victim made it
a condition for reconciliation that the Applicant quit his drug addiction. Whilst the Applicant was
holding the victim in his arm at one point, the Applicant suddenly strangled the victim and kept saying,
“I am sorry. I do not want this.” The victim managed to free herself. Later, when the victim was
kneeling in front of the Applicant pleading with him to calm down, the Applicant suddenly took out a
screwdriver and stab the victim’s back a number of times. The victim fell onto the ground and the
17
Applicant continued to stab her chest and back with the screwdriver. The Applicant then took out a 2foot bread knife and used it to cut the victim’s neck. The Applicant then left the house with the knife.
He was later found lying underneath a nearby bridge having attempted to commit suicide by cutting
his wrists [2]-[11].
The victim sustained 20 stab wounds in 3-8 mm in size with different depths of penetration; a
subcutaneous surgical emphysema over the left chest wall; an anterior upper neck superficial
laceration; and a laceration of the right hand index and middle fingers with the tendon exposed. All
wounds healed well and the victim suffered no permanent disability other than to the middle finger.
The victim was hospitalised for 13 days. The Applicant’s urine was tested positive for ketamine [12][13], [15] & [23].
It was submitted in mitigation that the proposed separation led to the Applicant becoming more
dependent on ketamine. The Applicant was under the influence of ketamine that he had taken before
the attacks and this caused him to be unable to control his emotions. The attacks were not
premeditated but purely opportunistic ones. The Applicant was very remorseful. The victim had
forgiven the Applicant although a divorce could not avoided. The couple had a one-year-old son [18][22].
It was argued on appeal against sentence that the sentencing Judge erred by failing to give any
or sufficient weight to (1) the lack of any history of violence; (2) the spontaneous nature of the offence;
(3) the Applicant’s abnormal mental condition; (4) the victim was not required to give evidence; (5)
the forgiveness and desire for reconciliation of the victim; and (6) the adverse impact of the sentence
upon the victim and the family [25].
Held, appeal allowed with a sentence of 5 years and 4 months’ imprisonment substituted:
(1) It was a very serious episode of violence and there was a persistence to it, namely when one
form of attack failed the Applicant had recourse to another form; from strangulation to a stabbing
attack with a blunt weapon and finally to a cutting attack with a sharp knife [32].
(2) However, this was not a premeditated attack by a coldly calculating husband bent on revenge.
Nor was it the typical type of domestic violence incident where an angry argument escalates out of
control and one party resorts to violence. There was no anger manifest in the reconciliation talk before
the attack. What caused the Applicant to suddenly become violent will never be known. This may
have been due in part to his inability to achieve a permanent reconciliation and perhaps to a general
despair about the state of his personal life, but an important element would no doubt have been his
addiction to ketamine [33]-[36].
(3) However, there was no evidence as to when the ketamine was taken, how much was taken and
what effect if any it might have had upon the mind of an emotionally disturbed individual. Without
this information, neither the sentencing Judge nor the Court of Appeal could properly reach any
conclusion on these matters. One could only infer that on the day in question the Applicant was not
his normal self and that the ketamine might have contributed in some way to his behaving out of
character [37]-[39].
(4) Had the Applicant really intended to cause very severe, life threatening injuries to the victim
and he could easily have done so. But he did not seem to have pressed home his attacks with any
great purpose, other than to repeat his assaults with other means. The victim, probably out of her love
for the Applicant, loyalty and devotion, decided to remain and show concern for him [40]-[42].
18
(5) The offences of wounding with intent are serious because they are committed with the intention
of inflicting grievous bodily harm on the victim and the assailant may not be able to control the
consequence to the victim: Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415. Whether the
intent was fully realized in the injuries sought to be inflicted is only of secondary significance: HKSAR
v Nguyen Van-Phuong CACC 341/2005. Even though the consequence to the victim will always be an
important factor, the gravity of the offence lies in the deliberate resort to violence with the intent by
the offender to inflict by such violence really serious harm on the victim [46]-[48].
(6)
Without attempting to exhaustively identify all the relevant factors, the usual ones will be:
1.
2.
3.
4.
5.
6.
7.
8.
9.
the extent to which the assault was premeditated;
the reasons or motivation underlying the assault upon the victim;
the mental or emotional state of the assailant at the time of the assault;
whether alcohol or drugs contributed to the actions of the assailant;
whether the assault was committed by the assailant alone or as part of a group;
the type of weapons employed;
the level of force or aggression and the persistence with which the assault was pressed
home;
the injuries caused to the victim; and
the effect of the assault upon the victim and those close to him or her. [49]
(7) In arriving at an appropriate sentence the court will have regard not just to the need to punish
the offender for his conduct, but also to the sentencing principles of deterrence, both general and
individual, and, in appropriate cases, the need to denounce the resort to violence, such as in domestic
violence cases [50].
