CCAB 2003
Sentence (Principles)
Sentence (Principles)
MA
1104/2002
LAM
Mee-fat
DATC order and imprisonment imposed on same occasion/ Combination of
sentences wrong in principle
在同一次判刑中判處戒毒所令和監禁 - 將刑罰合併屬原則上錯誤
McMahon DJ
(7.1.2003)
*Poon Oi-lin
#AA Hoosen
The Appellant was convicted after trial of (1) an offence of obstructing a
police officer in the execution of his duty; (2) an offence of unlawful possession
of 3.53 grammes of heroin; (3) an offence of obstructing a person acting in aid
of a police officer, namely, a doctor, in the execution of his duty.
The Appellant was sentenced to 6 months’ imprisonment on the first and
third charges, two months of which were to run consecutively, making a total of
8 months’ imprisonment, and was ordered to be detained in a Drug Addiction
Treatment Centre (‘DATC ’), in respect of the second charge.
On appeal
Held :
(1)
The imposition of custodial sentences at the same time as an order for a
defendant to be detained in a DATC was wrong in principle: R v Lau Chi MA
1583/90;
(2)
The reason why it was wrong in principle to sentence an offender at the
same time for separate offences to a term of imprisonment and to detention in a
DATC was that the sentencing court should look at the effect of the totality of
sentences it imposed. If that totality required that factors of deterrence should
prevail and a sentence of imprisonment should be imposed, so be it. There was
no point in imposing a separate and wholly rehabilitative sentence, such as any
form of detention order. On the other hand, if factors of rehabilitation
predominated, a detention order in the appropriate institution, whether DATC,
or detention, training or rehabilitation centre, should be made, and should not be
negated or undermined by a sentence of imprisonment;
(3)
The effect of s 6A of the Drug Addiction Treatment Centres Ordinance,
Cap 224, was to allow for an offender who had previously been sentenced to
detention in a DATC and was already undergoing a process of rehabilitation to
continue to have the benefit of that process once begun even if subsequently he
was sentenced to a short term of imprisonment in respect of a separate offence.
It operated only in circumstances where an offender was already subject to a
detention order and was sentenced to a short term of imprisonment: R v Lau Chi
MA 1583/90. It was not a provision designed to allow the imposition at the
same time of sentences of imprisonment and detention in a DATC. Such
sentences were wrong in principle.
Result - Appeal allowed. Sentence of 8 months’ imprisonment substituted
for the DATC order. Sentences to run concurrently.
274
CCAB 2003
CA 395/2002
Stock JA
Pang J
(6.2.2003)
*Vincent
Wong
Sentence (Principles)
LI
Tak-yin
Guilty plea/Late plea/Discount of one-third not a rigid rule/ Sound reason
required before departure from customary discount
承認控罪 - 後期認罪 - 減刑三分一並非一成不變的定律 - 須有良好
理由方可偏離慣常減刑
The Applicant pleaded guilty to three counts: burglary, handling stolen
goods and possession of dangerous drugs.
The Applicant was aged 25 years at the date of the offences, and had a
record of similar offences.
#Michael Poll
Given his very poor and recent record of like offences, and the failure of
earlier sentences to deter him, the judge took a starting point for the burglary
(Count 1) of 4 years’ imprisonment.
For the handling offence (Count 2), the judge said the Applicant knew
that the property was the result of a robbery, and had previously been sentenced
for handling offences. He again took a starting point of 4 years’ imprisonment.
For the drugs offence (Count 3), the judge took a starting point of 8
months’ imprisonment.
The judge then afforded the Applicant a reduction from those starting
points of 25% to reflect his guilty pleas. He did not accord to him the
customary one-third reduction because ‘you did not enter your pleas until what
may well be regarded as the last possible practical time. At a recent pre-trial
review you indicated that you would plead guilty to the drugs charge but at the
same time additional trial time was sought due to your indication that you
would challenge the admissibility of certain statements made by you.’
The result was that the judge sentenced the Applicant to 3 years’
imprisonment on the burglary charge, to 3 years’ imprisonment on the handling
charge, and to 6 months’ imprisonment on the drugs charge. He considered that
the appropriate totality was 5 years and 3 months (7 years before plea), a totality
which he effected by ordering the 2 years and 3 months on Count 2 to be served
consecutively to the term on Count 1, the remainder concurrently; and the term
of 6 months on Count 3 to be served concurrently with the other terms.
On appeal, it was submitted, inter alia, that the judge erred in not giving
the Applicant a sufficient discount to reflect the plea of guilty.
Held :
(1)
It was established that ‘in the absence of good reason where a timely
plea has been entered, a defendant is entitled to a full one-third discount’:
HKSAR v Wong Ka-kuen Cr App 35/98;
(2)
The fact that a guilty plea had been tendered on the first day of trial when
it could have been tendered earlier was generally not, of itself, without more,
sound reason for reducing the discount normally given; although there were
cases and circumstances where a delay or last minute plea might well warrant
such a reduction: HKSAR v Lo Chi-yip [2002] 3 HKLRD 270, 276;
(3)
Although the judge emphasised that the plea was not entered at ‘the
earliest opportunity’, the courts of late had rather been using the phrase ‘a
timely plea’ and the judge’s approach might suggest that it was exceptional
rather than normal to deduct one-third if the plea of guilty was offered on the
first day of trial. The one-third discount was not a rigid rule, and there were
instances where a lesser discount would be warranted. But there should be some
sound reason or circumstance, over and above the mere fact that the plea was
275
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Sentence (Principles)
only tendered on the first day of trial. No such sound reason existed in this case.
Result - Appeal allowed. Sentences substituted of 2 years and 8 months (Count
1); 2 years and 8 months (Count 2); 5 months (Count 3). Sentence on
Count 2 to run consecutively to that imposed on Count 1, the remainder
to run concurrently; the sentence imposed on Count 3 to run
concurrently to that imposed on Counts 1 and 2. Total: 4 years and 8
months’ imprisonment.
CA 391/2002
CHAN
Yuk-san
Stuart-Moore
VP
Pang J
Guilty plea/Defendant caught red-handed/Reduction in usual discount
wrong in principle/Duty of counsel
承認控罪 - 被告人當場被捕 - 削減慣常減刑幅度屬原則上錯誤 - 律
師的職責
The Applicant pleaded guilty to a count of robbery. Having adopted a 9year starting point, the judge reduced this to 7½ years’ imprisonment in light of
the guilty plea.
(7.2.2003)
*Wong Sze-lai
During mitigation, the judge said to defence counsel: ‘What about the
fact he was caught red-handed? Do I not have to take that into account … in
considering whether I should give him the full discount? ’
#A A Hoosen
On appeal, it was submitted that the Recorder gave an invalid reason for
not allowing the Applicant the usual one-third for plea.
Held :
(1)
It was unfortunate that neither defence nor prosecuting counsel corrected
the false impression which the Recorder seemed to have expressed by his
question, on a sentencing issue which was well settled. It had been said on
numerous occasions that a reduced discount should not be given to anyone
merely because he had more or less been caught in the act: HKSAR v Chan Saichiu [2001] 1 HKLRD 478, 481;
(2)
This was a fundamental error of sentencing practice which would never
have come before the court if counsel had corrected the Recorder’s mistake at
the time of sentencing. There was a duty on counsel on both sides, when an
error was being made, or was about to be made, to put it right or to seek to do so
before it was too late.
Result - Appeal allowed. Sentence of 6 years’ imprisonment substituted.
CA 426/2002
Stuart-Moore
VP
Gall J
(26.2.2003)
*Jackson Poon
#Selwyn Yu
HUI
Sze-ping
Forcibly taking a person with intent to procure ransom/ Mastermind
sentenced differently from other accused/ Provision of firearm to threaten
victim
將他人強行帶走而意圖取得贖金 - 主謀被判處的刑期與其他被告不
同 - 提供火器以恐嚇受害人
The Applicant pleaded guilty to a count of forcibly taking a person with
intent to procure a ransom for his liberation, contrary to s 42 of the Offences
Against the Person Ordinance, Cap 212, and was imprisoned for 12 years.
In mid-1998, the Applicant met Sheung Lai-la (‘Sheung’) and her
husband and proposed to them that they could make money by kidnapping. She
suggested that the victim be kidnapped as she knew he had plenty of money and
that her younger sister was his mistress and thus knew his general whereabouts.
276
CCAB 2003
Sentence (Principles)
In early 1999, the Applicant told Sheung she had made preparation for
the kidnapping in China and had organised people to assist her. Sheung was
told to find a village house in the New Territories for the purpose of hiding the
victim. The Applicant later indicated that she would be responsible for the
arrangement of people from the Mainland to carry out the kidnapping and that
Sheung would be responsible for arranging housing and transportation for the
victim. The seizure of the victim was to take place in April as the victim would
have a considerable sum of money on hand to bid for a construction site. She
knew he wanted to have an operation on his heart after April and proposed the
kidnapping to take place before it.
On 12 March 1999, the Applicant told Sheung and the four mainland
Chinese - who were later sentenced to imprisonment for 7½ years for their roles
in the kidnapping of the victim - that the kidnap plan was to be executed within
the next few days because the Applicant’s younger sister would be returning to
Hong Kong soon. The Applicant said they should ask for a ransom of $60
million but be prepared to reduce it to $30 million in the course of negotiation.
It was agreed that the ransom money would be collected near the Causeway Bay
MTR station and that the Applicant told Sheung to take two of the Mainlanders
on a drive to familiarise themselves with the streets, and this Sheung did.
After a final briefing of Sheung and the four men on 14 March 1999, the
men, who had a pistol supplied by the Applicant, who said the victim was to be
threatened with it if necessary, grasped the victim as he was walking in Lockhart
Road and forced him into the rear of Sheung’s car. His eyes and mouth were
covered and his hands tied with masking tape. He was taken to Sheung’s
residence. His shoes were removed and he was made to lie in an empty bathtub,
blindfolded and gagged. A sum of $70 million was demanded of him. There
were discussions between the victim and his captors during which the victim
was told by one of them that he had a pistol and the victim then heard a sound as
if someone was firing an unloaded pistol. A hard object was pushed against his
head. The victim agreed to pay $30 million, and he telephoned his son-in-law to
tell him of the kidnap and how to raise the sum. Despite instructions to the
contrary, the matter was reported to the police.
After the money had been collected by one of the men, he was kept under
surveillance. Later that night, Sheung and three of the Mainlanders were
arrested. The police recovered the ransom money and the four bags. At the
same time, police entered Sheung’s premises and the fourth man was arrested as
he guarded the victim. The victim was found in the bathtub with his hands and
face covered with adhesive tape, and he was released and did not require
medical attention. A pistol and a bag containing three rounds of ammunition
were found.
The Applicant was arrested at her home on 15 March 1999 and later
released. She left Hong Kong for the Mainland on 10 May 1999 and was
arrested when she returned on 5 July 2001.
On appeal, it was submitted that the sentence of 12 years’ imprisonment
imposed was manifestly excessive and that the disparity in sentences between
the Applicant and others involved in the offence was so great as to give the
Applicant a genuine sense of grievance and/or injustice.
Held :
(1)
The Applicant was the mastermind and the ring leader of the scheme.
