To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies
致：刑事檢控科各律師/高級律政書記
裁判法院各法庭檢控主任
A Publication of the Prosecutions Division
of the Department of Justice
律政司刑事檢控科出版的刊物
CRIMINAL APPEALS BULLETIN
刑事上訴案判例簡訊
August Edition/2009
2009年8月號
General Editor
總編輯
I Grenville Cross, SC
江樂士 資深大律師
Associate Editor
副編輯
Patrick W S Cheung
張維新
Assistant Editors
助理編輯
Denise F S Chan
陳鳳珊
Lily S L Wong
王詩麗
Vinci W S Lam
林穎茜
Olivia O K Tsang
曾藹琪
This Bulletin summarises recent judgments which the editors consider of significance.
本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。
( * Denotes Public Prosecutor
( * 代表檢控官
# Denotes Appellant’s/Applicant’s/Respondent’s Counsel)
# 代表上訴人/申請人/答辯人的律師)
2
c.c.
SJ
副本送： 律政司司長
DDPPs
各副刑事檢控專員
e mail
LOs
電郵送： 各律政專員
D of AD
律政司政務專員
DSG
副法律政策專員
Secretary, Law Reform Commission
法律改革委員會秘書
DLA
法律援助署署長
Bar Association (Attn : Administrative Secretary)
香港大律師公會行政秘書
Law Society (Attn : Secretary General)
香港律師會秘書長
Editor/Hong Kong Cases
Hong Kong Cases 編輯
Faculty of Law, HKU (Attn : Dean of Faculty)
香港大學法律學院院長
Librarian (Law), City University
香港城市大學高級助理圖書館館長(法律組)
School of Law, Chinese University of Hong Kong (Attn : Director)
香港中文大學法律學院主任
PHQ/HKPF (Attn : ACP/Crime)
香港警務處警察總部警務處助理處長(刑事)
ICAC (Attn : Head/Ops)
廉政公署執行處首長
PTS/HKPF (Attn : FTO(Exam))
香港警務處警察訓練學校警察訓練主任(考試)
Administrator/Duty Lawyer Service
當值律師服務總幹事
C & E Training Development Group (Attn : Staff Officer)
香港海關訓練發展課參事
C & E Prosecution Group (Attn : Superintendent)
香港海關檢控課監督
LegCo Secretariat (Legal Service Division)
立法會秘書處法律事務部
D of Imm (Attn : AD(EL))
入境事務處助理處長(執法及聯絡)
Judiciary (PM/JISS Project)
司法機構資訊系統策略計劃策略經理
Librarian/D of J
律政司圖書館館長
Director of Advanced Legal Education
法律專業進修總監
Hung On-to Memorial Library (HK Collection)/HKU
香港大學孔安道紀念圖書館（特藏部）
Departmental Prosecution Sections
各部門的檢控組
3
INDEX
A.
B.
C.
D.
E.
F.
p. 4 – p. 10
Hong Kong Court of Final Appeal
第4至10頁
香港終審法院
p. 11 – p. 13
Appeals by way of Case Stated
第11至13頁
以案件呈述方式提出的上訴
p. 14 – p. 18
Criminal Appeals/Against Conviction
第14至18頁
刑事上訴案件/針對定罪
p. 19 – p. 25
Criminal Appeals/Against Sentence
第19至25頁
刑事上訴案件/針對刑罰
p. 26 – p. 28
Magistracy Appeals/Against Conviction
第26至28頁
裁判法院上訴案件/針對定罪
p. 29 – p. 32
Magistracy Appeals/Against Sentence
第29至32頁
裁判法院上訴案件/針對刑罰
4
Appeal No.
(Date of
Judgment)
Case
Title
Significance
A. HONG KONG COURT OF FINAL APPEAL
香港終審法院
FACC 1/2009
Li CJ
Bokhary
Chan &
Ribeiro PJJ
Sir Anthony
Mason NPJ
(24.7.2009)
*Cheung Waisun & Lam
Wing-sai
#Christopher
Chain
WONG
Hon-sun
Forfeiture/Driver convicted of attempted export of
unmanifested cargo/Forfeiture of cargo against unconvicted
owner/Forfeiture proceedings civil in character/Onus on
Commissioner of Customs to establish liability of goods seized
to forfeiture on civil standard of proof/Legal burden on
claimant to establish case on balance of probabilities/Import
and Export Ordinance (Cap 60) s 28(7)
沒收 – 司機被裁定企圖輸出未列艙單貨物罪名成
立 – 針對未被定罪的擁有人沒收貨物 – 沒收的法
律程序屬民事性質 – 香港海關關長有責任以民事
法律的舉證準則證明被檢取的貨物可予沒收 – 聲
請人有法律責任在相對可能性下證明其案情 – 香
港法例第60章《進出口條例》第28(7)條
The principal question in this appeal was whether
proceedings for an order for forfeiture of 42 silver bricks worth
$1,644,167 under s 28 of the Import and Export Ordinance, Cap
60 (‘the IEO’) against the Appellant who claimed to be an
innocent owner of the silver fell within art 11(1) of the Hong
Kong Bill of Rights Ordinance, Cap 383 (‘the BOR’). The bricks
were seized by Customs officers as they were in the course of
being illegally exported across the Hong Kong–Mainland border
in contravention of the IEO.
The Appellant submitted that an affirmative answer to the
principal question would necessarily result in the setting aside of
the order for forfeiture of the silver, which was made by the
magistrate in the proceedings, because the magistrate failed to
apply the presumption of innocence and the criminal standard of
proof which were mandated by art 11(1). The magistrate made the
order for forfeiture because she refused to exercise her discretion
to order the goods to be delivered to the Appellant, on the ground
that the Appellant was not an innocent owner of the silver.
The silver, which was hidden in the driver’s compartment of
a lorry, was not recorded in a manifest and was seized as
unmanifested cargo within the meaning of the IEO. The driver of
the lorry was subsequently convicted of the offence of attempting
5
to export unmanifested cargo, contrary to s 18(1)(b) of the IEO
and s 159G of the Crimes Ordinance, Cap. 200, and sentenced to 1
year’s imprisonment.
By virtue of s 27(1)(a) of the IEO, the silver, having been
seized by a Customs officer in connection with the contravention
of the IEO, was ‘liable to forfeiture’, whether or not any person
was convicted of an offence in respect of the contravention.
Having decided not to restore the silver to the owner under
s 27(2), the Commissioner, as required by s 27(3), served a notice
of the seizure on the Appellant as a person who was, to the
knowledge of the Commissioner, the owner of the silver. The
Appellant then gave notice to the Commissioner under s 27(5)
claiming that the silver was not liable to forfeiture. The
Commissioner thereupon applied to the magistrate’s court for the
forfeiture of the silver, as required by s 28(1). As prescribed by
s 28(2), a magistrate issued a summons requiring the Appellant to
appear before the magistrate’s court on the hearing of the
Commissioner’s application for forfeiture.