(8) As long as the victim’s forgiveness and plea for leniency towards the defendant are genuinely
made without any hint of improper pressure or influence being brought to bear upon the victim, the
court will have regard to it. But the opinions of victims and their relatives on the appropriate level of
punishment is not a matter to which a sentencing court can properly have regard. The court will never
tailor its sentence in accordance with the wishes of the victim. It is simply that, the victim’s attitude
to the criminal may help the court in an understanding of the crime’s psychological or mental impact
upon the victim: Perks [2001] 1 Cr App R (S) 66 and HKSAR v Wong Siu Kwan CACC 166/2001 [52][54].
(9) However, in domestic violence cases a plea for leniency from the victim must give way to the
need for a deterrent sentence: HKSAR v Fan Tak Wan [2007] 5 HKC 50 and HKSAR v Cheung Cho
Fat [2010] 5 HKC 400 [55]-[56].
(10) The usual range of sentence for an offence of wounding with intent is 3 to 12 years’
imprisonment. However, since the present case was not the typical domestic violence case and so the
need for the sentence to cater for deterrence and denunciation was not as great as would otherwise be
the case. An appropriate starting point for the Applicant was 8 years’ imprisonment which discounted
by one-third to allow for his plea of guilty became 5 years and 4 months’ imprisonment [57]-[59].
19
HKSAR v WONG YUK YEE (黃玉儀
黃玉儀)
黃玉儀
COURT OF APPEAL
CACC 205/2012
Cheung & Yuen JJA
Date of Hearing and Judgment: 12 April 2013
Counsel for the Respondent: Peggy Leung SPP
Counsel for the Applicant: Edwin Choy
Criminal sentencing – Throwing corrosive fluid with intent to do grievous bodily harm – Factors
to be taken into account in sentencing
刑事罪判刑–意圖造成身體嚴重傷害而淋潑腐蝕性液體–判刑時須考慮的因素
The Applicant was convicted of her own plea of one count of throwing corrosive fluid with
intent to do grievous bodily harm. She was sentenced to 6 years’ imprisonment [1]. The Applicant
applied for leave to appeal against sentence and argued that the starting point adopted was too high [2].
The Applicant came to Hong Kong from the Mainland in the 1980s with her eldest son. After
she came to Hong Kong, she gave birth to another son and later to a daughter. Ever since her eldest
son entered kindergarten, she started working at a garment factory to help the family finances. Since
then, she worked all the way up to the managerial level at the company. In 2006, she was diagnosed
with breast cancer and she left her employment in the same year. By this time, her husband had also
retired and the family had no income. The Applicant’s relationship with the husband further
deteriorated as she discovered that her husband was having a relationship with a woman in the
Mainland and he had disposed of some of the family assets [3]-[8].
In 2007, she petitioned for a divorce and in 2008, she signed a compromise agreement with the
husband, which she later claimed that she was misled by the husband’s solicitor into signing. She then
applied to set aside the agreement but her application was dismissed by the Family Court and was
ordered to pay the husband’s costs. She was upset by the order and she told the family doctor that she
wished to harm her husband. The doctor then referred her to a psychiatric out-patient clinic and the
earliest appointment was in September [9]-[11].
In the meantime, the Applicant sought to appeal the order and her application was fixed to be
heard on 23 August. On the night before the hearing, she filled a plastic container with half a bottle of
drain cleaning fluid containing hydrochloric acid, which she bought a few days before [12].
On the day of the hearing, she brought the container of fluid to the court. After the judge
dismissed her application, she went outside the courtroom, opened the lid of the container, returned to
the courtroom and splashed the fluid towards her husband’s head. It caught him on the face,
predominantly his eyes, and a small amount splashed onto the mouth of the solicitor’s clerk, who was
standing next to him. The fluid also burnt the fabric off the husband’s knapsack and a sizeable amount
of fluid fell onto the carpet and the chairs at the bar table [14]-[15].
Held, allowing the appeal against sentence and reducing the sentence to one of 5 years and 4 months’
imprisonment:
(1)
The Court accepted that the Applicant was in a fraught emotional state at the time she
committed the offence. She might have been suffering from depression at the time and it was unlikely
that she would commit a similar offence [23].
20
(2)
The present case was a serious one. First, the attack was not spontaneous, but was carefully
prepared [24]. Secondly, the attack was a completely unacceptable reaction to the result of legal
proceedings in the Family Court. A suitable deterrent message must be sent to all litigants, that they
cannot on the one hand enjoy the fruits of successful proceedings, and on the other hand take out their
frustrations violently on the other party if they lose [25]. Thirdly, the damage done to the victim was
serious [26].