She proposed the scheme; she located the victim; she purchased the pistol; she
recruited four men from the Mainland; she paid for them to come to Hong
Kong; she recruited Sheung; she formed the actual plan for kidnap and directed
277
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Sentence (Principles)
every step of the way until just before the offence was committed. It could not
be said that the other offenders had played an equally important role;
(2)
Although it was submitted that the sum demanded of $70 million was in
excess of that suggested or directed by the Applicant, that she did not intend him
to be harmed and that he was to be released once the ransom was paid, it was
she who placed the gun and the ammunition in the hands of those who
committed the actual kidnapping with the instruction that it might be necessary
to use it to threaten the victim to obtain his cooperation. Although it might have
been her intent that the gun not be used, there was a direction by her that it be at
least used to threaten and the risk of the man going further with it was always
there particularly given that the ammunition accompanied it. In R v Ho Chun
[1992] 1 HKCLR 186, it was held that where a pistol with ammunition was
possessed without a licence an appropriate sentence after trial would be 12
years, and 8 years after a plea, and this was a sentence to be borne in mind when
considering the seriousness of the possession of the pistol in this case;
(3)
In the circumstances of this case, bearing in mind the role played by the
Applicant and notwithstanding that the victim was unharmed and rescued, the
starting point adopted by the judge could not be criticised. The only mitigation
was her plea, and this the judge acknowledged by reducing the sentence to 12
years, which was a proper sentence;
(4)
Although the Applicant submitted that the Applicant had a legitimate
sense of grievance as the other accused received lesser sentences, the others
were sentenced by a different judge, and the judge in this case declined to
sentence the Applicant on the same basis as she was the sole instigator, planner
and mastermind of the commission of the offence and the differences in the roles
warranted a different and higher starting point. The difference in the roles
played by the Applicant and the other accused did warrant the difference in
starting point.
Result - Application dismissed.
CA 526/2001
Stuart-Moore
VP
Stock JA
Jackson J
(13.3.2003)
HALIM
Hashimi
Habib
Guilty pleas/Pleas entered on first day of trial/Witnesses attending from
abroad/Reduction in customary discount proper
承認控罪 - 於審訊首日認罪 - 證人從海外來港出庭 - 削減慣常的減
刑幅度是恰當的
The Applicant pleaded guilty to three offences of administering a
stupefying or overpowering drug with intent to commit an indictable offence,
contrary to s 21 of the Offences Against the Person Ordinance, Cap 212, and to
three offences of theft, contrary to s 9 of the Theft Ordinance, Cap 210.
*Vincent Wong
#A A Hoosen
The trial judge said the only mitigating factor was the guilty pleas. She
added, however, that the pleas:
were offered only on the morning the trial was due to start, (and) I
do not consider they are early pleas. I note, too, that the usual
mitigation, that of saving time and expense, does not apply in full
here. The time of the trial has certainly been saved; however, two
of the three main witnesses had to be flown from Japan and Korea
to give evidence and because the pleas were advised so late, it was
too late to stop the witnesses travelling to Hong Kong, and thus a
major cost of the trial was not avoided. For that reason I am not
prepared to give the defendant the full one-third discount for plea,
and instead I give a discount of 20 per cent.
278
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Sentence (Principles)
The Applicant was sentenced to concurrent terms of 8 years’
imprisonment in respect of each of the administering offences, and 4 years’
imprisonment in respect of each of the theft offences.
On appeal, it was submitted, inter alia, that the judge erred in not giving
the usual one-third discount for the guilty pleas, which were offered on the first
day of trial: HKSAR v Chu Chi-keung [2000] 1 HKC 576. It was said that it was
wrong in principle for the judge to reduce the discount on the basis that the two
witnesses had to be arranged to come to Hong Kong.
Held :
The pleas upon arraignment were too late to avoid the necessity of the
attendance of the witnesses from overseas. That circumstance was entirely
foreseeable and wholly justified the judge taking the course she did in reducing
the discount which would have been attracted to a guilty plea.
Result - Application dismissed.
MA 391/2002
Barnes DJ
(13.3.2003)
*Marco Li
#C Grounds
LAU
Kin-yu
Deceipt of financial institutions/Custodial sentence required/ Absence of
loss/Loans recouped with interest/Effect of delay in prosecuting/Suspension
of sentence
欺騙財務機構 - 必須判處監禁 - 沒有損失 -收回貸款連利息 - 延誤
檢控的影響 - 判處緩刑
The Appellant was convicted after trial of 20 charges of procuring the
making of an entry in a record of a bank/deposit-taking company by deception,
contrary to s 18D(1) of the Theft Ordinance, Cap 210, and 19 charges of false
accounting, contrary to s 19(1)(a) of the Ordinance. He was sentenced to 18
months’ imprisonment.
The Appellant was a director of Sungrafic (BW) Printing Equipment Co
Ltd (‘Sungrafic’). The principal business of Sungrafic was the sale of printing
machinery. On occasion Sungrafic would assist prospective customers to apply
to banks or deposit-taking companies for either a hire and purchase agreement
or a leasing loans agreement. Sungrafic would first refer its customers (the loan
applicants) to the relevant lending institution (a bank or a deposit-taking
company). Sungrafic would then supply copies of the sale and purchase
contract. The loan applicant would then fill in a loan application form and
submit certain supporting documents such as income proof, details of the
guarantor, etc to the lending institution. After obtaining such information the
lending institution would process the application.
Before approving the loan application the lending institution would
assess the applicant’s financial standing and its repayment ability. The lending
institution would also inspect the machinery in question and would conduct an
independent valuation of its market price. If the lending institution agreed to
lend money, it would execute either a hire and purchase or a leasing loan
agreement with the applicant. At that juncture, Sungrafic would issue an invoice
to the lending institution requesting for payment. The lending institution would
then issue a cheque to Sungrafic settling the amount as shown on the invoice. In
some cases the lending institutions would pay Sungrafic a commission for
introducing clients to them.
During the period covered by the charges, the Appellant had asked his
staff to prepare two sets of sale and purchase contracts. The two sets of
contracts were identical save for the selling price, i.e. one with inflated price and
the other with actual price payable by the buyer. The contracts supplied to the
279
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Sentence (Principles)
lending institutions with inflated price were described as the ‘A’ contracts. The
‘A’ contracts were used to enable the buyers to borrow more money as the
lending institution would normally lend a sum equivalent to 70%-80% of the
purchase price of the machinery. In most cases the buyers paid little or no
money out of their own pockets as the loans covered the genuine price payable
by them to Sungrafic.
In the case of Almax Industries Limited
(‘Almax’)(Charges (1) and (2)), the buyer was able to borrow a sum of money
higher than the actual purchase price.
In respect of Charges (3)-(4), the transaction was different from others in
that the falsity was not the inflated purchase price, but rather the non-existence
of any purchase price. The evidence was that the relevant transaction never
existed and accordingly the sale and purchase of machinery was a complete
sham.
After the lending institution granted the loan applications based on the
inflated prices on the ‘A’ contracts, the Appellant instructed his staff to issue
invoices to the lending institution requesting for payment. The prices quoted on
the invoices were the same as those on the corresponding ‘A’ contracts.
The 20 charges of ‘procuring the making of an entry in a record of a
bank/deposit-taking company by deception ’ referred to the Appellant’s use of
‘A’ contracts to deceive the lending institutions into granting loans to the
customers of Sungrafic whereas the 19 charges of ‘false accounting’ referred to
the invoices submitted by the Appellant to the lending institutions. In total there
were 6 finance companies being deceived in granting loans:
(i)
IBA Credit Ltd (‘IBA’);
(ii)
Citicorp Commercial Finance Ltd (‘Citicorp’);
(iii)
Pro-Finance (Asia) Ltd (‘Pro-Finance’);
(iv)
Pacific Finance (HK) Limited (‘Pacific Finance’);
(v)
United Merchants Finance Limited
(‘United Merchants’); and
(vi)
Korea Leasing (Hong Kong) Limited (‘Korea Leasing’).
According to the representatives of these lending institutions, they would
not have approved the loan applications had they known of the fact that the
supporting documents, namely the sale and purchase contracts and the invoices,
supplied by Sungrafic contained false information.
The magistrate found all the elements of the offences proved and found
the Appellant guilty.
In his Reasons for Sentence, the magistrate indicated that the offences
were serious. He had considered the following factors:
(i)
There was a deliberate attempt on the Appellant’s part to
deceive the banks or finance companies in granting loans to his
customers, and the Appellant was the ‘mastermind’;
(ii)
In order to facilitate the scams the Appellant had made use of
false contracts and invoices;
(iii)
The offences had perpetuated for several years and the
280
CCAB 2003
Sentence (Principles)
Appellant committed offences repeatedly, the fact that these
transactions took place between 1994-1997 was not a real
mitigating factor;
(iv)
The Appellant was convicted after trial.
Held :
(1)
Although there was no tariff or guideline in offences of this nature, the
circumstances of this case were such that a custodial sentence was called for.
The Respondent conceded that the imposition of a 18-month sentence was on
the high side;
(2)
The magistrate had not given due weight to the fact that all transactions
(save Almax) resulted in the finance companies recouping the loans with
interest. Although IBA suffered loss in the region of $300,000, and no
restitution had been made, the magistrate appeared to have accepted that there
was a good prospect IBA would recoup the loss. Whilst a loss of $300,000
could not be called insignificant, it was considerably less than sums in other
cases where deceptions were practised on financial institutions. For offences
involving deception, the actual amount of loss suffered by the victim was one of
the factors to be considered;
(3)
Although, as the Appellant submitted, the systematic deceipt of the
finance companies was not discovered until the crimes were ‘stale’, such late
discovery was not the fault of the prosecution. There was no dispute, however,
that the Appellant was arrested in 1999 and not tried until 2002. It was not clear
why there was such a delay, and once the authorities were ‘seized’ of the matter,
in the absence of good reason for such delay, the delay should be taken into
account when sentencing as the Appellant had the uncertainty and threat of the
prosecution hanging over his head longer than necessary;
(4)
It was not the position that delay must have occurred together with
restitution before a court could take the matter into consideration in deciding
whether to suspend or reduce a sentence. Significant and unexplained delay
was, per se, a ground to pass a more lenient sentence on a defendant than what
would otherwise be a proper sentence;
(5)
The Appellant had pleaded not guilty, and it could not be demonstrated
that he had shown genuine remorse. The magistrate properly rejected a
community service order as an alternative: R v Brown [1981] 3 Cr App R (S)
294;
(6)
The Appellant was of good character before these convictions. He was
the mastermind behind a scheme to systematically deceive the lending institutes.
Although by the time the ‘A’ contracts were ‘created’ the buyers had already
signed the agreement (‘B’ contracts) with Sungrafic, and it was a fact that with
the assistance of the Appellant, these buyers were then able to apply for and
obtain loans covering the whole of the purchase price. The obvious inference to
be drawn was that by offering and rendering such assistance, Sungrafic was able
to get more business;
(7)
Given the background of the case, the fact that in the end none but one of
the financial institutes suffered any loss and there was a good prospect that IBA
would recoup the losses, that the case had been delayed longer than necessary,
and that the Appellant was of previous good character and had already
experienced prison life, it was proper to suspend the sentence.
281
CCAB 2003
Sentence (Principles)
Result -
Appeal allowed. Sentences of 12 months substituted on each charge,
all to run concurrently, making a total of 12 months. Sentence
suspended for 24 months.
香港特別行政區訴盧國雄
HKSAR v LO Kwok-hung
*陳偉明
W M Chan
#上訴人自
辯
I/P
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 3 年第1 6 5 號
高等法院原訟法庭暫委法官張慧玲
耹訊日期：二零零三年四月十一日
宣判日期：二零零三年四月十一日
COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A C Y
APPEAL NO. 165 OF 2003
Barnes DJ
Date of Hearing: 9 May 2003
Date of Judgment: 9 May 2003
判刑原則 - 在同一次判刑中判處罪犯入戒毒所和監禁是錯誤的
上訴人經審訊後被裁定一項偷竊罪罪名成立，即偷取兩盒價
值$380元的鐳射光碟。在接受本案判刑前兩天，他就另一項控罪，
即販賣危險藥物罪而被判8個月監禁。本案中，裁判官判他進入戒
毒所。
裁判官的判刑理由如下：
上 訴 人 28 歲 ， 已 婚 ， 曾 有 7 次 先 前 犯 事 記 錄 ， 其 中 3 次 類
同 ， 另 於 1991 年 被 判 入 戒 毒 所 接 受 戒 毒 。 上 訴 人 就 另 一
宗 荃 灣 案 件 ， 於 2003 年 1 月 27 日 被 判 販 運 危 險 藥 物 監 禁 8
個月。本席確定最適合的判刑是接受戒毒，讓上訴人得
到完整戒毒療程，獲新生，與家人共渡安穩生活。刑期
與現有的8個月監禁，分別執行，並無不適。
裁決：
(1)
赫 健 士 副 庭 長 在 A G v To Ka - sh in g [ 1 9 8 7 ] HKLR 8 9 一 案 中
說：
We think that there was no jurisdiction to direct
that the period of detention in the drug
addiction treatment centre should run from a
future date, but we agree that the sentence
would have been wrong in principle even if
within the jurisdiction of the Court.