The magistrate who heard the proceedings considered the
evidence and found that the Appellant failed to prove on a balance
of probabilities any good reason for return or conditional return of
the silver. She formed an adverse opinion of the Appellant’s
evidence. Neither at the hearing before the magistrate nor before,
did the Commissioner or his counsel contend that the Appellant
was complicit in the contravention of the IEO connected with the
export of the silver.
The Appeal Committee granted leave to appeal in relation to
the burden and standard of proof governing the question of an
owner’s complicity in the contravention that led to the silver
becoming liable to forfeiture. The critical provision was s 28(7),
which provided:
(7) Upon the hearing of the application under
subsection (1), in any case other than a case
referred to in subsection (6)(a) or (b) a court
may, if it is satisfied –
(a)
that a person is, or would have been,
entitled to make a claim under section
27(5) in respect of the seized article, vessel
or vehicle; and
(b)
that the article (not being such an article as
is referred to in Schedule 1), vessel or
vehicle is liable to forfeiture,
order that the article, vessel, or vehicle(i)
be forfeited to the Government;
6
(ii) be delivered to the claimant subject to any
condition which it may specify in the order;
or
(iii) be disposed of in such manner and subject
to any such condition as it may specify in
the order.
Held:
(1) Although the discretion conferred by s 28(7) was expressed
in unqualified terms, without any specification of criteria, the
scope of the discretion was necessarily circumscribed by reference
to the context and purpose of Pt VI of the IEO. Part VI dealt with
forfeiture of articles seized in connection with contraventions of
the IEO and the regulations, and vessels and vehicles seized which
had been used in connection with such contraventions;
(2) Proceedings for the forfeiture of goods liable to forfeiture
for breach of the laws governing importation and exportation had
a long history, which was notable for its severity. Historically, the
severe sanction of mandatory forfeiture and condemnation of the
relevant goods was applied, irrespective of the innocence of the
owner of the goods, as a deterrent to discourage what was, and
still is, regarded as very serious illegal activity and to protect the
revenue. Indeed, in some jurisdictions, such as the United
Kingdom, Australia and New Zealand, legislation providing for
mandatory forfeiture or condemnation of the relevant goods was
still in force;
(3) In Canada and Hong Kong, however, the severity of the old
law had been alleviated by conferring a discretion on the courts to
order the relevant goods to be delivered to the owner. The
introduction of a discretionary regime to replace a mandatory
regime was designed to soften the harsh impact of mandatory
forfeiture or condemnation on an owner of goods who was
innocent of any association with the contravention of the law that
led to the goods becoming liable to forfeiture. In the case of
Canada, this was apparent on the face of the legislation which
provided for an innocent owner to apply to the Minister for relief
against forfeiture with an appeal to a court from the Minister’s
decision (see Customs Act 1985, ss 122, 138-139). In the case of
Hong Kong, the purpose of conferring the discretion, though the
same, was not exhibited in this way;
(4) The present regime in Hong Kong which conferred a
discretion on the court or magistrate where the seized article (not
being a strategic commodity) was liable to forfeiture was first
7
enacted in the Import and Export Ordinance (No. 67/70). This
Ordinance repealed the earlier Importation and Exportation
Ordinance, s 17 of which provided for a regime of mandatory
forfeiture and condemnation of an article ‘liable to forfeiture’
because it was the subject of a contravention of the Ordinance or
regulations thereunder. This mandatory regime prescribed a
procedure, similar to the present procedure under ss 27 and 28,
whereby the Director was required to give notice to the owner, any
person claiming that an article seized was not liable to forfeiture
was to give notice to the Director who was then directed to apply
to a magistrate for condemnation of the article;
(5) If the magistrate found the article, vessel or vehicle was
liable to forfeiture at the time of seizure, s 17(8) provided ‘he
shall condemn it as forfeited’. Under that mandatory regime, the
only question was whether the article, vessel or vehicle was liable
to forfeiture. The magistrate had no discretion to order an article,
vessel or vehicle liable to forfeiture to be delivered to the owner,
as the magistrate had under s 28(7);
(6) The purpose of the discretion conferred by s 28(7) was to be
seen as enabling a court or magistrate to alleviate the harsh impact
which an order for forfeiture would have on the innocent owner of
an article liable to forfeiture, by ordering it to be delivered to him
unconditionally or conditionally. There was nothing in the
language of Pt VI or the history of the legislation to indicate that
the purpose of s 28(6) and (7) was to do more than to bring into
existence a discretionary regime for the benefit of an innocent
owner; in other respects the purposes to be served by making an
order for forfeiture remained the same as they had always been,
namely, to act as a deterrent to serious illegal activity and to
protect the revenue. It was with these considerations in mind that
the s 28(7) discretion was to be exercised;
(7) On a hearing under s 28(7) the Commissioner bore the onus
of establishing that the seized article was liable to forfeiture,
namely, that it was the subject of a contravention of the IEO or the
regulations. Once this was established the Commissioner made
out a prima facie case for the order for forfeiture of the article and,
in the absence of evidence to support an exercise of the discretion
to order delivery of the seized article to the claimant, the court
would make an order for forfeiture. This was the true position
under the IEO followed from the fact that, in the circumstances
supposed, the article was liable to forfeiture as an article which
was the subject of the contravention of the IEO or the regulations;
(8) It was therefore for the claimant, in order to avoid this
outcome, to make out a case for an exercise of the discretion to
order delivery of the article to him. He might do this by proving
8
facts to the satisfaction of the court, according to the balance of
probabilities, that showed that he did not in any way participate in
or facilitate, either by design or negligence, the contravention
which had resulted in the article becoming liable to forfeiture. To
say this was to say no more than that a party who sought to have a
judicial discretion exercised in his favour bore the burden of
establishing his case. It was not for his opponent to negate the
existence of such a case;
(9) This interpretation had additional force in the context of
Pt VI of the IEO. Whether the claimant was wholly innocent of
any connection with the relevant contravention of the IEO was a
matter that lay within his knowledge, not the Commissioner’s
knowledge. It would put a heavy burden on the Commissioner if
he were compelled in every case to shoulder the burden of
showing that the claimant participated in, or facilitated, the
relevant contravention. Even if, in some cases, the Commissioner
was aware of evidence that indicated that the claimant was
complicit in the contravention, that fact was no justification for
suggesting that, in some way or other, the legal burden rested on
the Commissioner in such cases simply because there was an issue
of serious misconduct. The existence of such an issue could not
justify a reversal of the onus of proof which lay on an applicant
seeking the exercise of a judicial discretion to make an order in his
favour. The legal burden of proof related to the making out of a
case not to the proof of particular facts;
(10) This approach to the meaning and application of s 28(7) was
in some respects inconsistent with what was said in R v CEC
Finance Ltd [1993] 1 HKC 127, and not everything said in that
case should be accepted;
(11) The Appellant’s argument was that because the forfeiture of
the silver depended upon a finding that he was not innocent in
relation to the contravention of the IEO, the proceedings were to
be characterized as criminal proceedings. The consequence was
that the presumption of innocence applied in accordance with art
11(1) and the Commissioner bore the onus of proof of the
Appellant’s complicity, according to the criminal standard of
proof beyond reasonable doubt;
(12) The Appellant, invoking the decision in Koon Wing-yee v
Insider Dealing Tribunal (2008) 11 HKCFAR 170, at 187F,
submitted that the classification of the offence under domestic
law, though important, was by no means conclusive because the
second and third criteria – the nature of the offence and the nature
and severity of the potential sanction – were more important.
