ccab 1999
Sentence (Principles)
Sentence (Principles)
MA 765/98
YUEN
Hing-yu
LugarMawson DJ
(17.12.98)
Late plea/Waste of court time and police resources/Duty on magistrates to
reduce one-third discount/Effect of prior conviction
延遲認罪 – 浪費法庭時間及警方資源 – 裁判官有責任把三
分一的刑期減免削減
–
過往被定罪的影響
The Appellant pleaded guilty to an offence of possession of a dangerous
drug, namely, 17 grammes of a mixture with a heroin content of 16.82
grammes.
*Eddie Sean
#I/P
The magistrate accepted that the quantity represented the Appellant’s
own personal supply of dangerous drugs. The Appellant was a drug addict,
with previous convictions for possession of dangerous drugs. He had twice
been sent to a drug addiction treatment centre.
In sentencing the Appellant to 27 months’ imprisonment for a ‘belated
plea’, the magistrate adopted a starting point of 3 years’ imprisonment after
trial, such being the maximum sentence a magistrate could impose. He treated
it as a worst case scenario, deserving of the maximum sentence. On appeal
Held :
(1)
The plea was belated in the sense that the Appellant did not plead guilty
at the earliest opportunity, and his earlier plea of not guilty had resulted in a
date for trial being set. The lists in the magistracy had been cleared to
accommodate a contested case. By entering the plea of guilty on the date set
down for trial the time of the magistrate was wasted, as were the human
resource assets of the police;
(2)
Although a discount of one-third was customary after a guilty plea, this
was not automatic. It was incumbent on magistrates to take into account the
fact that a defendant had wasted resources and to reflect that in a reduced
discount;
(3)
Had the Appellant been a first-time offender he might, notwithstanding
having entered a late plea of guilty, have been given a higher discount.
Result – Appeal dismissed.
FACC 6/98
Li CJ
Litton
Ching &
Bokhary PJJ
Nicholls of
Birkenhead
NPJ
(11.3.99)
*Arthur Luk &
Derek Lai
#J Mullick
SEABROOK
Mark
Sentencing guidelines which reduce sentences may benefit those sentenced
previously/Circumstances in which accused may benefit from change in
guidelines/Sentencing process continues until appeal
縮減刑期的量刑指引可能會使先前被判刑者受惠 – 被告可因
量刑指引更改而獲益的情況 - 判刑過程持續至上訴為止
The Appellant was convicted after trial in the District Court of three
dangerous drugs charges laid under the Dangerous Drugs Ordinance: two of
trafficking, contrary to s 4(1)(a) and (3), and one of simple possession, contrary
to s 8(1)(a) and (2). The two trafficking charges related to MDMA, or
‘ecstasy’, while the simple possession charge involved cannabis. The
Appellant was sentenced to concurrent terms of imprisonment of, respectively,
18 months and 4 years and 4 months on the two trafficking charges, and to 7
days’ imprisonment, consecutive, on the cannabis charge.
In granting leave to appeal, the Appeal Committee certified the
involvement of two points of law of great and general importance. They were
the points raised by these two questions of sentencing principle:
239
ccab 1999
Sentence (Principles)
(1)
Do sentencing guidelines which reduce sentences ever benefit even
those who were sentenced before the guidelines were laid down?
(2)
If so, in what circumstances?
For the Appellant, it was submitted that sentencing guidelines which
reduced sentences did in certain circumstances benefit even those who were
sentenced before the guidelines were laid down.
For the prosecution, it was said that sentencing guidelines, whether they
increased or reduced sentences, only applied to persons whose offences were
committed after the guidelines had been laid down. But a sentencer had a
discretion to take into account sentencing guidelines which reduced sentences
even if the guidelines had not been laid down until after the commission of the
offence or offences in question. That discretion, however, was possessed only
by the sentencer, not the appellate court.
Held :
(1)
The answer to the first certified question was ‘yes’. The state of affairs
on which sentencing guidelines were based tended to have been in existence for
an appreciable period prior to the laying down of the guidelines. It was
inherently probable that during that period a number of persons would have
been sentenced at levels other than those called for by the guidelines. Their
sentences would not be increased upon review just because they were imposed
at lower levels than those set by the guidelines as the law was more humane
than that. But the position was different if their sentences were imposed at
higher levels than those set by the guidelines. For that might show that they
had been sentenced more severely than the law had come to realise was
appropriate. And subject to the need for finality, justice might then demand
that their sentences be reduced so as to remove that inappropriate measure of
severity. Society had no interest in imprisoning people unnecessarily or
keeping them in prison longer than necessary;
(2)
The process of sentencing the Appellant was still extant when he was
before the Court of Appeal. That was because the sentencing process did not
end upon the passing of sentence at first instance but continued until the
question of sentence had been dealt with by an intermediate appellate court: R v
Sze Tak-hung [1991] 1 HKLR 109, Re C W Reid [1994] 2 HKLR 14. The
intermediate appellate courts routinely dealt with sentence. Such a court was
almost always the final court dealing with sentence. So it was only right that
the sentencing process be viewed as one which continued until an intermediate
appellate court had dealt with the question of sentence;
(3)
As to the second certified question, sentencing guidelines which reduced
sentences would benefit even those who were sentenced before the guidelines
were laid down provided that:(i)
their offences were committed at a time when the state of affairs on
which the guidelines were based was in existence;
(ii)
their sentences were imposed at higher levels than those set by the
guidelines; and
(iii) the sentencing process was still extant.
As to (iii), it had to be understood that if the time for appealing, or seeking leave
to appeal to the appropriate intermediate appellate court against sentence had
expired, the sentencing process could no longer be regarded as extant unless that
court saw fit to entertain the matter on the merits despite such expiry. And the
court would not automatically be obliged to do so simply because someone was
240
ccab 1999
Sentence (Principles)
seeking to take advantage of sentence-reducing guidelines laid down after he
was sentenced. It would be a matter of discretion to be exercised in the light of
all the circumstances;
(4)
The holding in (3) was reinforced by Article 12(1) of the Bill of Rights
Ordinance which, repeating Article 15(1) of the International Covenant on Civil
and Political Rights provided that ‘If, subsequent to the commission of the
offence, provision is made by law for the imposition of a lighter penalty, the
offender shall benefit thereby.’ It could be said, if it were necessary to rely on
Article 12(1) of the Bill or Article 15(1) of the Covenant, that the guidelines
made provision for the imposition of a lighter penalty;
(5)
Sentence-reducing guidelines would not assist previously sentenced
persons if the reduction was based on an amelioration of the situation since they
were sentenced. Thus if they were sentenced during a time of prevalence, they
would receive no benefit from the cessation thereafter of such prevalence. The
severe sentences passed on such persons might have caused or contributed to
such cessation. The guidelines simply would not operate so as to make
provision for a lighter penalty for them.
Result - Appeal allowed. Sentences varied to a total of 2 years’ imprisonment.
Per cur -It was only in the rarest of cases that an appeal against sentence would
reach the Court of Final Appeal. This was such a case as there were
conflicting decisions of the Court of Appeal on a matter of
sentencing principle.
CA 317/98
Nazareth
ACJHC
Mayo &
Stuart-Moore
JJA
(26.2.99)
*Cheung Waisun
#Peter Ip
LIU Chikeung
Consecutive sentences/Approach to sentence where multiple offences
should have been included in a single count/Aggregate sentence for
consecutive offences of same type may substantially exceed the statutory
maximum for an individual offence
分期執行的刑罰 – 多 項 罪 行 應 包 含 在 單 一 罪 名 內 判 刑 的 方
法 – 多項同類罪行分期執行的總刑罰可能遠超就個別罪行判
刑的法定最高極限
The Applicant was convicted in the Court of First Instance on his own
pleas of guilty of nine counts of possession of equipment for making a false
instrument, contrary to s 76(2) Cap 200. He was sentenced to terms of
imprisonment totalling 5 years.
For each offence the judge took a starting point of 30 months. That
was reduced to 20 months on each count to give the Applicant the benefit of the
discount. To give effect to totality, the judge ordered the sentences on charges
1, 2, 3 and 4 to run concurrently. The sentences on charges 5 and 6 were
ordered to run concurrently, as were the sentences on charges 7, 8 and 9. But
in each case, each group would be consecutive, making 60 months in toto.
On appeal, it was submitted that the judge erred in not imposing a
concurrent sentence on all the offences where all the offences arose out of one
incident which occurred on one day.
Held :
(1)
Each of the offences was essentially the same, i.e. that the Applicant had
under his control the same machines, instruments and materials at the same time
and place. One charge could easily have been laid, in which event the court
would only have been able to sentence the Applicant to the maximum provided
for a single offence or charge. Even if separate charges being laid could be
justified, whether sentencing upon that basis could be justified was open to
241
ccab 1999
Sentence (Principles)
question. Since all the offences arose out of the same transaction to a degree
that was not usually encountered, separate consecutive sentences in respect of
the three groups of charges were clearly open to question;
(2)
The aggregate sentence for consecutive offences of the same type might
very substantially exceed the statutory maximum for an individual offence.
Result -
CA 271/98
Power VP
Leong &
Stuart-Moore
JJA
(9.2.99)
*Wesley
Wong
# C K Wong
YAU Chi-lung
Appeal allowed. Concurrent sentences of 22 months substituted in
respect of each of the 9 offences.
Sentence pronounced in court at variance with certificate of
sentence/Certificate a nullity for non-compliance with s 80 of District Court
Ordinance/Court of Appeal substituting its own certificate of sentence
在法庭上宣判的刑罰與判刑證明書上的相異 – 證明書因沒有
遵 照 《 區 域 法 院 條 例 》 第 80 條 的 規 定 而 無 效 – 上 訴 法 庭 代
簽發判刑證明書
The Applicant sought leave to appeal against sentence out of time.
That was granted, in the circumstances as outlined.
The Applicant was sentenced on 28 April 1998 to imprisonment for 6½
years on a charge of trafficking in a dangerous drug. The difficulty arose
because the Applicant had, on 27 January 1998, some three months before, been
sentenced to imprisonment for 9 months on a charge of simple possession of
dangerous drugs. The trial judge, when sentencing, made no mention at all of
the previous sentence, of which 3 months had been served. She simply said
that the Applicant would go to prison for a total of 6½ years. On appeal
Held :
(1)
There would normally have been no difficulty arising out of that
sentence because it would have run from the date on which it was imposed, i.e.
28 April, and the Applicant would, in effect, have been serving a concurrent
sentence as regards the balance of the 9 months that he had left to serve. The
difficulty arose because the judge signed a certificate of sentence on 28 April
which stated ‘Sole charge imprisonment for 6½ years to run consecutively to the
sentence he is now serving’. No mention was made of the other offence, or
that the sentence was to be a consecutive one at the time when the sentence was
imposed in open court;
(2)
The certificate did not comply with s 80(1) in so far as it stated that there
was an order that the sentence run consecutively. There was no such order
made in open court. The certificate of sentence was therefore a nullity as it
was not in compliance with that section and had no effect. The sentence that
was actually imposed was one of 6½ years which ran from the date on which it
was imposed. The court would issue its own certificate of sentence which
would so indicate. The effect of that would be that the Applicant would be
serving the balance of the 9 months, i.e. the amount left after 28 April 1998,
concurrently with the first part of the 6½ years sentence.
Result - Appeal allowed.
242
ccab 1999
MA 3/99
Sentence (Principles)
SO Muk-chi
Gill DJ
Drugs in prison/Appropriate sentence considered/Totality and consecutive
sentencing examined
偷運毒品入監獄 – 考慮適當的刑罰 – 審閱整體刑期和分期
執行的刑期
(10.3.99)
The Appellant pleaded guilty to the offence of unlawful possession of
dangerous drugs, namely, a small quantity of heroin. He was sentenced to 12
months’ imprisonment.
Of that term, 3 months was ordered to run
concurrently with an existing sentence of 8 months for another offence he was
then serving, resulting in a further 9 months overall.
*David Chan
#I/P
The facts showed that the Appellant was in detention following his
earlier conviction of a dangerous drugs offence in respect of which he had been
sentenced to 8 months’ imprisonment. Whilst there, he was found to possess
the drugs, the subject of the appeal, and which he had attempted to smuggle into
prison.
The magistrate regarded prison as the appropriate sentence, in light of
Attorney General v Au Kwok-chai [1996] 3 HKC 192. He first considered a
DATC report. On appeal
Held :
(1)
The sentence imposed was one which the Court of Appeal considered in
Au Kwok-chai to be appropriate after plea for the offence of smuggling a small
quantity of dangerous drugs into prison. It could not be faulted;
(2)
The extent to which the magistrate ordered the sentence to run
consecutively with the term already imposed recognised the deterrent element
that such a sentence had to carry without offending the totality principle;
(3)
The submission of the Appellant that he had four children, was
remorseful and wanted to be given a chance, did not raise factors which
warranted a reduction in a sentence that was otherwise appropriate.
Result – Appeal dismissed.
CA 58/98
Power VP
Mayo &
Stuart-Moore
JJA
(30.4.99)
*J Reading SC
#L Lok SC &
Joseph Tse
WONG
She-wa
Sentencing co-accused/Desirability of co-accused being sentenced together/Avoidance
of disparity/Premature sentencing discouraging testimony by accused who pleads
guilty
對同案被告人的判刑 – 同案各被告人宜一同宣判 – 避免出
現判刑不一致的情況 – 對早已認罪被告人先行判處刑罰會影
響他們上庭作證的意願
In the course of hearing an appeal against conviction, Mayo JA
observed:
‘It is always desirable where offences have a common basis (that) the
trial judge should sentence the offenders who have pleaded guilty and
those who have been found guilty after trial. One good reason for this
is that it minimises the risk of there being wide disparities in sentences
passed. Perhaps even more important the judge passing the sentences
will have a much greater knowledge of the relevant facts.
There is a further advantage in deferring the sentencing process if, as in
this case, it is anticipated that the defendants who pleaded guilty will be
witnesses at a future trial. There is, otherwise, always a possibility that
they may change their minds and decline to go into the witness box.’
243
ccab 1999
CA 456/98
Sentence (Principles)
OR
Kwok-wai
Mayo
Stuart-Moore
JJA
Keith J
Generalised sentencing/Separate sentence principle
概括地判刑 – 分開判刑的原則
The Applicant was convicted of two charges of conspiracy and nineteen
charges of forgery. He was sentenced to a total of 4 years 3 months
imprisonment. In relation to the 19 forgery charges, the judge when sentencing
said: ‘Charges 3 to 21 – 3 years and 9 months.’ On appeal
(14.5.99)
It was correct to observe that it was incumbent upon a court to impose
separate sentences on every charge where there had been a conviction. As it
appeared that what the judge must have intended was to pass sentences of 3
years 9 months on each of the forgery charges to be served concurrently, the
judge’s order would be amended to reflect this omission.
*Maggie Yang
#P Ross
Result -
Application dismissed.
[Section 18(2) of the Criminal Procedure Ordinance provides:
‘If one sentence is passed upon any verdict of guilty on an indictment
containing more counts than one, the sentence shall be good if any of the
counts upon which such verdict has been returned would have justified
such sentence.’
For a consideration of generalised sentencing see Chapter 24, Sentencing in
Hong Kong, 2nd ed at pp125-127: Ed]
CA 54/99
Nazareth &
Stuart-Moore
VPP &
Nguyen J
(6.7.1999)
*Sin Pui-ha
#C Remedios
LAU
Tai-heung
Discount for guilty plea in District Court/Where aggregate of sentences
after individual discount about the same or in excess of jurisdictional limit,
a meaningful discount from that limit required
在區域法院因認罪而獲減刑 – 對各項控罪給予刑期減免後 ，
如合計的刑期接近或超過法院司法管轄權的判刑上限， 便 需
要按該上限給予有意義的刑期減免
The Applicant was convicted after trial of a charge of robbery, and
pleaded guilty to one charge of remaining in Hong Kong without the authority
of the Director of Immigration after having landed unlawfully, and one charge
of theft. He was sentenced, respectively, to imprisonment for 5 years, 8
months and 16 months, all sentences to be served consecutively, making a total
of 7 years.
On appeal, it was submitted, inter alia, in reliance on R v Ho Sik-yin
[1991] 2 HKC 212, that a reduction from the 7 year maximum should have been
made to give credit for the pleas of guilty on the last two charges.
The prosecution submitted that as the starting point for sentence on each
charge did not exceed 7 years, the discount as appropriate for each charge was
properly given from the respective starting points rather than from the District
Court’s jurisdiction.
Held :
(1)
As stated in HKSAR v Li Yan [1998] 4 HKC 12, justice required that ‘a
further meaningful discount should be given from the maximum of 7 years after
plea in those cases which would attract 7 years or more as the proper sentence
which the court ought to impose. This is to give the accused some benefit for
his plea of guilty. But neither policy nor justice requires that a 1/3 discount
for a plea should be given from the maximum of 7 years regardless of the
proper starting point. In cases where the appropriate sentence to be imposed
after discount is 7 years or more, a meaningful discount from 7 years should be
given in order to give some benefit for the plea. The same applies if the
appropriate sentence is so near 7 years that the discount is not meaningful. As
244
ccab 1999
Sentence (Principles)
to what is meaningful in the particular circumstances, this must be left to the
sentencer, but rarely would a discount of less than 1 year be so considered.’
The submission of the prosecution was contrary to those dicta and would here
eliminate the incentive given for the considerable benefits that the courts
recognised flow from pleas of guilty;
(2)
The guideline sentence for remaining in Hong Kong was 15 months after
plea; the Applicant had received a discount from 15 to 8 months, which was
well in excess of a third. On the theft charge, he likewise received a
considerable discount from 2 years to 16 months. A meaningful discount from
the 7 year maximum would be 8 months, and that would be achieved by making
the 8-month sentence on the unlawful remaining charge concurrent with the
other two charges.
Result - Appeal allowed.
substituted.
CA 228/99
Nazareth VP
Wong &
Keith JJA
(12.8.99)
*Chan Fungshan
#I/P
POON
Chum- kong
Sentence totalling 6 years and 4 months
Discount for guilty plea/Defendant absconding prior to trial/ Reduced
discount proper due to late plea and additional expense of second trial
認罪的減刑幅度 - 審訊前被告人棄保潛逃 - 因被告後期才
認罪和因須進行第二次審訊而帶來額外開支， 故 此 削 減 減 刑
幅度的做法恰當
The Applicant pleaded guilty to trafficking in dangerous drugs. He was
sentenced to 9 years’ imprisonment.
The judge took 12 years’ imprisonment as his starting point, in line with
the Lau Tak-ming guideline. However he decided that, because the Applicant
had not answered to his bail, he should not be given the same one-third discount
which his co-defendant had received. In reducing the discount, the judge acted
in accordance with Yiu Tat-choy, Cr App 613/97, and Choi Wing-wah [1998] 4
HKC 373. On appeal
Held :
(1)
There was some initial concern about the approach adopted. A person
admitted to bail who failed to surrender to custody when called upon to do so
committed an offence punishable with imprisonment, under section 9L of the
Criminal Procedure Ordinance, Cap 221. To deny a defendant who absconded
the discount for the guilty plea which he would otherwise have been given could
be said to be tantamount to punishing him for committing that offence. He
was, in effect, serving an additional sentence for having absconded when he had
not been charged with that offence. It could be said that it was wrong to treat
the defendant in a way which had the effect of him receiving an additional
sentence of imprisonment for an offence for which he had never been charged;
(2)
However, the initial misgivings had been laid to rest. The reason why
the discount was reduced in these circumstances was because the plea of guilty
was not tendered at the earliest opportunity. Indeed, the effect of the Applicant
absconding was that there had to be a second trial. He was therefore not being
punished for absconding. He was being denied the discount to which he would
otherwise have been entitled because of the consequences of his absconding,
namely that his plea of guilty was in the circumstances a late plea and that a
second trial was necessary. If one of the justifications for giving a discount
was the saving of the expense of a contested trial, that was to some extent
neutralised by the expense of an albeit short second trial.
Result – Application dismissed.
245
ccab 1999
CA 139/99
Sentence (Principles)
SO
Hung-leung
Nazareth &
Stuart-Moore
VPP
Keith JA
Assistance to police/Provision of statement implicating confederate/No
discount if assistance given in knowledge that confederate planned to plead
guilty
協助警方 - 提供指證同謀的供詞 - 如上訴人知悉同謀打算
認罪才協助警方便不會獲得減刑
The Applicant pleaded guilty to two offences of unlawful trafficking in
heroin, and received 6 years and 4 months in toto.
(25.8.99)
*ICMcWalters
&
Winnie Ho
On appeal, it was said that the Applicant had given police a witness
statement which implicated an ‘Ah Hung’. A copy of that statement was sent
to Ah Hung, and he subsequently pleaded guilty to the only offence with which
he was charged, namely, the same charge as the Applicant faced. It was
submitted that this warranted a further reduction.
#J Halley
Held :
Ah Hung had himself been arrested following the Applicant’s arrest.
Almost 5 months before the Applicant was sentenced, Ah Hung had offered to
plead guilty to the one charge he faced on condition that the prosecution
proceeded against the Applicant on the first charge alone. That offer was
rejected, but the point was that the Applicant elected after his trial to give a
witness statement to the police implicating Ah Hung at a time when he knew
that Ah Hung had been prepared, at any rate some months earlier, to plead
guilty. So, as prosecuting counsel put it, ‘the circumstances in which this
Applicant provided assistance suggest that he might have been using it as just
another ploy to reduce his sentence, knowing that his ‘promise’ of assistance
would not involve any betrayal of his friend as his friend was intending to plead
guilty also.’
Result – Application dismissed.