(2)
另 外 ， 在 HKS A R v La m Mee- fa t MA 1 1 0 4 /2 0 0 2 一 案 中 ， 法
庭指出：
… it is undesirable, and indeed wrong in
principle, to sentence an offender at the same
time for separate offences before the Court to a
term of imprisonment and to detention in a
DATC.
There is one fundamental reason for
this.
The sentencing court should look at the
effect of the totality of sentence it imposes. If
282
CCAB 2003
Sentence (Principles)
that totality requires that factors of deterrence
should prevail and a sentence of imprisonment
should be imposed then so be it. There is no
point
in
imposing
a
separately
wholly
rehabilitary sentence such as any form of
detention order.
( 3 ) 雖 然 本 案與HKS A R v Lee Mee- fa t的情況並不完全相同，但基
本原則是一樣：即裁判官不應「同時」判一名犯人服刑及往戒毒所
戒毒；
( 4 ) 若 一 名 犯 人 已 被 判往戒毒所戒毒在先，根據《戒毒所條例》第
2 4 4 章 第 6 A( 1 ) 條 ， 若 監 禁 刑 期 為 9 個 月 或 以 下 ， 則 戒 毒 所 命 令 暫 緩
執行至監禁期滿為止；若刑期為9個月以上，則該戒毒所命令效力
即告終止；
( 5 ) 可 見 立 法 原 意 是 若一名犯人已經開始了接受戒毒治療，那麼若
其後所判監禁刑期不長，便應讓他在服刑後繼續接受戒毒治療。但
若一名犯人已被判監在先，「同時」判他前往戒毒是不合原則的；
(6) 在考慮了本案案情，上訴人應被判兩個月監禁，此刑期與該8
個月刑期同期執行，好讓上訴人能及時出獄陪他妻子產子。
結果：
[English digest
of MA 165 of
2003, above]
Barnes DJ
(16.5.2003)
LO
Kwok-hung
上訴得直。戒毒所命令擱置。改判兩個月監禁。
Sentencing principle/Wrong to sentence an offender to DATC and to a
term of imprisonment on same occasion
The Appellant was convicted after trial of an offence of theft of two
VCDs worth $380. Two days before he was sentenced for the offence, he was
sentenced to 8 months’ imprisonment for an offence of trafficking in dangerous
drugs. In the present case, he was sentenced to detention in a drug addiction
treatment centre (‘DATC ’).
*Chan Waiming
In his Reasons for Sentence, the magistrate said that:
The Appellant, aged 28, married, has 7 previous convictions, 3 of
which are of similar offences. He was sentenced to 8 months’
imprisonment on 27 January 2003 for the offence of trafficking in
dangerous drugs in another Tsuen Wan Magistracy case… I have
decided that the most appropriate sentence is for the Appellant to
receive a drug addiction treatment centre, so that after
undergoing a complete course of treatment, the Appellant would
be able to begin his life anew and lead a stable life with his
family. It is not inappropriate to impose a period of detention to
run consecutively to the existing sentence of 8 months’
imprisonment.
#I/P
On appeal
Held :
(1)
In AG v To Ka-shing [1987] HKLR 89, Sir Alan Huggins VP said that:
We think that there was no jurisdiction to direct that the period of
detention in the drug addiction treatment centre should run from a
283
CCAB 2003
Sentence (Principles)
future date, but we agree that the sentence would have been wrong
in principle even if within the jurisdiction of the Court.
(2)
In HKSAR v Lam Mee-fat MA 1104/02, the court held that:
…it is undesirable, and indeed wrong in principle to sentence an
offender at the same time for separate offences before the court to
a term of imprisonment and to detention in a DATC. There is one
fundamental reason for this. The sentencing court should look at
the effect of the totality of sentence it imposes. If that totality
requires that factors of deterrence should prevail and a sentence
of imprisonment should be imposed then so be it. There is no
point in imposing a separately wholly rehabilitary sentence such
as any form of detention order.
(3)
Although the circumstances in the present case were not wholly identical
with those in H K S A R v Lam Mee-fat (supra), the basic principle remained the
same i.e. that the magistrate should not have sentenced the offender to a term of
imprisonment and to detention in a DATC ‘simultaneously’;
(4)
Under s 6A(1) of the Drug Addiction treatment Centres Ordinance, Cap
244, if an offender, after being sentenced to detention in a DATC, was further
sentenced to imprisonment for a term of 9 months or less, the DATC order
should be suspended until the expiration of this term of imprisonment; and if he
was sentenced to imprisonment for a term of more than 9 months, the DATC
order should cease to have effect;
(5)
It could be seen that the legislative intent was that if an offender had
started his addiction treatment, and his subsequent sentence was not too long, he
should continue his treatment after serving the sentence. But if the offender had
already been sentenced to imprisonment, the imposition of detention in a
treatment centre ‘simultaneously’ would be wrong in principle;
(6)
Having considered the facts of the case, it was appropriate to impose a
sentence of 2 months’ imprisonment which was to run concurrently with the 8
months’ imprisonment previously imposed so as to enable the Appellant to be
released from prison to accompany his wife to give birth.
Result -
CA 57/2003
Cheung &
Yuen JJA
(10.7.2003)
*Lynda Shine
#Corinne
Remedios
LAM
Shuk-ping
Appeal allowed. 2 months’ imprisonment substituted.
Theft/Partial repayment to victims of loss/Appropriateness of discount
盜竊罪 - 向受害人歸還部分損失 - 減免刑期的做法是恰當的
The Applicant pleaded guilty to 24 charges of theft in the District Court,
involving slightly over $1 million and one charge of attempted theft, involving
$68,000.
The Applicant was an accounts clerk who had been working for her
employers for about 3½ years prior to these offences. She forged the countersignature on a number of her employers’ cheques and deposited them into a
bank account she had opened, using a name identical to that of a firm with
which her employers had business dealings. In one year, she forged 24 cheques,
obtaining just over $1.055 million.
In August 2000, the bank raised queries about the signature on a further
cheque of $68,000. The Applicant confessed to the offences in writing. She
was then dismissed but the employers agreed not to report the matter to police
provided she repaid the money within three months. Having repaid $325,000,
the Applicant defaulted in March 2001. Negotiations for repayment failed, and
284
CCAB 2003
Sentence (Principles)
in September the former employer reported her to the police.
The judge took a starting point for sentence of 3 years’ imprisonment for
each charge, which he reduced to 2 years to reflect the guilty pleas. By ordering
one of the sentences to run partly consecutively to the remainder, the judge
ultimately sentenced the Applicant to imprisonment for 2 years and 9 months.
On appeal, it was submitted, inter alia, that the judge had erred in that he
failed to give the Applicant a specific discount to reflect her partial restitution of
the money stolen.
Held :
(1)
It was well-established that the court should give a specific discount to
reflect mitigation. Although the judge had said ‘some credit will be given for
partial restitution’, he did not consider it to be a strong mitigating factor in this
case. However, no discount was in fact given for restitution; the only discount
given was that for the guilty plea;
(2)
In HKSAR v Leung Shuk-man [2002] 3 HKC 424, Stuart-Moore VP said
that if ‘a specific discount was not given for the payment of compensation or
restitution, there would be no advantage to an offender who had repaid some or
all of the ill-gotten gains to the victim, over and above the one-third discount
the offender could necessarily expect to receive for a timely plea of guilty’. In
that case, the defendant had repaid the entire sum stolen ($430,000) before she
was charged. She was given an overall discount of 50% on the totality of her
sentence. As the starting point was 36 months, originally reduced to 24 months
for her plea of guilty, the actual sentence on appeal was reduced to 18 months;
(3)
In the present case, the Applicant had made partial restitution of
$325,000, which was about 30% of the sum stolen. In mitigation it was said that
$300,000 had been used to defray credit card debts which she owed when she
started the course of thefts, and the rest for a down-payment and mortgage
instalments for a flat which had been recovered by the mortgage bank after she
was dismissed. Notwithstanding that the restitution made was only partial as
this was all the Applicant had, the fact remained that the victims had not been
fully recompensed. Although too arithmetical an approach to sentencing should
be refrained from, it would be consistent with the discount in Leung Shuk-man
for there to be an overall 40% discount on the totality of the sentence.
Result -
Appeal allowed. Sentence of 21 months imprisonment for each
charge substituted, all to be served concurrently.
285
CCAB 2003
Sentence (Principles)
香港特別行政區訴余麟
HKSAR v YU Pak-lun
高等法院上訴法庭 – 高院刑事上訴2002年第498號
*張維新
CHEUNG
Wai-sun
#植志威
Kenneth
Chik
高等法院首席法官梁紹中
高等法院上訴法庭法官胡國興
耹訊日期：二零零三年五月七日
宣判日期：二零零三年五月七日
COURT OF APPEAL OF THE HIGH COURT CRIMINAL A P P E A L N O .
498 OF 2002
Leong CJHC
Wo o J A
Date of Hearing: 7 May 2003
Date of Judgment: 7 May 2003
第212章第17條所訂的傷人罪 - 青少年犯 - 在教導所或更生中心羈
留 - 判刑上的差異
申請人為案中第一被告，與案中第二被告同被控一項有意圖
而 傷 人 罪 ， 違 反 香 港 法 例 第 2 1 2 章 《 侵 害 人 身 罪 條 例 》 第 1 7 ( a) 條 。
經審訊後，兩被告人被裁定罪名成立。申請人被判進入教導所，而
第二被告被判進入更生中心。
原審法官裁定申請人夥同第二被告及其他人於升降機內襲擊
受害人。申請人手持一把牛肉刀而第二被告則持有水喉通。受害人
有多項刀傷、有骨折及手筋被割斷。他需要留院十天。
在判刑理由書中，原審法官說：
第 一 被 告 1 8 歲 ， 沒 有 犯 罪 紀錄，本席在判罪時基礎是第
一 被 告 有 份 直 接 向 受 害 人 攻 擊 。 至 於 第 二 被 告 ，他只是
17 歲 ， 本 席 對 他 作 定 罪 的 基 礎 是 他 沒 有 直 接 攻 擊 受 害
人，他的參與程度比第一被告較低。
代表申請人的大律師提出兩項上訴減刑理由：( 一)
原審法
官 在 量 刑 時 並 無 充 分 考 慮 教 導 所 羈 留 令
等 同 監 獄 的 監 禁 ， 以 及 第 5 6 7 章《更生中心條例》的條文；及( 二) 申
請人和第二被告，身為共同被告人，但判刑有差異，而差異不能根
據兩者在案中的角色不同而合理化。
裁決：
(1)
原審法官考慮兩名被告參與的程度及角色，有否親手傷害受
害人，並不能說他是在原則上犯了錯。雖然兩人及其他人，都有參
與計劃，夥同犯罪，但是第二被告只是手持鐵通，沒有親手傷害受
害人，而申請人卻有參與親手傷害受害人，在受害人受傷嚴重程度
方面，他當然比較第二被告應負較大的責任；
(2)
根 據 香 港 特 別 行 政 區 訴 梁 家 麟 Cr Ap p 8 8 /2 0 0 2 ， 雖 然 法 庭 對
同案的不同被告處以不同刑罰的原則有矛盾的判例，但也有明確的
判例指出法庭應取的步驟，是不須理會同案的其他被告人被處的刑
罰，而只須考慮上訴人的判刑是否適當。故此本庭所需考慮的是判
處申請人入教導所是否過重的刑罰；
286
CCAB 2003
Sentence (Principles)
(3)
違 反 《 侵 害 人 身 罪 條 例 》 第 1 7 ( a) 條 的 最 高 刑 罰 是 終 身 監 禁 ，
所以，法庭一般判處犯該罪的人以監禁的刑罰，是理所當然的。根
據 香 港法例第2 8 0 章《教導所條例》第4 ( 2 ) 條，教導所的羈留時間是
6個月至3年。一般來說，羈留期為18個月：黃振昌對香港特別行政
區 [ 2 0 0 0 ] 3 HKLRD 8 4 0 ；
(4)
本案的案情嚴重。申請人夥同其他人配備武器，等候受害人
而 對他作出襲擊，使受害人的身體受嚴重的傷害。法庭可判他超過3
年的監禁刑期。基於這原因，教導所羈拘留令的刑罰，並非明顯過
重。
(5)
因為更生中心羈留令的羈留期是3個月至9個月，羈留期明顯
是比教導所的羈留期6個月至3年為短。但是兩者的目的都為社會及
犯人本身的利益想，唯一的分別在於對犯人的品性和行為以及該
個案的情況作出衡量，和有關的青少年犯人是否看來是適宜判處短
期扣押刑罰。很明顯，鑑於本案案情嚴重，涉及有預謀和有組織的
襲擊，受害人受到嚴重傷害，申請人親手襲擊受害人，而申請人就
算在被判罪後也矢口否認，全無悔意，他的情況並不能說是看來是
適宜判處短期扣押刑罰的。
結 果 ︰上訴被駁回。
[English digest
of CA 498 of
2002, above]
Leong CJHC
Woo JA
(7.5.2003)
*Cheung
Wai-sun
#Kenneth Chik
YU
Pak-lun
Wounding s 17, Cap 212/Young offenders/Detention in a training centre or
rehabilitation centre/Disparity in sentence
The Applicant, D1 at trial, and D2 were charged with an offence of
wounding with intent, contrary to s 17(a) of the Offences Against the Person
Ordinance, Cap 212. They were convicted after trial. The Applicant was
sentenced to detention in a training centre whereas D2 to detention in a
rehabilitation centre.