(3)
The present case was closest to Chiu Siu Mei HCCC 443/2010 and Wong Sau Lai CACC
283/2000 where the starting points were 6 and 7 years respectively [27]. However, there was the
further aggravating feature in the present case that the attack came about because the Applicant was
dissatisfied with the court order. The Court had a duty to deter primal, violent conduct from
unsuccessful litigants against their counterparts. The Judge was absolutely correct in adjusting the
starting point upwards to reflect this aggravating feature. However, the upward adjustment of 2 to 3
years was too severe. Given that the present case was the first case of a serious attack on a litigant
within court premises, a one-year upward adjustment to the sentence in Wong Sau Lai would be
adequate. The starting point would be one of 8 years. Taking into account the plea of guilty, the
sentence was reduced to 5 years and 4 months [28].
HKSAR v Joned Asri also known as Tri Wahyu
COURT OF APPEAL
CACC 345/2012
Cheung CJHC, McWalters J
Date of Hearing & Judgment: 26 March 2013
Date of Reasons for Judgment: 17 April 2013
Counsel for the Respondent: Wong Kam-hing SADPP
Counsel for the Applicant: James Tze
Criminal law and procedure – Sentencing – Repeat offences – Whether each repeat offence
justifies enhancement of the starting point – Whether a repeat offence should at some point no
longer have any additional enhancing effect on the already-enhanced starting point
刑事法及訴訟程序–判刑–多項再犯罪行–各項再犯罪行是否足以支持提高量刑起
點–再犯罪行在某階段是否不應對已提高的量刑起點再有任何額外加刑效應
The Applicant was convicted on his own pleas of 10 charges of “breach of deportation order”,
contrary to section 43(1)(a) of the Immigration Ordinance (Cap 115) and was sentenced to a total of
59 months’ imprisonment by the District Court. At all the material times, there was in force a
deportation order in respect of the Applicant, but he entered Hong Kong under a different name on ten
occasions between 20 June 2010 and 29 February 2012. The Applicant had only a previous conviction
of theft. The Applicant argued that the total sentence of 59 months was equivalent to a global starting
point of 88.5 months, which would be excessive especially in view of the maximum sentence of 7
years’ imprisonment for the charge. He also argued that in respect of the 2nd – 10th breaches, he
should not have been sentenced as a repeat offender as he had not had any previous similar conviction
when he pleaded guilty to those 10 charges.
Held, allowing the appeal against sentence and reducing the sentence to a total of 33 months’
imprisonment:
21
(1) Although the Applicant was convicted of the 10 charges on one and the same occasion, he was
not to be treated as “first time offender” when the sentence for the 2nd to the 10th breaches was
considered. The “belated” detection of the Applicant’s 10 charges was a result of the Applicant’s own
wrongdoing, and it was not open to him to turn this point around in his favour when it came to
sentencing [14].
(2) The Applicant was correctly treated by the sentencing Judge as a repeat offender, which
amounted to an aggravating factor and justified the court’s enhancing the starting point [16].
(3) It is wrong in principle to keep enhancing the starting point for each repeat offence, which is not
the worst of its kind, until one reaches the maximum, because apart from the fact that it is a repeat
offence, the nature and criminality of the offence repeated remains the same [16].
(4) The ultimate sentence, after enhancement, must be proportionate to the seriousness of the
offence, reserving the maximum penalty for the worst cases of its kind. An offence does not become
the worst of its kind just by mere repetition [16] - [17].
(5) A repeat offence should at some point have no further additional enhancing effect on the already
enhanced starting point [17].
(6) On the facts of the present case, the enhanced starting points ought to have flattened out after the
fifth breach, that was, at 42 months’ imprisonment [19].
(7) The global starting point of 88.5 months for the ten breaches and the overall sentence of 59
months upon pleas of guilty were manifestly excessive. An overall sentence of 33 months was
substituted [21] & [23].