MA 643/99
Jackson J
(19.8.99)
*Anthea Pang
#I/P
NGUYEN
Thu Thanh
Claim to leniency by mother of child incarcerated with her/Relevance to
sentence
帶同孩子入獄服刑的母親要求輕判 - 與量刑相關的事宜
The Appellant pleaded guilty to an offence of misleading a police officer
and an offence of theft. These two offences were committed whilst on bail for
drugs offence, in respect of which she was earlier sentenced to 4 months’
imprisonment. For the theft offence, the Appellant received 12 months’
imprisonment, and for the misleading a police officer offence, 2 months’
imprisonment. The sentences were adjusted so that the Appellant was
sentenced to serve 13 months’ imprisonment in toto.
On appeal, the Appellant did not contend that her sentence was
excessive. Her sole concern was that her two year old child was, in effect,
serving the sentence with her to his obvious disadvantage. She asked the
court, as an act of mercy, to shorten her sentence so that both she and the child
could be released earlier.
Held :
This was not a case where an accused had given birth whilst in prison.
The well being of the child should have been at the forefront of the Appellant’s
mind before she committed the offences which led to her prolonged
incarceration.
Result - Appeal dismissed.
246
ccab 1999
CA 575/98
Chan CJHC
Wong &
Keith JJA
Sentence (Principles)
(1) AU Wa-po
(2) LO
Chung-sang,
Sunny
(31.8.99)
Disparity in sentencing/Justifiable difference in sentences on coaccused/Sentence imposed neither manifestly excessive nor wrong in
principle
判刑差異 - 同案被告的判刑有差異是有理據支持的 - 判刑
既非明顯過重亦非原則上錯誤
The two Applicants were convicted after trial of a joint charge of false
accounting, contrary to s 19(1)(b) of the Theft Ordinance, Cap 210. A2 was
also convicted of a second charge of false accounting, contrary to s 19(1)(a),
Cap 210. A1 was sentenced to 3½ years’ imprisonment on the first charge,
and A2 was sentenced to 9 months’ imprisonment on each of the two charges,
both sentences to run consecutively, making a total of 18 months. A2 applied
for leave to appeal against conviction, while A1 sought leave to appeal against
sentence.
*Harry
Macleod
#J McNamara
(1)
K B Egan (2)
A1 accepted that a sentence of 3½ years’ imprisonment was within the
range of the usual sentences for this type of offence. His complaint was that
there was no justification for the great disparity between the sentence imposed
on him and that imposed on A2.
A1 submitted that where an offender had received a sentence which was
not open to criticism when considered in isolation, but was significantly more
severe than had been imposed on his accomplice, and there was no reason for
the differentiation, the appellate court might reduce the sentence, but only if the
disparity was serious. He contended that the test was: would right thinking
members of the public, with full knowledge of the relevant facts and
circumstances, learning of the two sentences consider that something had gone
wrong with the administration of justice? Reliance was placed on R v Fawcett
(1983) 5 Cr App R (S) 158. It was said that there was indeed a significant
difference between the sentences imposed on the two Applicants and that there
was no reason for the differentiation. Even if there was any real difference in
the respective culpability of the two Applicants, the difference in sentences
exaggerated that difference. The disparity between the two sentences was, it
was said, serious enough to require the appellate court to interfere.
Held :
It was not correct to say on the evidence that there was no real
differentiation between the cases of the two Applicants. The roles played by
each were quite different. The respective degrees of their culpability were
quite different. The difference between the sentences imposed on the two
Applicants was justified. While the sentences imposed on A2 might appear to
be on the low side when compared with that imposed on A1, the sentence
imposed on A1 was neither manifestly excessive nor wrong in principle and
should not be interfered with.
Result - Application dismissed.
CA 201/99
Nazareth
Stuart-Moore
VPP &
Wong JA
(9.7.99)
*Anna Lai
HUNG On-lik
Family background and financial hardship seldom mitigating
factors/Commission of offences to help family no excuse/Use of PIN to take
money an aggravating factor
家庭背景和經濟困難甚少構成減刑因素 - 為幫助家人而犯罪
並不是理由 - 利用個人密碼提款構成加重刑罰因素
The Applicant pleaded guilty to one count of robbery, two counts of
theft, one count of burglary and one count of attempted burglary. He was
sentenced to 6 years and 8 months’ imprisonment in toto. A suspended
sentence of 4 months was activated making 7 years.
247
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#I/P
Sentence (Principles)
On appeal, the Applicant pleaded for leniency on the ground that his
family had been suffering from financial difficulty, his father ran away when he
was young and his mother had to support the family, and as the oldest son of the
family he also had to work in order to help the mother out. Because of the
economic downturn in Hong Kong he was dismissed from his job and in order
to support the family, his mother applied for credit cards from banks and built
up huge debts and subsequently the banks pressed for payment of the debts and
because he was out of a job he had to resort to crime to get his mother out of
difficulty.
Held :
(1)
Family background or financial hardship were seldom good mitigating
factors for serious crimes. The Applicant had a previous record for similar
offences, and even if he committed the offences to help his mother and family,
that was not an excuse. The robbery was committed by two men inside private
premises and the Applicant was armed with a knife. The victim, who
interrupted the burglary, was threatened at knife point. He was tied up and
forced to disclose the PIN of his credit cards, which resulted in a large amount
of money having been withdrawn;
(2)
The judge took as an aggravating factor that after the robbery the
Applicant and his co-accused immediately helped themselves to the victim’s
money at nearby ATM machines. The sentence was, by any standard, lenient.
Result - Application dismissed.
香港特別行政區訴黃國財
HKSAR v WONG Kwok- choi
香港特別行政區
高 等 法 院 上 訴 法 庭 – 高 院 刑 事 上 訴 1998 年 第 636 號
*陸 貽 信
及萬德豪
Arthur Luk
& Jonathan
Man
#王 志 光
C. K. Wong
高等法院首席法官陳兆愷
高等法院上訴法庭法官梁紹中
高等法院原訟法庭法官胡國興
聆訊日期：一九九九年七月九日
宣判日期：一九九九年七月三十日
COURT OF APPEAL OF THE HIGH COURT
CRIMINAL APPEAL NO. 636 OF 1998
CHAN CJHC, LEONG JA AND WOO J
Date of Hearing : 9 JULY, 1999
Date of Judgment : 30 JULY, 1999
以過高利率貸出款項
多項控罪的量刑方法
-
罪行的嚴重性
- 加重刑罰的因素
-
申 請 人 在 區 域 法 院 先 後 承 認 11 項 以 過 高 利 率 貸 出
款 項 罪 ， 違 反 香 港 法 例 第 1 6 3 章 《 放 債 人 條 例 》 第 2 4 ( 1 ) 及 (4)
條 。 法 官 採 用 9 個 月 監 禁 為 量 刑 起 點 ， 判 申 請 人 其 中 10 項 罪
名 每 罪 入 獄 6 個 月 ， 該 10 項 控 罪 是 申 請 人 於 控 方 舉 證 完 畢 後
認罪的，而法官對另一項罪名則判申請人入獄 5 個月，該項
控罪申請人於開審時已經認罪 。法官准每項刑期中 4 個月同
期 執 行 ， 總 刑 期 為 25 個 月 。
248
ccab 1999
Sentence (Principles)
申請人刊登廣告招攬他人借款。一切貸款及還款均
透 過 銀 行 辦 理 ， 申 請 人 與 借 款 人 並 無 見 面 。 從 1997 年 到 1998
年 ， 申 請 人 先 後 11 次 貸 款 給 不 同 人 士 ， 其 中 兩 名 借 款 人 為 警
方 的 臥 底 探 員 。 申 請 人 所 收 取 的 利 息 為 年 息 900% ， 所 涉 及 的
貸 款 每 次 由 1,000 元 至 10,000 元 不 等 。 根 據 案 情 ， 申 請 人 實
際 借 出 的 款 項 為 27,000 元 ， 但 收 取 之 利 息 及 還 款 共 約 57,000
元，其中包括有些借款人只付利息而沒有歸還欠款 。在整個
過 程 中， 申 請 人 曾 在 電 話 中 用 粗 言 穢 語 催 促 借 款 人 還 款 ， 並
作出恐嚇。
1994 年 ， 這 類 罪 行 的 刑 罰 已 大 大 提 高 。 第 163 章 第
24(4) 條 經 修 訂 後 ， 訂 明 任 何 人 循 簡 易 程 序 定 罪 ， 可 處 罰 款
$500,000 及 監 禁 2 年 ； 另 外 ， 凡 循 公 訴 程 序 定 罪 ， 可 處 罰 款
$5,000,000 及 監 禁 10 年 。
裁定︰
(1)
高利貸已經不單是一個社會問題 ，而是一個可以導
致一連串其他嚴重罪案的原因，對社會造成深遠的
影 響 及 不 良 的 後 果。 由 於 高 利 貸 的 利 息 太 高， 向 高
利 貸 借 款 的 人 根 本 無 力 償 還， 經 威 迫 利 誘 後 便 步 上
犯罪之途 。 為 了 反 映 這 個 社 會 問 題， 遏 止 高 利 貸 活
動及防止因高利貸而引起的非法行為造成社會不
安 ， 加 重 刑 罰 實 屬 必 要 ： R v Lui Sau-cheong
[1993] 2 HKCLR 298 一 案 予 以 考 慮 。
(2)
如果貸款的活動部分是有組織的經營，或收取較法
定的最高利率高出極多的利率，即使沒有涉及其他
加 重 刑 罰 的 因 素 ， 除 非 有 特 殊 情 況， 每 項 控 罪 經 審
訊後一般量刑起點應該是 9 個月至 1 年。如果涉及
黑社會、暴力、恐嚇的犯法行為或一些不正當的行
為或手段 ，即使沒有其他控罪，量刑起點也該相應
提高。牽涉非法行為或不正當手段越多，刑期便越
高。這樣才可以反映這種罪行的嚴重性和收阻嚇作
用。
(3)
由於申請人的活動是有系統的、公開的，而所收取
的 利 息 為 每 年 900% ， 也 曾 恐 嚇 受 害 人 。 因 此 ， 法
官採取 9 個月為量刑起點並沒有犯錯。雖然申請人
在 控 方 舉 證 完 畢 後 才 承 認 其 中 10 項 控 罪 ， 但 是 法
官 還 是 給 予 20% 的 折 扣 ， 並 因 為 申 請 人 沒 有 犯 罪 紀
錄，再度給予減刑，可見法官已是非常寬鬆了。
(4)
雖 然 辯 方 陳 詞 指 法 官 沒 有 考 慮 總 刑 期 的 原 則， 但 法
官沒有就每項控罪被其他同樣控罪增加嚴重性而提
高 刑 期 ； 法 官 根 據 H K S AR v W o n g L o u - t a k [ 1 9 9 8 ] 2
HKC 607 一 案 的 判 例 是 可 以 這 樣 做 的 。 他 只 按 每 項
控罪個別判處一個合適的刑期，再按總體量刑的原
則酌量判處部分刑期同期執行，部分刑期分期執
行 。 故 此 法 官 最 終 所 判 的 25 個 月 總 刑 期 並 沒 有 明
顯過重。
拒絕申請。
249
ccab 1999
[English digest
of CA 636/98,
above]
Sentence (Principles)
WONG
Kwok-choi
Money lending at excessive rate/Gravity of offence/ Aggravating
factors/Approach to sentencing for multiple offences
The Applicant pleaded guilty in the District Court to 11 charges of
lending money at excessive rates of interest, contrary to s 24(1) and (4) of the
Money Lenders Ordinance, Cap 163. The judge took a starting point of 9
months’ imprisonment, and the Applicant was sentenced to 6 months’
imprisonment on each of the 10 charges to which he pleaded guilty at the end of
the prosecution case, and to 5 months’ imprisonment on the other charge, to
which he pleaded guilty ab initio. The judge ordered that 4 months of each of
the terms run concurrently, making a total of 25 months’ imprisonment.
The Applicant used advertisements to solicit people to borrow money
from him. Loans and repayments were all handled through banks. The
Applicant and the borrowers did not meet each other. In 1997/1998 he
advanced loans to different persons on eleven occasions, two of those persons
being undercover police officers. Interest charged by the Applicant on those
loans was at the rate of 900% per annum, and the amount of the loans varied
from $1,000 to $10,000. The facts revealed that although the actual money
lent by the Applicant was $27,000, the principal repaid together with the interest
obtained by him was about $57,000. Some borrowers only repaid interest
without making any repayment of the actual loan. In the course of his
dealings, the Applicant used foul language on the phone to intimidate and press
the borrowers for repayment.
In 1994, the penalties for this offence were increased significantly. S
24(4), as amended, provided a maximum penalty on summary conviction of a
fine of $500,000, and imprisonment for 2 years, and, on conviction on
indictment, a fine of $5,000,000, and imprisonment for 10 years.
Held :
(1)
Loan-sharking was not simply a social problem. It was something that
might cause other more serious crimes and had far-reaching consequences and
adverse effects on society. As the interest charged was so high it was beyond
the ability of the borrowers to make repayments, and they would be driven to
commit offences under inducement and coercion. To reflect this social
problem, to discourage loan-sharking activities and to prevent the social unrest
caused by illegal acts arising out of such activities, it was necessary to increase
sentences: R v Lui Sau-cheong [1993] 2 HKCLR 298, considered;
(2)
If the money lending activity was part of a systematic operation, or if the
interest charged was substantially higher than the maximum permitted by law,
the general starting point should be 9 months to 1 year even in the absence of
other aggravating factors, unless there were exceptional circumstances. If
criminal acts in connection with triad societies, violence and intimidation, or
other improper acts or means were involved, the starting point should be
increased even in the absence of other offences. The more illegal acts or
improper means involved the higher the sentence. That was the only means to
reflect the gravity of the offence and to deter it;
(3)
As the activities of the Applicant were systematic and open, and as he
charged interest at 900% per annum, and threatened his victims, the judge did
not err in adopting a starting point of 9 months. Although the Applicant only
pleaded guilty to 10 of the charges at the end of the prosecution case, the judge
had been very lenient in still giving him a discount of 20% with a further
discount for a clear record;
(4)
Although it was submitted that the judge had not taken into account
totality, he did not increase the length of sentence on each offence - as he might
have done, on the authority of HKSAR v Wong Lou-tak [1998] 2 HKC 607 - on
account of the fact that it was aggravated by other similar offences. He simply
250
ccab 1999
Sentence (Principles)
imposed an appropriate sentence on each individual offence, and made the
sentences partly concurrent and partly consecutive after taking into account
totality. The final sentence of 25 months was not manifestly excessive.
Result – Application dismissed.
CA 227/99
Stuart-Moore
VP
Mayo &
Leong JJA
(3.9.99)
*A A Bruce
SC
& Ned Lai
#J McNamara
LAU
Kwok-leung
Manslaughter in course of robbery/Sentence of 12 years proper for
killing/Concurrent sentences more appropriate for separate offences
inextricably linked
在 搶 劫 過 程 中 犯 誤 殺 罪 - 就 殺 人 事 件 而 言 12 年 監 禁 是 適 當
的刑期 - 個別的罪行如有不可分割的關連則較適宜判以同期
執行的刑期
The Applicant was convicted after trial of manslaughter by reason of
lack of intent, and acquitted of murder. He had pleaded guilty to manslaughter
at the outset of the trial and to the count of robbery. The judge imposed
sentences of 8 years for manslaughter and 4 years consecutive for robbery,
making 12 years in toto.
The evidence showed that the Applicant strangled the victim, a 66 year
old female, after he awoke her in her hut. He stole $20,000 and a necklace.
On appeal
Held :
(1)
Where any person went into the home of another in order to steal and,
for whatever reason, ended up killing an innocent occupant in circumstances
amounting to manslaughter, the court would be slow to interfere with a sentence
in the region of 12 years;
(2)
In R v Lee Sau-ping Cr App 189/95, it had been said that manslaughter
was one class of offence where a judge might well not be able conscientiously
to fix a starting point. There was a wide range of sentence from probation to
life imprisonment, and a sentencing judge might feel after having taken an
overall view of the matter that all he could finally do was to decide on the
appropriate sentence;
(3)
The judge appeared to have been concerned to achieve a just result of the
crimes when taken together. However, the offences were inextricably linked
and the better sentencing practice would have been to impose an appropriate
sentence on each of the counts making the sentences concurrent. While the
proper sentence for manslaughter in such circumstances was 12 years’
imprisonment, the proper sentence for the robbery might well have been in the
region of 7 years. However, the sentences imposed were not a day too long.
Result – Application dismissed.
251
ccab 1999
MA 501/99
Burrell J
(4.10.99)
*A A Bruce
SC
& G DiFazio
#L Lok SC &
David Ma (1)
Cheng Huan
SC & Leo
Chan (2)
Gary Plowman
SC
& P Duncan
(3)
Sentence (Principles)
(1) LOK
Kar-win
(2) CHAN
Chi-keung
(3) WAI
Kwanlung
Meaning of ‘any person’ in s 25(1) of OSCO/Offence under s 25(1) of OSCO
does not require proof that conduct criminal in country where it
occurred/Reversal of ruling in course of trial
《 有 組 織 及 嚴 重 罪 行 條 例 》 第 2 5 （1 ） 條 內 ‘ 任 何 人 ’ 一 詞 的
意 義 - 《 有 組 織 及 嚴 重 罪 行 條 例 》 第 2 5 （1 ） 條 所 訂 罪 行 沒
有規定須證明有關行為在它所發生的國家屬刑事罪行 - 在審
訊過程中推翻先前的裁定
The Appellants were each convicted of an offence of dealing with the
proceeds of an indictable offence, contrary to s 25(1) of the Organized and
Serious Crimes Ordinance, Cap 455.
The case for the prosecution was that the Appellants, who were
professional footballers, were involved in a match-fixing scheme when they
represented Hong Kong against Thailand in a World Cup qualifying match in
Bangkok in 1997. It was alleged that they were parties to a plan whereby
Hong Kong would lose the match, preferably by a score of 2-0, and they would
then collect gambling winnings as a result. The convictions under s 25(1)
were based on the fact that they received $30,000 each as winnings upon their
return to Hong Kong. A key feature of the trial was that an accomplice in the
scheme, PW1, was at first excluded from giving evidence as a result of a
preliminary decision made by the magistrate, but was later allowed to testify
after the magistrate reversed his decision.
The first ground of appeal involved s 25, Cap 455, which read:
25.
Dealing with property known or believed to represent proceeds of an
indictable offence.
(1)
Subject to section 25A, a person commits an offence if,
knowing or having reasonable grounds to believe that any
property in whole or in part directly or indirectly represents
any person’s proceeds of an indictable offence, he deals with
that property. ...
(2)
In this section and section 25A, references to an indictable
offence include a reference to conduct which would
constitute an indictable offence if it had occurred in Hong
Kong.
The Appellants contended that the convictions were wrong in law for
two reasons. First, the section was not designed to catch the person who dealt
in the proceeds of his own offence. It was only intended for the person who
dealt in the proceeds of an indictable offence committed by another person.
Second, it was submitted that before a person could be found guilty under s
25(1) where it was alleged that conduct took place outside Hong Kong it had to
be proved that the conduct constituted a criminal offence in the country where it
happened. In this case the allegation was that there had been a conspiracy to
cheat at gambling in Thailand but because no evidence was adduced to prove
that that was a criminal offence in Thailand, an essential ingredient of the
offence had not been proved and the Appellants had no case to answer.
The second ground of appeal was that the magistrate’s decision to
reverse his earlier ruling that the evidence of PW1 was inadmissible was a
material irregularity and that his reasons for doing so were flawed thus
rendering the convictions unsafe and unsatisfactory. It was submitted, inter
alia, that a magistrate or judge could not reverse a ruling simply because he
changed his mind and thought his earlier ruling was wrong.
252
ccab 1999
Sentence (Principles)
Held :
(1)
The Ordinance included provisions designed to deal with money
laundering and criminal conduct with an international ingredient. It was
plainly within the contemplation of the legislators to catch both the bank robber
and any person who later dealt in the proceeds of the robbery regardless of
whether the later dealer was the robber himself or someone else. Stealing
money and then, by separate conduct, dealing with that money in some way
were two separate offences in Hong Kong and could be committed by the same
person. Had the legislators wanted to exclude the original perpetrator from s
25(1) they could easily have done so and would have done so. Such an
intention would have been a simple drafting exercise such as the one employed
in the definition of handling stolen goods where the expression ‘otherwise than
in the course of stealing’ was used;
(2)
The court was not persuaded that the existence of other subsections in s
25(1) and s 25A, which plainly did refer to a different person receiving the
proceeds other than the original perpetrator, was an argument for saying that the
whole section only contemplated such a category of offender. Provisions such
as the one referred to were plainly essential for the proper operation of the new
law but to say their inclusion must result in the exclusion of the original
offender from the whole section could not and did not follow;
(3)
Once it was accepted that fundamental to the legislation was the strict
law of Hong Kong determining what was and what was not ‘ill gotten gains’ or
‘dirty money’, then it was far from absurd to say ‘don’t bring your ill gotten
gain to Hong Kong’. It was Hong Kong’s standards as to what was or was not
‘ill gotten’ which mattered, not the standards of the foreign country where the
profit was made. The logic of the submission made was that one man could go
to country A where, say for example, cheating at gambling was not a criminal
offence, then bring his winnings into Hong Kong yet not contravene s 25(1),
whereas another man might do precisely the same thing in country B where it
was an offence and be guilty under s 25(1). That would be absurd because
such a man could bring money into Hong Kong from a country whose standards
were lower than Hong Kong’s but not from a country which had the same
standards as Hong Kong;
(4)
Hong Kong was concerned with its own perception of what should be
regarded as criminal activity, not the standard of foreign countries and therefore
the section spelt out in s 25(4) that the determining factor was the conduct
complained of and not whether that conduct happened to be an offence in the
foreign country. Section 25(4) was specific and unambiguous and catered
exactly for the situation where there had been conduct abroad and not where
there had been the commission of a foreign offence abroad;
(5)
In Pepper v Hart [1993] AC 593, Lord Browne-Wilkinson had stated
that references to parliamentary material could be made where:
(a) Legislation is ambiguous or obscure, or leads to an
absurdity; (b) the material relied on consists of one or more
statements by a minister or other promoter of the Bill together, if
necessary, with such other parliamentary material as is necessary
to understand such statements and their effect; (c) the statements
relied on are clear. Further than this, I would not at present go.