The trial judge found that the Applicant together with D2 and others
attacked the victim inside a lift. The Applicant armed himself with a beef knife
and D2 with a water pipe. The victim was found to have suffered chopping
wounds, multiple lacerations, multiple phalangeal fractures and tendon cuts. He
was hospitalised for 10 days.
In his Reasons for Sentence, the trial judge said that:
The first defendant is 18 years of age. He has no previous
conviction. I convicted him on the basis that he took part
in the actual attack on the victim…As for the second
defendant, he is only 17 years of age. I convicted him on
the basis that he was not the actual perpetrator of the
assault on the victim. The degree of his participation was
lesser than that of the first defendant…
On appeal, the Applicant submitted, first, that the trial judge failed to give
sufficient regard to the fact that an order for detention in a training centre was
equivalent to a prison sentence, and that the provisions of the Rehabilitation
Centres Ordinance, Cap 567 had not been duly considered. Second, the
Applicant and D2 were co-accused but were sentenced differently. The disparity
in sentence could not be justified on the ground that the two defendants played
different roles.
287
CCAB 2003
Sentence (Principles)
Held :
(1)
It was not wrong in principle for the trial judge to take into account the
respective degree of participation and the role of the two defendants, and
whether they were the actual perpetrators. Although the defendants and the
others did engage in the common enterprise and commit the offence jointly, D2
was only holding an iron pipe in his hand. He was not engaged in the actual
wounding of the victim whereas the Applicant had personally taken part in the
wounding of the victim. In consideration of the severity of the victim’s injuries,
the Applicant should bear a greater responsibility than D2;
(2)
According to HKSAR v Leung Ka-lun Cr App 88/2002, there were
conflicting decisions as to the principles to be applied when it was alleged that
there was disparity in sentences between different defendants in the same case.
There were clear authorities to suggest that the necessary approach to be
adopted by the courts was to ignore the sentence passed on a co-accused, but to
consider merely whether the sentence passed on an applicant was appropriate.
What this court needed to consider was whether the sentence of the Applicant
was excessive;
(3)
The maximum penalty for the subject offence was life imprisonment. It
followed that the court would in general impose a custodial sentence on an
offender. According to s 4(2) of the Training Centres Ordinance, Cap 280, the
period of detention in a training centre was between 6 months and 3 years. In
general, the period of detention was 18 months: Wong Chun-cheong v HKSAR
[2000] 3 HKLRD 840;
(4)
The Applicant and his group, being armed, laid in ambush for the victim
with a view to launch an attack and to inflict grievous bodily harm on him. The
Applicant, but for his age, might well receive a custodial sentence of more than
3 years. In view of this, the order of detention in a training centre was not
manifestly excessive;
(5)
The period of detention in a rehabilitation centre was from 3 to 9 months,
a period obviously shorter than that of a training centre order which was from 6
months to 3 years. Both orders were intended to be made in the interests of the
community and the offender himself. The only difference being that, for a
training centre order, regard should be given to the character and conduct of the
offender and the circumstances of the case. For a rehabilitation order, regard
should be given to whether the young offender was apparently an offender for
whom a short term custodial sentence was appropriate. The circumstances of
the case were serious, namely, that the case involved a premeditated and
organised attack, that the victim suffered severe injuries and that the Applicant
personally attacked the victim. The Applicant showed no remorse. In view of
the circumstances, the Applicant could not be described as someone who was
apparently an offender for whom a short term custodial sentence was
appropriate.
Result - Appeal dismissed.
288
CCAB 2003
MA 431/2003
Sentence (Principles)
NG
Cheuk-kei
Poon DJ
(18.6.2003)
*Gary Lam
#Albert Poon
Conspiracy to defraud/Dishonest inflation of restaurant bill to detriment of
others/Immediate
imprisonment/Community
Service
Order
not
appropriate even if all six factors present/ Death of father not a basis for
suspension of sentence
串謀詐騙 - 不誠實地提高用膳帳單金額以致對他人造成損害 - 即時
監禁 - 即使六項因素俱全社會服務令亦不恰當 - 父親之死並不構成
緩刑的理據
The Appellant was convicted after trial of an offence of conspiracy to
defraud, and sentenced to 3 months’ imprisonment.
It was the prosecution case that the Appellant, an officer of the
Correctional Services Department, conspired with PW1, who pleaded guilty, to
defraud other named persons by dishonestly causing their bill to be inflated by
$2,000 and inducing those other persons to pay the bill.
On appeal, it was submitted that the magistrate should have considered a
suspended sentence or a community service order.
Held :
(1)
It was clear that by choosing to fight the case the genuine remorse
element required amongst other factors for a community service order was
lacking. There was no show of remorse forthcoming on the part of the
Appellant. Even had all of the six factors required for a community service
order been present, a defendant was not thereby automatically entitled to such an
order;
(2)
Even had the option of community service been open, the magistrate
could not be criticised for having opted for an immediate custodial sentence.
Taking into account the nature of the offence, an immediate custodial sentence
was called for even for a first offender, and was in no way wrong in principle;
(3)
The magistrate found there existed no exceptional circumstances to
justify a suspended sentence. The three months’ imprisonment imposed at trial
was already on the lenient side. A sentencing court had to strike a fair balance
between public interest in seeing those who offended being properly punished
and the personal circumstances of individual offenders. That the Appellant’s
father had suffered a tragic death in November 2002 was neither an exceptional
circumstance nor a basis for a plea ad misericordiam.
Result - Appeal dismissed.
CA 56/2003
Stuart-Moore
ACJHC
Woo JA
(6.8.2003)
*Paul Madigan
#Duncan Percy
LAM
Lai-chu, Patsy
Dangerous drugs/Tenant permitting premises to be used as a
divan/Sentencing range/Reduced discount for guilty plea due to wastage of
court time
危險藥物 - 租客容許處所用作煙窟 - 判刑幅度 - 由於浪費法庭時
間須削減因認罪而獲得的減刑
The Applicant was sentenced, after pleading guilty to the offence of
being the tenant permitting premises to be used as a divan, contrary to s 37
(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, to 2 years’
imprisonment. That was after the judge had adopted a starting point of 3 years’
imprisonment.
The facts showed that on 26 January 2002, two police officers went to a
first floor flat in Mong Kok posing as drug addicts. The Applicant took them
289
CCAB 2003
Sentence (Principles)
inside where her accomplice ‘Cheung’ (D1 at trial) offered them heroin in
varying quantities. The officers opted for a medium quantity for which the price
was $130. When Cheung handed over the drugs, he was arrested.
Eleven men and three women were found in the flat and a large amount
of drug-taking paraphernalia was discovered. When interviewed, the Applicant
admitted she had rented the premises and that she had done so to earn a reward
of $1,000. She said she had then become an employee whose job was to open
the door to customers who came there to consume ‘white powder’. She said she
had worked in this way on 8 to 10 occasions for which she was paid $400 each
day. Investigation revealed the premises had been let to the Applicant on 10
December 2001 for a period of 2 years at a monthly rent of $8,000.
The Applicant had seven previous convictions, four of which involved
possession of dangerous drugs.
On appeal
Held :
(1)
The discount of one-third for plea was generous. The plea had not been
timely. Having been arrested on 26 January 2002, the Applicant was bailed to
appear in the Magistrates Court for plea on 13 August 2002. However, she
jumped bail and was not re-arrested until 16 November 2002. During her
appearance on that day, she then indicated she would be pleading guilty and this
she did on 3 December 2002. Then her case was transferred to the District
Court. By that time her accomplice, Cheung, had been dealt with. In the result,
therefore, the Applicant’s conduct resulted in a duplication of the court work
which had to be done and of the costs necessitated by this;
(2)
For practical purposes, the offence of ‘Keeping a divan’, contrary to s
35(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134, was more or less
on an equal footing with the present charge, and sentences in those cases
involved starting points in the region of 12 months to 2 years: HKSAR v Ng Kawing Cr App 563/99, HKSAR v Cheung Kung-hang Cr App 459/2000,
HKSAR v Ho Sai-chak MA 780/99;
(3)
The co-accused, Cheung, pleaded guilty before a different judge on 12
September 2002 to keeping a divan and trafficking in 8.52 grammes of heroin
hydrochloride.
After plea, he was sentenced to concurrent terms of
imprisonment of 14 months and 2 years and 8 months. Although this case was
not to be approached on the basis of disparity in sentence, why the judge in
these proceedings sentenced the Applicant to a longer term than Cheung, when
Cheung, if anything, bore greater responsibility, was cause for wonder;
(4)
Although a guideline was not to be laid down for this kind of offence, for
which a statutory maximum of 15 years’ imprisonment was provided, the
sentence was manifestly excessive. A starting point of 20 months’ imprisonment
was appropriate, reduced by 25% to reflect the Applicant’s late plea bearing in
mind she absconded on bail.
Result - Appeal allowed. Sentence of 15 months’ imprisonment substituted.
290
CCAB 2003
CA 222/2003
Stuart-Moore
VP
Gall J
(28.8.2003)
*Eddie Sean
#John Haynes
Sentence (Principles)
TSE
Kai-kui,
Dennis
Assistance to authorities/Guilty pleas from other offenders resulting from
assistance/Testimony provided where required/ High discount required as
reward
協助當局 - 其他犯案者因上述協助而認罪 - 在有需要時作證 - 須給
予大幅減刑作為回報
The Applicant pleaded guilty in the District Court to four charges of
conspiracy to obtain a pecuniary advantage by deception and to fifteen charges
of using a copy of a false instrument. He was sentenced to 33 months’
imprisonment. That was after the judge had taken a four-year starting point for
the offences and granted a discount of one-third.
The Admitted Facts showed that at the material time the Applicant was
an undischarged bankrupt. He and a friend designed a scheme to obtain
personal instalment loans from the Hong Kong Bank. Employment letters and
banking records were forged on behalf of 19 persons. Knowing that the bank
manager did not require the originals of these documents for examination,
copies were submitted by the defendant and sometimes with his friend. As a
result, the bank granted a total of about HK$2 million personal instalment loans
to those persons. Those persons defaulted in repayment and the bank suffered a
loss of $1.9 million. The defendant and his friend obtained 20 to 25 percent of
the loan amount as reward for each successful application.