律政司司長 訴 雷桂新 (LEI GUIXIN)
)
上訴法庭
CACC 257/2012
上訴法庭法官張澤祐及袁家寧
聆訊及判案日期： 2013年4月12日
判案理由書日期： 2013年4月18日
答辯人法律代表： 高級檢控官梁寶琦
申請人法律代表： 鍾元富大律師
判刑 – 盗竊罪 (扒手)
判刑原則
原則及
扒手) – 多人有組織地在人流頻密的地點犯案 – 判刑
原則及加刑因素
申請人在旺角登打士街從一名路人的外套袋中偷去一個手提電話，然後交給一名女子，
他的行動被便裝警員看見，警員將他拘捕。他被控一項盗竊罪，不認罪後被裁定罪名成立，被
判30個月監禁，他就判刑提出上訴許可的申請。
22
裁決，上訴得直，改判21個月監禁：
裁決
(1) 上訴法庭考慮了多宗有關扒手盗竊的案例，認為本案所採用的量刑基準不符合Ngo Van
Huy [2005] 2 HKLRD 1案例所述的判刑原則 [3]-[5]。
(2) 上訴法庭認為初犯者的量刑基準為12至15個月。本案所竊的財物，物歸原主，但申請人
是以訪客身份進入香港，卻干犯罪行，15個月為合適的量刑基準。犯人在人流頻密的地點下
手，是加刑因素，加刑3個月。另外，多人有組織地犯案，亦是加刑因素。所謂有組織地犯
案，可有多種方式。犯人可以採用老練的技巧，亦可以只用笨拙的手法行事。法官判刑時，需
考慮個别案件的犯案手法，不可一概而論。以本案來說，申請人單獨下手，其同黨只是在隔鄰
街道接贜，另加3個月足以反映本案的情況。故改判申請人21個月監禁 [5.1]-[5.4]。
[English Translation of CACC 257/2012]
HKSAR v LEI GUIXIN
COURT OF APPEAL
CACC 257/2012
Cheung & Yuen JJA
Date of Hearing and Judgment: 12 April 2013
Date of Reasons for Judgment: 18 April 2013
Counsel for the Respondent: Peggy Leung SPP
Counsel for the Applicant: Hylas Chung
Criminal sentencing – Theft (pickpocketing) – Organized nature of offence committed by more
than one person in a crowded place with heavy pedestrian traffic – Sentencing principle and
aggravating factors
The Applicant stole a mobile phone from the jacket pocket of a passer-by at Dundas Street in
Mongkok and then handed it to a woman. A plainclothes police officer saw what the Applicant had
done and arrested him. He was charged with an offence of theft to which he pleaded not guilty. He
was later convicted and sentenced to 30 months’ imprisonment. He applied for leave to appeal against
sentence.
Held, appeal allowed and sentence of 21 months’ imprisonment substituted:
(1) Having considered a number of authorities on pickpocketing, the Court of Appeal found that the
starting point adopted in this case was not in line with the sentencing principle laid down in Ngo Van
Huy [2005] 2 HKLRD 1 [3]-[5].
(2) The Court of Appeal took the view that the starting point for a first offender should be 12 to 15
months’ imprisonment. Although the stolen property was recovered and returned to the owner, the
Applicant committed the offence as a visitor to Hong Kong. The appropriate starting point would be
one of 15 months. It was an aggravating factor that the offence was committed in a crowded place
with heavy pedestrian traffic and thus a further 3 months would be added. Besides, there also existed
another aggravating feature which was the organized nature of the offence committed by more than
one person. Organized crimes could come in many fashions. The offender might well commit the
crime in a professional and practiced way or simply engage in a primitive and clumsy method. In
sentencing, the judge must take into account the modi operandi of individual cases and there was no
across-the-board approach. In the present case, the Applicant started the move on his own and his
accomplice only received the stolen property at the adjacent street. An additional 3 months would
suffice to reflect the circumstances of the case. Accordingly, a sentence of 21 months’ imprisonment
was substituted [5.1]-[5.4].
23
E.
Magistracy Appeal/Against Conviction
裁判法院上訴案件/針對定罪
HKSAR v TJON Kenneth Lie Sin & Anor (張利星及另一人)
張利星及另一人)
COURT OF FIRST INSTANCE
HCMA 492/2011
Yau DJ
Date of Hearing: 14 March 2013
Date of Judgment: 23 April 2013
Counsel for the Respondent: Winston Chan SPP
Counsel for the Appellants: M Delaney
Conviction – Magistrate privately relying on information from the Website – Justice must be
seen to be done
定罪–裁判官自己依賴網站上的資料–公義須彰顯於人前
A1 and A2 were each charged with one count of possession for sale or for any purpose of trade
or manufacture goods to which a forged trade mark was applied, contrary to section 9(2) as read with
section 18(1) of the Trade Descriptions Ordinance (Cap 362). A1 and A2 were convicted after trial.
A1 was sentenced to three months’ imprisonment suspended for 18 months and A2 was fined $35,000.
The Appellants appealed against their convictions and sentences.