Here, the Appellant said, a finding that the owner of goods was
complicit in an offence under the IEO was ‘a form of conduct
9
which can be readily characterized as criminal conduct’ (Koon
Wing-yee at 191A). And, as to the severity of the penalty, it had
often been stated that forfeiture provisions were ‘penal and
deterrent in nature’ (See, for example, Attorney General v So Lokam [1986] HKLR 564 at 569G, per de Basto J), resulting as they
did in the deprivation of the owner’s property in the article;
(13) There was, however, very strong authority in the European
Court of Human Rights for the proposition that forfeiture
proceedings were civil in character and did not involve the
determination of a criminal charge for the purposes of provisions
in the European Convention on Human Rights and Fundamental
Freedoms (‘the European Convention’) which corresponded with
arts 10 and 11(1) of the BOR (see Air Canada v United Kingdom
(1995)
20
EHRR
150
and
Allgemeine
Gold-und
Silberscheideanstalt (AGOSI) v United Kingdom (1987) 9 EHRR
1). There was also strong English authority to the same effect in
the context of the Human Rights Act 1998 (UK) (see Goldsmith v
Customs and Excise Commissioners [2001] 1 WLR 1673; R
(Mudie) v Dover Magistrates’ Court [2003] QB 1238; Gora v
Customs and Excise Commissioners [2004] QB 93). The
Appellant sought to distinguish these cases on the basis that the
United Kingdom legislation in question provided for mandatory
forfeiture and did not contain the discretionary element provided
for in s 28(7);
(14) The suggested distinction was no more than an immaterial
point of difference. In Air Canada, the Strasbourg Court pointed
out (at 177) that the relevant section provided a process in rem
against, inter alia, any vehicle used in smuggling. It was on this
very ground that the Court, in Koon Wing-yee (at 193E),
distinguished Air Canada from the proceedings in question in
Koon Wing-yee. It was the character of the proceedings as civil
proceedings in rem against the goods that denied them the
character of criminal proceedings;
(15) Once this was accepted, as it must be, it was impossible to
conclude that a discretionary power to relieve against the
forfeiture that would otherwise follow converted the process into
the determination of a criminal charge, even if the exercise of the
power was conditioned on a showing of non-complicity in the
relevant contravention;
(16) In proceedings under s 28(7), while the Commissioner bore
the onus, according to the civil standard of proof, of establishing
that the article seized was liable to forfeiture, the claimant bore the
legal burden of making out his case on the balance of probabilities
for an order for delivery to him of the seized article, either
unconditionally or conditionally.
10
Result – Appeal dismissed.
[For forfeiture orders generally, see Sentencing in Hong Kong,
5th ed., Ch 23: Ed]
11
B. APPEALS BY WAY OF CASE STATED
以案件呈述方式提出的上訴
MA 95/2009
Toh DJ
(31.7.2009)
*Cheung Wai-sun
#Liu Yuen-ming
SJ
v
Maxim’s
Caterers
Ltd
Laying of information/Computation of time/Six months
limitation on laying of information does not include date of
offence/Time runs from day after offence/Magistrates
Ordinance (Cap 227) s 26/Interpretation and General Clauses
Ordinance (Cap 1) s 71
提出告發 – 時間的計算 – 提出告發的6個月時效不
包括犯罪日期 – 時間由犯罪日期翌日開始計算 –
香港法例第227章《裁判官條例》第26條 – 香港法
例第1章《釋義及通則條例》第71條
An information was laid against the Respondent on
18 September 2008 for an offence under s 52(1) and s 150 of the
Public Health and Municipal Services Ordinance, Cap 132, that on
18 March 2008 the Respondent sold to the prejudice of the
purchaser an article of food which was not of the substance
demanded by the purchaser.
At trial, the Respondent submitted, as a preliminary issue,
that the information was laid out of time, and the magistrate
upheld the submission.
The Appellant applied to the magistrate to state a case
pursuant to s 105 of the Magistrates Ordinance, Cap 227, and these
questions were posed for the consideration of the High Court:
(1) According to the correct interpretation of s 26 of
the Magistrates Ordinance, Cap 227, should the
date of offence be included?
(2) Having considered the correct interpretation of
s 26 of the Magistrates Ordinance, Cap 227, need
I not consider s 71 of the Interpretation and
General Clauses Ordinance, Cap 1?
(3) Was this information laid out of time?
(4) Whether I erred in dismissing this information?
It was the Appellant’s case that s 26 of the Magistrates
Ordinance, Cap 227, should be read with s 71(1) of Cap 1.
Section 26 of the Magistrates Ordinance provided that:
26. Limit of time for complaint or information
In any case of an offence, other than an indictable
offence, where no time is limited by any enactment for
12
making any complaint or laying any information in
respect of such offence, such complaint shall be made
or such information laid within 6 months from the time
when the matter of such complaint or information
respectively arose.