On appeal, the question arose of the extent of the further discount to be
given to the Applicant in recognition of the considerable assistance he had given
to the ICAC. This began at the time of his arrest when he not only admitted his
guilt but also implicated all the other offenders who were involved with him. By
the time the Applicant pleaded guilty in the District Court, he had made at least
fourteen written statements implicating his accomplices. These included the
other prime culprit, apart from himself, in these frauds. However, the
Applicant’s assistance required him to be ready and willing to give evidence if
these statements were to be of any practical value.
Held :
(1)
As the judge rightly indicated when passing sentence, a discount above
the normal one-third for his pleas of guilty should only, in the circumstances of
this case, be forthcoming when his ‘bare promise’ to give evidence for the
prosecution against the other offenders he had named was converted into action.
The Applicant’s statement of intention had now been carried out by him;
(2)
The Applicant’s assistance, which had included the provision of 21 nonprejudicial statements altogether, had led to pleas of guilty being entered by
twelve others directly connected to these funds. In a further four cases, the
Applicant was required to testify. In eleven cases, prison sentences of
substantial periods were imposed. In two other cases, community service orders
were imposed. One case was outstanding in relation only to sentence. These
cases were dealt with on various dates between 21 January 2003 and 25 August
2003 at four different Magistrates Courts and, in one case, in the District Court;
(3)
The assistance given by the Applicant since sentence was imposed had
been wholly exceptional and called for an unusually high discount to reward it.
It was noted that Ng Kwok-kwan, who hatched up the fraudulent scheme with
the Applicant, received a sentence in the District Court of 27 months’
imprisonment on his eventual pleas of guilty. That reflected a five-month
additional discount on his pleas of guilty for the assistance he had provided in
regard to two of the co-defendants, already named by the Applicant, both of
whom in due course pleaded guilty.
291
CCAB 2003
Sentence (Principles)
Result - Appeal allowed. Sentence of 28 months’ imprisonment on each charge
substituted, to be served concurrently.
CA 174/2003
Stuart-Moore
ACJHC
Woo JA
(14.8.2003)
*Paul Madigan
#Alice Lee
(1) TING
Chiu
(2) LAU
Cheungling
Robbery/Unarmed robbery of hikers not more serious than other
robberies/Guilty plea on first day of trial deserving of full
discount/Rationale of one-third discount
搶劫 – 不持械搶劫行山人士的罪行不比其他搶劫罪嚴重 - 於審訊
首日認罪應給予十足刑期減免 - 三分一刑期減免的理據
The Applicants were jointly charged with robbery and separately charged
with unlawfully remaining in Hong Kong. Each pleaded guilty. The judge
adopted a starting point of 5 years’ imprisonment for the robbery, which he
reduced to 3 years and 4 months, and he imposed 15 months for the unlawful
remaining. He ordered the sentences to run consecutively, so that each
Applicant received an overall sentence of 60 months’ imprisonment.
The convictions and sentences occurred on 22 May 2002. The Notices
of Application for leave to appeal were dated 25 April 2003 (A1), and 29 April
2003 (A2). The reason given for the delay was the same in each case. They did
not know the law and only realised that the sentence imposed on them for the
robbery offence was excessive and was liable to be reduced after they had read
newspaper reports on similar cases.
After a Newton inquiry, the judge concluded he was not satisfied that a
knife was produced in the course of the robbery. The facts showed that a
middle-aged couple were robbed by four men while out walking rear Lion Rock.
A wristwatch and $180 in cash were taken from the man, but nothing from the
wife. In his calculation of sentence, the judge relied on the guidelines in Mo
Kwong-sang v R [1981] HKLR 610.
On appeal, complaint was made only of the robbery. It was said the
starting point of 5 years’ imprisonment adopted by the judge was too high and
that the judge erred in failing to give the Applicants the full one-third discount
for their guilty pleas.
Held :
(1)
As the judge was not satisfied that a knife was produced in the course of
the robbery, it was obviously not a case where the normal sentence of 5 years, as
suggested in Mo Kwong-sang, could be applied. In R v Yau Kwok-tung [1987]
HKLR 782, Roberts CJ indicated that a sentence of 4 years was at the top end of
the tariff for robberies where weapons were not displayed;
(2)
Although a robbery which involved more than one culprit should be
viewed more seriously by the courts than one which involved only one culprit,
because the threat and pressure exerted by a number of robbers on the victim
were obviously more serious than those exerted by a lone robber, robbery on
hikers should not be dealt with more seriously by the courts than robberies on
other persons. There was no special aggravation of the offence when it was
committed on a hiker than any other robbery where the culprit, for example,
waylaid a victim in any public place;
(3)
In the circumstances, a proper starting point, taking into account that the
robbery was an unarmed one, should as a matter of principle be lower than that
for an armed robbery of the kind envisaged in Mo Kwong-sang. As the robbery
was committed by the two Applicants and two other young males at large, the
starting point should be four years instead of the five years adopted by the
judge;
292
CCAB 2003
Sentence (Principles)
(4)
Although the judge only gave a discount of 25%, on the basis that plea
was not timely, a reduction of one-third from the starting point to give credit to a
guilty plea had been a well-settled practice in recent years. As Stuart-Moore VP
indicated in HKSAR v Lo Chi-yip and Another [2000] 3 HKLRD 270, the
rationale for that practice was that ‘counsel must be able to advise their clients
with full confidence as to this aspect of sentencing’, and it was ‘an important
rule of practice in order to achieve fairness and parity towards all defendants’.
A failure to follow the practice would, save in most exceptional circumstances,
inevitably lead to interference by the Court of Appeal, thus increasing costs and
wasting resources for all concerned;
(5)
As the judge merely said that the pleas by the Applicants, which were
made on the first day of the trial, were not tendered at the first available
opportunity, no reason or circumstance which would justify the normal
reduction not being applied could be discerned: HKSAR v Li Tak-yin [2003] 1
HKLRD 519. The Applicants’ pleas did not qualify as ‘untimely’, because they
made no difference to the requirement for the victims to attend court to give
evidence as they had to give evidence on the question whether a knife was
produced in the course of the robbery, which resulted in a Newton inquiry. The
Applicants were well justified in raising that question since the inquiry was
resolved in their favour. If it had been otherwise, there might have been
material for the judge to consider to reduce the normal discount for plea;
(6)
The appropriate sentence for each of the Applicants in respect of the
robbery should be 32 months’ imprisonment, reduced for the guilty pleas from a
4 year starting point. Those sentences should be consecutive to the 15 months’
imprisonment for unlawfully remaining.
Result - Appeals allowed. Sentences of imprisonment of 3 years and 11 months
substituted.
CA 115/2003
Stuart-Moore
VP
Woo &
Stock JJA
YAU
Hok-kwan
Positive good character/Offender saving life of cellmate/ Laudable act
deserving of credit
正面的良好品格 - 罪犯救了同室獄友的性命 - 值得稱讚的行為應予
以肯定
The Applicant was sentenced to 5 years’ imprisonment for offences of
robbery and going equipped for stealing.
(25.9.2003)
*Paul Madigan
#James
McGowan
On appeal, it was accepted that the term of imprisonment for the offences
was appropriate. It was said, however, that the Applicant should have received
credit for his positive good character, namely, his bravery in assisting to rescue a
suicidal inmate in the Lai Chi Kok Reception Centre. In fact, the trial judge had
not been informed of this.
On 15 February 2003, the Applicant saved the life of his cellmate by
stopping him from committing suicide by hanging. Having been awoken in the
night by a bang, he found the cellmate trying to hang himself with a bed sheet.
The Applicant got up and pressed the emergency bell. He tried to reason with
his cellmate. That had no effect as the cellmate kicked away the chair he was
sitting on, leaving him suspended by the neck. The Applicant positioned
himself in such a way as to keep as much as possible of his cellmate’s weight off
his neck. Despite his efforts, the cellmate was unconscious by the time help
arrived. The cellmate, however, fully recovered.
Held :
293
CCAB 2003
Sentence (Principles)
(1)
Although it was to be hoped that it would have been a natural reaction on
the part of most people to have acted in the way the Applicant did, this was
undoubtedly a most laudable humanitarian act. He acted as he did rather than
turning a blind eye. If the sentencing judge had been informed of the position,
he would undoubtedly have taken the Applicant’s life saving deed into account
as a powerfully relevant factor in mitigation.
Result - Appeal allowed. Sentence of 4½ years’ imprisonment substituted.
[For positive good character generally, see Sentencing in Hong Kong,
3rd ed, at PP 313 – 314: Ed]
MA 115/2003
McMahon DJ
(1) CHAN
Chi-ming
(2) KWAN
Po-dip
Conspiracy to defraud/First offender/Deterrent sentence as last
resort/Suitability of community service order
串謀詐騙 - 初犯者 - 判處阻嚇性刑罰作為最後的一招 - 社會服務令
是否適宜
(15.7.2003)
*Peggy Lo
#G A Mackay
(1)
Raymond Yu
(2)
The Appellants were convicted on a joint charge of conspiracy to
defraud, contrary to common law and s 159C(6) of the Crimes Ordinance, Cap
200.
The facts showed that A1, a 47-year-old electrician, wished to obtain a
bank loan of $20,000. That he could not do because of his self-employed status.
He approached A2, a 48-year-old female, for help. She had a male friend who
operated a cleaning company and in some way obtained three blank employee
payslips from that company. Those payslips were then falsified by A2 with the
knowledge of A1 so as to appear to show that A1 was an employee of that
company.
The Appellants then went to the Dah Sing Bank branch in Aberdeen, and
A1 made an application for a cash loan and submitted the three falsified payslips
in support of that application. After the bank asked A1 to submit a letter from
the company certifying his employment, he forged such a letter with the
knowledge of A2. A false chop was prepared by A1 and applied to the letter
which was then submitted to the bank. In due course, the application was
rejected, and the bank lost no money.
The magistrate treated A1 and A2 as equally culpable, and accepted that
A2 acted out of friendship and had no financial interest in the granting of any
loan monies. In respect of each Appellant, he took a starting point for sentence
of 6 months’ imprisonment and reduced that to 4 months to reflect the guilty
pleas and clear records.
On appeal
Held :
(1)
The offence involved considerable planning and endeavour.
In
endeavouring to carry out the conspiracy, the Appellants displayed a
considerable degree of persistence. The plan was effectively completed and it
was apparently for its own reasons that the bank rejected the application causing
the conspiracy not to reach fruition;
(2)
The magistrate was right to describe this as a blatant and dishonest
scheme. He was right also to consider the falsification and outright forgery of
the documentation presented to the bank as being something which aggravated
offence seriousness. The forgery of documents, particularly of those used in
commercial transactions, was rightly considered serious;
294
CCAB 2003
Sentence (Principles)
(3)
Both Appellants, however, had previous good character and A2 might
have been a person of positive good character. Both were mature adults and had
lived in Hong Kong for some considerable time. It was generally true that
wherever possible a court would strive to avoid imposing a deterrent sentence
upon a first offender. That was because it could be said of many first offenders
particularly that their transgressions went against the grain of their previous
lives;
(4)
The magistrate might not have given sufficient weight to the good
character of both Appellants. Although true that he had imposed a relatively
brief sentence of imprisonment, in Attorney General v Ng Sai-man [1994] 1
HKCLR 1, Bokhary JA had said that if it was ‘not necessary to send a man to
prison for very long, it may not be necessary to send him to prison at all’;
(5)
The magistrate should have obtained a report as to the suitability of the
Appellants for community service. There was no doubt that each Appellant
fitted the profile of an offender suitable for consideration for such an order, as
set out in R v Barrick (1981) 3 Cr App R 294.
Result - Appeals allowed. Orders of community service, each of 140 hours,
substituted for prison terms.