The facts were that Customs Officers disguised as customers and one of them bought a pair of
boots bearing “UGG Australia” trademark from a saleslady at A2. At the time of sale A1, the sole
director of A2, was present and admitted to be the “boss” of A2. Under caution, he admitted the
suspected counterfeit “UGG Australia” boots found in A2 belonged to him and were for sale. A2 was
searched and 12 pairs of boots bearing “UGG Australia” trademark together with some other items
were seized. The trademark “UGG Australia” was registered under the Trade Marks Ordinance (Cap
559) and the relevant Trademark Certificate was admitted into evidence. PW2 was a representative
from the registered owner of the “UGG Australia” trademark and was given leave to testify as an
expert. PW2 examined the boots seized by the Customs and concluded that they were all counterfeit
goods.
A1 testified. In essence, he claimed that he did not know that the boots were counterfeit goods
and would not have agreed to purchase them if he had known about it.
It was apparent that the Magistrate had privately conducted her own research on the internet to
obtain information from UGG Australia’s website. It was unclear whether she made use of the
information. In the end, she found the 13 pairs of boots to be counterfeit products and was of the
conclusion that the Appellants knew that they were counterfeit products. She thus convicted the
Appellants.
Held, appeal against convictions was allowed:
Conviction
(1) The case of R v Thompson [2011] 1 WLR 200 was about jurors making their own research on
the internet which might affect the decision of the jury, whether consciously or subconsciously. The
24
case concluded that as the prosecution and defence would not know what consideration might have
entered into the deliberations of the jury and would therefore not be able to address arguments about it,
this would represent a departure from the basic principle that a defendant be tried on the evidence
admitted and heard by the jury in court. This principle and the case of Thompson are considered in the
Specimen Directions in Jury Trials published by the Judicial Studies Board. The decision of
Thompson was cited with approval in HKSAR v Kissel (Stay: Media) [2011] 3 HKLRD 1 [27]-[29].
(2) A magistrate is both the judge of the law and facts. Being a judge of the facts the magistrate is
actually performing the function of a jury and therefore should not conduct his own research into
matters relating to the issues of the case and should most certainly not rely on the findings of such
research [30] .
(3) The Court looked into the circumstances surrounding the access to the Website and the use of
the information obtained by the magistrate. The principle that jurors as well as a magistrate in
performing the function of a jury should not conduct their own research on the internet into matters
relating to the issue of the case is beyond dispute. The main objection to such conduct in the words of
Thompson is that “neither side at trial will know what consideration might be entering into their
deliberations and will therefore not be able to address arguments about it”. This, however, did not
happen in the present case because the Magistrate during the course of the trial made known to the
parties that she had accessed the Website and invited the parties to do the same. The question of what
information the Magistrate had gathered from the Website theoretically did not exist because the
parties, if chose to do so, should be able to find out by accessing the Website [33].
(4) In our adversarial system a magistrate should not only remain impartial throughout the trial but
should also be seen to be so. The Magistrate in accessing the Website on her own was no doubt
tantamount to carrying out investigations herself. This would gravely undermine her impartiality or at
least her appearance to be impartial. This was particularly serious in the present case because, as
pointed out above, the Website was not part of the case of the prosecution and was something new
[34].
(5) In the view of the Court, when the prosecution made it clear that it was not going to make use of
the information on the Website to form part of the prosecution’s case, it certainly was unfair for the
Magistrate to make use of the information she had learnt by accessing the Website herself to ask A1
questions, let aside to contradict him [40].
(6) The Court found that the Magistrate was only laboured under a keen desire to help and to have a
better understanding of the case and did not mean to be biased or unfair. Unfortunately, what she had
done had resulted in justice not being seen to be done [42].
(7)
The appeal against convictions of A1 and A2 was thus allowed [49]-[50].
25
F.