The words of the section were clear and did not require an investigation of the
LegCo debate to resolve an issue of interpretation;
(6)
It was worthy of note that the section by the use of the words ‘indictable
offence’ recognised that it was concerned only with what was regarded in Hong
253
ccab 1999
Sentence (Principles)
Kong as the more serious types of criminal conduct. Thus a person making a
profit from lawful conduct abroad which was merely a summary offence in
Hong Kong would be excluded from s 25;
(7)
It was open to a judge or magistrate to change or reverse an earlier ruling
made by him in the same proceedings when information or evidence came to
light which caused the judge or magistrate to conclude that (a)
his earlier ruling was wrong, and
(b)
to continue the proceedings based on the earlier ruling would
not be in the interests of justice, and
(c)
to continue the proceedings based on the new ruling would not
prejudice a fair trial.
Result - Appeal dismissed.
AR 2/99
Nazareth &
Stuart-Moore
VPP
Keith JA
(9.12.99)
*K P Zervos
#Juliana Chow
SJ v
MAK Wai-hon
Review of sentence/Court reviewing sentence in ignorance of another
sentence/Re-listing of review/Court not functus officio
覆核刑罰 - 法庭覆核刑罰時不知道被告人在另一宗案的判刑
- 再排期覆核 - 法庭的權責未終結
On 28 January 1999, the Respondent was sentenced by Judge Davies to
suspended terms of imprisonment for two offences relating to the possession of
infringing copies of copyright works. On 8 September 1999, the Court of
Appeal granted the Secretary for Justice’s application for a review. The
sentences imposed were set aside, and the Respondent was sentenced to 6
months’ and 9 months’ imprisonment on the two charges, to be served
concurrently with each other, making 9 months’ imprisonment in all.
However, the Court of Appeal had not been told that the Respondent
had, on 8 February 1999, (i.e. less than two weeks after he had been sentenced
by Judge Davies), been sentenced to terms of imprisonment of immediate effect
by Judge Toh for three similar offences relating to the possession of infringing
copies of copyright works. He was sentenced to terms of 16 months’, 12
months’ and 2 months’ imprisonment on the three charges, to be served
concurrently with each other, making 16 months’ imprisonment in all. Had the
Court of Appeal been told that on 8 September 1999, it would have had to
consider whether the sentences totalling 9 months’ imprisonment which it was
imposing continued to be appropriate, and whether they should be served
consecutively to or concurrently with, or partly consecutively to and partly
concurrently with, the sentences totalling 16 months’ imprisonment imposed by
Judge Toh. The sentences imposed by Judge Toh had recently been brought to
the attention of the court by the Commissioner of Correctional Services, who
wished to compute the date on which the Respondent was to be released from
prison. Having received such a notification, the court ordered that the case be
re-listed for hearing.
Held :
(1)
Sentences of imprisonment took effect from the date on which they were
imposed, unless the court ordered that the sentence should take effect from
some other date. Even then, though, the court could only make such an order
pursuant to a specific power to do so. The Court of Appeal had the power to
do so on 8 September 1999. That was because s 82(1) of the District Court
Ordinance provided:
Where the Court sentences any person to undergo a term of
imprisonment for an offence, and such person is already
undergoing … imprisonment for another offence, it shall be lawful
254
ccab 1999
Sentence (Principles)
for the Court to direct that such imprisonment shall commence at
any time during or at the expiration of the term of imprisonment
which such person is then undergoing ...
Although ‘the Court’ was defined in section 2 as meaning ‘the District Court’,
the powers conferred on the Court of Appeal by section 81B(1)(a) of the
Criminal Procedure Ordinance were to be construed as sufficiently wide to
permit the Court of Appeal to pass such sentences as the District Court was
empowered to pass. The critical question was whether the Court of Appeal
still had the power to make an order providing for how the sentences it imposed
on 8 September 1999 were to be served;
(2)
There must come a time when the court had to be regarded as having
completed its task. When that time was reached, the court was said to be
functus officio. At that stage, the court had no jurisdiction over the case: R v
Cross [1973] 2 WLR 1049. The principle that once the judgment had been
finally recorded the inherent power to vary it was lost applied to the Court of
Appeal of Hong Kong as it did to any other court of record. As regards the
issue of when an order of the Court of Appeal in an application for a review of
sentence was ‘finally recorded’, Rule 62(1) of the Criminal Appeal Rules
provided:
On the final determination of any appeal the Registrar shall give to
the appellant, if he is in custody and has not been present at such
final determination, and to the Commissioner of Correctional
Services notice of such determination …
Although that was a reference to an appeal, it applied also to an application for
review under s 81A of the Criminal Procedure Ordinance. As the Respondent
was present on 8 September 1999, the notice had only to be given to the
Commissioner of Correctional Services.
That notice was given on 8
September 1999. It followed that, but for the following point, the court was
functus officio from that date;
(3)
In R v Wong Tak-sing [1990] 1 HKC 155, the court recognised a power
to reconsider a matter if it had never properly been determined owing to some
procedural error or mistake, and this had resulted in a likelihood that injustice
had been done: both ingredients were necessary. The impact of the sentences
imposed by Judge Toh on the sentences to be considered on 8 September 1999
was never determined as a result of whatever mistake it was which caused the
sentences imposed by Judge Toh not to be brought to the attention of the court.
But it could be said that an injustice had been done to the Respondent, bearing
in mind that as a result of the mistake the sentences, if unaltered, would have
taken effect on 8 September 1999, and would therefore have been served
concurrently with the sentences imposed by Judge Toh. Where a defendant
had been sentenced for one group of offences on one occasion, and shortly
afterwards had to be sentenced for another group of offences, the court on the
latter occasion should approach the question of sentence as if the two groups of
sentences had been heard together. If it were otherwise it would be difficult to
give effect to the totality principle. That especially applied where, as here, the
offences were of a similar kind. So if on 8 September 1999 the court had
known of the sentences which had been imposed by Judge Toh, the court would
have had to decide, having regard to the totality principle, what should have
been the Respondent’s total sentence. As the Respondent suffered an injustice
as a result of the mistake which denied him the opportunity to have the totality
of his criminality determined by the Court of Appeal, the court was not functus
officio, and the sentences imposed on 8 September 1999 could be reconsidered.
Result - The sentences imposed on 8 September 1999 would be served
concurrently with the sentences imposed by Judge Toh.
255
ccab 1999
Sentence (Principles)
Obiter - Those responsible for bringing criminal cases to court and for listing
them were to be reminded of the desirability of persons facing two
groups of offences being sentenced by the same judge on the same
occasion. [This issue is considered further in Sentencing in Hong
Kong 2nd ed, at 260: Ed]
CA 188/99
Stuart-Moore
VP
Leong &
Wong JJA
(2.12.99)
*Robert S K
Lee
& Sharman
Lam
#A C Macrae
SC
&L
McGuinniety
CHIANG
Tsui-yan
Fraud on large scale/Reduction in discount for guilty plea/ Factors
justifying departure from customary one-third/ Sentence must reflect
overall criminality
嚴重的欺詐行為 - 削減認罪後的減刑幅度 - 促致可合理地
偏離慣常三分之一減刑幅度的因素 - 判刑須反映整體刑責
The Applicant was sentenced to 4 years and 4 months’ imprisonment
after he pleaded guilty to 13 charges of false accounting, contrary to s 19(1)(a)
of the Theft Ordinance, Cap 210.
In sentencing, the judge, who described the case as a substantial fraud,
which had caused a huge loss to a bank of HK$20,000,000, over a period of 12
months, took a starting point of 6 years’ imprisonment and reduced it by 14
months, which was about 19.5% in recognition of plea. He gave the Applicant
a further discount of 6 months for previous good character. If those 6 months
and 14 months were added together, the discount was about 27.7%.
The Applicant was arrested on 25 September 1991, but absconded on 15
November 1991 while on police bail. He was re-arrested on 5 August 1998
after he was deported from the Mainland. He was then charged with the 13
offences.
On appeal, it was submitted, inter alia, that the discount was not
sufficient.
The judge explained his decision not to grant the Applicant a full onethird discount in these terms;
Following his re-arrest and charging, he indicated his intention to
defend these charges. He went further by indicating through his
counsel at one pre-trial review, that he proposed to challenge the
allegation of forgery, insisting that the contracts contained the
genuine signatures of Mr Bernstein. As a result, and because
Mr Bernstein had declined to come to Hong Kong to give evidence
in person, the prosecution applied and was granted by the High
Court a letter of request to have the witness examined and testify in
the USA for the purposes of a trial in Hong Kong. Consequently,
counsel for both the prosecution and defence (the defendant being
funded by the Legal Aid Department) went to the USA and
returned with Mr Bernstein’s evidence supporting forgery.
Notwithstanding this, the defendant persisted in his stance and
further time was then allowed to him at his request to obtain a
handwriting expert’s opinion. It was only following this that the
court was notified on his behalf some two weeks or so ago, that he
had decided to resist these charges no longer and would plead
guilty.
Held :
(1)
The practice of the courts in Hong Kong was normally to give a discount
of one-third to the accused who pleaded guilty. If that was not done, there had
to be a substantial reason for the failure to give the normal discount. The
matters alluded to by the judge were ones which could legitimately be taken into
consideration in deciding that the percentage of the discount could be reduced.
256
ccab 1999
Sentence (Principles)
The judge was also entitled to have regard to the fact that the Applicant had
absconded from the jurisdiction after he was arrested and put on police bail as
another factor relevant to discount;
(2)
The decision in R v Kwok Yee, William, Cr App 452/93, did not
establish, nor was intended to establish any principle that there should be an
automatic one-third discount on a plea of guilty in such cases as the present one,
where the Applicant absconded on bail and demonstrated in other ways that his
pleas of guilty were only tendered in the very last resort. These were not
timely pleas of guilty; they were a tactical ploy to gain credit when all else had
failed. The Applicant was on the run for almost seven years and he must have
known that the prosecution would by then have had great difficulty in proving
their case. The Applicant played the system for all it was worth and the judge
was fully entitled to reduce the discount the Applicant might in normal
circumstances have received if he had faced up to his trial and pleaded guilty
straight away;
(3)
If the judge had adopted a global approach to discount, by lumping the 6
months for good character and 14 months together, the Applicant would have
received a discount of 20 months or 27.7%, which was very substantial. The
sentence imposed in every case had to reflect the overall criminality of the
offender. A sentence of 4 years and 4 months for a fraud of this magnitude
could not be considered to be manifestly excessive or wrong in principle.
Result - Application dismissed.
CA 399/99
Stuart-Moore
VP Leong JA
&
Gall J
(24.11.99)
*Gavin Shiu
#Paul Tong
LO Shiu-wah
Guilty plea/Discount reduced after accused absconded/Arrival at Lo Wu
not voluntary surrender
承認控罪 - 被告潛逃後，法庭削減減刑幅度 - 被告來到羅
湖並非自願投案
The Applicant pleaded guilty to a charge of theft.
The facts showed that the Applicant was invited by two others to join
together to operate a seafood restaurant in 1993. The Applicant had day-today charge of the running of the restaurant. The two other partners contributed
capital in the sum of $250,000 to the operation of that restaurant, and when
entering his plea the Applicant admitted theft of $40,000 of that capital. There
had been no restitution.
Whilst awaiting trial in 1994, the Applicant absconded and was rearrested in March 1999 as he sought re-entry to Hong Kong at the Lo Wu
Border Crossing.
The judge took 2 years as her starting point, basing her decision upon the
amount stolen, the fact that the Applicant was in a position of trust in respect of
his partners, and that he took the sum of money soon after the business had
started. She reduced the term to 18 months to reflect the guilty plea and the
clear record.
On appeal, it was submitted, first, that the judge erred in adopting 24
months as the starting point, as that was too high. Second, it was said that where
the Applicant had a clear record and voluntarily returned to Hong Kong to ‘face
the music’, the judge should not have departed from the usual one-third discount
in sentence. Third, it was contended that, albeit that a custodial sentence was
not wrong in principle, the sentence was manifestly excessive.
257
ccab 1999
Sentence (Principles)
Held :
(1)
In light of R v Barrick (1985) 81 Cr App R 78, which, in 1993, was the
authority most generally used in the sentencing of cases involving theft,
particularly when a breach of trust was involved, and which would have been
applicable had the Applicant stood trial in 1994, a starting point of 12 months’
imprisonment should have been adopted;
(2)
It could not be argued that this was a voluntary surrender, as the
Applicant had done no more than to present himself at the Lo Wu checkpoint
and seek entry to Hong Kong. In the absence of any other act by the Applicant
to indicate that he was surrendering, the inference to be drawn from the
circumstances was that he was attempting to re-enter Hong Kong to continue his
life and avoid the consequences of his previous acts;
(3)
As regards the submis sion that the Applicant ought to have been given
the full one-third discount on the basis that, as he had eventually pleaded guilty,
he was in the same position as any other accused who pleaded guilty prior to
trial, it had been said by Keith JA in HKSAR v Poon Chum-kong CA 228/99,
that:
The reason why so much time elapsed before his trial was because
following his arrest he had been granted bail, but he had
absconded by the time his trial was due to take place. His cash
bail was estreated. It was said that he had gone to the Mainland
where he worked as a hawker, and that he was re-arrested
following his return to Hong Kong. The Applicant has today
claimed that he voluntarily surrendered himself to the police, but
the undisputed facts are that he only admitted who he was when the
police had themselves discovered his identity and had gone to his
home to re-arrest him.
The judge took 12 years’ imprisonment as his starting point. No
criticism can be made of that. It was in accordance with the
tariffs laid down in Lau Tak Ming [1990] 2 HKLR 370, in which it
was said that trafficking in between 200 and 400 grammes of hard
drugs such as heroin should attract a term of imprisonment
between 12 and 15 years ...
The critical question is whether the judge gave the Applicant a
sufficient discount for his plea of guilty. The Applicant’s codefendant had been sentenced to 8 years’ imprisonment by another
judge in 1994 at the original trial which the Applicant failed to
attend. He had pleaded guilty to the same charge as the
Applicant eventually pleaded guilty to. Deputy Judge Wong
assumed that the previous judge had likewise taken 12 years’
imprisonment as his starting point, and had discounted the
sentence by one-third to reflect the co-defendant’s plea of guilty.
Deputy Judge Wong decided that, because the Applicant had not
answered to his bail, he should not be given the same one-third
discount which his co-defendant had received. Instead, he gave
the Applicant a discount of one-quarter only. In reducing the
discount, Deputy Judge Wong was acting entirely in accordance
with previous decisions of the Court of Appeal in Yiu Tat Choy
(CA 613/97) and Choi Wing Wah [1998] 4 HKC 373.
One of us was initially concerned about that approach. A person
admitted to bail who fails to surrender to custody when called
upon to do so commits an offence publishable with imprisonment:
see section 9L of the Criminal Procedure Ordinance (Cap 221).
To deny a defendant who absconded the discount for his plea of
258
ccab 1999
Sentence (Principles)
guilty which he would otherwise have been given could be said to
be tantamount to punishing him for committing that offence. He
is, in effect, serving an additional sentence for having absconded
when he had not been charged with that. It could be said that it
was wrong to treat the defendant in a way which has the effect of
him receiving an additional sentence of imprisonment for an
offence for which he had never been charged.
However, any initial misgivings about that approach have now
been laid to rest. The reason why the discount is reduced in these
circumstances is because the plea of guilty is not tendered at the
earliest opportunity.
Indeed, the effect of the Applicant
absconding was that there had to be a second trial. He was not
therefore being punished for absconding. He was being denied
the discount to which he would otherwise have been entitled
because of the consequences of his absconding, namely that his
plea of guilty was in the circumstances a late plea and that a
second trial was necessary. If one of the justifications for giving
a discount for a plea of guilty is the saving of the expense of a
contested trial, that was to some extent neutralised in the present
case by the expense of an albeit short second trial.
Although in the present case no second trial was needed, the effect of a long
delay such as five years in this case was that evidence was lost, witnesses were
harder to locate and the memory of witnesses was affected by the long period of
time. Greater difficulties arose in the preparation of the trial, greater work had
to be done to obtain the witnesses and to prepare the matter for an effective
prosecution and hearing. It was a matter which occasioned the authorities and
the courts greater expense and time. That being so, the judgment of Keith JA
accurately reflected the position and the judge rightly reduced the one-third
standard discount to one of one-quarter. A person who absconded while
awaiting trial and returned after a long period of time, and then pleaded guilty
when he finally faced trial, could not necessarily expect to get the same discount
when finally sentenced as he would have done had he faced trial in the first
place and entered a plea of guilty then.
Result - Appeal allowed. Sentence of 9 months’ imprisonment substituted.
CA 111/99
Stuart-Moore
VP Wong JA
&
Woo J
(29.10.99)
*P Madigan
#J McGowan
CHU
Sin-chung
Discount for good character not automatic/Nature of offence and
circumstances relevant to discount
具有良好品格並不會自動獲得減刑 - 減刑要視乎罪行的性質
與案情
The Applicant was convicted after trial of two charges of blackmail and
one charge of claiming to be a member of a triad society. He was sentenced to
imprisonment for two years each on the blackmail charges and 12 months’
imprisonment on the charge of claiming to be a member of a triad society. The
judge ordered that 6 months of the sentence on the second charge of blackmail
was to run consecutively to the sentence of 2 years on the first charge of
blackmail, and the sentence of 12 months’ imprisonment imposed on the third
charge of claiming to be a member of a triad society was ordered to run
consecutively to the sentence on the first charge.
On appeal, it was submitted, inter alia, that the trial judge erred in failing
to give the Applicant the credit from the 2 years ‘starting point’ for his previous
record. Reliance was placed upon R v Chan Ka-choi [1988] 1 HKLR 530,
where, at 534, Power JA said:
Once the offender has been found guilty of the offence the court
must, leaving aside personal circumstances and previous record,
make an assessment as to the proper sentence to be imposed given
259
ccab 1999
Sentence (Principles)
the type of offence and the circumstances of its commission.
When this has been done the court must give credit for absence of
previous convictions and for personal circumstances.
Held :
Whether a discount was given or not for good character depended on
many factors, among which were the nature of the offence and the
circumstances of the facts of a particular case.
Result – Application dismissed.
Sexual Offence
FAMC 31/98
Litton
Ching &
Bokhary PJJ
LEUNG
Sun-keung
Directed acquittal on one count/Acquittal does not mean evidence on that
count can never be used on a different count/Reliance on such evidence not
inconsistent with acquittal
其中一項罪名獲法官引導裁定無罪 – 獲裁定無罪不表示這項
罪名的證據不可以用於另一項不同的罪名 – 依賴這些證據並
非與獲裁定無罪不一致
(25.1.99)
*J R Reading
#A A Hoosen
The Applicant faced two counts of rape. The first, upon which he was
convicted, was one of rape. The second, upon which he was acquitted upon a
directed verdict after a submission of no case to answer, was one of
administering drugs to obtain or facilitate an unlawful sexual act. He applied
to the Court of Appeal for leave to appeal against the conviction on the first
count but that application was dismissed. Subsequently, the Court of Appeal
certified a point of law of great and general importance. That point was:
Where an accused has been found not guilty of an offence
(following a ruling of no case) on technical grounds is the
evidence showing that he committed the acts alleged in that offence
(and is therefore in fact guilty of that offence) admissible against
him in respect of another offence?
The Applicant gave no evidence at trial. From the prosecution case it
was clear that the girl had been drugged to the extent that she was unable to give
her consent to an act of sexual intercourse. Nonetheless, she was involved in
such an act at the time and place alleged. It was the Applicant who had
intercourse with her in circumstances in which the jury were well entitled to
find that he knew she was not capable of giving consent. There was evidence
that it was the Applicant who had brought the drugs with him, that it was he
who had put a large amount of it into a bottle of orange juice, shaken the bottle
to dissolve the drug and then passed it to her to drink. That evidence was
given by two accomplice witnesses.
The second count was laid under s 121(1) Cap 200:
A person who applies or administers to, or causes to be taken by,
another person any drug, matter or thing with intent to stupefy or
overpower that other person so as thereby to enable anyone to do
an unlawful sexual act with that other person shall be guilty of an
offence.
260
ccab 1999
Sexual Offence
By subsection (2) it is provided:
A person shall not be convicted of an offence under this section on
the evidence of one witness alone, unless the evidence is
corroborated in some material particular by evidence implicating
the accused.
The trial judge acceded to the submission of no case to answer on the basis that
the only witnesses on this count were accomplices and could not corroborate
each other. The count was therefore withdrawn from the jury’s consideration.
Notwithstanding the acquittal on the second count, when he summed up
to the jury on the rape count the judge directed them fully on the evidence as to
the Applicant’s part in drugging the girl. The Applicant submitted that he
should not have done so (1) because it was an attempt by the prosecution to go
behind the acquittal, (2) because the evidence had been adduced as the very
essence of the second count and (3) because the evidence of guilt was
overwhelming on that count. Therefore, it was said, the judge wrongly asked
the jury to rely on evidence which showed that the Applicant was guilty on that
count despite the acquittal.