[For Community Service Orders generally, see Sentencing in Hong
Kong, 3rd ed, at pp 70-79: Ed]
香港特別行政區訴林民和
HKSAR v LAM Man-wo
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 3 年第8 3 1 號
*曹志遠
Simon Tso
#上訴人自辯
I/P
高等法院原訟法庭暫委法官張慧玲
耹訊日期：二零零三年九月二十三日
宣判日期：二零零三年九月二十三日
COURT OF FIRST INSTANCE OF THE HIGH COURT MAGISTRACY
APPEAL NO. 831 OF 2003
Barnes DJ
Date of Hearing: 23 September 2003
Date of Judgment: 23 September 2003
同 時 判 處 罪 犯 入 戒 毒 所 和 監 禁 屬 原 則 上 錯 誤 - 監 獄 內 管 有 危 險 藥物
- 量刑起點
上 訴 人 承 認 三 項 管 有 危 險 藥 物 罪 ， 違 反 香 港 法 例第1 3 4 章《危
險藥物條例》第8 1 ( 1 ) ( a) 及( 2 ) 條。上訴人被判處入戒毒所。
案情顯示，荔枝角收押所懲教署人員分別三次從上訴人的糞
便中發現海洛英。
裁判官的判刑理由如下：
上 訴 人 有 3 7 次 犯 罪 紀 錄 ， 其 中 5 次與危險藥物有關，
其 他大多為盜竊罪，曾於 1 9 7 8 年入戒毒所治療。上訴
人表示他因其他盜竊罪正服刑6個月，希望不要判他
入戒毒所。
295
CCAB 2003
Sentence (Principles)
根 據 戒 毒 所 條 例 第 6 A (1 )(a ) 條 ， 上 訴 人 須 在 監 禁 期
滿 後 再 到 戒 毒 所 接 受 戒 毒 療 程 ， 而 戒 毒 所 條 例 第 4 (2 )
條 授 權 懲 教 署 署 長 可 根 據 該 人 的 情 況 決 定 期 限，惟該
期限不得少於2 個月亦不得多於12個月。若上訴人監
禁 期 滿 後 而 同 時 戒 除 毒 癮 ， 其 在 戒 毒 所 的 療 程將會相
對縮短。基於這原則，本席認為就算他先服刑6個
月 ， 整 體 刑 期 也 不 會 因 再 到 戒 毒 所 而 過 長 。 何況，他
正 服 刑 的 盜 竊 罪 與 此 上 訴 有 關 的 管 有 危 險 藥 物罪是在
明 顯 不 同 的 情 況 而 犯 的 ， 理 應 分 期 執 行 。 本 席判每項
控罪判其入戒毒所，同期執行。
裁決：
(1)
在 R v La u Ch i MA 1 5 8 3 /1 9 9 0 ，法庭引述A G v To Ka - sh in g
[ 1 9 8 7 ] HKLR 6 9 ， R v Yeu n g Ta k- sin g Cr Ap p 2 1 7 4 /1 9 8 0 和
HKS A R v La m Mee- fa t MA 1 1 0 4 /2 0 0 2 ，並指出裁判官犯了原則上
的錯誤，因為他判被告人入戒毒所，而戒毒會於被告人完成九個月
監 禁 後 執 行 。 在 To Ka - sh in g 一 案 中 ， 赫 健 士 副 庭 長 指 出 ： “We
th in k th a t th ere wa s n o ju risd ictio n to d irect th a t th e p erio d o f
d eten tio n in th e d ru g a d d ictio n trea tmen t cen tre sh o u ld ru n fro m
a fu tu re d a te, b u t we a g ree th a t th e sen ten ce wo u ld h a ve b een
wro n g in p rin cip le even if with in th e ju risd ictio n o f th e Co u rt.”
雖 然 本 案 與 La u Ch i 的 情 況 並 不 完 全 相 同 ， 但 基 本 原 則 是 一 樣 的 ：
即裁判官不應「同時」判一名犯人服刑及往戒毒所戒毒﹔
(2)
若一名犯人已被判經戒毒的戒毒在先，根據《戒毒所條例》
第 2 4 4 章 第 6 A( 1 ) 條 ， 若 監 禁 刑 期 為 9 個 月 或 以 下 ， 則 戒 毒 所 命 令 暫
緩執行至監禁期滿為止﹔若刑期為9個月以上，則該戒毒所命令效
力即告終止；
(3)
在考慮適當的判刑起點時，應考慮到上訴人的犯罪紀錄，其
中5次與毒品有關。上訴人將毒品帶進監獄，以便在獄中吸食是令
本案較一般管有毒品以供自用的案件更為嚴重。在考慮了案情及上
訴 人 的 背 境 後 ， 恰 當 的 判 刑 起 點 應 是 9 個 月 。 上 訴 人 認 罪 可 得 1 /3 刑
期扣減。故本案適當的總刑期是6個月。換言之，上訴人就每項控
罪被判兩個月監禁，全部分期執行，而全部刑期與先前偷竊罪被判
處的6 個月監禁分期執行。
結果︰ 上訴得直。改判6 個月監禁與先前所判的刑期分期執行。
[English digest
of MA 831 of
2003, above]
Barnes DJ
LAM
Man-wo
Wrong in principle to order DATC and term of imprisonment
simultaneously/Possession of drugs in prison/Starting point
The Appellant pleaded guilty to three charges of possession of dangerous
drugs, contrary to s 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134,
and was sentenced to detention in a Drug Addiction treatment Centre (‘DATC’).
(29.9.2003)
*Simon Tso
The facts showed that the CSD officers in the Lai Chi Kok Reception
Centre had on three different occasions found heroin in the Appellant’s
excrement.
#I/P
In the Reasons for Sentence, the magistrate said:
The Appellant has 37 previous convictions, 5 of which are
296
CCAB 2003
Sentence (Principles)
related to dangerous drugs and the rest are mostly theft
offences. In 1978, he was sent to a drug addiction treatment
centre for treatment. The Appellant does not want to be
sentenced to detention in a drug addiction treatment centre as
he is currently serving a term of 6 months for another theft
offence.
Under s 6A(1)(a) of the Drug Addiction Treatment Centres
Ordinance, the Appellant has to be further detained in a drug
addiction treatment centre for treatment upon the expiration of
his term of imprisonment, and s 4(2) of the Ordinance
empowers the Commissioner of Correctional Services to,
having regard to the circumstances of the Appellant, determine
the period of detention, which is not less than 2 months and
not more than 12 months. If the Appellant has cured himself
of his drug habit upon serving his term of imprisonment, the
period of his treatment in the drug addict treatment centre will
be reduced accordingly. In view of this, I opine that the
overall sentence would not be excessive as a result of his
detention in a drug addiction treatment centre even if he has to
serve the 6-month sentence prior to the detention. Moreover,
the sentences should be made consecutive given the fact that
the theft offence for which the Appellant is serving his term
and the offence of possession of dangerous drugs ... were
committed in obviously different circumstances. I now
sentence him to detention in a drug addiction treatment centre
on each charge and the sentences are to run concurrently.
On appeal
Held :
(1)
In R v Lau Chi MA 1583/1990, the court, having referred to AG v To Kashing [1987] HKLR 69, R v Yeung Tak-shing Cr App 2174/1980 and HKSAR v
Lam Mee-fat MA 1104/2002, held that the magistrate had erred in principle in
ordering the defendant to be detained in a DATC which took effect after the
defendant had served a term of 9 months’ imprisonment. In To Ka-shing (supra),
Sir Alan Huggins VP said: ‘We think that there was no jurisdiction to direct that
the period of detention in the drug addiction treatment centre should run from a
future date, but we agree that the sentence would have been wrong in principle
even if within the jurisdiction of the Court’. Although the circumstances in the
present case were not wholly identical with those in Lau Chi, the basic principle
remained the same: that the magistrate should not have sentenced the offender to
a term of imprisonment and to detention in a DATC simultaneously;
(2)
Under s 6A(1) of the Drug Addiction Treatment Centres Ordinance, Cap
244, if an offender, after being sentenced to detention in a DATC, was further
sentenced to imprisonment for a term of 9 months or less, the DATC order
should be suspended until the expiration of his term of imprisonment; and if he
was sentenced to imprisonment for a term of more than 9 months, the DATC
order should cease to have effect;
(3)
In considering the appropriate starting point, reference had to be made to
the Appellant’s previous convictions, five of which related to drugs. The fact
that the Appellant brought drugs to the prison for consumption rendered the
present case more serious than the usual possession of drugs for selfconsumption. Having considered all the circumstances of the case, a starting
point of 9 months was appropriate. The overall aggregate sentence should have
been 6 months after giving a one-third discount for the Appellant’s guilty pleas.
297
CCAB 2003
Sentence (Principles)
In other words, the Appellant was sentenced to 2 months’ imprisonment for each
charge to run wholly consecutive to each other and to the 6-month sentence
previously imposed on him for the theft offence.
Result - Appeal allowed. Sentence of 6 months’ imprisonment substituted to
run consecutively to the sentence previously imposed.
CA 2/2003
Stuart-Moore
VP
Stock JA
Lugar-Mawson
J
HUI
Mak-kwan
Manslaughter/Life
imprisonment/Criteria
for
discretionary
life
term/Calculation of minimum term under s 67B(1) Cap 221/Role of longterm prison sentence review board
誤殺 - 終身監禁 - 判處酌情性終身監禁刑期的準則 - 根據第221章
第67B(1)條計算最低刑期 - 長期監禁刑罰覆核委員會的任務
The Applicant, aged 78 years, pleaded not guilty to murder but guilty to
manslaughter on the basis of diminished responsibility. That plea was accepted.
(20.11.2003)
The relevant portions of the admitted facts were as follows:
*Darryl Saw
SC
& Sally Yam
#Duncan Percy
At about 4:15 pm on the 23rd July 2001 the defendant took a
chopper from his home and went to an open space outside Lung
Hong House. He approached Leung Kwok-kuen, aged 50 (PW1),
a person whom he did not know. At the time Leung Kwok-kuen
was sitting on the ground and reading a newspaper. The
defendant held the chopper in his right hand and chopped Leung
Kwok-kuen twice on the head, once on his right leg and once on
his left leg. In this course of his attack the defendant was heard
to yell ‘chop you to death’ or words to that effect. Leung Kwokkuen ran from the scene to a flowerbed about 100 meters away
outside the Faith Hope Nursery where half a dozen elderly people
were sitting passing the time of day. Leung called out that he had
been chopped and that the police should be called. At about that
time the defendant arrived at the flowerbed outside the Faith
Hope Nursery. Leung ran to the ground floor of Lung Chak
House and collapsed into unconsciousness.
The deceased, Chan Choi-keung, aged 73, was one of those
persons sitting around the flowerbed. He was holding a walking
stick. The defendant still holding the chopper walked slowly
towards the flowerbed. He was talking to himself as he walked.
He approached the deceased and chopped him several times. The
deceased fell back into the flowerbed. The defendant turned away
and spoke to himself in loud tones. He turned again and chopped
the deceased again. The deceased called for help. The defendant
turned away again and then turned back and chopped the
deceased again. He then went and lent against some railings
opposite the flowerbed and continued to speak to himself. The
deceased lay in the flowerbed covered with blood. The defendant
was then apprehended by witnesses and shortly after the police
arrived on the scene …..
The police interviewed the defendant. He told the police that he
was not involved in the murder of the deceased – he really only
had a fight with him. He said that he was going to fight a heroin
pusher who lived on the 14th Floor. He said that he couldn’t find
the man but then he saw another man who lived at Block 19 – this
man according to the defendant had always helped the heroin
pusher. He told the police that he then had a fight with somebody
and in the course of the fight he took a chopper and chopped the
298
CCAB 2003
Sentence (Principles)
person who was holding a walking stick. He explained that he
had taken the chopper from his home with a view to chopping the
heroin pusher but had failed to find that person. He said also
that he had been hit by the deceased with a wooden stick before
he had chopped the deceased. The defendant recalls only
chopping the deceased once.
Before imposing sentence, the judge considered psychiatric reports.