Magistracy Appeals/Against Sentence
裁判法院上訴案件/針對刑罰
香港特別行政區 訴 黃惠芝
原訟法庭
HCMA 709/2012
原訟法庭暫委法官胡國興
聆訊及判決日期： 2013 年 4 月 9 日
判案理由書日期: 2013 年 4 月 15 日
答辯人法律代表： 高級檢控官關百安
上訴人法律代表： 無律師代表, 自辯
刑事罪判刑
刑事罪判刑 - 欺詐罪 -“假結婚”
假結婚”- 量刑指引 - 18個月即時監禁是恰當的
18個月即時監禁是恰當的
上訴人被控兩項串謀欺詐罪，違反普通法及香港法例第 461 章《刑事司法管轄權條例》
第 2(3) 及 6 條，而按香港法例第 200 章《刑事罪行條例》第 159C(6)條予以懲處。
案情指，上訴人涉及兩次與不同的男性進行俗稱「假結婚」的非法安排，日期分別在
2005 年和 2006 年。兩次皆由中間人安排。首次婚禮在內地進行，第二次婚禮則在香港一所律
師行舉行。中間人每次向上訴人付出 10,000 元報酬。上訴人知道有關安排是促致相關男子可
以來港定居。其後，該兩名男子成功憑藉有關的「探親簽註」到訪香港，其中一名甚至取得
「單程証」到港定居 [3]。
上訴人承認該兩項控罪及相關案情，共被判 15 個月監禁。
裁決,
裁決 上訴駁回:
(1) 上訴人寄了一封日期為 2013 年 3 月 18 日的信給法庭。信中說，她因腳傷而引致財政困
難，因此才犯案。現深感後悔。在服刑期間會繼續進修，以期重返社會時做一個有承擔有責任
的人，希望法庭給她一次減刑機會 [8]。
(2) 法庭認為，裁判官已很小心謹慎地考慮過上訴人本身的家世及健康狀況和本案案情，沒
有犯原則性或其他錯誤。上訴人的悔意，也已在刑期獲三分一扣減中反映[11]。
(3) 在香港特別行政區 訴 劉信洪 HCMA 703/2012 一案，當中援引香港特別行政區 訴 陳雄
浩 HCMA 523/2012 案原訟法庭法官張慧玲的下述判詞[12]：
“8.
涉及『假結婚』的『串謀欺詐罪』並無量刑指引。上訴庭在多宗裁判法院
上訴案件就類似案件確立了經審訊後以 18 個月為量刑基準是恰當的。”
(4) 法庭贊同「假結婚」以 18 個月監禁作為量刑起點是恰當的 [12]。裁判官在判刑時已充
分考慮了上訴人的本身和她弟弟需要照顧的情況。裁判官所判刑罰非但不是明顯過重，而是已
對上訴人頗為寬大。法庭駁回上訴，維持原判 [14] 。
26
[English Translation of HCMA 709/2012]
HKSAR v WONG WAI CHI, EASON
COURT OF FIRST INSTANCE
HCMA 709/2012
Woo DJ
Date of Hearing and Judgment: 9 April 2013
Data of Reasons for Judgment : 15 April 2013
Counsel for the Respondent: Franco Kuan SPP
Counsel for the Appellant: In person
Criminal sentencing – Fraud – “Bogus marriage” – Sentencing guidelines – Immediate custodial
sentence of 18 months appropriate
The Appellant was charged with two offences of conspiracy to defraud, contrary to common law
and ss 2(3) and 6 of the Criminal Jurisdiction Ordinance, Cap 416 and punishable under s 159C(6) of
the Crimes Ordinance, Cap 200.
The facts were that the Appellant on two occasions went through the unlawful arrangements of
entering the commonly called “bogus marriages” with different men in 2005 and 2006 respectively.
Both occasions were organized by middlemen. The first marriage was contracted in the mainland and
the second marriage contracted in a solicitor firm in Hong Kong. The Appellant was paid a reward of
$10,000 each time by the middleman. The Appellant knew that the arrangements were intended to
facilitate their resettlement in Hong Kong. Subsequently, the two men successfully visited Hong
Kong on the strength of "endorsements for visiting relatives". One of them even obtained a “one way
permit” for residency in Hong Kong [3].
After admitting the facts and pleading guilty to the two charges, the Appellant was sentenced to
a total of 15 months’ imprisonment.
Held, appeal dismissed:
(1) The Appellant mailed a letter dated 18 March 2013 to the Court. She stated in the letter that she
committed the crime on account of financial difficulty as a result of leg injury. She felt very
remorseful. She would continue her studies when serving the sentence in the hope of becoming a
responsible person with commitments upon return to society. She asked the Court to give her a
chance by reduction of sentence [8].
(2) The Court took the view that the magistrate had carefully considered the defendant’s family
background, her health condition and the facts of the case without making errors in principle or
otherwise. The Appellant’s remorse was also reflected by the one-third discount of the sentence [11].
(3) In the case of HKSAR v Lau Shun Hung HCMA 703/2012, the judgment of HKSAR v Chan
Hung Ho HCMA 523/2012 was cited in which Judge Barnes made the following observations [12]:
“8.
No sentencing guidelines have been laid down for conspiracy to defraud
cases involving bogus marriages. In a number of magistracy appeals concerning
cases of a nature similar to that of the present case the appellate court held that it was
appropriate to use 18 months as the starting point in the case of a conviction after
trial.”
27
(4) The Court endorsed an appropriate starting point of 18 months’ imprisonment for “bogus
marriage” [12]. In sentencing, the magistrate had given adequate consideration to the Appellant’s
personal circumstances and the need to take care of her younger brother. The sentence imposed by the
magistrate was by no means manifestly excessive but actually quite generous to her. The appeal was
dismissed and the sentence upheld [14].