Held :
Notwithstanding that the Court of Appeal had certified the point of law,
leave had to be refused as the point was clear. As a result of the acquittal on
the second count the Applicant could not be tried on it again and the acquittal
was final and binding. That was not to say that the evidence in respect of that
count could never be used against him on a different count. The Court of
Appeal held rightly that reliance upon the evidence in question was not
inconsistent with the acquittal. A finding of guilt by a jury on that count
would mean positive findings on each of the elements in section 121. An
acquittal by the jury would mean only that at least one of those elements had not
been proved to their satisfaction, such as that the accused had none of the
necessary intentions when he caused the drug to be taken. The count of rape
was very different from the count under section 121 and there was no law
prohibiting evidence relating to or the crux of the latter being used in relation to
the count of rape where it was relevant or material. The evidence on the
second count was clearly relevant to the rape count.
Result - Application dismissed.
261
ccab 1999
Sexual Offence
香港特別行政區 訴 黃盛中
HKSAR v WONG Shing-chung
*陸貽信
Arthur Luk
高等法院上訴法庭 – 高院刑事上訴 1999 年第 66 號
高等法院上訴法庭法官梁紹中
高等法院原訟法庭法官胡國興
高等法院原訟法庭法官彭鍵基
一九九九年六月二十二日
COURT OF APPEAL OF THE HIGH COURT CRIMINAL APPEAL NO. 66
OF 1999
LEONG JA, WOO J AND PANG J
22 JUNE, 1999
#駱應淦及黃
達華
Lawrence Lok
SC
and
Richard Wong
強姦 - 以受害人同意作為辯護 - 驗證被告是否真的相信受
害人同意 - 法官提到要有合理理由相信是犯了錯誤
上訴許可申請人就一宗強姦案在聆訊後被裁定罪名成
立。
上訴時 ，申請人代表律師提出數個上訴理由，其中 指
法官引導陪審團考慮申請人是否相信受害人同意性交時，加
添 一 項 考 慮 因 素， 就 是 申 請 人 的 信 念 必 須 是 誠 實 的 和 有 合 理
的 基 礎 。 申 請 人 代 表 律 師 引 用 R v Morgan [1976] A C 8 2 及 R v
K w o k T a t -m i n g C r A p p 3 0 4 / 9 6 兩 案 來 支 持 他 說 的 驗 證 標 準 ， 這
個驗證標準是申請人是否“真實相信 ”受害人同意與他性
交；即使申請人是基於錯誤或不合理之理由而產生這個信念
亦無關係。
裁定︰
法官指示陪審團考慮申請人的信念時，不應加入申請
人 的 信 念 必 須 有 合 理 理 由 的 因 素。 陪 審 團 可 以 考 慮 申 請 人 是
否有合理理由相信受害人是同意的 。如有的話，可顯出申請
人 可 能 真 實 的 如 此 相 信； 但 沒 有 的 話， 亦 不 等 於 申 請 人 無 可
能如此相信。因為不論申請人的信念是基於如何不合理理
由，只要他是“ 真實相信 ”就已足夠。合理理由不是必要的
因素。陪審團可能會以為即使申請人“真實相信 ”受害人同
意，但不能證明申請人如此相信是有合理基礎的話 ，便應當
拒 絕 接 受 申 請 人 相 信 受 害 人 同 意 性 交 的 答 辯， 繼 而 裁 定 他 有
罪。這導致裁決不穩當和不能令人滿意。
上訴得直。
WONG Shingchung
[English digest
of CA 66/99,
above]
Rape/Defence of consent/Test of whether accused genuinely believed that
victim consented/Judge erred in reference to reasonable grounds for belief
The Applicant was convicted after trial of one count of rape.
On appeal, it was submitted, inter alia, that when he directed the jury to
consider if the Applicant believed that the victim consented to the sexual
intercourse, the judge included an additional factor for consideration, namely,
that the Applicant’s belief had to be based on honest and reasonable grounds.
The test, it was said, in reliance upon R v Morgan [1976] AC 82, and R v Kwok
262
ccab 1999
Sexual Offence
Tat-ming Cr App 304/96, was one of whether the Applicant ‘genuinely
believed’ that the victim consented to intercourse with him, and it was irrelevant
whether his belief was mistaken or based on unreasonable grounds.
Held :
The judge should not have added the factor of reasonableness with
regard to the Applicant’s belief. The jury could consider whether the
Applicant’s belief in the victim’s consent was based on reasonable grounds. If
there were reasonable grounds for the belief, this could indicate that the
Applicant might have genuinely believed so. However, if there were no
reasonable grounds for the belief, it did not necessarily mean that the Applicant
could not possibly so believe. No matter how unreasonable might be the
grounds on which the Applicant’s belief was based, it sufficed so long as he
‘genuinely believed’. Reasonableness was not a necessary factor. The jury
might have thought that even if the Applicant ‘genuinely believed’ that the
victim consented to the intercourse but his belief was not proved to be based on
reasonable grounds, they should reject his defence that he believed the victim
consented to the intercourse and convict him. That rendered the verdict unsafe
and unsatisfactory.
Result - Appeal allowed.
CA 627/99
Chan CJHC
Wong JA &
Yeung J
(21.10.99)
*Cheung
Wai-sun &
V Chan
#WONG
Po-wing
KWOK
Kau-kan
Indecent
assault/Evidence of
multiple acts/Drafting of charge/
Corroboration/Comments on ability of single judge to ignore effects of
prejudicial material
猥 褻 侵 犯 - 涉 及 多 項 行 為 的 證 據 - 擬定控罪 - 佐證 - 就
法官單獨審理案件時是否有能力不理會有不利影響的資料一
事作出評論
The Appellant was convicted after trial in the District Court of five
charges of indecent assault. The victim was a 12 year old girl. The
prosecution’s case was that during the summer vacation in July, 1997, on a day
unknown, shortly after 6:00 p.m., the Appellant rang up the victim and asked
her to come out. When they met, the Appellant led her to a staircase and
touched her breasts over her clothes. After that, the Appellant gave her $50.
About two to three days later, the indecent assault was repeated. Those two
incidents formed the first two charges. The incidents in respect of the 3rd and
4th charges happened between November, 1997 and January, 1998 in a similar
manner. On 30th March, 1998, the Appellant committed an indecent assault
again. It was witnessed by a resident and a police officer. That was the
subject matter of the 5th charge.
Each of the first four charges charged the Appellant with one act of
indecent assault during a period of time. The fifth charge alleged that the
offence was committed on 30th March, 1998. The first charge read, ‘ … .. on a
day unknown between the 1st day of July and the 31st day of August, 1997 … ..’
The second charge read, ‘ … .. on a day unknown between the 1st day of July and
the 31st day of August, 1997, being an occasion other than the one set out in the
first charge … ..’ The third and the fourth charges were similarly worded.
On appeal, it was submitted, first, that the trial judge was wrong to allow
the prosecution to proceed, with a view to prove the commission of the offence
in relation to each of the counts, by adducing evidence of multiple acts during
the respective specified periods. It was said that the victim’s evidence
suggested that the same act of indecent assault took place on a number of
occasions and that she was unable or unwilling to give specific evidence of the
two occasions mentioned in the 1st and 2nd charges. Similarly, in respect of
the 3rd and 4th charges, the victim was not in a position to give specific
263
ccab 1999
Sexual Offence
evidence of the two occasions referred to in those charges: Chim Hon-man v
HKSAR [1999] 1 HKLRD 764. Second, it was submitted that nowhere in the
Reasons for Verdict did the trial judge make any mention of the danger of
convicting upon the uncorroborated evidence of the victim.
Held :
(1)
If the principle in Chim Hon-man was strictly applied, it would amount
to a charter for sexual offenders and might even encourage multiple offences.
There had to be a fair balance between the rights of an accused and the interest
of the community in bringing offenders to justice;
(2)
The problems facing the prosecution could be avoided in a number of
ways: (a) an appropriate formulation of the charge; (b) the giving of particulars
which sufficiently identified the particular act charged in a way that would
distinguish it from any other acts of which the prosecution intended to lead
evidence; and (c) by election to proceed on a particular act alone;
(3)
A professional judge was capable of handling evidence of multiple acts
and ignoring any prejudicial effect which it might have. He was able to focus
his mind on the evidence which was relevant to the charge before him. There
was also no question of a risk of lack of unanimity in a verdict in the case of a
trial by a single judge. A professional judge would be able to put evidence of
multiple acts aside when considering the guilt or innocence of the accused. In
the case of a jury trial, the judge might, depending on the circumstances of the
case, have to direct the jury in his summing-up to ignore evidence of acts other
than those particularized in the counts;
(4)
In respect of the 3rd and 4th charges, the evidence led from the victim
referred to more than two incidents during the period between December, 1997
and January, 1998. There was nothing in the evidence to differentiate between
the 3rd incident and the 4th incident and between those two incidents and the
other incidents. The Appellant might have been unfairly embarrassed or
prejudiced in respect of those two charges;
(5)
The absence in the Reasons for Verdict of any reference to the usual
corroborative warning was not fatal. A professional judge was expected to
have applied the correct law and procedure, unless it was clearly shown that he
had not. The important thing was whether he had indeed exercised caution in
approaching the uncorroborated evidence of the victim. Even though the trial
judge had not expressly mentioned that she had given herself the usual warning,
she did exercise great care when considering the victim’s evidence. She had
indeed exercised extra caution before reaching her verdict. In respect of the
5th charge, if the evidence of the police officer was believed, there was
corroboration.
Result - Appeals on 1st, 2nd and 5th charges dismissed. Appeals on 3rd and
4th charges allowed.
264
ccab 1999
Statement/Admissions/Confession/Voire Dire
Statement/Admissions/Confession/Voire Dire
MA 64/99
Jackson DJ
(26.1.99)
*C Ko
#C K Wong
LAM
Chin-fai
Voluntariness of admission/Duty to hold voire dire once voluntariness in
issue/No special rule for judge sitting alone
上訴人是否自願作出招認 – 自願程度一旦惹起爭議，裁判官
便有責任進行審查聆訊 – 沒有就單獨開庭聆訊的法官制定特
別規則
The Appellant was convicted after trial of an offence of possessing
dangerous drugs.
On appeal, it was submitted that the magistrate failed to conduct a voire
dire to deal with the admissibility of an alleged oral admission.
The Appellant, who was not represented at trial, was alleged by a police
officer, who asked him what the powder near his bed was, to have replied that it
was white powder. After being cautioned, it was alleged that the Appellant
replied: “Ah Sir, give me a chance, this is the remains after my consumption this
morning. It has nothing to do with my girlfriend.” When the Appellant crossexamined the officer he put it to him that they threatened him with an assault if
he did not confess, and that as a man he should make an admission instead of
letting the girl bear responsibility. The police officer denied the allegations.
The magistrate having been put on notice that the admissibility of the alleged
verbal admission was in issue, took no steps to clarify the matter or to indicate
how he intended to resolve it.
The Appellant testified at trial in his own defence, and repeated his
allegations. In his ‘findings’ the magistrate found that the Appellant admitted
possession of the drug to the police officer and that the admission was true and
was not made simply to protect his girlfriend.
Held :
(1)
The magistrate did not address the question of admissibility which was
plainly in issue. It was incumbent upon a court to deal with that question by
conducting a voire dire once the issue was raised. A failure to do so rendered
the trial materially defective;
(2)
It was made plain in R v Lee Ying-lun Cr App 633/96, that it was always
the duty of the judge to satisfy himself that inadmissible evidence was not
admitted. Special care, moreover, was expected of a judge where a person
defended himself and raised the issue in cross-examination or in evidence:
Macpherson v R [1981] 147 CLR 512;
(3) It could not be right to contend that these principles did not apply to a
magistrate or a district judge who sat as both judge and jury, and that they could
rule on the question of admissibility of evidence at the same time as determining
the general issue even without hearing from the accused specifically as regards
the admissibility question.
Result - Appeal allowed.
265
ccab 1999
CA 411/97
Power VP
Mayo &
Stuart-Moore
JJA
(30.4.99)
*A A Bruce
SC
& P Chapman
#G Plowman
SC & J
Matthews
(1) & (2)
G J X McCoy
SC
R Donald &
R Pierce (3)
Statement/Admissions/Confession/Voire Dire
(1) LAU
Kwokching
(2) LAU
Kwokhung
(3) MAK
Kamchuen
Stay of proceedings/Application to stay not based upon evidence of
prejudice/Direction on effect of delay/When direction on delay
required/Use of statement of the accused against co-accused/Position where
statement put into evidence by defence
擱置法律程序 – 擱置法律程序的申請並非基於有證據顯示對
被告人不利 – 就延誤的影響作出指引 – 何時須就延誤作出
指引 – 被告的供詞用來針對同案被控人 – 辯方將供詞作為
證據的情況
The Applicants were convicted after a trial in 1997 of one count of
conspiracy to manufacture a dangerous drug between March and November
1986. An application to stay the proceedings on the ground of delay was
refused and the trial proceeded. On appeal
Held :
(1)
The application to stay was not based upon evidence of prejudice but
upon a suggestion of a possibility of prejudice made by counsel. There was no
evidence of potential witnesses who were unable to be located or whose
memory had clouded. Further there was no evidence that any accused was
unable adequately to give details of what had occurred in 1986 because, given
the lapse of time, he simply could not recall what had happened so long ago.
Nor was there evidence that there were missing witnesses who would have
given evidence favourable to the accused. What were raised for the judge’s
consideration at the time of the application were no more than suggestions of
possibilities emanating from defence counsel. There was nothing of sufficient
merit to warrant an order staying proceedings on the ground of delay;
(2)
The judge could not be faulted for telling the jury that they had to assess
whether the witness was genuinely muddled because of the time that had
passed, or was lying and attempted to cloak his lies with a veneer of credibility
by tacitly appealing to the excuse of forgetfulness. She could hardly make
such a comment about persons who did not give evidence;
(3)
Although it was said in Henry, H [1998] 2 Cr App R 161, 168, to be
desirable in cases of substantial delay that some direction be given to the jury on
possible difficulties with which the defence might have been faced as a result of
such delay, Potter LJ nonetheless added that ‘such a direction is not to be
regarded as invariably required except in cases where some significant
difficulty or aspect of prejudice is aired or otherwise becomes apparent to the
judge in the course of the trial.’ Potter LJ added, at 170, that ‘we do not think
that any of the suggestions of possible prejudice was something which the judge,
unprompted,was obliged to bring to the jury’s attention.’ In the present case,
there were ‘suggestions of possible prejudice’ because of delay, but they were
no more than suggestions. Further, after the summing up leading counsel made
no submissions that the directions which the judge had given were inadequate.
There was no doubt that the jury were well aware of the age of the case, and the
judge, unprompted by a request for further directions, was not called upon to do
more than she did;
(4)
An accused’s statement, the truth of which he denied, when used by the
prosecution could not, as against a co-accused, be admissible to prove the truth
of its contents. It might, however, where it contradicted the evidence of the
accused, be used to demonstrate that credit should not be given to evidence that
was otherwise favourable to the co-accused. As regards the accused who made
the statement it, being an admission against interest, could be used for all
purposes:R v Rudd (1948) 32 Cr App R 138,R v Gunewardene [1951] 2 KB 600, R
v Rhodes (1960) 44 Cr App R 23;
266
ccab 1999
Statement/Admissions/Confession/Voire Dire
(5)
If an accused, as was the case in R v O’Neill [1969] Crim LR 261,
Gunewardene and Rhodes, made a statement in which he admitted that he and
the co-accused were involved in an offence and then gave evidence denying the
statement and saying that neither of them were involved then, as against him,
the statement could be put in by the prosecution to prove the truth of its
contents.As against the co-accused, it could only be used to destroy the credit of
the accused. It provided no evidence that the co-accused was involved but
could be used to destroy the accused’s credit when he said that the co-accused
was not involved. The basis for the rule was clear. The statement having
been made outside the hearing of the co-accused and never having been adopted
by him could not be evidence against him as to its truth;
(6)
Although (5) had application where the statement was put into evidence
by the prosecution, this did not have equal application when it was put in by the
defence. What was being put in issue by the defence in such a situation was
the truth of what was said and no direction was required limiting the use to
which the statement was being put.
Result -
CA 287/95
Mayo &
Stuart-Moore
JJA
Gall J
(12.5.99)
*AA Bruce SC
& A Cheang
#P Loughran
WONG
Wai-yip
Appeal dismissed.
Competency of counsel/Whether decision of counsel not to challenge
admissibility of confession flagrantly incompetent advocacy/Extent of
judge’s duty to make ruling on admissibility when not requested to do so
律師是否失職–律師決定不質疑供認的可接納性是否明顯的
不稱職訟辯–法官在沒有要求下就供認的可接納性作出裁決
的責任限度
The Applicant was convicted after trial of trafficking in a mixture
weighing 345 grammes and containing 97.78 grammes of salts of esters of
morphine (heroin). He was sentenced to 9 years’ imprisonment.
On appeal, it was submitted, first, that the judge erred in failing to rule on
the voluntariness of oral and/or written admissions alleged to have been made
by the Applicant. Second, it was said that ‘the trial was unfair due to Defence
Counsel’s errors of law, fact and approach, by his failing to act upon his
client’s instructions, by failing to argue for and seek a ruling as to the
voluntariness of the statement in a situation where his instructions were to the
effect that such circumstances surrounding the alleged oral and/or written
statements were those of assault, threat and inducement.’
Trial counsel testified that he was given instructions which revealed that
the Applicant was saying that he was subjected to a number of threats and had
been assaulted when he signed a post-record, which contained the words ‘All the
white powder are mine’, to acknowledge thereby that it was a correct record of
what had been said and done. Although counsel accepted that the statement
contained highly damaging admissions, he said there was no realistic prospect
of mounting a successful application to have the statement excluded on the
ground that it had been made involuntarily in light of various reasons. There
was, said trial counsel, having called all the evidence for the Defence, simply no
point in making the application to the judge to have the statement excluded on
the ground of involuntariness. Trial counsel, who had been called to the Bar in
1972 and had practised in criminal law continuously in Hong Kong since 1975,
explained that, tactically, he had hoped that the jury would believe that the case
against his client was a frame-up so that everything else would fall away. He
said that he thought it was not a decision that he would have taken without
consultation with the client and the representative of the Legal Aid Department.
267
ccab 1999
Statement/Admissions/Confession/Voire Dire
Held :
(1)
Counsel appeared to have made a curious decision. He could have
applied to the judge to rule upon the post-record, on the ground that it had been
made involuntarily, at the conclusion of all the evidence, however hopeless he
might have perceived that application to be. There was nothing to be lost by
making the application on an outside chance that it might succeed;
(2)
The judge was aware of the possibility that the issue might call for a
ruling from him, and if the Applicant had been unrepresented then the judge
should have made a ruling, whether called upon to do so or not, since the
Applicant would not have been deemed to know his right in law to have a
statement excluded on the ground that it was involuntary. Even here, with the
Applicant represented, it might have been a wiser course for the judge to have
given a formal ruling, even though not called upon to do so, to the effect that he
would have admitted the statement as voluntary if he had been asked to rule
upon it;
(3)
The trial judge was alive to the issues and it was safe to conclude that if
he had not been satisfied about the voluntariness of the statement he would have
ruled it to be inadmissible of his own motion. It was quite inconceivable in
Hong Kong, where the issue was commonly raised in voire dire proceedings,
and occasionally where it was raised before the jury, that the judge was not
aware of his duty in this respect;
(4)
Trial counsel had a wide discretion as to how he conducted his case on
behalf of his lay client: HKSAR v Wong Chi-keung and Others Cr App 585/96.
It could not in this case be said that counsel’s conduct was incompetent in any
degree. He was at liberty to decide for himself whether or not to object to the
admissibility of the statement or rather to seek to persuade the jury that no
weight should be attached to it in deciding the issues before them. That was a
tactical decision that had to be left to him to decide, and the courts would be
very slow to interfere with the approach taken by counsel in the conduct of their
case, unless it could be demonstrated that this amounted to flagrant
incompetence;
(5)
There was no reason for the judge to have made a ruling when he was
specifically told that this was not required at the end of the prosecution’s case
and where it was inconceivable that he would not have ruled of his own motion
if he had come to the conclusion that the evidence of the statement was
inadmissible.
Result -
Application dismissed.
268
ccab 1999
CA 615/98
Stuart-Moore
VP
Mayo JA
Woo J
(24.6.99)
*A A Bruce
SC & I C
McWalters
#A C Macrae
SC(1)
JP Chandler &
M Richmond
(2)
Statement/Admissions/Confession/Voire Dire
SJ v
(1) LAM
Tat-ming
(2) NG
Sai-hing
Judge excluding evidence/Use of trickery to obtain confession to an earlier
crime/Limited discretionary power to exclude based on unfairness/No
burden on accused to show unfairly obtained confession would prevent a
fair trial
法官剔除證據 - 佈局使被告招認早前所犯的罪行 - 法官基
於不公平理由把證據剔除的酌情權是有限制的 - 被告無責任
證明以不公平手法取得的招認供詞會妨礙公平審訊
This was an appeal against verdicts of acquittal which were entered in
the District Court after the judge had ruled that the evidence of confessions,
allegedly made by the Defendants, were inadmissible on the ground that they
were involuntary. The confessions represented a substantial part of the
prosecution’s case at trial, so that when they were ruled out the prosecution
offered no further evidence and the verdicts were then entered.