Section 71(1)(a) of Cap 1 provided:
(1) In computing time for the purpose of any
Ordinance(a) a period of days from the happening of any
event or the doing of any act or thing shall be
deemed to be exclusive of the day on which the
event happens or the act or thing is done; …
Held :
(1) As stated in Halsbury’s Laws of Hong Kong Volume 9
(2007 Reissue) at paragraph [130.565] note 1:
1
Under the Magistrates Ordinance (Cap 227) s 26,
where the time is not limited by any other
enactment, the information must be laid or the
complaint made, within six months from the time
when the matter of such complaint or information
arose (see also [130.564]). At common law,
although the issue is essentially one of statutory
construction, time is usually calculated on the
basis of excluding the day upon which the offence
occurred: Radcliffe v Bartholomew [1892] 1 QB
161, DC (Eng). This is also the position under
statute law whereby pursuant to the
Interpretation and General Clauses Ordinance
(Cap 1) s 71(1)(a), unless the statute creating the
time limit provides otherwise, the date on which
an event occurs or an act takes place does not
count in calculating whether the time limit has
been exceeded …
(2) It was, thus, clear that at common law, the computation of
time did not include the day upon which the offence occurred, and
the Appellant argued that as a matter of statutory construction, it
also must be the same, citing s 71(1) of Cap 1;
(3) Although s 71(1) of Cap 1 was relevant clearly to the
computation of a period of days rather than weeks, months or years
(see Li Tat-kong v Official Receiver & Another [2001] 1 HKC
207), this did not mean by implication that the common law
provision had been in any way abrogated by the absence of
wording of weeks, months or years in Cap 1;
13
(4) Although s 26 of the Magistrates Ordinance did not
specifically include the day the offence was committed, the
legislature must have considered that the common law
computation of time must still be relevant;
(5) Therefore, taking the wording of s 26 of the Magistrates
Ordinance and the common law background, the conclusion was
that the words ‘within 6 months from the time when the matter of
such complaint or information respectively arose’ did not include
the day of the offence;
(6)
The answers to the four questions were:
(1) No.
(2) Not necessary to consider s 71 of Cap 1.
(3) No.
(4) Yes.
Result - Appeal allowed, costs order set aside and case remitted to
the magistrate for hearing.
14
C. CRIMINAL APPEALS/
AGAINST CONVICTION
刑事上訴案件/針對定罪
CA 381/2008
Stock VP
Cheung JA
Saunders J
(23.7.2009)
*Eddie Sean
# Phillip Ross
TAM
Chi-choi
Burglary/Elements of offence/Judge amending charge and
convicting without giving defendant opportunity to respond
to intended action/Power to amend at late stage to be
exercised only if no prejudice
入屋犯法罪 – 犯罪要件 – 法官在沒有給予被告人
機會對擬採取的行動作出回應下修訂控罪並將被
告人定罪 – 於後階段進行修訂的權力只可在無損
權益下行使
The Appellant was charged with an offence of burglary,
under s 11(1)(a) of the Theft Ordinance, Cap 210. The charge
read:
Tam Chi-choi, on the 26th day of June 2008, in Hong
Kong, entered as a trespasser part of a building
known as Tokyo Sushi Restaurant, Nos 14-15,
Ground Floor, AIA Tower, No 183, Electric Road,
North Point, with intent to do unlawful damage to the
building or anything therein.
The evidence showed that on 26 June 2008 at about
3:45 am, the police were mounting an anti-burglary operation in
the vicinity of the Tokyo Sushi Restaurant (‘the restaurant’), in
Electric Road, North Point, Hong Kong.
The Appellant was seen walking to and fro outside the
restaurant. At 5:15 am, the Appellant approached the restaurant
with an iron bar, wrapped with a piece of cloth. Shortly
afterwards he dropped the iron bar and entered the restaurant.
The police followed the Appellant into the restaurant, and
found him squatting beside a refrigerator. He was arrested and
cautioned and said that ‘I understood, I had consumed alcohol,
that was the reason why I broke into here. I did not intend to
take the money; I only intended to cause damage to the things in
it’.
The restaurant owner said he came to know the Appellant
in July 2007 when the Appellant did electrical work at the
restaurant, but there was no more contact after that.
In his evidence, the Appellant said he entered the restaurant
not only to retrieve the tools he had previously left behind in the
15
restaurant, but also to check the freezer for the owner.
The judge rejected the Appellant’s explanation that he went
to the restaurant to damage the things inside but rather his
intention was to steal the things there.
Sections 11(1) and (2) of the Theft Ordinance read:
11. Burglary
(1) A person commits burglary if (a) he enters any building or part of a
building as a trespasser and with
intent to commit any such offence
as is mentioned in subsection (2);
or
(b) …
(2) The offences referred to in subsection (1)(a)
are (a) stealing anything in the building
or part of a building in question;
(b) inflicting on any person therein
any grievous bodily harm or
raping any woman therein; and
(c) doing unlawful damage to the
building or anything therein.
The judge found the Appellant guilty of burglary not on the
basis that he was charged, namely, that he entered the building as
a trespasser ‘with intent to do unlawful damage to the building or
anything therein’ but rather ‘with intent to steal’. The judge
relied on s 51(2) of the Criminal Procedure Ordinance (Cap 221),
which reads:
(2) If on the trial of any information, charge or
indictment for any offence other than treason it is
proved that the accused is not guilty of that offence
but the allegations in the information, charge or
indictment amount to or include, whether expressly
or by implication, an allegation of another offence
falling within the jurisdiction of the court of trial, he
may be found guilty of that other offence or of an
offence of which he could be found guilty on an
information, charge or indictment specifically
charging that other offence. (emphasis added)
On appeal
16
Held:
(1) The judge erred in relying on s 51(2). It was a difficult
question whether burglary was one offence with different
particulars or three separate offences under s 11(1)(a), namely,
(1) trespass with intent to steal;
(2) trespass with intent to inflict grievous bodily
harm or rape;
(3) trespass with intent to do unlawful damage.
(2) Smith and Hogan on Criminal Law (12th Ed), at p 906,
stated the English equivalent of section 11(1)(a) created three
separate forms of offence. The offence of burglary was
constituted when a person entered as a trespasser with the
necessary intent (R v Toothill [1998] Crim LR 876) irrespective
of whether or not he succeeded in the intended theft, grievous
bodily harm etc;
(3) If there was only one offence then arguably s 51(2) would
not be applicable at all because there was no issue of another
offence upon which the Court could convict. Section 51(2) was
not applicable because what was required was that the allegations
in the charge ‘amount to or include, whether expressly or by
implication, an allegation of another offence’;
(4) In R v Lillis [1972] 2 QB 237, 241, Lawton LJ, in
construing a similar provision in s 6(3) of the Criminal Law Act
1967, suggested that the test to be applied was:
This can be shown by striking out of the indictment
all the averments which had not been proved ― the
red pencil test.
(5) In Commissioner of Police of the Metropolis v Wilson and
R v Jenkins [1984] AC 242 at 258, Lord Roskill construed s 6(3)
as follows:
My Lords, the right approach to the solution of the
present problem must first be to determine the true
construction of section 6(3), bearing in mind the
observation of Lawton LJ in Lillis (1972) 56 Cr App
R 573; [1972] 2 QB 236 as to its purpose and as to
the position before its enactment. Ignoring the
reference to murder or treason, there seem to me to
be four possibilities envisaged by the subsection.
First, the allegation in the indictment expressly
17
amounts to an allegation of another offence.
Secondly, the allegation in the indictment impliedly
amounts to an allegation of another offence. Thirdly,
the allegation in the indictment expressly includes an
allegation of another offence.