香港特別行政區 訴 楊艷雲
原訟法庭
HCMA 54/2013
原訟法庭暫委法官胡國興
聆訊日期： 2013 年 4 月 17 日
裁決日期： 2013 年 4 月 30 日
答辯人法律代表：檢控官戚雅琳
上訴人法律代表：姚光純大律師
刑事罪判刑
刑事罪判刑 — 店鋪盜竊 — 一般適當量刑 — 積犯加刑幅度
積犯加刑幅度 — 保釋期間再犯刑期分期執行
上訴人面對兩項「盜竊罪」，控罪指上訴人在 2012 年 12 月 27 日和 2013 年 1 月 3 日分
別在她家附近的兩所超級市場偷竊物品。她把贓物放入所攜帶的袋子內，不付款而離開店鋪。
第二項的「盜竊罪」是在保釋期間再犯。
上訴人有 9 次定罪記錄，其中 7 次為店舖盜竊的不誠實罪行。
裁決，上訴得直，撤銷原判之總刑期
10 個月監禁，而代之以 8 個月監禁：
裁決
(1) 正如上訴法庭在 Chung Kun Wai [1989]1 HKLRD 91 案所說，每宗案件犯罪的情況和犯
罪者的情況有很大差別，不能就店舖盜竊提出適當的一般量刑政策，每案的判刑須以本身的情
形而定，但是細察有關的判刑案例則可見同類案件的一般量刑和其理據，對量刑者有所幫助，
而又可使犯罪者覺得沒有對他不公平[14]。
(2) 法庭完全同意湯寶臣法官在香港特別行政區 訴 彭澤惠 HCMA 310/2009 (5/6/2009 未
經彙編)所說[16] - [17]：
“10. 本席要感謝鍾高級檢控官的提出這些很有參考價值的判例。本案涉及盜竊
價值不高物品的事件，以本席的理解，除了有個別的情況外，法庭對這類案件的
處理方法大概如下：
(1)
一般來說，初犯店鋪盜竊者多會被判以罰款，除非案情涉及有組織的行
為，尤其當涉案物品多、價值高的話，那就自當別論；
(2)
如果被告人已有多次相同紀錄，法庭會考慮監禁；如果涉案的物品很小、
價值也不高，法庭可能再給予機會判罰款或短期監禁等；
28
(3)
如果被告人已有很多次的相同紀錄，除非被告人有精神方面的問題，法庭
就不會再對物品數目及價值作太大考慮而判處阻嚇性的監禁，但刑期基準似乎都
不會超過 9 至 12 個月。”
(3) 對於積犯會增加刑罰，上訴法庭在 HKSAR v Chan Pui Chi [1992] 2 HKLRD 380 及
[1999] 3 HKC 848 早已確立。重犯最低限度在刑罰方面使到罪行更加嚴重。法庭有責任提高
對慣犯一意孤行重犯的刑罰，判處阻嚇性的刑期以遏止他重蹈覆轍，使公眾得到適當的保護。
雖然這案例並非涉及店舖盜竊，但設立了香港法庭對積犯應加刑的原則[18]。
(4) 至於加刑幅度，在 HKSAR v Lam Kwai Wa HCMA 1078/2002 (13/12/2002，未經彙編)案,
上訴人偷了兩包價值$20 的蛋糕。他有 31 次犯罪記錄，其中 11 次與盜竊有關，麥明康法官考
慮了數宗對店舖盜竊慣犯的量刑案例後，認為加刑幅度不應高於量刑基準的三分一，而在該案
只應加多 16%至 25%[23]。
(5) 量刑基準最重要應充分反映被盜去物品的價值以及被告人盜竊罪前科的數量。原審裁判
官採納了 9 個月監禁為量刑基準是明顯過高的，因為據店舖盜竊的多宗案例，類似本案情況和
本案上訴人的情況合適的判刑應公平地為每案 5 個月監禁，因其為積犯而加刑應提升百分之
25(即 25%)，而因其認罪扣減三分之一，則每案被處的刑期應為 5 x 1.25 x 2/3，得出 4.16
個月監禁[35]。
由於應按香港特別行政區 訴 黄廣賢 CACC 209/1997 (20/11/1997，未經彙編)及 HKSAR
v Chau Lap Pui (周立錇) [2007] 2 HKC 342 案上訴法庭的理據而把兩案刑期全部分期執
行，可把每案判刑稍微下調至 4 個月監禁，兩案總刑期達致 8 個月監禁。裁判官所判的共 10
個月監禁是明顯過重[35]。
(6)
[English Translation of HCMA 54/2013]
HKSAR v YANG YANYUN
COURT OF FIRST INSTANCE
HCMA 54/2013
Woo DJ
Date of Hearing: 17 April 2013
Date of Judgment: 30 April 2013
Counsel for the Respondent: Noelle Chit PP
Counsel for the Appellant: Eliza Yiu
Criminal sentencing – Shop theft – Proper general sentencing approach – Degree of
enhancement for persistent offender – Consecutive sentence for re-offending whilst on bail
The Appellant faced two offences of “theft”. It was alleged that on 27 December 2012 and 3
January 2013 the Appellant stole some goods from two supermarkets near her home by putting them
into the bag she was carrying and left without payment. The second offence was committed whilst on
bail.