R1 faced four charges and R2 faced one charge brought under s 4(2)(a)
of the Prevention of Bribery Ordinance, Cap 201. The offences related to
dates between December 1992 and March 1993. The Respondents were
serving police officers at the material time. The prosecution alleged in charge
1 that R1 had solicited an advantage from a person nicknamed ‘Ngau Wing’ of
$450,000, ‘as an inducement to or reward for or otherwise on account of (R1)
performing an act in his capacity as a public servant, namely to use his position
as a police officer to facilitate members of the Fuk Yee Hing triad society to
carry out decoration works at housing units of Phase II of Fullview Garden at
Siu Sai Wan, Chai Wan’.
In charges 2, 3 and 4, R1 was alleged in each case to have accepted an
advantage in the sum of $150,000. Charge 5 similarly alleged that R2 had
accepted an advantage in the sum of $75,000.
Following his arrest in June 1996, the ICAC decided to use Ngau Wing
in an undercover operation with the primary object of obtaining supporting
evidence against the Respondents of the allegations that had been made. Ngau
Wing was eventually given an immunity from prosecution.
Between November 1996 to April 1997, Ngau Wing was in conversation
with both Respondents by telephone. Those calls were recorded. From time
to time, meetings with the Respondents were arranged. Ngau Wing adopted
the part of a senior triad society member and an undercover operative, known as
‘Heung Kai’, played the role of his follower and minder. Both of them were
wired with tape-recorders. In particular, Ngau Wing was instructed to talk to
the Respondents about the events relating to the charges and to attempt to draw
out admissions from them as to these events.
It was during those meetings that R2 was implicated for the first time.
It emerged that he had been with R1 when one of the three payments of
$150,000 was made and that R2 took half. By the time when the Respondents
were arrested and charged in April 1997, there were 39 tapes recording the
conversations.
At trial, it was submitted for R2 that while the use of undercover
operatives to obtain evidence of on-going criminal offences was permissible, it
was an illegitimate use of such tactics to attempt to gain evidence of confessions
to past offences. It was argued that as the challenged evidence had been
obtained as the direct result of trickery and deception, it was involuntary and
therefore inadmissible.
Those submissions found favour with the judge who found that the
Respondents had incriminated themselves as the result of the deception
practised upon them and that, but for the trick which had been practised on
them, they would in all likelihood not have incriminated themselves. In these
circumstances he ruled that the evidence of the conversations of both
269
ccab 1999
Statement/Admissions/Confession/Voire Dire
Respondents with Ngau Wing and Heung Kai was inadmissible because the
confessions which had been made were involuntary. The judge took account
of R v Lam Yip-ying [1984] HKLR 419, which provided authority for saying
that a judge must ask himself, at the conclusion of a voire dire to determine the
admissibility of a confession statement, if the prosecution had established
beyond reasonable doubt that the statement was voluntary in the sense that it
was not obtained by threats, promises, oppression or deception.
On appeal by way of case stated, the substantial issue was one of
whether it was open to the judge to exclude the challenged evidence in the
exercise of his discretion, based on unfairness, after he had found that manifest
unfairness had been practised upon the Respondents by the undercover
operatives such as to render the evidence involuntary.
Held :
(1)
The discretion to exclude evidence other than the evidence of an
admission, was considered in R v Sang [1980] AC 402. The House of Lords
there ruled that there was a discretion to exclude evidence which the accused
had been induced to produce voluntarily if the method of inducement was
unfair, and, further, that the function of a judge at a criminal trial as respects the
admission of evidence was to ensure that the accused had a fair trial according
to law;
(2)
The courts had recognised the use of informants and the employment of
deceit and trickery as necessary weapons for law enforcement: R v Lee Yi-choi
[1985] 1 HKC 578. However, in most cases it was the evidence of the crime
itself which had been gathered by such means, not evidence of a confession to
the crime earlier committed;
(3)
When the courts had to decide upon the admissibility of a confession
where trickery or deceit of some kind had been employed, each case would
depend upon its own unique circumstances. In the present case the undercover
operatives deliberately sought out the Respondents with a view to obtaining
admissions from them;
(4)
Unlike the position with other forms of evidence where the court was
considering the very limited discretionary power to exclude, there was no
requirement for a defendant to show that the use of a confession which had been
obtained ‘unfairly or by trickery’ would prevent him from obtaining a fair trial
before the confession would be ruled inadmissible on the ground of unfairness;
and
(5)
On the facts found to have been proved, it was open to the judge to
exclude the challenged evidence in the exercise of discretion based upon
unfairness.
Result -
Appeal dismissed. [On the application of the Appellant, pursuant
to s 32(2) of the Hong Kong Court of Final Appeal Ordinance, the
court certified the following question of law as being of great and
general importance:
‘Whether, as a matter of law, and if so to what extent, a
judge in criminal proceedings, in determining whether to
admit into evidence an admission made by an accused
person, is entitled, in the exercise of the discretion vested in
him to exclude an admission, where:
(1) either the judge is satisfied that the admission
was voluntarily made or there is no issue as to
the voluntariness of the admission; and
270
ccab 1999
Statement/Admissions/Confession/Voire Dire
(2) either the judge is satisfied that the reception
into evidence of the admission:
(a) is not more prejudicial than
probative; or
(b) will not affect the fairness of the
trial of the accused;
where the admission
circumstances in which:
was
made
in
(1) the accused was not under arrest
or otherwise in the custody of a
law enforcement officer at the time
of making the admission;
(2) the admission was made to a law
enforcement officer or an agent of
a law enforcement officer; and
(3) the accused was unaware at the
time of making the admission that
the person who heard or otherwise
received the admission was a law
enforcement officer or an agent of
a law enforcement officer but, had
he been aware of the true identity
and status of the officer or the
agent of the officer he may not
have made the admission?’]
CA 315/98
Nazareth VP
Wong &
Keith JJA
(27.8.99)
*A A Bruce
SC & Anna
Lai
#K B Egan
(1 & 2)
J Matthews (3)
(1) WONG
Wai-man
(2) HAU
Kingyeung
(3) LEE
Kar-yeung
Evidence/Hearsay rule/Extent to which statement of one accused may be
used against another
證據 - 傳聞證據規則 - 在甚麼範圍內一名被告的供詞可用
來指證另一名被告
After trial by jury, A1, A2 and A3 were convicted of murder, while a
fourth accused, (‘D4’), was convicted of manslaughter.
In challenging the admission into evidence of their cautioned statements,
A1 and A2 claimed that the police concocted the version of events which found
its way into the statements. The only evidence against the accused was their
own statements, and the judge repeatedly warned the jury that each statement
could only be evidence against its author. When the judge told the jury that
they had to be sure that the statements were taken as the police officers claimed
and that the contents were true, she went on to say that there was one matter in
relation to the statements that the jury could take into account in the following
way:
for one purpose, you can compare the statements, and for one
purpose only, and that is in assessing the question of how the
statements were taken, and the question of the frame-up; because
the comparisons are valid in that context and in that context
alone.
The judge then made the point that the jury could not draw inferences of
guilt against the accused from comparison of their statements but that in
considering:
the question of whether or not the statements were taken as the
police (said) they were, and in the context of the frame-up that
271
ccab 1999
Statement/Admissions/Confession/Voire Dire
has been alleged, you can compare them to see whether or not it
is likely.
The judge then referred to the discrepancy in the statements as to the
number of cartons used to dispose of the dismembered body, telling the jury
they had to consider why, if the police did engage in the alleged frame-up, they
allowed such a major difference to occur between the statements. And
likewise if A2 was coached as he claimed, why had the police not done a better
job in leaving out so many significant details, and indeed why would A2 have
said he did not intentionally kill the victim and that they were ‘manipulated by
god and ghost’. She concluded:
So, for that limited purpose - and I stress it is a very limited
purpose - you can compare the statements with a view to seeing
what was said in the context of how the statements were invented
and concocted by the police.
On appeal, it was submitted on behalf of A1 and A2 that the use of the
accuseds’ statements in that manner and the comparison between those
statements was impermissible and contrary to law. Reliance was placed upon
R v Mawaz Khan and Amanat Khan [1967] 1 AC 454; and R v Boykovski and
Atanasovski [1991] 58 A Crim R 436.
Held :
(1)
The comparison or use of each accused’s statement as suggested by the
judge seemed in terms of principle to be no different to that in Mawaz Khan.
The inconsistencies between the statements and the matters mentioned by the
judge that went to diminish their use as admissions, were apparent on their face
in the same way as the fact that the statements were made. Plainly in the way
the judge limited the use to which the statements could be put, there was no
question of the contents of the statement of one accused being used as evidence
of the truth of those contents against another;
(2)
In Mawaz Khan it had been said, at P 463, that:
The sweeping statement about statements made outside the trial
is, of course, generally true, but there are exceptions to it, as, for
example, if the statements are part of the res gestae or made by a
combination in furtherance of a common design.
If the view that the comparison made by the judge was no different from
the exception referred to in Mawaz Khan, i.e. use of a statement as
evidence not of the truth of its contents, but the fact it was made, was not
right, it must nonetheless be a legitimate exception to the general
exclusion of the use of extra judicial statements of one accused against
another;
(3)
Mawaz Khan supported rather than militated against the comparison the
judge permitted. Moreover, the use of the statements in Mawaz Khan went
somewhat further than that used by the trial judge, as was apparent from P 462:
The statements were relevant as tending to show that the makers
were acting in concert and that such action indicated a common
guilt. This is a factor to be taken into account in conjunction
with the circumstantial evidence to which reference has been
made in determining the guilt or innocence of accused persons.
Here the comparison went to the rebuttal of the accused’s allegations that the
statements were a concoction of the police. Thus, the use here of the
statements was not directly tending to indicate common guilt;
272
ccab 1999
Statement/Admissions/Confession/Voire Dire
(4)
The comparison permitted by the summing-up was not a misdirection.
Result – Application dismissed.
MA 347/99
McMahon DJ
(10.9.99)
*Maggie Yang
#Eric Kwok
LI Yau-fuk
Failure to caution suspect/Effect of breach of Rule II of Rules and
Directions/Absence of caution not of itself determinative of issue of
voluntariness
沒 有 向 疑 犯 施 行 警 誡 - 違反《 查 問 疑 犯 及 錄 取 口 供 的 規 則 及
指 示 》 第 II 條 規 則 的 後 果 - 沒 有 施 行 警 誡 本 身 並 非 決 定 警 誡
供詞是否自願提供的因素
The Appellant was convicted after trial of an offence of theft, contrary to
s 9 of the Theft Ordinance, Cap 210.
On appeal, it was submitted, inter alia, that the magistrate erred in law in
allowing the Appellant’s responses to the police officer’s enquiries into
evidence as those responses were made prior to the Appellant being cautioned.
It was said that the magistrate made no finding that Rule II of the Secretary for
Security’s Rules and Directions for the Questioning of Suspects applied, and
therefore had not considered it in her ruling at the time.
Held :
(1)
There was a breach of Rule II. The officer had evidence which
afforded him reasonable grounds for suspecting the Appellant had committed an
offence. The Appellant should therefore have been cautioned under the terms
of Rule II;
(2)
A breach of the Rules and Directions did not of itself govern the
admissibility of a statement. The fundamental question remained whether the
statements challenged were voluntary. The finding of voluntariness at which
the magistrate arrived, regardless of whether there was a breach of the Rules
and Directions, could not be challenged;
(3)
In many cases the failure to caution a suspect in breach of the Rules and
Directions was a factor which caused a court doubt as to the absence of
oppression or threat or some other alleged impropriety. But it was a factor
only. After taking account of the absence of a caution, a court might be
satisfied nevertheless that the statements of the defendant were voluntary. The
absence of a caution was one matter of fact, albeit an important matter to be
taken into account, but was not by itself determinative of voluntariness.
Result - Appeal dismissed.
273
ccab 1999
CA 42/99
Stuart-Moore
VP Wong JA
&
Woo J
Statement/Admissions/Confession/Voire Dire
CHAN
Ka-chun
Rules and Directions for questioning of suspects/Effect of
breach/Admissibility linked to voluntariness/Residual discretion to
exclude/Exercise of discretion to allow witness in fear to testify through
video link
查問疑犯的規則及指示 - 違反規則的後果 - 供詞可否接納
關乎供詞是否自願作出 - 豁除證據的剩餘酌情權 - 行使酌
情權容許在恐懼中的證人以電視直播聯繫方式作證
(17.11.99)
*P S Chapman
#W Stirling
The Applicant was indicted with Chan Ki-nang in an indictment
containing 10 counts. The Applicant was D1 and Chan was D2 in the
amended indictment. After a trial, he was convicted by unanimous verdicts on
all counts of conspiracy to commit robbery (counts 1, 3, 6 and 9), murder
(counts 2, 4 and 10), conspiracy to commit murder (count 5), and rape (counts 7
and 8). He was sentenced to life imprisonment for the murders and sentences
for the other offences ranged from 8 to 18 years totalling 26 years’
imprisonment to be served concurrently with the life sentences.
A third man, Leung Sze-lai, pleaded guilty to counts 6, 7, 8, 9, 11 and
12, and was sentenced to a total of 12 years’ imprisonment.
The evidence showed that Miss Kwok Yin, the victim in counts 5, 6, 7
and 8, reported to police on 27 January 1997 that she had been raped and robbed
by two men in Cheung Chau on 21 January 1997. The police immediately
started enquiries and as a result arrested Leung Sze-lai on 1 March 1997.
During his interview with the police Leung implicated the Applicant who was
arrested by the police that afternoon. The rest of the prosecution case was put
by the judge to the jury in these terms:
This case has been about four separate incidents. And, each
incident concerns what happened to one particular young woman.
I shall list them for you chronologically. The first incident I shall
call the ‘Cheung Chau burial case’. The prosecution say there
that both the 1st and the 2nd defendants conspired together to rob
Miss Cheung Wah-mei in about June of 1996, and then murdered
her. That incident is covered by the first two counts in the
indictments.
The second incident I shall call the ‘Hung Hom case’. There the
prosecution alleged that again both the 1st and the 2nd defendants
conspired to rob Miss Tam Ngan-hang in August of 1996 and then
murdered her. This incident is covered by the 3rd and 4th counts
in the indictment.
The third incident I shall call the ‘Kwok Yin incident’. The
prosecution alleged there that on about 21 January 1997, the 1st
defendant and Leung Sze-lai conspired together to rob Kwok Yin
and also conspired together to murder her. Also it is alleged that
on 21 June the 1st defendant and Leung Sze-lai both raped her,
and on the next evening of 22 January, the prosecution say that the
1st defendant raped her again. This incident is covered by counts
5, 6, 7 and 8.
Finally, there is the fourth incident which I shall refer to as the
‘Shatin Shing Mun River case’. Here the prosecution say that the
1st defendant and Leung Sze-lai conspired to rob Miss Yu Wai-man
on February 17 of 1997 and the 1st defendant then murdered her,
whilst Leung Sze-lai is guilty of her manslaughter. This is in
counts 9 and 10 of the indictment.
The Applicant was interviewed by Detective Sergeant Fan. The first
interview took place between 19:44 hours and 20:36 hours on 1 March 1997.
274
ccab 1999
Statement/Admissions/Confession/Voire Dire
The interview was in connection with the rape of Miss Kwok and was video
recorded. The Applicant was cautioned for rape. There were subsequent
interviews on 2 March and 3 March 1997 by the same officer which were also
video recorded. The information provided by the Applicant in the interviews
amounted to a full confession of each offence of which he stood indicted.
On appeal, it was submitted, as the first ground of appeal, that it was a
general principle of law that where a person was in custody for a particular
offence and began to make an admission to a more serious offence unrelated in
any way to the offence for which he was under caution he should, without
delay, be cautioned for the more serious offence. D/S Fan, it was said, was in
breach of that principle when he failed to caution the Applicant during the
interview on 1 March 1997, when the latter began to make admissions
concerning an offence unrelated to Miss Kwok Yin. The Applicant was
arrested and cautioned for raping Miss Kwok. There was also, it was
submitted, a failure to observe principle (d) in the introduction to the Rules
and Directions which, it was said, was a mandatory requirement under the
common law. Principle (d) stated:
that when a police officer who is making enquiries of any person
about an offence has enough evidence to prefer a charge against
that person for the offence, he should without delay cause that
person to be charged or informed that he may be prosecuted for
that offence.
The failure to comply with principle (d) followed by the failure to administer
the appropriate caution under Rule III was a serious breach of the law and
rendered the confession involuntary.
The second ground of appeal alleged that there was a material
irregularity in that the judge ought not to have permitted Miss Kwok to give her
evidence by way of video link. She was a mature woman who should not have
been categorised as a witness ‘in fear’. By allowing her to testify in that way
the judge had caused prejudice and unfairness towards the Applicant in relation
to the charges concerning Miss Kwok. It was contended that any fear she
might have had that the Applicant would exact revenge on her was just as
present whether she gave evidence on video link or in the witness box. The
Applicant could still see and recognise her.
Held :
(1)
Principle (d) in the Rules and Directions had to be read in conjunction
with principle (e) which was overriding and applicable to all cases. It read:
that it is a fundamental condition of the admissibility in evidence
against any person, equally of any oral answer given by that
person to a question put by a police officer and of any statement
made by that person, that it shall have been voluntary, in the sense
that it has not been obtained from him by fear of prejudice or hope
of advantage, exercised or held out by a person in authority, or by
oppression.
From principle (e) it was clear that whether a confession was admissible
depended on whether it was voluntary. That principle did nothing more than
to affirm the classic test laid down by Lord Sumner in Ibrahim v R [1914] AC
559. R v Prager (1972) 56 Cr App R 151, added oppression as another ground
for exclusion, and held that, though failure to comply with the Judges’ Rules
might render answers and statements liable in some circumstances to be
excluded from evidence in subsequent criminal proceedings, the Rules were
merely a guide to police officers conducting investigations and were not rules of
275
ccab 1999
Statement/Admissions/Confession/Voire Dire
law, and that the judge was entitled to refrain from deciding whether there had
been a breach of rule 2 in the light of his conclusion regarding the overriding
issue of voluntariness. Rule III did nothing to detract from the validity of the
voluntary nature of the confession. In this case, the judge was satisfied that the
statement was voluntary and admissible;
(2)
There might be occasions when confessions, although voluntary, were
excluded by the court in the exercise of its residual discretion as a result of
serious breaches of the Rules which amounted to unfairness. But a breach of
the Rules did not automatically render an admission or confession inadmissible.
The circumstances when a judge would exercise this discretion would be rare
and only in cases where it was clearly demonstrated that exclusion was
necessary to secure a fair trial of the accused: R v Chan King-hei and Others
[1995] 1 HKCLR 288. In R v Ng Wing-fai Cr App 238/89, it was stated that
although breaches of the Rules might indicate impropriety and unfairness, such
a breach did not, of itself, render a confessional statement inadmissible. Silke
VP added that the appellate court would only interfere with the exercise of the
discretion of a trial judge if it could be shown that he was clearly wrong in the
course he took or if it could be shown that he failed to consider matters which
he should or had taken into consideration matters which he should not. The
judge had considered all the evidence before him and was appraised of the full
circumstances under which the confessions were made;
(3)
Miss Kwok went through the traumatic and painful experience of having
been raped twice in two days by the Applicant and on the first occasion she was
gang raped by the Applicant and Leung Sze-lai. She was treated in a depraved
and revolting manner. It was most likely that the fear and shock she suffered
would not go away for a long time. The judge was clearly justified in
exercising his discretion to allow Miss Kwok to give her evidence by way of
video link. It was the duty of a judge to ensure that the system operated fairly
not only to the accused, but also to the prosecution and also to the witnesses: R v
DJX, SCY, GCZ (1990) 91 Cr App R 36. There would be no interference with
the proper exercise of discretion by the judge.
Result - Application dismissed.
276
ccab 1999
Stay of Proceedings
Stay of Proceedings
CAs 138 &
139/97
Power &
Mortimer VPP
Mayo JA
(8.12.98)
*I G Cross SC
Peter
Chapman &
Chan Fungshan
#G Plowman
SC & Eric
Kwok
YIP Kai-foon
Refusal to stay proceedings due to pre-trial publicity/Appeal competent
despite absence of challenge to array/Overriding factor necessary before
appeal pursuable after guilty plea/Questions for appellate court/Test to be
applied to pre-trial publicity/Whether warning to jury sufficient/
Circumstances in which appellate court required to exercise its own
discretion
拒絕因審前的報道而擱置法律程序 - 雖沒有反對陪審團人選
但仍有權提出上訴 - 認罪後必須有凌駕一切的因素才可以進
行上訴 - 審理上訴的法院面對的問題 - 對審前報道所應用
的驗證標準 - 對陪審團的警告是否足夠 - 審理上訴的法院
須行使酌情權的情況
The Applicant was convicted in October 1985 of two counts of handling
stolen jewellery and of two firearms offences. He was ultimately sentenced to
16 years’ imprisonment.
On 24 August 1989, the Applicant escaped from QMH, and in the
process he kidnapped the driver of a van and his son. [The three counts in
HCC 271/96, one of escaping from legal custody and two of kidnapping, arose
out of that incident.]
The Applicant then disappeared for over 6 years but was apprehended
on 13 May 1996 when he was spotted with other men by patrolling police
officers in the Western District of Hong Kong. There was then an incident
which resulted in the Applicant being charged, in HCC 270/96, with the
offences of possession of arms and ammunition, of use of arms and ammunition
with intent to resist arrest, of possession of an explosive substance with intent to
endanger life or property.
In the months following his arrest, his personality and activities were
sensationalised in the media. Because of this, an application for stay of the
proceedings under both indictments was made at trial on the ground that the pretrial publicity had made a fair trial impossible. That application was refused.
Thereafter, the Applicant pleaded guilty to the three offences under
HCC 271/96, and received sentences totalling 5 years.