Fourthly, the
allegation in the indictment impliedly includes an
allegation of another offence. If any one of these
four requirements is fulfilled, then the accused may
be found guilty of that other offence.
See further R v Whiting (1987) 85 Cr App 78;
(6) Whether the test to be adopted was by reference to Lillis or
Wilson and Jenkins, the requirement was not satisfied;
(7) The judge held that the burglary was constituted by the
intent to steal and not the intent to cause damage. Applying the
Lillis test, if the intent to cause damage in the charge was deleted,
then clearly it could not be shown that the charge ‘amounts to or
includes an allegation of intent to steal’, because as a result of
the notional striking out, the nature of the intent had not been
specified at all. That being the case the original intent to damage
could not encompass the intent to steal as well;
(8) If the Wilson and Jenkins approach was adopted, it could
not be said that the allegation of burglary constituted by trespass
with intent to cause damage expressly or impliedly amounted to
an offence of burglary constituted by trespass with intent to steal.
Also it could not be said that the allegation of burglary
constituted by trespass with intent to cause damage expressly or
impliedly included an allegation of the offence of burglary
constituted by trespass with intent to steal;
(9) What the judge had done was in effect to amend the charge
and convict on the amended charge without notifying the parties
of his intention to do so and without giving the Appellant an
opportunity to respond to his intended action. In the crossexamination of the Appellant, it was put to him by counsel for the
Respondent that he intended to steal. But as the prosecution had
not sought leave to amend the charge then clearly the basis on
which the Appellant was charged was still the one concerning the
intent to cause damage. This was the position notwithstanding
defence counsel had in fact expressly raised the issue whether a
conviction under s 11(2)(a) was possible;
(10) As the Court of Final Appeal stated in HKSAR v Mo Yuk-ping
[2007] 1 HKC 255, 272:
…where a prosecutor chooses to invite a conviction
18
on a specific factual basis, it is wrong in principle for
the tribunal to convict on a different basis of which a
defendant has not been notified and which he has not
had the chance to address in defence to the charge.
(11) The Respondent invited the Court to exercise the power to
amend. In HKSAR v Huynh Bat Muoi [2001] 4 HKC 643 the
Court on appeal amended the charges pursuant to the powers
conferred by s 23(1) of the Criminal Procedure Ordinance,
s 13(4) of the High Court Ordinance (Cap 4) and also under the
inherent jurisdiction of the Court;
(12) The power to amend should only be exercised at this late
stage if there was no prejudice to the Appellant. The amendment
was not in respect of some immaterial averment but to bring
forward a different contention altogether. If the amendment were
sought at the beginning of the trial, then tactical decisions such as
whether the Appellant would give evidence would have to be
considered by him. If the amendment were sought in the course
of the trial, then an opportunity would have to be given to the
Appellant to consider whether to recall the prosecution witnesses
or to give further evidence. The mere fact that the prosecutor
changed his mind late in the case and put to the Appellant that he
was at the restaurant intending to steal and that the Appellant
denied the allegation did not cure the problem. The Appellant
was entitled to know what charge he had to meet and he was
entitled to be provided with the opportunity to respond to a newly
amended charge. The prejudice to the Appellant at this stage was
a substantial one. Hence amendment was not appropriate;
(13) The Respondent also drew attention to s 83A of the
Criminal Procedure Ordinance. In HKSAR v Li Ting-kit [2002] 2
HKLRD 129 the Court, referring to s 83A, held the power under
that provision to substitute a different verdict included the power
to amend the particulars of the offence. For the same reasons,
amendment under this provision was not appropriate at this late
stage.
Result - Appeal allowed.
19
D. CRIMINAL APPEALS/
AGAINST SENTENCE
刑事上訴案件/針對刑罰
CA 465/2007
Hartmann JA
Wright &
Saunders JJ
(24.7.2009)
*Sin Pui-ha
#A1 (Absent)
J McGowan
& Valerie Lim (2)
(1) LIM
Ban-hoong
(2) MA
Ping
Conspiracy to defraud/Mastermind of elaborate scheme to
defraud bank/Not a mitigating factor that conspiracy stretched
the limits of audacity/Absence of loss/Maximum penalty of 14
years’ imprisonment
串謀詐騙 – 主謀以周詳計劃詐騙銀行 – 涉案的串
謀挑戰胆大妄為的極限不是減刑因素 – 沒有損
失 – 最高刑罰為14年監禁
After trial, the Applicants, together with one other, were
convicted of an offence of conspiracy to defraud. A1 was
sentenced to 18 months’ imprisonment. A2 was sentenced to 31
months’ imprisonment. [A1 was not present in court to proceed
with his application. His application was dismissed.]
The conspiracy to defraud consisted of the presentation to a
bank in Hong Kong of a written agreement purportedly entered
into in October 1948 in Shanghai in terms of which the bank, or
more accurately one of its predecessors in title, acknowledged
receipt of a deposit from a woman called Sa Haiian in the amount
of US$108 billion. Although the agreement left uncertain whether
the deposit was in cash or in precious metals to that value, the
agreement made provision for interest on the capital calculated at 8
percent per annum and allowed Madam Sa or her representative to
make withdrawals against the deposit using one or more of 30
cheques, each cheque being in the sum of US$3.6 billion.
In April 2007, A2’s co-conspirators made contact with the
bank in Hong Kong, and presented copies of the agreement and
certain of the cheques, claiming they were representing A2 and
asking for payment of all monies due into an account in her name.
The bank officials were suspicious of the authenticity of the
documents presented to them, and proceeded with caution.
In early June 2007, for the first time, A2 came with her two
co-conspirators to the bank in Hong Kong. She presented the
purported original of the 1948 agreement together with three
original cheques. In addition, she presented a photostat copy of the
agreement, photostat copies of all 30 cheques and a power of
attorney purportedly signed by Madam Sa. All of these copies
were certified to be true copies of the originals by a local
solicitors’ firm. The certifications were later shown to be false.
At this meeting, saying that she was acting under the authority of
Madam Sa, A2 gave instructions for the full capital sum plus
20
accumulated interest since 1948 to be paid into an account in the
Mainland. Immediately thereafter she and her co-conspirators
were arrested. The bank suffered no loss.
The judge concluded A2 was the mastermind.
On appeal, A2 submitted that the conspiracy to defraud the
bank was so obviously doomed to failure that, in assessing
sentence, the judge was obliged to take into account what in reality
amounted to no more than a notional risk. It was also said that the
judge erred in adopting a starting point in excess of 3 years, albeit
by only 3 months.