These showed that he suffered from a psychiatric condition which was
untreatable and that he would remain a danger to society if released. The judge
concluded that the Applicant was ‘undoubtedly a very grave danger to others’
and that a life sentence was necessary. She added:
Under section 67B of the Criminal Procedure Ordinance, Cap
221, I am required to specify a minimum term which the accused
must serve. Because of the accused’s advanced age, perhaps this
is less meaningful in the present case than in many others. But I
must still specify a minimum term, so I do so and I specify 30
years. This is calculated on the basis that as things presently
stand, there is no prospect of the accused not being a danger to
the public and unless things change in practical terms, life must
mean life.
No doubt the prison authority would provide the necessary
psychiatric treatment to the accused as and when the
circumstances arise.
The judge sentenced the Applicant to life imprisonment, with a minimum
term of 30 years to be served.
On appeal
Held :
(1)
The criteria for imposing a life sentence were, firstly, that the offence or
offences were in themselves grave enough to require a very long sentence;
secondly, where it appeared from the nature of the offences or from the
defendant’s history that he was a person of unstable character likely to commit
such offences in the future; and thirdly, if further offences were committed, the
consequences to others might be specially injurious, as in the case of sexual
offences or crimes of violence;
(2)
The circumstances of the instant offence, in regard to the first criterion,
were undoubtedly grave enough to require a very long sentence. The Applicant
attacked a defenceless total stranger for no apparent reason, inflicting horrific
injuries on him. Since then, he had demonstrated no sign of remorse. The
second and third criteria were clearly satisfied by the material contained in the
psychiatric reports;
(3)
Section 67B(1) of the Criminal Procedure Ordinance, Cap 221,
contained a mandatory requirement to set a minimum term of imprisonment for
someone who was sentenced to a discretionary life term. Integral to the
operation of s 67B was the Long-Term Prison Sentences Review Ordinance,
Cap 524. That made provision for the review of prison sentences imposed on
prisoners sentenced in Hong Kong to indeterminate or long-term sentences,
namely, sentences of ten years or more. Section 8, which contained the
principles upon which the Board was required to exercise or perform its duties
and functions, provided that the Board must have primary regard to these
principles:
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(a)
in any case where the prisoner has not been completely
rehabilitated, the rehabilitative effect of releasing the
prisoner from detention before the unremitted part of the
prisoner’s sentence is served;
(b)
the benefits to the prisoner and to the community arising
from the prisoner being supervised after released with a
view to securing, or increasing the likelihood of securing,
the prisoner’s rehabilitation (in any case where the
prisoner has not been completely rehabilitated) and
successful reintegration into the community;
(c)
whether the part of the prisoner’s sentence already served
is sufficient, in all the circumstances (in particular given
the nature of the offence for which the prisoner is being
detained), to warrant consideration being given to having
the prisoner released from detention early;
(d)
the need to protect members of the community from
reasonably foreseeable harm that could be inflicted by the
prisoner as a result of having been released from detention
early.
The Board was authorised to make recommendations to the Chief
Executive in respect of prisoners who, in its opinion, should have their prison
sentences remitted or converted to determinate periods; to order the conditional
release of prisoners who were serving indeterminate prison sentences; and to
make supervision orders in respect of prisoners who, having been sentenced to
indeterminate sentence of imprisonment, had had their sentences converted to
determinate sentences by the Chief Executive on the Board’s recommendation.
The concerns expressed by the judge when fixing the minimum term in this case
were misplaced because, ultimately, the Applicant could not, while undergoing a
life sentence, be released back into society without the Board being satisfied that
this could safely be achieved;
(5)
The so-called tariff period of 30 years imposed in the instant case
effectively removed from the Long-Term Prisoners Review Board any discretion
regarding the Applicant’s future. The Applicant could not, if that term was
allowed to stand, be considered by the Board until, in the unlikely event that he
ever attained such an age, he reached the age of 108. In the circumstances,
therefore, the judge, albeit unintentionally, had defeated the clear intent of the
legislation when she announced that the term of 30 years was ‘calculated on the
basis that, as things presently stand, there is no prospect of the accused not
being a danger to the public and, unless things change in practical terms, life
must mean life’. From this passage, it seemed that the judge had assumed that it
was for the sentencer to determine the long term danger to the public of the
accused. This was only correct in part because this factor was recognised by the
imposition of a life sentence. However, a minimum term which denied any
realistic possibility of rehabilitation or recovery, however remote, must be
regarded as contrary to the spirit of the legislation when taken as a whole;
(6)
This point was not a new one. In HKSAR v Hui Chi-wai & Ors (No 2)
[2003] 2 HKC 582, 591, Stock JA, giving the judgment of the Court of Appeal,
when referring to s 67B of the Ordinance, said:
The section is not designed to provide a sentence of imprisonment
in lieu, as it were, of a life term. It is designed to draw from the
court a minimum term of years which the convicted person must
300
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actually serve before release, remembering however, and this is an
important caveat, that it is inherent in the phrase ‘minimum term’
that the court does not say that that is the stage at which the
convicted individual is to be, or even should be, released. Those
who are entrusted with the function of monitoring prisoners serving
indeterminate sentences, or long term determinate sentences, and
with making recommendations, where appropriate, for release or
for the conversion of indeterminate terms to determinate ones, may
very well in individual cases decide against the prisoner’s release
at the end of the minimum term and, indeed, may decide that
release is not permissible for some considerable time beyond that
date, or indeed at all.
The exercise of the power under s 67B (Cap 221) is one which
should be viewed in the context of relevant provisions of the LongTerm Prison Sentences Review Ordinance, Cap 524.
(7)
In Hui Chi-wai, at 592, the scheme set out in the Long-Term Prison
Sentences Review Ordinance was described thus:
when deciding upon a minimum term under s 67B, what the court is
primarily addressing is the punitive and deterrent element dictated
by the offence and the current circumstances of the offender.
(8)
The minimum term which was imposed under section 67B of the
Ordinance was not, unlike other substantive sentences, subject to any remission
under the provisions of Rule 69 of the Prison Rules, Cap 234. Furthermore,
bearing in mind that the Applicant had pleaded guilty to the offence, he would
normally have been entitled to some discount on the minimum term which was
imposed just as he would have been if he had been sentenced to a determinate
term of imprisonment;
(9)
The judge erred in her assessment of the appropriate minimum sentence
she should have imposed. This had resulted in the imposition of a term which
was manifestly excessive. It was therefore necessary for the task to be
undertaken afresh. It was by no means clear that the Applicant would ever cease
to be a danger to the public. Present indications were to the contrary. He had
expressed no remorse and appeared to have little or no insight into his mental
state. However, considering the Applicant’s advanced age, his plea of guilty
and the fact that the Long-Term Prisoners Review Board would be able to assess
him in due course, the appropriate minimum term to be served by the Applicant,
under section 67B of the Ordinance, should be 10 years.
Result - Appeal allowed. The 30-year minimum term would be quashed and
substituted with a minimum term of 10 years’ imprisonment. The life
sentence would remain undisturbed.
301
CCAB 2003
CA 10/2003
Stuart-Moore
VP
Stock JA
Jackson J
(11.12.2003)
*Simon Tam
&
Richard Ma
Sentence (Principles)
KOEY
Shu-kwai,
Morris
Furnishing false information/Pre-sentence reports ordered/ Judge kept
options open/Suitability of community service order
提供虛假資料 – 下令索取判刑前報告 – 法官未就判刑選擇作出定
論 – 社會服務令是否適宜
The Applicant, a Senior Immigration Officer, was convicted after trial of
an offence of furnishing false information, contrary to s 19(1)(b) of the Theft
Ordinance, Cap 210. He was sentenced to 9 months’ imprisonment.
On appeal, it was submitted, inter alia, that the judge erred in calling for
a community service suitability report if he was not prepared to act upon it, and
that there were exceptional circumstances to justify suspension of a prison
sentence.
#David Boyton
Held :
(1)
All the judge had done was to keep his sentencing options open. It had
been made abundantly clear to the Applicant that it was more likely than not that
he would receive a prison sentence. As stated in R v Janet Renan (1994) 15 Cr
App R (S) 722, 725:
Our attention has been drawn to the Gillam principle and to two
decisions of this Court applying the Gillam principle. The first
was Rennes (1985) 7 Cr App R (S) 343, where, on the facts there,
the Court took note of the circumstances in which a magistrates’
court had adjourned for reports. The judgment, given by Lloyd
L J reads:
‘We emphasise that in every case it all depends on what
the defendant has been led to expect. There can be no
absolute rule that where a community service
assessment is included among the reports and where
that assessment is favourable, a sentence of
imprisonment will automatically be quashed. That
appears sufficiently from a decision of this Court in
Stokes (1983) 5 Cr App R (S) 449, where the Court
emphasised that it will, in every case, depend on what
the defendant has been led to expect. ’
Secondly, our attention was also drawn to the decision in Norton
and Claxton (1989) 11 Cr App R (S) 143. In that judgment, this
passage appears:
‘The third observation in this particular appeal which
turns entirely on its own special facts should not be
understood as laying down any principle that a
sentencing court which asks for a social inquiry report
is committing itself in any way to a non-custodial
disposal, even if the report proves to be favourable.
Unlike a report on suitability for community service,
which was the subject matter of the request in Stokes
and which has no purpose unless the sentencer
contemplates making an order if the offender is suitable
and work is available, a social enquiry report is a
valuable source of information for a sentencer who is
considering a range of sentencing options. We repeat
that the present case is no authority for the view that
any option is foreclosed, merely because a sentencer
asks for a social inquiry report, though it will often be
302
CCAB 2003
Sentence (Principles)
prudent for sentencer to make it quite plain when he
asks for a report that there should be no inference that a
non-custodial disposal is going to be the one ultimately
chosen. ’
(2)
All of the six factors required for the imposition of a community service
order were not present: R v Brown (1981) 3 Cr App R (S) 294. In particular, the
Applicant showed no remorse whatsoever until after he had been convicted. In
any event, it did not necessarily follow that a judge must make a community
service order just because the six factors were present: Secretary for Justice v
Lin Min-ying and Another [2002] 3 HKC 415, 421. He would only do so
having ‘carefully analysed the matters to be weighted towards sentence, and the
(defendant’s) general suitability for community service was merely one aspect
to be considered ’ ;
(3)
The Applicant had been convicted after trial and he showed no remorse
for what he had done until after he had been convicted and was awaiting
sentence. There were no exceptional circumstances to justify the suspension of
a prison sentence.
Result - Application dismissed.
CA 92/2002
Stuart-Moore
VP
Stock &
Yeung JJA
(11.12.2003)
*Alain Sham
#John
McNamara (1)
Edwin Choy
(2) to (5)
I/P (6)
I/P (7)
(1) SZE
Kwanlung
(2) PANG
Hon-kwan
(3) FU
Mo
(4) LAM
Hing-luen
(5) YEUNG
Yee-ping
(6) YEUNG
Yee-yim
(7) CHAU
Hungchuen
Immigration Tower homicide and arson/Prosecution rejection of offer of
guilty plea to manslaughter by accused charged with murder/Accused
attempting to establish innocence of murder and manslaughter/Effect of
‘enquiries ’ about pleas to lesser offence/Sentencing of leader of group/
Duty of court to uphold public order in face of mob violence
入境事務大樓殺人及縱火案 – 被控謀殺罪的被告提出願意承認誤殺
罪不被控方接納 – 被告企圖證明並無犯謀殺及誤殺罪 – 就承認犯
較輕罪行所作的‘提問’對於判刑的影響 – 對一眾之首的判刑 –
面對群眾暴力法庭有責任維護公共秩序
A1 was convicted of two offences of murder and one of arson. On
appeal, the murder convictions and the life sentences were quashed and
substituted with convictions for manslaughter.
A2 to A7 were convicted of two offences of manslaughter and one of
arson.
In passing sentence, the judge found that the offences had been
committed pursuant to an agreement which had involved preparations being put
in place to bring flammable liquid to the 13th floor of Immigration Tower; that
the events had culminated in the deaths of two people when the liquid was
ignited; that the Immigration Officer had died in the line of duty; and that these
criminal acts were done in an attempt to force the Government to give way to
their demands.