After trial in HCC 270/96, the Applicant was convicted of the three
counts and received sentences which totalled 25 years. That sentence was
ordered to run consecutively to the 5 years in HCC 271/96, making 30 years in
toto. On appeal, the sole issue was whether the judge erred in refusing to stay
the proceedings.
Held :
(1)
Although the Applicant had not put the ruling of the judge to the test by
challenging the array, the appeal was still competent. Whether or not an
Applicant had sought to challenge the array, the judge’s decision was ‘of course
open to review by this court because at the end of the day this court has to
decide whether the conviction of an appellant is safe or unsafe’, as Roch L J put
it in R v Andrews 14 October 1998, unreported;
(2)
Although the Applicant was not debarred from appealing in HCC
271/96 by reason of his pleas, to have any chance of success he must establish
that there was some overriding factor which made the conviction founded on the
unequivocal plea unsafe and unsatisfactory, as in R v Lee, Bruce [1984] 1WLR
578. The Applicant advanced no such factor and his application for leave to
appeal against his convictions founded on his own pleas therefore failed;
277
ccab 1999
Stay of Proceedings
(3)
When a ruling of this kind was called into question, three questions were
posed for a Court of Appeal :
(i)
Did the judge advert to all of the relevant matters?
(ii)
Did he fully comprehend the significance of each?
(iii) Did he deal with those matters in a way which would ensure a fair
trial for the defendant?
(There was no complaint as to (i), but it was contended that (ii) and (iii) should
have been answered in the negative);
(4)
It was not open to the Court of Appeal to substitute its own discretion
for that of the trial judge without it being shown that the judge had by a wrong
exercise of his discretion caused injustice. The Court of Appeal could only
substitute its discretion for that of a trial judge if it was satisfied that he took
into account matters which he should not have taken into account or refused to
take into account matters that he should have taken into account or, either in his
reasoning or his law, was plainly wrong: Hadmor Productions Ltd v Hamilton
& Another [1983] AC 191;
(5)
Although it was said that the judge had erred in indicating that he would
apply a test of actual prejudice, the application of such a test would have flown
in the face of all that had been submitted to him both by counsel for the
prosecution and counsel for the defence. He would be applying a burden of
proof that no party had ever contended for. When read as a whole, it was clear
that the judge was not applying an actual bias test but was, as he put it at one
stage, examining the evidence to see whether there was ‘a serious risk that a
future jury may be so tainted with prejudice as the result of grossly adverse and
unfair pre-trial publicity that a fair trial is probably no longer possible’;
(6)
As regards the submission that the judge failed to have regard or proper
regard to the likely issues at trial and to the likely effect of the prejudicial
material upon those issues, it had to be borne in mind that the onus was on the
Applicant to establish on the balance of probabilities that a fair trial was not
possible. Whilst the issues to be taken into account varied from case to case,
in the present case the issues were simple ones. The Applicant having pleaded
not guilty, the principal issues that would fall for determination would be ones
of credit - who was to be believed? It could not be foreseen that there would
be complicated issues such as might arise in a complex commercial offence and, indeed, none such did arise. The judge had fully in mind the issues likely
to arise when considering the stay application;
(7)
It was clear that the judge was fully aware of the nature and seriousness
of the prejudicial material. Whether or not the minds of the potential jurors
might have become ‘clogged with prejudice’ was a matter for the judge hearing
the stay application bearing in mind that he would conduct the trial and he
would determine the nature of the warning which he would give to the jurors;
(8)
What the judge had to consider was not whether potential jurors might
have heard something adverse about the Applicant, but whether, given the
possibility that they had heard or read some of the prejudicial matter, a properly
stern warning from him could ensure a fair trial;
(9)
The judge gave the jury strong and repeated warnings. If the judge had
wrongly refused to exercise his discretion, the strong warnings he gave would
not cure the matter. It would then be for the Court of Appeal to determine
whether to exercise its discretion to order a stay. The judge, however, was not
wrong to refuse to exercise his discretion. The three questions posed - in (3)
278
ccab 1999
Stay of Proceedings
above - must be answered in the affirmative. The judge fully comprehended
the nature of the material, acknowledged that it was potentially damaging
material but was satisfied that that potential could be set at naught if a sufficient
warning was given. He gave a properly emphatic warning. In exercising his
discretion the judge did not take into account any matters which he should not
have considered, nor did he fail to consider matters which he should have
considered, and he was neither plainly wrong as to the law or in his reasoning.
There was no basis for interfering with the judge’s refusal to stay.
Result - Application dismissed.
FAMC 2/99
Li CJ,
Ching &
Bokhary PJJ
(23.4.99)
*D G Saw SC
&
Marco Li
#Ian Lloyd &
Peter
Callaghan
CHUEN
Lai-sze
Absent witness not supporting defence case/Witness required to enable defence
to explore issues/Absence no basis for stay/Counsel not to be accused of flagrant
incompetence in absence of firm grounds
缺 席 的 證 人 並 不 支 持 辯 方 – 證 人 的 作 用 是 容 讓 辯 方 研 究 案
情 – 證人缺席聆訊不是擱置審訊的理由 – 在缺乏實質證據
支持下律師不應被指明顯失職
The Applicant, a serving police inspector, was found guilty with three of
her team of having committed the offence of assault occasioning actual bodily
harm. Her appeal to the Court of First Instance was dismissed and she applied
for leave to appeal to the Court of Final Appeal out of time.
In support of the application, it was submitted, first, that as a person
named Chung was not called as a witness it was not possible for the Applicant
to have a fair trial. Second, it was said that in the absence of that witness the
magistrate erred in refusing a stay of the proceedings. Third, it was contended
that in her appeal to the Court of First Instance the Applicant’s then counsel
wrongly abandoned a ground which substantially raised these matters.
Held :
(1)
The statements made by Chung did not assist the defence assertion of a
conspiracy between Chung and the victim of the assault to frame the Applicant
and her co-accused. In argument before the magistrate it was conceded that
although Chung’s evidence did not support the Applicant’s case, his presence
would allow matters to be explored whereupon the court might make findings
which supported that case. That was a wholly erroneous basis upon which to
insist that a witness be called. No reasonable grounds had been advanced to
show that the magistrate erred in refusing a stay;
(2)
Although it was said that the prosecution or the magistrate ought to
have called Chung after the Applicant’s lawyers had unsuccessfully sought to
serve a subpoena upon him, it was not possible to see how either could have
done so, quite apart from the irrelevance of the evidence;
(3)
It was a matter of extreme regret that it had been thought proper to
allege that counsel for the Applicant in the Court of First Instance had been
guilty of flagrant incompetence in abandoning the ground. That was a very
serious allegation to make and should only be made where there were firm
grounds for it. There were none and it should never have been made.
Result - Application dismissed.
Obiter -
Had the proposed appeal borne any chance of success the court
would have been minded to grant the application for an extension of
time.
279
ccab 1999
CA 411/97
Power VP
Mayo &
Stuart-Moore
JJA
(30.4.99)
*A A Bruce
SC
& P Chapman
#G Plowman
SC & J
Matthews
(1) & (2)
G J X McCoy
SC
R Donald &
R Pierce (3)
Stay of Proceedings
(1) LAU
Kwokching
(2) LAU
Kwokhung
(3) MAK
Kamchuen
Stay of proceedings/Application to stay not based upon evidence of
prejudice/Direction on effect of delay/When direction on delay
required/Use of statement of the accused against co-accused/Position where
statement put into evidence by defence
擱置法律程序 – 擱置法律程序的申請並非基於有證據顯示對
被告人不利 – 就延誤的影響作出指引 – 何時須就延誤作出
指引 – 被告的供詞用來針對同案被控人 – 辯方將供詞作為
證據的情況
The Applicants were convicted after a trial in 1997 of one count of
conspiracy to manufacture a dangerous drug between March and November
1986. An application to stay the proceedings on the ground of delay was
refused and the trial proceeded. On appeal
Held :
(1)
The application to stay was not based upon evidence of prejudice but
upon a suggestion of a possibility of prejudice made by counsel. There was no
evidence of potential witnesses who were unable to be located or whose
memory had clouded. Further there was no evidence that any accused was
unable adequately to give details of what had occurred in 1986 because, given
the lapse of time, he simply could not recall what had happened so long ago.
Nor was there evidence that there were missing witnesses who would have
given evidence favourable to the accused. What were raised for the judge’s
consideration at the time of the application were no more than suggestions of
possibilities emanating from defence counsel. There was nothing of sufficient
merit to warrant an order staying proceedings on the ground of delay;
(2)
The judge could not be faulted for telling the jury that they had to assess
whether the witness was genuinely muddled because of the time that had
passed, or was lying and attempted to cloak his lies with a veneer of credibility
by tacitly appealing to the excuse of forgetfulness. She could hardly make
such a comment about persons who did not give evidence;
(3)
Although it was said in Henry, H [1998] 2 Cr App R 161, 168, to be
desirable in cases of substantial delay that some direction be given to the jury on
possible difficulties with which the defence might have been faced as a result of
such delay, Potter LJ nonetheless added that ‘such a direction is not to be
regarded as invariably required except in cases where some significant
difficulty or aspect of prejudice is aired or otherwise becomes apparent to the
judge in the course of the trial.’ Potter LJ added, at 170, that ‘we do not think
that any of the suggestions of possible prejudice was something which the judge,
unprompted,was obliged to bring to the jury’s attention.’ In the present case,
there were ‘suggestions of possible prejudice’ because of delay, but they were
no more than suggestions. Further, after the summing up leading counsel made
no submissions that the directions which the judge had given were inadequate.
There was no doubt that the jury were well aware of the age of the case, and the
judge, unprompted by a request for further directions, was not called upon to do
more than she did;
(4)
An accused’s statement, the truth of which he denied, when used by the
prosecution could not, as against a co-accused, be admissible to prove the truth
of its contents. It might, however, where it contradicted the evidence of the
accused, be used to demonstrate that credit should not be given to evidence that
was otherwise favourable to the co-accused. As regards the accused who made
the statement it, being an admission against interest, could be used for all
purposes:R v Rudd (1948) 32 Cr App R 138,R v Gunewardene [1951] 2 KB 600, R
v Rhodes (1960) 44 Cr App R 23;
280
ccab 1999
Stay of Proceedings
(5)
If an accused, as was the case in R v O’Neill [1969] Crim LR 261,
Gunewardene and Rhodes, made a statement in which he admitted that he and
the co-accused were involved in an offence and then gave evidence denying the
statement and saying that neither of them were involved then, as against him,
the statement could be put in by the prosecution to prove the truth of its
contents.As against the co-accused, it could only be used to destroy the credit of
the accused. It provided no evidence that the co-accused was involved but
could be used to destroy the accused’s credit when he said that the co-accused
was not involved. The basis for the rule was clear. The statement having
been made outside the hearing of the co-accused and never having been adopted
by him could not be evidence against him as to its truth;
(6)
Although (5) had application where the statement was put into evidence
by the prosecution, this did not have equal application when it was put in by the
defence. What was being put in issue by the defence in such a situation was
the truth of what was said and no direction was required limiting the use to
which the statement was being put.
Result -
Appeal dismissed.
Theft/Handling/Deception/False accounting
CA 211/98
Power VP
Mayo &
Stuart-Moore
JJA
(27.10.98)
*Robert SK
Lee
#CY Wong SC
David Ma &
Herbert
Au Yeung
LEUNG
Yuen-keung
Deception offences/Test for recklessness/Application of the Ghosh test to be
against the factual matrix as proved
欺 騙 罪 - 驗證罔顧後果的標準 - 要參照經證明的現實環境
來 應 用 Ghosh 一 案 的 驗 證 標 準
The Applicant was convicted after trial of 23 charges of obtaining
property by deception and two charges of evasion of liability by deception.
The Applicant was a partner in an entity which traded in diamonds. He
obtained from seven suppliers a total of about $700,000 in diamonds, for none
of which he paid. It was the prosecution case that when undertaking to pay for
or return the diamonds, he knew he would not be able to pay for them or was
reckless as to whether or not he would be able to do so. Once a trader such as
the Applicant was accepted by diamond merchants as trustworthy, diamonds
were provided to him on trust prior to his effecting a sale after which he paid the
merchant. On appeal, it was submitted, first, that there was a material
irregularity in that the judge found no more than the kind of recklessness that
was referred to in Caldwell [1982] AC 341, namely, proceeding with a risky
course of action in circumstances where the person had not been subjectively
aware of the risk, and that such a course of action was not criminal and would
only become criminal if there was subjective awareness of the risk. Second, it
was said that the judge misdirected himself on the Ghosh test in deciding
whether or not the prosecution had proved dishonesty.
Held :
(1)
As to the first ground of appeal, the judge found an actual awareness of
the risk on the Applicant’s part as he was satisfied that his stated belief was not a
genuine one but was no more than a vague and forlorn hope. Accepting that
the appropriate test was a subjective one, the most helpful statement of that test
was propounded in Stains (1974) 60 Cr App R 160, where it was said that
‘reckless’ meant more than being careless, more than being negligent, and did
involve an indifference to or disregard of the feature of whether a statement was
true or false. Applying that test to the circumstances, the findings of the judge
clearly involved a finding of an indifference by the accused as to whether or not
281
ccab 1999
Theft/Handling/Deception/False accounting
the statements which he was making that he would pay or return the diamonds
were true or false;
(2)
As to the second ground of appeal, the test enunciated in Ghosh [1982]
QB 1053, had to be applied in the context of the factual matrix that had been
proved, i.e. the business world in which the parties were operating. There were
not, however, different standards of honesty applying in the business world and
ordinary everyday life. There was no special standard of honesty applicable to
the diamond trade. The test was what reasonable and honest people would
think was honest, taking into account the way the diamond business was
conducted. That was the test which the judge applied. When he applied the
second limb of Ghosh, he was satisfied that the Applicant did know what he was
doing was dishonest by the standards of reasonable, honest people.
Result - Application dismissed.
MA 723/98
Chan CJHC
TSUN
Shui-lun
Obtaining access to computer for dishonest gain/Meaning of
gain/Applicability of Ghosh dishonesty test/Motive considered
為 不 誠 實 地 獲 益 而 取 用 電 腦 - 獲 益 的 意 義 - 應 用 Ghosh 一
案的不誠實驗證標準 - 已考慮動機
(15.1.99)
*DY Marash
SC & Simon
Kwan
#GJX McCoy
The Appellant was convicted after trial of an offence of obtaining access
to a computer with a view to dishonest gain for himself, contrary to s 161(1)(c)
Cap 200.
The Appellant was employed as a technical assistant to a radiologist
(‘Dr Ooi’) at Queen Mary Hospital. The hospital’s computer system had a
Radiology Information System (‘RIS’) which contained some patients’ medical
records. In her research, Dr Ooi had access to the RIS. To prevent
unauthorised access to the RIS, there was a security system in the computer, and
the password thereto was given to the Appellant as the helper of Dr Ooi and in
order to facilitate the discharge of his duties.
On 3 April 1998, the Appellant entered the RIS using the password and
printed out a copy of a medical report of a well-known patient. He later faxed
the copy report to the Ming Pao and Apple Daily, having deleted the references
to his own identity and fax number. On the following morning those papers
published stories about the patient with copies of the medical reports.
The Appellant was arrested on 9 April after the leak was traced to Dr
Ooi’s password. He told the police that he had acted as he did because he
thought that the public had the right to know the truth. During the interviews
the Appellant said he had begun to regret his actions, and that he hoped the
patient would forgive his foolish behaviour.
On appeal, the first issue was whether, upon the true construction of s
161(1)(c), the Appellant entered the computer with a view to gain, and, second,
applying the test of dishonesty as laid down in R v Ghosh [1982] QB 1053,
whether the Appellant was dishonest.
Held :
(1)
The Appellant gained access to the computer for the specific purpose of
obtaining information in the form of a printout of the medical report for the
purpose of sending it to the newspapers. The question was whether that was
with a view to dishonest gain. If so, it fell within s 161(1)(c). The fact that
the Appellant acted because he thought the public had the right to know the
truth, or wanted to reveal ‘lies’ which had been told about the patient’s
282
ccab 1999
Theft/Handling/Deception/False accounting
condition, was merely his motive. There was no difference between gaining
access without authority and gaining access in excess of authority. The section
made no distinction between the two;
(2)
When construed in the context of a computer crime and the rest of the
section, s 161(1)(c) permitted the construction of the word ‘gain’ to include
obtaining information which one did not have prior to his access to a computer.
It was gain to obtain the information from the medical report which was stored
in the RIS;
(3)
The test in Ghosh was a two-stage one. First, it had to be decided
whether what was done in a particular case would be regarded as dishonest
according to the ordinary standards of reasonable and honest people. Second,
it was necessary to decide whether the accused knew or must have realised that
what he was doing was dishonest by such standards. It would still be dishonest
even if an accused genuinely believed that he was morally justified to act as he
did;
(4)
The leak to the newspapers was tantamount to a leak to the public, and
was in direct contradiction to the obligation of confidentiality. It was a
deliberate attempt to make public what those concerned wished to keep
confidential. Any ordinary and reasonable person would have considered such
conduct to be not only discreditable, dishonourable or inappropriate, but also
dishonest and reprehensible;
(5)
The Appellant was an intelligent and educated person. He knew the
information was confidential. He took the precaution to conceal his identity.
He must have been aware of the importance of privacy, particularly in a hospital
setting. It was not difficult to draw the conclusion, which was the only
reasonable inference, that the Appellant knew and must have realised that it was
dishonest conduct to have access into the computer, print out a copy, and leak it
to the press.
Result - Appeal dismissed.
CA 92/99
Stuart-Moore
VP
Mayo &
Leong JJA
(30.9.99)
*A A Bruce
SC & Ned Lai
#D Y Marash
SC (1)
A C Macrae
SC (2)
(1) HO
Sik-kuen
(2) LEUNG
Yee-chiu
Handling stolen goods/Applicability of doctrine of recent possession/Use of
lies to support evidence of identification
處理贓物 - 新近管有原則的適用情況 - 利用謊言支持認人
證據
The Applicants were convicted together with a third defendant of
handling two stolen Mercedes cars knowing or believing them to have been
stolen.
The evidence showed that A1 exported left-hand drive cars to the
Mainland. He gave instructions to purchase a container and he dispatched it to
a remote spot in Chau Tau for loading the two left-hand drive Mercedes cars
which had no registration plates and to take them over the border to the
Mainland. After a visit by police, there was a change of plan and he instructed
that the container with the stolen cars be taken back to the yard and stored in the
name of the company from which he operated his business. The two Mercedes
cars were not the only cars he dealt with in the course of his business. The
evidence also showed that A2 knew A1 and he dispatched the private car to
guide the truck driver, PW5, to that remote spot for loading the two Mercedes
cars. The evidence showed that there were suspicious circumstances in the
events leading to the handling of the two Mercedes cars on 8 December 1997
and both Applicants were involved in the operation.
283
ccab 1999
Theft/Handling/Deception/False accounting
The judge found that A2 was in physical possession of the stolen
Mercedes cars and A1 was exercising control and direction over them. He
found that, having regard to the distance from the United States and barely one
month after they were stolen, the two Applicants were in ‘recent possession’ of
the two Mercedes cars.
The first two grounds of appeal of A1 were that the judge was wrong in
applying the doctrine of ‘recent possession’ in respect of the stolen cars and that
the judge failed to direct himself in law as to how to approach the evidence
when he applied the doctrine to A1.
Reliance was placed upon
R v Liu Kam-wah [1987] HKLR 439, where Roberts CJ considered that six
weeks was too long to be considered as ‘recent’ in the case of a stolen camera,
and R v Li Chi-ho MA 1330/96, where the court found that 3 months was too
long to allow the doctrine to be invoked.
The third ground of appeal of A1 was that the judge failed to direct
himself on the lies told by A1. It was submitted that the judge had to be
satisfied that he was in no doubt, despite the explanations offered, that A1 had
the necessary guilty knowledge. A1 had given statements to the police
containing details and explanations, and it was submitted that in rejecting his
explanations the judge must have found A1 had lied. That being so, it was
said, the judge should have directed himself in accordance with R v Goodway
[1993] 4 All ER 894, in particular, that there was no innocent motive for the lies
before he relied upon them.
Held :
(1)
The judge found that having regard to the circumstances in which the
two Mercedes cars were being dealt with by the Applicants, and the period of
one month between the disappearance of the cars in California in the United
States and their subsequent appearance in Hong Kong in the possession of the
Applicants and the distance between Hong Kong and San Francisco, the
Applicants’ possession was sufficiently recent to invoke the doctrine. The
judge was entitled to reach that conclusion in the circumstances of this case.
There was nothing special about the nature of the stolen property. Although
there was no evidence that these Applicants were involved in the documentation
and shipment of these cars to Hong Kong, in the circumstances one month was
sufficiently recent to invoke the doctrine. The real question was whether the
only reasonable and logical inference was that the Applicants knew or believed
the Mercedes cars to have been stolen;
(2)
The case of R v Goodway applied R v Lucas [1981] 2 All ER 1008, and
held in effect that where lies told by the defendant when interviewed by the
police were relied upon by the prosecution to support the identification
evidence, the judge should have directed the jury that the defendant’s lies had to
be deliberate and had to relate to a material issue and that there was no innocent
motive for the defendant to lie before the lies were relied on to support the
prosecution evidence. The prosecution in this case did not rely on lies to prove
either possession or guilty knowledge. The judge did not rely on lies of A1 to
convict A1. The judge simply rejected the explanation given by A1 to account
for the possession of the two cars and as to the role he played in the San Fat
Company and in directing and controlling the truck drivers. The judge found
that there was no satisfactory explanation as to the possession of the vehicles by
A1 and he inferred from the circumstances that A1 knew or believed the
vehicles were stolen. Goodway had no application here.