Held :
(1) This was not the first time that financial institutions and
individuals in Hong Kong had been subjected to attempts to
convince them that monetary instruments of different kinds,
instruments of considerable vintage created in times of war and
turbulence, were genuine and were either of enormous value in
themselves or had such value by reason of the fact that they
represented proof of a debt due. The fact that a conspiracy to
defraud stretched the limits of audacity was not of itself a
mitigating factor;
(2) All too often the values stated in attempts to defraud were
massive, as they were in this case. But that was not necessarily a
sign of naive avarice on the part of the perpetrators of the scheme.
In respect of a financial institution, for example, the greater the
claim, the higher the risk and thereby the more compelling the
temptation to offer a lesser amount in settlement;
(3) The scheme masterminded by A2 could not be dismissed as
presenting no risk to the intended victim. The false documents
employed by A2 were meant to have been created in October 1948.
That was a time of internecine struggle between forces of the Red
Army and the Kuomintang, a time when Shanghai was flooded
with refugees. An agreement purporting to have been made at that
time, a time when banking records might have been lost or
destroyed, might well have placed the bank in Hong Kong in
difficulty in attempting to verify or disprove the existence of the
debt;
(4) In the circumstances, the judge was correct to ignore what
A2 described as the sheer improbability of the scheme as a
mitigating factor;
(5) Although A2 made reference to two judgments in which
sentences of 3 years, taken as the appropriate starting point for
21
similar offences, were approved, there were no guidelines for
offences of this kind. Each case must be determined according to
its own facts. In any event, taking into account that in the present
case the starting point that was chosen was only 3 months more,
the sentence could not, for that reason alone, be criticised as
manifestly excessive;
(6) The maximum penalty for conspiracy to defraud was 14
years’ imprisonment: s 159C(6) of the Crimes Ordinance, Cap
200. Although there was no loss to the bank, taking into account
that A2 was the mastermind of an elaborately conceived attempt to
defraud which was aggressively pursued, the sentence of 39
months’ imprisonment was appropriate.
Result - Appeal dismissed.
[For conspiracy to defraud generally and quantum of sentence, see
Sentencing in Hong Kong, 5th ed., pp 585-586: Ed]
CA 383/2008
Hartmann JA
McMahon J
(14.7.2009)
*Anthea Pang
#I/P
LIN
Siu-lun
Manslaughter/Victim beaten to death by a group of men over
2-week period/Calculation of sentence/Different sentencing of
co-accused justifiable/Court at retrial not restrained by
sentence imposed at original trial/Exemplary sentence justified
for instigator
誤殺 – 受害人在兩周內被一群男子虐打至死 – 刑
期的計算 – 同案被告判刑有別是有理據的 – 重審
法庭不受原審的判刑限制 – 對鼓動者判處懲罰性
的刑罰是有理據的
After trial, the Applicant was acquitted of murder but
convicted of manslaughter.
The victim, aged 27 years, had been born mildly retarded.
He had known the Applicant for several years and considered him
a friend. However, he owed the Applicant money which he was
not in a position to pay until he received severance pay from his
immediate past employer.
For that reason, the Applicant
determined that the victim should be punished.
Over a period of almost two weeks, the victim was subjected
to a series of severe beatings which led directly to renal failure,
pneumonia and death.
The Applicant was not the sole assailant. At his primary
instigation, a number of others were drawn into the beatings.
22
During the beatings various implements were used, which included
a folding metal chair, a metal pole and a leather belt. Although the
victim had the greatest difficulty walking and his injuries must
have been manifest, the Applicant did not take any steps to provide
the victim with any meaningful medical treatment.
The autopsy revealed injuries to the victim’s arms, legs and
back. A conservative estimate of the injuries to the back was at
least 100. While none of the injuries taken alone could be
regarded as life threatening, their totality presented a different
picture, expert evidence showing that it caused a decrease in blood
supply leading to a shutting down of the kidney function, severe
oedema and eventually acute renal failure.
The Applicant stood trial for murder, and although he was
convicted this was quashed on appeal. The present appeal was
from his conviction for manslaughter at his second trial. At both
trials he had offered to plead guilty to manslaughter, but this was
not accepted by the prosecution.
At the retrial, the Applicant and his accomplice were each
sentenced to 12 years’ imprisonment.
On appeal
Held:
(1) Although the Applicant’s two co-accused who were
convicted of manslaughter in the first trial each received 8 years’
imprisonment in comparison with the Applicant’s 12 years in the
second trial, he had been tried by a different judge at a retrial. He
was the primary instigator and coordinator of the beatings which
led to the death, so there was no disparity in the sentences. But
even if there was a disparity, it was well-established that, where
different sentences were passed upon different defendants for the
same offence by different judges on different occasions, the
relevant consideration was whether the sentence passed on the
accused was proper;
(2) A court which passed a sentence after a retrial had the power
to pass a sentence which it considered appropriate and was not
restrained by a sentence passed at the original trial;
(3) Although the Applicant complained that, as he had offered to
plead guilty to manslaughter, the notional starting point for
sentence, before a one-third discount, must have been 18 years,
this failed to take into account that a judge passing sentence for
manslaughter was in no sense bound to assess a notional starting
point. Manslaughter was an offence in respect of which an
23
appropriate sentence might range from probation to life
imprisonment, and in respect of which a judge might not be able
conscientiously to fix a starting point. In such circumstances, the
judge must take an overall view of the matter, encompassing
matters both of aggravation and mitigation;
(4) On any objective reckoning, the treatment to which the
victim was subjected in the last week or more of his life was not
simply prolonged and brutal but, bearing in mind his particular
vulnerability, bore the marks of profound cruelty. The Applicant,
the instigator, showed a contempt for his well-being;
(5) Bearing in mind that the maximum sentence for
manslaughter was life imprisonment, the sentence imposed was
entirely appropriate and not in any way at odds with the finding of
the jury. An exemplary sentence was demanded, and one that
marked the extreme disquiet that all civilised societies must feel at
an unlawful killing of this kind.
Result - Application dismissed.
[For manslaughter generally and quantum of sentence, see
Sentencing in Hong Kong, 5th ed., at pp 619-620: Ed]
CA 14/2009
Hartmann JA
Saw J
(25.6.2009)
*Beney Wong
#Kay K W Chan
TO
Yiu-cho
Agent accepting advantage/Hotel purchasing manager
accepting bribes from suppliers/Deterrent sentence required/
No power to impose imprisonment in default if restitution not
made/Family circumstances not normally relevant as
mitigation/Prevention of Bribery Ordinance (Cap 201) ss 9 and
12
代理人接受利益 – 酒店採購經理接受供應商的賄
賂 – 須判處阻嚇性刑罰 – 無權施加如欠繳歸還款
項則須被處罰的監禁 – 家庭狀況通常不是相關的
求情因素 – 香港法例第201章《防止賄賂條例》第
9及12條
The Applicant pleaded guilty to an offence of being an agent
accepting an advantage, contrary to ss 9(1)(b) and 12(1) of the
Prevention of Bribery Ordinance, Cap 201 (‘the Ordinance ’).