29
The Appellant had 9 previous convictions, 7 of them were offences of dishonesty relating to
shoplifting.
Held, appeal allowed, original sentence of total 10 months’ imprisonment set aside and substituted
with one of 8 months’ imprisonment:
(1)
As remarked by the Court of Appeal in Chung Kun Wai [1989]1 HKLRD 91, in the realm of
shoplifting, the circumstances of the offence and the circumstances of the offender varied so much that
it was quite impossible to suggest any general policy of sentencing approach. Each case might be
considered individually, but a perusal of relevant sentencing authorities would provide an insight into
the general sentencing practices in similar cases and the sentencing basis. This would assist the
sentencer and prevent the offender from having an impression that he was prejudiced [14].
The Court completely agreed with the comments made by Tong J in HKSAR v Pang Chak Wai
(2)
HCMA 310/2009 (5/6/2009 unreported) [16] - [17]:
“10. I would like to thank Mr. Chung, SPP for providing the authorities of high referential
value. The present case involves theft of goods of low monetary value. It is my
understanding that subject to exceptions, the courts take the following approach in dealing
with this type of offence:
(1) In general, a fine will often be imposed for a first offender in theft by shoplifting. But
if it involves theft of organised nature and in particular the quantity of stolen goods is large
and value high, the level of sentencing will be different;
(2) If the defendant has repeated convictions for the same or similar offences, the courts
will consider custodial sentence. But if the stolen goods are of small quantity and low value,
a chance will be given and sentencing options such as a financial penalty or a short-term
imprisonment will likely be considered;
(3) If the defendant has multiple convictions for the same or similar offences, the courts
will pass a deterrent sentence without giving much consideration to the quantity and value
of the goods unless the defendant has mental problems. Under the guideline tariffs, the
sentence will not exceed the range of 9 to 12 months.”
(3)
The enhancement of sentence for persistent offenders had already been established by the
Court of Appeal in HKSAR v Chan Pui Chi [1992] 2 HKLRD 380 and [1999] 3 HKC 848.
Re-offending might aggravate the offence, at least so far as sentence was concerned. It was the duty
of the court to impose a deterrent sentence on persistent re-offenders by enhancing sentences in order
to prevent further repetition of the crime and protect the public. Although Chan Pui Chi was not a
shop theft case, it set down the principle upon which the courts of Hong Kong enhanced sentences for
persistent offenders [18].
(4)
As for the degree of enhancement, the appellant in HKSAR v Lam Kwai Wa HCMA 1078/2002
(13/12/2002, unreported) stole two packets of cakes valued at $20. He had 31 convictions, 11 of
which were theft-related offences. Having considered a number of cases relating to persistent
offenders in shoplifting, McMahon DJ took the view that the degree of enhancement should be no
more than one-third of the starting point and the enhancement in that particular case should be in the
range of 16 to 25% [23].
(5)
Most importantly, a starting point should sufficiently reflect the value of stolen goods and the
number of previous similar offences an offender had committed. The starting point of 9 months’
imprisonment adopted by the trial judge was manifestly excessive. By reference to the previous cases
of shoplifting similar to the circumstances of the present offence and the background of the Appellant,
30
a sentence of 5 months’ imprisonment for each offence would have been fair and appropriate. After a
25% enhancement for persistent re-offending and a one-third discount for guilty plea, the sentence for
each offence should be 5 x 1.25 x 2/3, making it 4.16 months’ imprisonment [35].
(6)
As it was necessary to follow the reasoning of the Court of Appeal in HKSAR v Wong Kwong
Yin CACC 209/1997 (20/11/1997, unreported) and HKSAR v Chau Lap Pui [2007] 2 HKC 342, the
sentences for the present two offences should run consecutively. Each sentence could be slightly
adjusted to 4 months, resulting in a total sentence of 8 months. The sentence of 10 months’
imprisonment imposed by the magistrate was manifestly excessive [35].