Result – Application dismissed.
284
ccab 1999
CA 48/99
Theft/Handling/Deception/False accounting
MAN
Kwok-wan
Nazareth &
Stuart-Moore
VPP
Keith JA
Handling stolen goods/Accused can be guilty of stealing and handling the
same goods
處理贓物 - 被告可被裁定犯偷竊和處理同一贓物
The Applicant was convicted after trial of a single charge of handling
stolen goods, namely, 19 stolen cars, contrary s 24(1) of the Theft Ordinance,
Cap 210.
(21.10.99)
On appeal, it was submitted, inter alia, that the judge ought to have
referred in his Reasons for Verdict to the fact that s 24(1) of the Theft
Ordinance provided that if a person was to be convicted of handling stolen
goods, his handling of the stolen goods must have occurred ‘otherwise than in
the course of the stealing’.
*Edmond Lee
#P Ross
Held :
(1)
Whether or not the judge considered the issue, he would have been
bound to conclude, on the findings of primary fact which he had made, that the
Applicant had handled the cars otherwise than in the course of stealing them,
even if the Applicant had, at an earlier time, been a party to their theft. The
fact that he might have been a party to the theft of the cars at an earlier stage did
not mean that a later handling by him of the cars was in the course of the
stealing. That followed from that said by Scarman L J in R v Dolan (1976) 62
Cr App R 36, 39:
If the defendant’s handling of the goods occurs in the course of
the stealing, he cannot be found guilty of handling by receiving;
see Theft Act 1968, section 22(1) [which was the English
equivalent of section 24(1) of the Theft Ordinance and was in
identical terms]. But, if he handles them later, i.e. after the
stealing, he commits an offence under the subsection. It is,
therefore, perfectly possible for a man to be guilty of stealing and
receiving the same goods.
Result – Application dismissed.
CA 91/99
Stuart-Moore
VP
Leong &
Wong JJA
(2.8.99)
*Alex Lee
#Ben
Beaumont
LO Jock-huen
False
accounting/Whether
falsification
done
for
accounting
purposes/Meaning of ‘made or required’ in s 19(1)(a) Cap 210 considered
偽造帳目 - 是否為會計用途而
改帳目 - 考慮香港法例第
210 章 第 1 9 （1 ） （ a ） 條 內 ‘ 製 備 或 需 要 ’ 的 意 義
The Applicant was convicted of one charge of false accounting, contrary
to s 19(1)(a) of the Theft Ordinance, Cap 210.
The prosecution case was that Liang Jin-wen was the chairman of
Zhuhai China and Canton Autoparts Company, which operated as China and
Canton Brake Company Limited (CAC), and of which he was also manager.
Without authority from CAC, Liang applied for the issue of a letter of credit of
the Guangdong Development Bank in the sum of US$1.8 million in favour of
‘Erbal Limited’ pursuant to a purported contract between CAC and Erbal
Limited to purchase one ‘disc brake pad production line’. To facilitate the
issue of the letter of credit, the Applicant concurred in the creation of an invoice
of Bene Manufacturing Company Limited, purporting to show that goods had
been supplied to Erbal Limited, whereas no goods had actually been supplied.
The invoice bore the same date, covered the same goods and shipping details
and the same letter of credit reference as in the ‘Erbal’ invoice the subject
matter of the charge.
285
ccab 1999
Theft/Handling/Deception/False accounting
The letter of credit was subsequently issued. The Applicant admitted
that he received HK$620,000 but this sum was later on distributed to other
parties pursuant to a prior agreement. The Applicant himself received
HK$42,000.
The prosecution evidence was not challenged and neither did the
Applicant give evidence.
It was submitted on appeal, inter alia, that the judge was wrong in
finding that the falsification was done for accounting purposes and that the
accounting purpose for which the falsification was done must involve the entity
which might or would suffer as a result of the falsification. In other words,
there must be proof that the financial interest of the Guangdong Development
Bank had been or might have been put at risk.
Held :
(1)
The question for consideration was the meaning of the words ‘any
account or record or document made or required for any accounting purpose’
in s 19(1)(a) of Cap 210. The words ‘made or required’ indicated that there
was a distinction to be drawn between a document made specifically for the
purpose of account and one made for some other purpose but which was
required for an accounting purpose. It was sufficient for the purpose of the
section that a document was made for some purpose other than an accounting
purpose but was required for an accounting purpose as a subsidiary
consideration. It was not decided that these words had the meaning that the
‘accounting purpose’ must be that of the party who would or might suffer as a
result of the falsification: Attorney General’s Reference (No. 1 of 1980) [1980]
1 WLR 36 and R v Mallet [1978] 1 WLR 820 considered. It was sufficient as
long as the ‘Erbal’ invoice was made or required for any accounting purpose;
(2)
As observed in Attorney General’s Reference (No. 1 of 1980), the test
was ‘What do you need this for?’ There was unchallenged evidence as to the
procedure for the application of a letter of credit and the documents required
therefor and the part played in this process by invoices. The judge was entitled
to look at the ‘Erbal’ invoice and to conclude that although it was made for the
purpose of the letter of credit, it was required for the accounting purpose of the
issuing bank, Guangdong Development Bank, or CAC Ltd;
(3)
The argument that the ‘Erbal’ invoice was made to comply with the
letter of credit and that there was no change of figures or omission, and that it
was an actual invoice and therefore not a falsification, had no substance. It
was conceded that the Applicant had prepared the fictitious invoice which he
knew was fictitious. The unchallenged evidence of the operation manager of
the issuing Bank was that her bank would definitely not have issued the letter of
credit if her bank knew that there were no underlying goods, and otherwise her
bank would be involved in a fraud. The invoice was admitted to be false and
there were no underlying goods. It was made to induce the issue of the letter
of credit. It was difficult to understand how that could not be falsification.
Result – Application dismissed.
286
ccab 1999
CA 254/99
Stuart-Moore
VP Wong JA
&
Woo J
(27.10.99)
*Cheung Waisun
#C Grossman
SC & E Kwok
Theft/Handling/Deception/False accounting
ZHENG
Wan-tai
Handling stolen goods and importing unmanifested cargo/ Severence of
charges/Application of doctrine of recent possession to ‘assisting’ in ‘2nd
limb’ handling
處理贓物和輸入未列艙單貨物 - 把不同控罪分開審理 - 新
近 管 有 原 則 適 用 於 處 理 贓 物 控 罪 “ 第 二 環 節 ” 所 指 的 “ 協
助”罪行
The Applicant was convicted of handling stolen goods and importing an
unmanifested cargo. The first charge alleged that he, on or about 16 October
1997, dishonestly undertook or assisted in the retention, removal, disposal or
realization of 136 motorcycles belonging to owners in Taiwan, by or for the
benefit of another or dishonestly arranged so to do, knowing or believing the
same to be stolen goods, contrary to s 24(1) and (2) of the Theft Ordinance, Cap
210. The second charge alleged that on the same day, he had imported an
unmanifested cargo of 136 motorcycles, contrary to s 18(1)(a) of the Import and
Export Ordinance, Cap 60. The Applicant elected not to give evidence but
called two witnesses.
The first ground of appeal was that the judge failed to order severence of
two charges. The basis for this submission was that the Applicant was
prejudiced in his defence by effectively having been deprived, by not testifying
on the first charge, of any chance of success in his defence on the second
charge. This was because the second charge was an offence of strict liability
and he would be hampered in his defence under s 18(2) if he did not give
evidence.
The second ground of appeal was that the judge erred in applying the
doctrine of recent possession when it was alleged that the Applicant handled for
another person’s benefit. It was contended that the doctrine of recent
possession did not apply to second limb handling, i.e., assisting in one way or
another.
Held :
(1)
The two offences were properly joined and closely linked. The judge
was fully aware of his discretionary powers and properly and sensibly exercised
his discretion in refusing to sever the charges;
(2)
There was no reason in logic or in justice why it should be permissible to
draw the inference where the defendant had received recently stolen goods into
his possession, but impermissible to draw it when he was merely assisting
somebody else to deal with such goods. The distinction between the two types
of handling lay in the relationship between the defendant and the goods. In
each his state of mind was the same, and it was in relation to his state of mind
that the jury might think it right to draw the inference. R v Ball and Winning
(1983) 77 Cr App R 131 applied.
Result – Application dismissed.
287
ccab 1999
Triad
Triad
MA 413/99
Yeung J
(18.8.99)
*Joseph To
#John
Hemmings
NG Kwok-to
Membership of triad society/Whether necessary to prove that recruiter a
triad/Open to court to infer membership in absence of evidence to
contradict prosecution case
三合會社團的成員 - 是否需要證明招攬者是三合會社團的成
員 - 如沒有證據反駁控方的論證則法庭可推斷被告是三合會
社團的成員
The Appellant was convicted after trial of an offence of being a member
of the Wo Shing Wo triad society.
The evidence against the Appellant rested entirely on the contents of two
video interviews which were admitted into evidence after a voire dire
proceeding. In the interviews, the Appellant said that he was recruited by an
‘Ah Lung’, who claimed to be a member of the triad society. The Appellant in
the interviews mentioned that Ah Lung had expressly told him that having
followed him, he was a member of a triad society and that if anyone should
cause any trouble to him, the Appellant could simply reveal that he had
followed Ah Lung and that he would be alright. The Appellant also said that
having followed Ah Lung, he was for a time active in the Temple Street area.
He also said that he had intended to withdraw from this triad society but he did
not have the opportunity to raise the matter with Ah Lung. The Appellant did
not give evidence nor call evidence.
On appeal, it was submitted that there was no evidence at all to show that
Ah Lung was in fact a member of the triad society and that the admission made
by the Appellant in the course of his interview was just his own belief.
Though Ah Lung had stated to the Appellant that he was a member of the triad
society, and that his name should be mentioned if the Appellant was in trouble,
what the Appellant had admitted was just the state of his belief which might not
be true.
Held :
The is sue raised had been settled previously. In R v Yun Kai-hong and
Another [1995] 1 HKCLR 269, 274, Power VP said:
It is submitted by Mr. Plowman, relying upon Attorney General v
Chik Wai-lun [1987] HKLR 41, that these admissions constitute
no more than belief on the part of the two defendants and are not
sufficient to warrant the finding of actual membership of a triad
society. Cons, VP stated in that case at P 43:
‘By a “bald admission” we take to be meant a statement
such as “I am a member of such and such a society” and no
more, which we assume that the magistrate would reject
this being a matter of mere hearsay or belief. That
however was not the position before him because the
statement concluded in the police station contained other
admissions which, taken together with the evidence of the
superintendent, would in our view provide at least prima
facie evidence of membership.
It is suggested by Mr Plowman that there is no expert
evidence here upon which the judge might have relied and
to which she might have related the admissions. He
submits that each is, in effect, no more than a bald
admission and that this was not enough to warrant her
288
ccab 1999
Triad
conclusion that the two defendants were actually members
of a triad society.
We state at the outset that we do not consider that to
establish the offence there must always be expert evidence.
Given the informality of modern triad inductions, which Mr
Plowman does not dispute, we cannot see how the evidence
of an expert could have taken this matter any further.
Here we have in each case admissions of joining,
admissions of payment of an induction fee and admissions
of a triad protector. In the case of D1 we have an
admission of the attainment of a rank in the triad society,
and in the case of D2 an admission of preparedness to
accept direction to participate in criminal activities.
Finally, there were admissions from both of preparedness
to participate in the company of others in criminality of a
type commonly perpetrated by triad members.’
Much of that said by Power VP applied in the present case. In the absence of
evidence from the Appellant to contradict or undermine the prosecution case
against the Appellant, it was open to the Magistrate to infer from the admission
made by the Appellant that he was indeed a member of the Wo Shing Wo triad
society which he joined in 1989 and remained a member until 1991 when he
turned 18 years.
Result - Appeal dismissed.
CA 245/99
Nazareth
Stuart-Moore
VPP &
Leong JA
(31.8.1999)
*D G Saw SC
& P Madigan
#P Tong
WONG
Sing-chi & 6
others
Acting as members of triad society/Elements of offence/ Whether necessary
to prove membership of triad society
以三合會社團成員的身分行事 - 罪行的元素 - 是否需要證
明三合會社團成員的身分
Six of the Applicants were convicted, inter alia, of various charges of
acting as a member of a triad society, namely, the Wo Shing Wo Triad Society.
The grounds of appeal against conviction were the same in respect of all
the Applicants convicted of that offence, and they concentrated on the ground
that the prosecution failed to prove the elements of the offence. It was
submitted, firstly, that to amount to the offence of acting as a member of a triad
society, it was necessary to prove that the Applicants were members of the Wo
Shing Wo Triad Society and did overt acts of a member of the society and that
they intended or knew these acts were so. It was said, in reliance on R v
Chan Ka-ngan MA 1740/96, that the judge erred in law in holding that triad
membership was irrelevant. Secondly, it was contended that there was no
evidence that the Applicants were members of Wo Shing Wo. Thirdly, it was
said that the activities the Applicants engaged in the various occasions must be
activities of the Wo Shing Wo Triad Society.
The Respondent countered that the grounds of appeal were misconceived
as section 20(2) of the Societies Ordinance, Cap 151, under which the
Applicants had been prosecuted for the offence of acting as a member of a triad
society, did not require proof of membership of a triad society. It was also
submitted that the section provided for a number of offences, some of which
required proof of membership and some of which did not. The reason, it was
said, why the proposition relied on by the Applicants had never been advanced
or discussed in the Court of Appeal, and why there was no authority that there
was such a requirement in this offence, was that the section was clear that such
a requirement was not part of the offence.
289
ccab 1999
Triad
The offence of acting as a member of a triad society was under s 20(2) of
the Societies Ordinance, Cap 151. The relevant part of that section was as
follows:
20 (2)
Any person who is or acts as a member of a triad
society or professes or claims to be a member of a
triad society or attends a meeting of a triad society or
who pays money or gives any aid to or for the
purposes of the triad society or is found in possession
of or has the custody or control of any books,
accounts, writing, lists of members, seals, banners or
insignia of or relating to any triad society or to any
branch of a triad society whether or not such society
or branch is established in Hong Kong, shall be guilty
of an offence and shall be liable on conviction on
indictment(a) in the case of a first conviction for that
offence to a fine of $100,000 and to
imprisonment for 3 years; and
(b) in the case of a second or subsequent
conviction for that offence to a fine of
$250,000 and to imprisonment for 7 years.
Held :
(1)
The Applicants were not charged with being a member of a triad society
which was a separate offence and which required proof of membership. It was
plain from the section that an offence of acting as a member of a triad society
did not require proof of membership of that society. It would be sufficient if
there was proof that the Applicants participated in activities of a triad society in
which a member of a triad society was required to participate. In R v
Chan Ka-ngan (supra), the defendant attended a meeting of the Sun Yee On
Triad Society with other members of that society and discussed whether a
fellow-member should be punished for infringement of the rules of the society.
Gall J held that although triad business was discussed at the meeting, it was not
a triad meeting. It did not amount to the offence of attending a triad meeting
but it amounted to the defendant acting as a member of a triad society. The
case might have established that where there was a meeting of triad members
where triad businesses were discussed, such attendance by a member would
amount to acting as a member of a triad society. But the case did not establish
that membership of the triad society was a necessary element of the offence of
acting as a member of a triad society. That case did not support the
submission made;
(2)
The judge was quite correct to conclude that it was irrelevant whether a
defendant was actually a member. The judge was also correct in holding that
mere presence in the group was insufficient and that there must be some overt
act done by the defendant which a triad did as a triad. There was ample
evidence from which the judge could conclude that a triad would normally go
out as a triad in answer to a summons from a triad, and band together with
others in order to show strength in a confrontation and that any one acting in
that way was acting as a member of a triad society;
(3)
There was no requirement for the prosecution to establish the name of a
triad society on those charges which alleged that the defendants acted as
members of a triad society, even though Wo Shing Wo Triad Society was
290
ccab 1999
Triad
named in those charges. The naming of the triad society was unnecessary
provided the prosecution could prove that the defendants acted as members of a
triad society. If these were otherwise, it would make a mockery of the law that
where a gathering involved more than one triad society, it should become
necessary to establish to which society each person accused of acting as a
member of a triad society was attached.
Result – Applications dismissed.
Verdict
FAMC 17/99
Litton
Ching &
Bokhary PJJ
(14.6.99)
*A A Bruce
SC & P
Madigan
#J Haynes
WONG Yile
Murder/Majority verdict of 5 to 2/Fact of majority verdict no basis for
submission that verdict unsafe
謀殺–五對二的多數裁決–不能以多數裁決的事實作為提出
裁決不穩當的理據
The Applicant was convicted by a jury of one count of murder and one
count of robbery. He applied to the Court of Appeal for leave to appeal
against the conviction for murder but that was refused. He then applied to the
Committee, out of time, for leave to appeal to the Court of Final Appeal on the
ground that a grave and substantial injustice had been done.
The Applicant submitted, inter alia, that the jury’s conviction was by a
majority of five to two and having regard to the evidence and factors in favour
of the Applicant a conviction by that sort of majority must leave a lurking
doubt.
Held :
This was not an appeal based upon an alleged perversity of the verdict
nor was it an appeal on the grounds that there was no evidence upon which the
jury could have convicted. It was not possible to understand how the fact that
a verdict was by majority could contribute towards any finding that the verdict
was unsafe and unsatisfactory.
Result – Application dismissed.
291
ccab 1999
Witness
Witness
FACC 3/98
Li CJ
Litton
Ching &
Bokhary PJJ
Mason NPJ
(29.1.99)
*GJX McCoy
SC
#A E Schapel
& Chan Fungshan
CHIM
Hon-man
Admissibility of unsworn video-taped interview of child complainant/Use of
live television link by 17 year old complainant/Principle of law precludes
proof of more than one offence as basis for conviction of single offence
charged/Video recordings not inadmissible due to leading questions/
Directions to jury where charges occurred long ago
接納兒童投訴人在未經宣誓下錄影的會面錄影帶作為證據 –
17 歲 的 投 訴 人 使 用 電 視 直 播 聯 繫 系 統 作 供 – 法 律 原 則 不 許
以證明曾犯多於一項罪行來裁定單一項控罪罪名成立 – 錄影
帶不會因誘導性問題而不獲接納為證據 – 如控罪在很久以前
發生則須向陪審團作出的指引
The Appellant was convicted of two counts of rape. The first count
alleged that the Appellant ‘on a date unknown between the 14th day of July
1989 and the 31st day of July 1989’ at his home raped his step-daughter. The
second count was in identical terms save that the date in the particulars of the
offence charged was expressed as ‘on a date unknown between the 1st day of
August 1989 and the 15th day of August 1989’.
The complainant was born on 1 March 1980 and was 9½ years old when
the alleged offences were committed. The prosecution’s case, based on videorecorded interviews of the complainant which were admitted into evidence, was
that when the mother was pregnant with the complainant’s younger sister, and
while the complainant was at home on school summer vacation and the mother
was at work, the Appellant repeatedly raped her between 14 July 1989 and 15
August 1989.
The complainant was unable to differentiate in any significant way
between any of the particular acts of rape. It seemed that in aggregate there
were about ten occasions in that time span when the Appellant sexually
molested her and that on the first few occasions rape did not take place because
the Appellant was unable to effect penetration. According to the complainant,
sometimes these acts took place on consecutive days and sometimes only on
every other day. The complainant’s recollection of these events was not
precise.
The complainant made no complaint until she told a school friend in
1994, some five years later. The failure to mention the matter to anyone
before was said to be due to a combination of ignorance of the significance of
the Appellant’s conduct, her unwillingness to share her problems with other
members of the family, her apprehension and her desire not to break up the
family. It seemed she wanted to forget about the events.
At trial, the complainant’s evidence was not corroborated. The
Appellant’s case was that there was a ‘frame-up’. Notwithstanding the fact
that the indictment contained two counts only of rape, the prosecution presented
evidence of the various acts of sexual molestation without consent, including
evidence that penetration took place except on the first few occasions when
penetration was not effected. The evidence was led on the footing that the jury
was asked to find that in each of the two periods one act of rape occurred,
without being asked to identify the particular occasion when it occurred. The
judge told the jury: ‘if you are satisfied that there was at least one rape during
each period, you should convict the defendant of the two charges but these two
charges are, of course, separate charges and you should consider them
separately’.
The complainant’s evidence-in-chief consisted of four video-taped
interviews recorded between January and August 1996 when she was 15 and
292
ccab 1999
Witness
later 16 years old. The video-tapes were received in evidence pursuant to s
79C of the Criminal Procedure Ordinance, Cap 221.
The complainant was cross-examined at the trial from a room outside
the court room via a live television link. The cross-examination by way of live
television link took place in consequence of an order made on 22 November
1996, pursuant to s 79B Cap 221, when the complainant was 16. By the time
she gave evidence at the trial in March 1997 she was 17.