The judge sentenced the Applicant to 14 months’
imprisonment. Pursuant to s 12 of the Ordinance he ordered that
the Applicant pay to his former employer, the Renaissance
Kowloon Hotel Hong Kong (‘the Hotel ’) the sum of $110,000,
such payment to be made within 6 months of his discharge from
24
prison and in default of payment ordered that the Applicant serve 4
months’ imprisonment.
As the purchasing manager of the Hotel, the Applicant was
responsible for placing orders with approved suppliers for the
Hotel. Amongst those on the approved list of suppliers were Yuet
Hing Meat Company (‘Yuet Hing ’), Tung Tak Dried Seafood
Company Limited (‘Tung Tak ’), Ho King Chicken and Duck Shop
(‘Ho King ’) and Hing Fat Seafood Company Limited (‘Hing
Fat ’). It was the Applicant who could determine which of the
approved suppliers would receive orders from the Hotel.
It was an admitted fact that from 1 May 2005 to 19 March
2007 the Applicant was paid $10,000 every two months ‘to show
favours to or not make things difficult for ’ Yuet Hing, Tung Tak,
Ho King and Hing Fat when placing orders for the Hotel. Over
this period he was paid $110,000, although the Hotel prohibited its
employees from accepting advantages of that kind.
The judge took a starting point of 21 months’ imprisonment
which he reduced to 14 months for the guilty plea.
On appeal, it was submitted, inter alia, that the judge erred
in imposing a default term of imprisonment if the Applicant failed
to comply with the s 12 restitution order, and that he failed to take
into account relevant matters in mitigation when imposing what he
described as a deterrent sentence.
Held :
(1) The judge was in error as there was no power to permit him
to impose a term of imprisonment in default of restitution. The
means of the offender subject to a restitution order were not
normally relevant to the quantum of such an order. Section 12 was
mandatory and required that full restitution be made;
(2) Although the Applicant pointed to his family difficulties,
these were considered by the judge. In Sentencing in Hong Kong,
5th Ed., at 339, it was said that, generally speaking, ‘family
hardship which is usually attendant upon the conviction is to be
viewed as part of the price the accused must pay for the crime ’
and that ‘the adverse effect of imprisonment upon an offender’s
family is not normally a factor to be taken into account ’.
Reference was also made to R v Chi Hon-yuen Cr App 393/1988,
where Silke VP said that ‘Family circumstances are matters which
a wise man would take into consideration before he commits an
offence and not after ’;
(3)
The starting point for sentence of 21 months’ imprisonment
25
was at the lower end of the scale. The offence was nonetheless
serious. The Applicant was in a position of trust which be
breached over a period of almost 2 years. Deterrent sentences
were allowed for offences of this type and a starting point of 21
months’ imprisonment was called for.
Result –
Appeal allowed. Order of imprisonment in default of
payment of restitution order quashed.
26
E. MAGISTRACY APPEALS/
AGAINST CONVICTION
裁判法院上訴案件/針對定罪
MA 59/2009
Longley DJ
(24.6.2009)
*P Daryanani
#R Tibbo
PASCUAL
Robert A
Arms and ammunition/Unlicensed possession of canister of
pepper gas/Inference of noxious quality of liquid drawn
from circumstances/Canister and contents constitute
‘arms ’/Firearms and Ammunition Ordinance (Cap 238) s
13
槍械及彈藥 – 無牌管有罐裝胡椒氣體 – 從當時
環境情況作出液體性質有害的推論 – 氣罐及內
載物構成‘槍械’– 香港法例第238章《火器及
彈藥條例》第13條
The Appellant was convicted of an offence of possession
of arms without a licence, contrary to s 13(1) and (2) of the
Firearms and Ammunition Ordinance, Cap 238 (‘the
Ordinance ’).
The charge alleged that in the sitting out area in Lan
Kwai Fong the Appellant was in possession of arms, namely, a
can of pepper gas, without a licence.
It was established at trial that a police officer saw the
Appellant sitting on a bench inside the sitting out area in Lan
Kwai Fong. His hand was on a carrier bag which was next to
him. Inside that carrier bag the officer found a can on which
were printed the words ‘pepper gas ’. When asked what it was
the Appellant initially said it was hair spray but later admitted
it was a can of pepper gas which had been bought in the
Philippines for 500 pesos. Later when interviewed the
Appellant wrote in Tagalog:
I bought the pepper spray in the Philippines in
year 2006 February at SM Mega Hall ‘Hann’. I
bought the spray for my personal protection. And
I never use to anyone. And I didn’t know that I
needed a licence for possession in Hong Kong.
At trial, an issue was whether the prosecution had failed
to prove beyond reasonable doubt that the can marked ‘pepper
gas ’ fell within the meaning of ‘arms ’. It was not disputed
that the relevant definition of ‘arms ’ in s 2 of the Ordinance
fell within subsection (e), namely:
(e) any weapon for the discharge of any noxious
liquid, gas, powder or other similar thing
(including an aerosol containing any noxious
27
liquid, gas, powder or other similar thing which is
not in general trade on domestic use in aerosol
form.
The magistrate found that the canister and its contents
constituted ‘arms ’.
On appeal, it was submitted that under the definition of
‘arms ’ under subsection (e), it was necessary to prove not
merely that a noxious chemical was present in the liquid
mixture contained in the aerosol or container but that the
mixture itself was noxious. Reliance was placed on the fact
that there was no evidence of the quantity or concentration of
capsaicin (which the chemist had found to be present in the
liquid discharged from the canister) in the liquid. It was said
that the magistrate ignored the fact that there was no expert
evidence that the liquid itself was noxious.
Held :
(1) It appeared the magistrate relied simply on the evidence
that capsaicin was noxious to conclude that the contents of the
canister brought the canister and its contents within the
definition of ‘arms ’. It was accepted that the prosecution had
to establish that liquid in the container was noxious before the
canister and its contents fell within the definition of ‘arms ’;
(2) Evidence of chemical analysis of the liquid to prove its
noxious quality was not, however, necessary, as a court could
draw inferences from all the evidence. While the noxious
quality of the liquid could be proved by evidence of direct
analysis the prosecution could also prove it by inference from
all the circumstances;
(3) The inference could be drawn from the evidence. The
canister itself was a personal protection device. The container
purported to describe its ingredients including ‘oleoresin
capsicum (pepper gas) ’. It stated that it could ‘disable or
paralyze assailant for a short period of time if spray directly
assailant’s face. The gas spray will cause acute coughing,
sneezing and irritation of nose and throat. Personal safety
can be 100% assured by appropriate use of the spray ’;
(4) Not only did the canister purport to be a personal
protection device but the Appellant admitted that it was a can
of pepper gas which he had bought in the Philippines for his
personal protection;
(5)
An appeal to the High Court from the magistrate’s court
28
was an appeal by way of rehearing on the papers, and the only
reasonable inference was that the canister and its contents
constituted ‘arms ’, particularly bearing in mind s 2(4) of the
Ordinance which read ‘(4) An article which would otherwise
be within the definition of ‘arms ’ or ‘ammunition ’ in
subsection (1) shall not be excluded therefrom by reason only
of the fact that it is defective …’.
Result –
Appeal dismissed.
29
F. MAGISTRACY APPEALS/
AGAINST SENTENCE
裁判法院上訴案件/針對刑罰
MA 225/2009
Longley DJ
(25.6.2009)
*Lam Wing-sai
#Stephen Wong
CHAN
Ming-lok
Possession of an offensive weapon/Sentencing considerations/
Serious offence even if knife carried in self-defence/Public
Order Ordinance (Cap 245) s 33
管有攻擊性武器 – 判刑的考慮因素 – 即使攜刀自
衞 亦 屬 嚴 重 罪 行 – 香 港 法 例 第 245 章 《 公 安 條
例》第33條
The Appellant was convicted of an offence of possession of
an offensive weapon, contrary to s 33(1) of the Public Order
Ordinance, Cap 245, and sentenced to 6 months’ imprisonment.
Section 33(2)(d) provided for a mandatory sentence of
imprisonment of not more than 3 years for an offence under
s 33(1).
The charge alleged that on 29 June in a public place outside
Nos 9-11 Cochrane Street, Central, without lawful authority or
reasonable excuse, the Appellant had with him an offensive
weapon, namely, a knife.
On appeal
Held :
(1) Whilst the sentence imposed was not manifestly excessive,
a shorter term of imprisonment was sufficient to meet the justice
of the case, particularly as the Appellant had never before been
sentenced to imprisonment;
(2) The knife was a relatively small domestic knife. The
possibility that the Appellant did indeed intend it to be a weapon
of defence rather than offence could not be excluded. Although
his movements aroused the suspicion of the police that night, on
the evidence it did not appear that there was necessarily any
connection between his movements on the night in question and
the knife as he was working as a chef in the close vicinity to
where he was stopped and had finished working not long before.
There was no evidence, for instance, that he was following
anyone that night. He had no similar convictions. These
circumstances did not provide any excuse for his carrying of this
knife but they were relevant to sentence;
(3)
It must always be borne in mind that one of the most
30
important factors in rendering the streets of Hong Kong relatively
safe was the absence of offensive weapons. No one should be in
any doubt that the law viewed the carrying of such weapons very
seriously even if carried in self-defence.
Result -
MA 420/2009
Geiser DJ
(10.7.2009)
*P Daryanani
#I/P
WONG
Pan
Appeal allowed. Sentence of 4 months’ imprisonment
substituted.
Obscene DVDs/Publishing and possessing for publication
obscene articles/Immediate custodial sentences and heavy
financial penalties necessary/Control of Obscene and
Indecent Articles Ordinance (Cap 390) s 21
淫褻數碼光碟 – 發布淫褻物品及管有淫褻物品以
供發布之用 – 判處即時監禁及巨額罰款是有需要
的 – 香 港 法 例 第 390 章 《 淫 褻 及 不 雅 物 品 管 制 條
例》第21條
The Appellant pleaded guilty to two offences: the first, an
offence of publishing an obscene article, contrary to s 21(1)(a) of
the Control of Obscene and Indecent Articles Ordinance,
Cap 390, and the second, an offence of possession of obscene
articles for the purpose of publication, contrary to s 21(1)(b) of
the same Ordinance.
The admitted facts indicated that when an undercover
TELA agent visited a shop in Wanchai, he was greeted by the
Appellant, who sold him four obscene DVDs, for which the agent
paid $100 in marked money (Charge 1). A subsequent raid on
the premises by the police revealed 3,575 obscene DVDs
(Charge 2).
The seized DVDs depicted sexual intercourse, oral sex and
deviant sexual activity involving bondage. The magistrate
viewed some still photographs of the images portrayed in the
DVDs and found the level of obscenity depicted to be at the
middle range of the scale. This was the first time the Appellant
had been convicted of offences involving possession of obscene
articles.
The magistrate noted the prevalence of these offences and
the lucrative profits which resulted. She adopted a starting point
for sentence of 6 months’ imprisonment on Charge 1 and of 12
months on Charge 2, giving the Appellant a one-third discount on
each to reflect the guilty pleas. He was thus sentenced to
4 months’ imprisonment on Charge 1, and a fine of $5,000, and
31
to 8 months’ imprisonment on Charge 2, and a fine of $10,000.
The periods of imprisonment were ordered to run concurrently.
On appeal, complaint was made that the magistrate
imposed financial penalties in addition to custodial sentences.
Held :
(1) There was a clear need for courts to continue to be vigilant
and impose immediate custodial sentences, coupled with heavy
financial penalties on those who choose to embark on this type of
illegal enterprise;
(2) In HKSAR v Tang Keung-cheung MA 937/2000,
Lugar-Mawson J said ‘The message needs to be sent out to
offenders and their legal advisers that stern penalties involving
imprisonment for meaningful periods and fines will be imposed.’
Result -
MA 519/2009
Geiser DJ
(6.8.2009)
*Nicholas Wong
#I/P
SHAFIQ
Muhammad
Appeal dismissed.
Unlawful remaining/Magistrate declining to follow guideline
in So Man-king/Immigration Ordinance (Cap 115) s 38(1)(b)
非法居留 – 裁判官拒絕遵循So Man-king一案的
指 引 – 香 港 法 例 第 115 章 《 入 境 條 例 》 第
38(1)(b)條
The Appellant pleaded guilty to a single charge of
remaining in Hong Kong without the authority of the Director of
Immigration after having landed unlawfully, contrary to
s 38(1)(b) of the Immigration Ordinance, Cap 115.
The magistrate referred to R v So Man-king [1989] 1 HKLR
142, which set down a guideline of 15 months’ imprisonment for
this offence after a guilty plea. She declined to follow this
guideline to the letter, as she felt it was somewhat outdated in the
present era as Hong Kong was no longer experiencing the huge
influx of illegal immigrants from China that it used to do when
the guidelines were introduced. She therefore imposed a lesser
sentence of 12 months’ imprisonment.
On appeal
Held :
(1)
The Appellant was extremely fortunate not to have received
32
the standard sentence of 15 months’ imprisonment;
(2) There were no strong humanitarian reasons or other
circumstances which would warrant any further reduction of
sentence.
Result -
Appeal dismissed.
[For immigration offences generally and quantum of sentence,
see Sentencing in Hong Kong, 5th ed., at pp 610-617: Ed]