On appeal
Held :
(1)
Although it was submitted that before the unsworn video-taped
interviews were received in evidence, the complainant should have been sworn
and asked to adopt the truth of her statements in the interviews, s 79C made the
video recording admissible and gave evidential effect to the statements which it
recorded as if those statements had been given in direct oral testimony, without
the need for the witness to be sworn or to give oral evidence adopting the
statements. Section 79C provided an exception to the general rule that only
oral testimony on oath or affirmation might be admitted in a criminal trial: R v
Day [1997] 1 Cr App R 181; R v Sharman [1998] 1 Cr App R 406. A more
accurate view of s 79C was that it made the video recording admissible and then
provided that a statement made by the child in the recording should have the
same effect as if given in direct oral testimony;
(2)
While the Appellant submitted that when s 79B(2) was read with the
definition in s 79A of ‘child’, the sub-section did not permit a child who was 17
to give evidence or be examined by way of a live television link. The Court of
Appeal answered the argument by stating that as the complainant was under 18,
she fell within paragraph (a)(ii) of the definition of ‘child’. There was no
error;
(3)
An accused might be subjected to unfairness and embarrassment if he
was called upon to meet a charge of one offence based upon evidence of the
commission of multiple offences, more particularly if the evidence was such
that it did not enable each such offence to be clearly differentiated from the
others. If the prosecution’s case was based on evidence of many offences in an
extended period of time the unfairness might be considerable. The principle
also played a part in preserving the notion of a separate trial for a separate
offence. It enabled the jury to focus on the single offence proved as the basis
for a conviction of the offence charged and it encouraged the jury to apply the
criminal standard of proof to the evidence of that offence. If, as here, the jury
was invited to find the commission of at least one offence from evidence of
multiple offences there was either a risk of want of unanimity as to the same
offence or a willingness to find guilt from the very frequency of the offences
suggested by the evidence. The risk arose because the focus of the jury might
be directed from the particularity of a single offence to the generality of the
evidence of multiple offences. The general principle precluded proof of more
than one offence as the basis for the conviction of the single offence charged.
There was no qualification or exception which permitted a prosecution for
sexual abuse of a child to be presented on the basis of a specimen count when
the complainant was unable to be precise as to the date, time and place of the
particular offences of which complaint was made, was unable to distinguish
between them, and the offences extended over a long period of time: S v The
Queen (1989) 168 CLR 266. In allowing the trial to proceed without confining
each count to a single act of rape, there was an error of law;
(4)
The submission that the recordings should have been edited to omit
answers to leading questions and suggestions could not be accepted. As the
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ccab 1999
Witness
recordings were of interviews, it would not be right to insist that leading
questions should not be asked, though recordings of interviews which revealed
leading questions might be subject to adverse comment when received in
evidence at trial;
(5)
The judge did not direct the jury that in order to convict the accused on
both counts, they must be satisfied that he committed the one particular act of
rape in each of the two periods specified in the indictment. Nor did he instruct
the jury to the effect that the absence of particularity with respect to the
individual incidents alleged to have occurred so long ago made it difficult for
the accused to meet the charges; such a direction was an important element in
ensuring fairness to the accused in cases involving old charges, especially when
there was little particularity. Had either direction been given, it might well
have had an impact on the jury’s consideration of the issue.
Result - Appeal allowed.
MA 782/98
Pang J
(18.11.98)
*Francis Lo
WU Anthony
Cross-examination as to credit of witness upon prior statement/Witness not
asked to adopt statement/Contents of statement not admissible as truth of
facts therein
根據先前的供詞盤問證人以質疑其可信性 – 沒有要求證人確
認有關供詞 – 供詞內容不能接納為真確無訛的事實
The Appellant was convicted after trial of one offence of careless
driving, contrary to s 38(1) Cap 374.
#C Grounds
At trial, a prosecution witness was cross-examined on the basis of a
statement made out of court. Although that witness admitted to having made
the statement he was never asked to confirm in court the truth or otherwise of
the relevant passages. The magistrate nevertheless purported to rely upon
‘admissions’ made in those passages. On appeal
Held :
The sole purpose of confronting the witness with those passages in the
statement was to attack his credibility. Where the evidence of a witness was
challenged by a previous statement, the law was that while the previous
statement might be put to the witness to destroy his credit, the contents of the
statement were not admissible as truth of the facts stated therein: R v Golder
(1961) 45 Cr App R 52.
Result - Appeal allowed.
294
ccab 1999
FAMC 2/99
Li CJ,
Ching &
Bokhary PJJ
Witness
CHUEN
Lai-sze
Absent witness not supporting defence case/Witness required to enable defence
to explore issues/Absence no basis for stay/Counsel not to be accused of flagrant
incompetence in absence of firm grounds
缺 席 的 證 人 並 不 支 持 辯 方 – 證 人 的 作 用 是 容 讓 辯 方 研 究 案
情 – 證人缺席聆訊不是擱置審訊的理由 – 在缺乏實質證據
支持下律師不應被指明顯失職
(23.4.99)
*D G Saw SC
&
Marco Li
#Ian Lloyd &
Peter
Callaghan
The Applicant, a serving police inspector, was found guilty with three of
her team of having committed the offence of assault occasioning actual bodily
harm. Her appeal to the Court of First Instance was dismissed and she applied
for leave to appeal to the Court of Final Appeal out of time.
In support of the application, it was submitted, first, that as a person
named Chung was not called as a witness it was not possible for the Applicant
to have a fair trial. Second, it was said that in the absence of that witness the
magistrate erred in refusing a stay of the proceedings. Third, it was contended
that in her appeal to the Court of First Instance the Applicant’s then counsel
wrongly abandoned a ground which substantially raised these matters.
Held :
(1)
The statements made by Chung did not assist the defence assertion of a
conspiracy between Chung and the victim of the assault to frame the Applicant
and her co-accused. In argument before the magistrate it was conceded that
although Chung’s evidence did not support the Applicant’s case, his presence
would allow matters to be explored whereupon the court might make findings
which supported that case. That was a wholly erroneous basis upon which to
insist that a witness be called. No reasonable grounds had been advanced to
show that the magistrate erred in refusing a stay;
(2)
Although it was said that the prosecution or the magistrate ought to
have called Chung after the Applicant’s lawyers had unsuccessfully sought to
serve a subpoena upon him, it was not possible to see how either could have
done so, quite apart from the irrelevance of the evidence;
(3)
It was a matter of extreme regret that it had been thought proper to
allege that counsel for the Applicant in the Court of First Instance had been
guilty of flagrant incompetence in abandoning the ground. That was a very
serious allegation to make and should only be made where there were firm
grounds for it. There were none and it should never have been made.
Result - Application dismissed.
Obiter - Had the proposed appeal borne any chance of success the court would
have been minded to grant the application for an extension of time.
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Witness
香港特別行政區 訴 簡威龍
HKSAR v KAN Wai-lung
高等法院刑事上訴法庭 – 高院刑事上訴 1998 年第 467 號
高等法院上訴法官梁紹中
高等法院上訴法官王見秋
高等法院原訟法庭法官胡國興
*黃崇厚
Albert Wong
一九九九年七月二十二日
申請人自辯
Applicant in
person
COURT OF APPEAL OF THE HIGH COURT
CRIMINAL APPEAL NO. 467 OF 1998
LEONG JA, WONG JA AND WOO J
22 JULY 1999
警方調查人員及警務人員在審訊時留在法庭內 - 所有證人均
為警務人員 - 當中有否不公平之處 - 法官的酌情權 - 律師
沒有提出反對
申請人經審訊後被判猥褻侵犯他人及搶劫罪罪名成立 。
申請人在上訴時指出，有一名參與調查申請人案件的偵緝督
察 坐 在 法 庭 內 檢 控 官 後 面 協 助 檢 控 官。 另 外， 申 請 人 又 指 在 開 審 時
警 務 人 員 經 常 進 出 法 庭， 而 審 訊 時 的 證 人 全 是 警 務 人 員 ， 這 對 申 請
人是不公平的。
答辯人指出 ，審訊期間有證人留在法庭內並無違反法規。 他
援 引 Moore v Registrar of Lambeth Court [1969] 1 WLR 141 一
案：
“ 沒 有 任 何 法 律 規 定 在 審 訊 中， 某 方 所 傳 召 的 所 有 證 人
必須直至輪到他們作供時留在法庭外。這完全是一件屬
於法庭酌情權的事情。誠然 ，如法庭裁決所有證人均應
留於法庭外而其中一名證人卻不理該裁決而留於法庭
內，法官雖可就此不服從他指示的行為表示極為不快 ，
但他卻無權拒絕聆聽此證人的證供。”
裁定︰
在 審 訊 期 間 ， 申 請 人 是有 律 師 代 表 的 ， 如 果 有 警 方 證 人 在
審 訊 時 不 應 在 法 庭 之 內 卻 留 在 法 庭 內， 申 請 人 的 律 師 也 會 提 出 反
對。但申請人的律師並無提出任何反對 ，而警務人員在法庭內沒有
任 何 不 當 的 舉 動， 亦 沒 有 對 申 請 人 造 成 不 公 平 之 處。
拒 絕 申 請。
[English digest
of CA 467/98,
above]
KAN Wailung
Presence of police investigator and police officers in court
during trial/Police officers only witnesses/Whether unfairness/Discretion of
judge/No objection by counsel
The Applicant was convicted after trial of indecent assault and robbery.
296
ccab 1999
Witness
On appeal, it was submitted, inter alia, that a Detective Inspector of
Police, who had taken part in the investigation of the Applicant’s case, had sat
behind the prosecutor in the court and assisted him. It was also complained
that during the trial police officers regularly entered and left the court. All the
witnesses at trial were police officers, and it was said that these matters were
unfair to the Applicant.
The Respondent contended that the presence of witnesses in court during
a trial was not contrary to law. As stated in Moore v Registrar of Lambeth
Court [1969] 1 WLR 141:
No rule of law requires that in a trial the witnesses to be called by one
side must all remain out of court until their turn to give testimony arises.
This is purely a matter within the discretion of the court. Indeed, if the
court rules that witnesses should be out of court and a witness
nevertheless remains inside, while the trial judge may well express his
grave displeasure over such disobedience, he has no right to refuse to
hear the evidence of such a witness.
Held :
The Applicant was represented at trial. If there had been any police
witness who should not have been present in the court counsel for the Applicant
would have objected. Counsel for the Applicant raised no objection, there was
no improper behaviour by the police officers in the court and there was no
unfairness to the Applicant.
Result – Application dismissed.
MA 426/99
Woo J
(21.9.99)
*Jonathan
Man
#Roland Lau
CHEUNG
Man-hong
Privilege against self-incrimination/Extent of/Defence counsel inviting
court to warn witness/Comments on defence complaints over exercise of
rights
不使自己入罪的特權 - 特權的範圍 - 辯方律師請法庭提醒
證人 - 就辯方對證人行使權利提出申訴作出評論
The Appellant was charged, with another accused and persons not in
custody, with a single offence of theft of about 100 video compact discs, the
property of Chen Hin-wai, and valued at $6,000. He was convicted after trial.
On appeal, it was argued that the magistrate erred in law in allowing the
victim, Chen Hin-wai, not to answer a number of questions on the ground of
privilege against self-incrimination. The matter arose after defence counsel
asked Mr Chen if he sold pirated VCDs without copyright, and Mr Chen said
‘Yes’. When defence counsel then asked Mr Chen if he had employed
someone else to be at the shops to be arrested instead of himself when his shops
were raided by the Police or the Customs, he, defence counsel, invited the
magistrate to give a warning to Mr Chen against self-incrimination, and this he
did. Mr Chen then refused to answer these four questions:
(1)
Whether he had made a false statement to the police after he
admitted that two of the names of his employees given in his
statement to the police were wrong;
(2)
Where to find his business partner;
(3)
Whether it was he or his partner who paid the employees; and
(4)
What was his share of the profits made by the business every
month after everything was discounted.
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Defence counsel raised no objection or made no point to the magistrate after
these refusals.
In his statement of findings the magistrate dealt with the privilege
against self-incrimination and said:
The privilege (which applies to a witness giving evidence, as in
the present case) derives both from statutory provisions and
common law rules. S 10 of the Evidence Ordinance, Cap 8,
provides:
‘Nothing in this Ordinance … shall render any person
in any proceedings compellable to answer any
question tending to criminate himself.’
In addition, there are common law rules establishing that a
witness is entitled to refuse to answer questions which might tend
to incriminate him, (R v Garbett (1847) 2 C&K 474; R v Lam
Chi-ming [1991] 2 HKLR 191).
The magistrate further referred to R v Minihane (1922) 16 Cr App R 38,
to make the point that the privilege did not extend to prevent the incrimination
of others. He went on:
The unanswered questions, by PW1, at trial could broadly be
divided into two categories, namely: (a) whether he had hired
anyone, who always stationed at the shops, as scapegoat in the
event of a police raid; (b) whether he deliberately misled the
police, when giving a witness statement, by providing false
information. I was satisfied that if PW1 was compelled to
answer the unanswered questions, he would ultimately place
himself in danger. The nature of danger being misleading the
police and exposing the structure, in detail, of his unlawful
business, namely: ‘offering for sale infringing copies of copyright
works for the purpose of trade or business without the licence of
the copyright owner’. I was satisfied, in the circumstances, that
the objections PW1 raised were genuine; it was not an attempt to
escape examination altogether or to avoid incriminating others.
The Appellant relied on Brebner v Perry [1961] SASR 177, for the
proposition that where a witness had already made an admission on a particular
topic, he could not later claim privilege with respect to testimony on the same
subject.
Held :
(1)
The decision in Brebner v Perry [1961] SASR 177, related to the right of
a witness to claim the privilege. The party who called him in that case
objected to his refusal to answer questions. That was why when the magistrate
ruled against the prosecutor, the prosecutor applied to have a case stated before
the judge. In the present case, when Mr Chen talked about his selling pirated
discs and when he was asked whether he gave wrong names in the statement to
the police as to his employees, he was not warned by anyone. It was defence
counsel who invited the magistrate to warn the witness, and when the witness
declined to answer the four questions defence counsel did not object or apply to
the magistrate to compel Mr Chen to answer the questions;
(2)
Not only were the reasons given by the magistrate as to why he allowed
the witness not to answer questions correct, but the defence should not be
allowed to blow hot and cold. Defence counsel made no point at trial when Mr
Chen refused to answer the questions. If the defence were to be allowed to
298
ccab 1999
Witness
rely on the absence of answers to those questions as a basis for appeal, it would
be unfair to the magistrate and to the administration of justice.
Result - Appeal dismissed.
CA 42/99
Stuart-Moore
VP Wong JA
&
Woo J
(17.11.99)
*P S Chapman
#W Stirling
CHAN
Ka-chun
Rules and Directions for questioning of suspects/Effect of
breach/Admissibility linked to voluntariness/Residual discretion to
exclude/Exercise of discretion to allow witness in fear to testify through
video link
查問疑犯的規則及指示 - 違反規則的後果 - 供詞可否接納
關乎供詞是否自願作出 - 豁除證據的剩餘酌情權 - 行使酌
情權容許在恐懼中的證人以電視直播聯繫方式作證
The Applicant was indicted with Chan Ki-nang in an indictment
containing 10 counts. The Applicant was D1 and Chan was D2 in the
amended indictment. After a trial, he was convicted by unanimous verdicts on
all counts of conspiracy to commit robbery (counts 1, 3, 6 and 9), murder
(counts 2, 4 and 10), conspiracy to commit murder (count 5), and rape (counts 7
and 8). He was sentenced to life imprisonment for the murders and sentences
for the other offences ranged from 8 to 18 years totalling 26 years’
imprisonment to be served concurrently with the life sentences.
A third man, Leung Sze-lai, pleaded guilty to counts 6, 7, 8, 9, 11 and
12, and was sentenced to a total of 12 years’ imprisonment.
The evidence showed that Miss Kwok Yin, the victim in counts 5, 6, 7
and 8, reported to police on 27 January 1997 that she had been raped and robbed
by two men in Cheung Chau on 21 January 1997. The police immediately
started enquiries and as a result arrested Leung Sze-lai on 1 March 1997.
During his interview with the police Leung implicated the Applicant who was
arrested by the police that afternoon. The rest of the prosecution case was put
by the judge to the jury in these terms:
This case has been about four separate incidents. And, each
incident concerns what happened to one particular young woman.
I shall list them for you chronologically. The first incident I shall
call the ‘Cheung Chau burial case’. The prosecution say there
that both the 1st and the 2nd defendants conspired together to rob
Miss Cheung Wah-mei in about June of 1996, and then murdered
her. That incident is covered by the first two counts in the
indictments.
The second incident I shall call the ‘Hung Hom case’. There the
prosecution alleged that again both the 1st and the 2nd defendants
conspired to rob Miss Tam Ngan-hang in August of 1996 and then
murdered her. This incident is covered by the 3rd and 4th counts
in the indictment.
The third incident I shall call the ‘Kwok Yin incident’. The
prosecution alleged there that on about 21 January 1997, the 1st
defendant and Leung Sze-lai conspired together to rob Kwok Yin
and also conspired together to murder her. Also it is alleged that
on 21 June the 1st defendant and Leung Sze-lai both raped her,
and on the next evening of 22 January, the prosecution say that the
1st defendant raped her again. This incident is covered by counts
5, 6, 7 and 8.
Finally, there is the fourth incident which I shall refer to as the
‘Shatin Shing Mun River case’. Here the prosecution say that the
1st defendant and Leung Sze-lai conspired to rob Miss Yu Wai-man
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Witness
on February 17 of 1997 and the 1st defendant then murdered her,
whilst Leung Sze-lai is guilty of her manslaughter. This is in
counts 9 and 10 of the indictment.
The Applicant was interviewed by Detective Sergeant Fan. The first
interview took place between 19:44 hours and 20:36 hours on 1 March 1997.
The interview was in connection with the rape of Miss Kwok and was video
recorded. The Applicant was cautioned for rape. There were subsequent
interviews on 2 March and 3 March 1997 by the same officer which were also
video recorded. The information provided by the Applicant in the interviews
amounted to a full confession of each offence of which he stood indicted.
On appeal, it was submitted, as the first ground of appeal, that it was a
general principle of law that where a person was in custody for a particular
offence and began to make an admission to a more serious offence unrelated in
any way to the offence for which he was under caution he should, without
delay, be cautioned for the more serious offence. D/S Fan, it was said, was in
breach of that principle when he failed to caution the Applicant during the
interview on 1 March 1997, when the latter began to make admissions
concerning an offence unrelated to Miss Kwok Yin. The Applicant was
arrested and cautioned for raping Miss Kwok. There was also, it was
submitted, a failure to observe principle (d) in the introduction to the Rules
and Directions which, it was said, was a mandatory requirement under the
common law. Principle (d) stated:
that when a police officer who is making enquiries of any person
about an offence has enough evidence to prefer a charge against
that person for the offence, he should without delay cause that
person to be charged or informed that he may be prosecuted for
that offence.
The failure to comply with principle (d) followed by the failure to administer
the appropriate caution under Rule III was a serious breach of the law and
rendered the confession involuntary.
The second ground of appeal alleged that there was a material
irregularity in that the judge ought not to have permitted Miss Kwok to give her
evidence by way of video link. She was a mature woman who should not have
been categorised as a witness ‘in fear’. By allowing her to testify in that way
the judge had caused prejudice and unfairness towards the Applicant in relation
to the charges concerning Miss Kwok. It was contended that any fear she
might have had that the Applicant would exact revenge on her was just as
present whether she gave evidence on video link or in the witness box. The
Applicant could still see and recognise her.
Held :
(1)
Principle (d) in the Rules and Directions had to be read in conjunction
with principle (e) which was overriding and applicable to all cases. It read:
that it is a fundamental condition of the admissibility in evidence
against any person, equally of any oral answer given by that
person to a question put by a police officer and of any statement
made by that person, that it shall have been voluntary, in the sense
that it has not been obtained from him by fear of prejudice or hope
of advantage, exercised or held out by a person in authority, or by
oppression.
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From principle (e) it was clear that whether a confession was admissible
depended on whether it was voluntary. That principle did nothing more than
to affirm the classic test laid down by Lord Sumner in Ibrahim v R [1914] AC
559. R v Prager (1972) 56 Cr App R 151, added oppression as another ground
for exclusion, and held that, though failure to comply with the Judges’ Rules
might render answers and statements liable in some circumstances to be
excluded from evidence in subsequent criminal proceedings, the Rules were
merely a guide to police officers conducting investigations and were not rules of
law, and that the judge was entitled to refrain from deciding whether there had
been a breach of rule 2 in the light of his conclusion regarding the overriding
issue of voluntariness. Rule III did nothing to detract from the validity of the
voluntary nature of the confession. In this case, the judge was satisfied that the
statement was voluntary and admissible;
(2)
There might be occasions when confessions, although voluntary, were
excluded by the court in the exercise of its residual discretion as a result of
serious breaches of the Rules which amounted to unfairness. But a breach of
the Rules did not automatically render an admission or confession inadmissible.
The circumstances when a judge would exercise this discretion would be rare
and only in cases where it was clearly demonstrated that exclusion was
necessary to secure a fair trial of the accused: R v Chan King-hei and Others
[1995] 1 HKCLR 288. In R v Ng Wing-fai Cr App 238/89, it was stated that
although breaches of the Rules might indicate impropriety and unfairness, such
a breach did not, of itself, render a confessional statement inadmissible. Silke
VP added that the appellate court would only interfere with the exercise of the
discretion of a trial judge if it could be shown that he was clearly wrong in the
course he took or if it could be shown that he failed to consider matters which
he should or had taken into consideration matters which he should not. The
judge had considered all the evidence before him and was appraised of the full
circumstances under which the confessions were made;
(3)
Miss Kwok went through the traumatic and painful experience of having
been raped twice in two days by the Applicant and on the first occasion she was
gang raped by the Applicant and Leung Sze-lai. She was treated in a depraved
and revolting manner. It was most likely that the fear and shock she suffered
would not go away for a long time. The judge was clearly justified in
exercising his discretion to allow Miss Kwok to give her evidence by way of
video link. It was the duty of a judge to ensure that the system operated fairly
not only to the accused, but also to the prosecution and also to the witnesses: R v
DJX, SCY, GCZ (1990) 91 Cr App R 36. There would be no interference with
the proper exercise of discretion by the judge.
Result – Application dismissed.
END
301