The judge drew no distinction between any of the roles played by A2 to
A7. He did, however, draw a distinction between the mitigation of A2 to A5,
each of whom had made a ‘firm offer ’ to plead guilty to the two counts of
manslaughter which the prosecution had rejected, and A6 and A7 who had
merely ‘explored the possibility’ of such pleas being accepted. The judge went
on to say that in all the circumstances he was not minded to give the full
discount ‘which otherwise might be granted where a plea is offered ’ .
The judge took a starting point of 16 years for manslaughter. He then
reduced the sentences of A2 to A5 to 12 years, to give some effect to the offers
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CCAB 2003
Sentence (Principles)
they had made to plead guilty. A6 and A7 had made no such offers, and the
judge gave each of them a smaller reduction which was reflected in their
sentences of 13 years.
On appeal
Held :
Applications of A2 to A5
(1)
Although A2 to A5 did not criticise the 14-year starting point, they
complained that the ‘firm offers ’ to plead guilty to manslaughter had been
inadequately recognised in the 2-year reduction from the starting point. The
courts in Australia had developed a practice to regard the offer of a plea of
guilty as a mitigating factor, when the ultimate conviction was for a crime which
matched the offer which was originally made, and this should be adopted in
Hong Kong. In R v Oinonen [1999] NSWCCA 310 [60571/1998] (unreported),
Grove J said:
There has been a long practice, however, in this court and in trial
courts to take into account the offer of a plea of guilty which
matches the crime for which a person is ultimately convicted.
The offer of that plea of guilty or, in usual circumstances, the
actual plea of guilty, is of benefit to the person charged broadly
in two ways: it is taken as an indication of remorse and contrition
for the offence committed and, second, there is what is described
as the utilitarian value of the plea; this includes the relief of the
State from having to call witnesses and, indeed, the reliefs to the
various witnesses of the burden of having to give evidence and
potentially being cross-examined.
(2)
In R v Cardoso [2003] NSWCCA 15 [60631/2001], the applicant had
offered to plead guilty to manslaughter. When this was rejected, he proceeded
to run self-defence as his defence to murder. The trial judge was not referred to
Oinonen (above) and, passing sentences, expressed the view that the offer to
plead guilty had been of no utilitarian value and did not therefore entitle the
prisoner to any discount. In reducing sentence to give recognition to the
applicant’s offer to plead guilty, Hidden J remarked:
It is not to the point that, that offer (to plead guilty) having been
rejected, the applicant chose not to plead guilty to manslaughter
in the presence of the jury and raised an issue at the trial which
could have led to his outright acquittal.
(3)
The judgment in Cardoso confirmed the principle that a genuine offer to
plead guilty would carry some weight as mitigation. It was not to be read as
saying it was never to the point to consider all the surrounding circumstances of
the offer to plead guilty when determining the worth of the mitigation. By way
of example, in HKSAR v Lau Chi-chiu Cr App 395/98, the appellant’s defence at
trial to the allegation that he had been trafficking had been tantamount to a plea
of guilty to simple possession of the drugs. He never sought to go behind his
offer to plead guilty by making out, after this had been rejected, that he was
entitled to an acquittal. It was highly significant that he had kept his mitigation
intact. If the appellant in that case had not done so, he would plainly not have
been given the same level of discount which was usually given to those who
pleaded guilty;
(4)
A2 to A5 attempted to persuade the jury, when contesting the murder
304
CCAB 2003
Sentence (Principles)
charges they faced, that they were not even guilty of manslaughter. So whilst
recognition had to be given to their initial offers to plead guilty to manslaughter,
the judge was correct when he said that he proposed to give a lower level of
discount than would have been appropriate for actual pleas of guilty;
(5)
The reduction by two years from the starting point of 14 years in respect
of A2 to A5 represented a little under 15% which in all the circumstances
seemed to have been within the discretionary margin of what was appropriate. If
A2 to A5 had either pleaded guilty to the manslaughter alternatives, or run their
defences to the murder charges along the lines suggested by the guilty pleas they
had offered, they would have been entitled to receive the full benefit for their
pleas or offers to plead guilty;
Applications of A6 and A7
(6)
The starting point adopted was not manifestly excessive.
The
‘enquiries ’ which they made about pleading guilty gave them no entitlements to
any discount. That they each received a discount of a year was more than
generous bearing in mind that they had at no stage offered to plead guilty to
manslaughter as an alternative to the murders alleged in counts 1 and 2;
Conclusion on applications of A2 to A7
(7)
When demonstrators turned to violent means to reinforce a grievance,
however justified they might feel in the course which had led them to
demonstrate, and a peaceful demonstration was turned into conflict where
serious injury was a possible, if not probable, consequence, this would almost
inevitably call for condign punishment. The courts owed a duty to protect those
who, from time to time, found themselves in the front line having to maintain
law and order in the face of such violence. Sufficient measures had to be taken
which would not only punish such offenders for acts of violence which put
others in danger but would also act as a deterrent to others who, in similar
circumstances, might otherwise be inclined to take the law into their own hands;
(8)
The sentences imposed on A2 to A7 were appropriate bearing in mind
the extreme gravity of their actions. This was a case of arson in a public
building, committed in a small and crowded room. It had been planned to take
place if the authorities refused to give way to their demands;
Sentence of A1
(9)
Although A1 played a physical role in throwing or pouring thinner onto
others or in setting it alight, what he did and said indicated that he was well
aware of the action which would be taken if the demands of the protestors were
not met. Although he was an accessory to manslaughter and to arson, A1 was in
a real sense the influential leader of the group of demonstrators whose
commission of the offence of arson led to the deaths of two people;
(10) Although there was no evidence to prove that A1 personally arranged for
thinners to be brought to the Immigration Tower or that the idea of using
flammable liquid originated with him, his awareness that thinners were present
enabled him to utter death threats at the immigration staff; threats which were
fulfilled soon afterwards with tragic consequences. A1 orchestrated to a
considerable extent the events which led up to the deaths and he had to bear the
heaviest penalty for so doing. He would be sentenced to 14 years’ imprisonment
on the two manslaughter counts. These would run concurrently to each other
and to the 5 years’ imprisonment being served on count 3.
305
CCAB 2003
Sentence (Principles)
Result -
Applications, by a majority, of A2 to A7 dismissed. A1 sentenced to
terms of imprisonment of 14 years in toto.
Sexual Offence
CA 533/2001
Ma CJHC
Stuart-Moore
VP
Jackson J
KHAN
Arshed
Rape/No warning from judge to jury to exercise caution before convicting
on unsupported evidence of complainant/Discretion of judge rarely to be
interfered with/Approach to be applied/ Straight-forward case
強姦 - 法官在根據事主欠缺支持的證據定罪之前沒有警告陪審團謹
慎行事 - 甚少干預法官行使酌情權 - 所須採用的處理方法 - 本案簡
單易明
(27.8.2003)
*Kevin Zervos
SC
#J Acton-Bond
The Applicant was convicted after trial of two counts of rape.
On appeal, it was submitted, inter alia, that the judge had erred by
‘failing to exercise his discretion ... to give the jury a warning as to the caution
they should exercise before convicting on the unsupported evidence of a
complainant in a case of a sexual nature ’ .
Held :
(1)
It was only rarely that the court would interfere with the exercise of a
judge’s discretion. When that was done, it would generally need to be
demonstrated that the judge had utilised his discretionary powers or failed to do
so, having fallen into obvious error in the approach taken to the exercise of
discretion;
(2)
The corroboration rule in Hong Kong had been abolished in respect, first,
of alleged accomplices, and, second, of sexual offences. In England, the
abolition of the corroboration rule for accomplice evidence and for complainants
in sexual offences occurred at the same time by virtue of the provision of s 32(1)
of the Criminal Justice and Public Order Act, 1994, which was mirrored in Hong
Kong by s 60 of the Criminal Procedure Ordinance, Cap 221, and s 4B of the
Evidence Ordinance, Cap 8, respectively. Dealing with the effect of s 32(1) in
England, Lord Taylor CJ, in R v Makanjuola (1995) 2 Cr App R 469, 472,
summarised the position as follows:
(i)
Section 32(1) abrogates the requirement to give a
corroboration direction in respect of an alleged accomplice
or a complainant of a sexual offence, simply because a
witness falls into one of those categories.
(ii)
It is a matter for the judge’s discretion what, if any warning,
he considers appropriate in respect of such a witness as
indeed in respect of any other witness in whatever type of
case. Whether he chooses to give a warning and in what
terms will depend on the circumstances of the case, the issues
raised and the content and quality of the witness’s evidence.
(iii)
In some cases, it may be appropriate for the judge to warn
the jury to exercise caution before acting upon the
unsupported evidence of a witness. This will not be so simply
because the witness is a complainant of a sexual offence nor
will it necessarily be so because a witness is alleged to be an
accomplice. There will need to be an evidential basis for
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CCAB 2003
Sexual Offence
suggesting that the evidence of the witness may be
unreliable. An evidential basis does not include mere
suggestions by cross-examining counsel.
(3)
(iv)
If any question arises as to whether the judge should give a
special warning in respect of a witness, it is desirable that
the question be resolved by discussion with counsel in the
absence of the jury before final speeches.
(v)
Where the judge does decide to give some warning in respect
of a witness, it will be appropriate to do so as part of the
judge’s view of the evidence and his comments as to how the
jury should evaluate it rather than as a set-piece legal
direction.
(vi)
Where some warning is required, it will be for the judge to
decide the strength and terms of the warning. It does not
have to be invested with the whole florid regime of the old
corroboration rules.
(vii)
It follows that we emphatically disagree with the tentative
submission made by the editors of Archbold in the passage at
paragraph 16.36 quote above. Attempts to reimpose the
straitjacket of the old corroboration rules are strongly to be
deprecated.
(viii)
Finally, this Court will be disinclined to interfere with a trial
judge’s exercise of his discretion save in a case where that
exercise is unreasonable in the Wednesbury sense.
Lord Taylor, in setting out the principles, emphasised that:
... these observations are merely illustrative of some, not all, of the
factors which judges may take into account in measuring where a
witness stands in the scale of reliability and what response they
should make at that level in their directions to the jury. We also
stress that judges are not required to conform to any formula and
this Court would be slow to interfere with the exercise of discretion
by a trial judge who has the advantage of assessing the manner of
a witness’s evidence as well as its content.
(4)
R v Makanjuola had been followed in Hong Kong in numerous cases
[See, eg, R v Thirlwell and Pang, Cr App 332/1996; R v Chu Ip-pui [1997]
HKLRD 549; HKSAR v Law Hay-chung and Others Cr App 628/1998; HKSAR
v Lee Ka-ho and Others Cr App 390/1998; HKSAR v Leung Wong [2001] 1
HKLRD 813]. In HKSAR v Chan Sau-man [2001] 3 HKLRD 593, the issue for
the jury to decide was not unlike the issue before the jury in the present case. In
that case, the court, at p599, rejected the argument that the judge had erred by
failing to give a corroboration direction. It said:
There was, as (the Applicant’s counsel) acknowledged, no
requirement to give any specific warning to the jury about their
approach to the complainant’s evidence.
This was a
straightforward case where the complainant’s evidence, the
accuracy of her evidence and her veracity, on the central issue
stood alone. The judge had meticulously pinpointed all the areas
in the evidence where her account was materially disputed and had
invited the jury to look at her evidence with care. In the
circumstances, the judge was perfectly entitled, in the sensible
exercise of his discretion, to adopt this course.
We note in passing that, in any event, there was really no
evidential basis for saying that the complainant’s evidence was
307
CCAB 2003
Sexual Offence
inherently unreliable. She had been consistent in her account to a
very large extent and nothing in cross-examination appears to
have shaken her ...
(5)
The judge in the present case had gone to great lengths to illustrate the
differences between the evidence given by the complainant on the one hand and
by the Applicant on the other. The judge had also carefully summarised the
cross-examination of the complainant, reminding the jury about how she had
answered the more important matters which had been put to her when her
credibility was being attacked. The jury were also reminded of a number of
discrepancies which arose from the evidence given by prosecution witnesses on
which the defence had placed some reliance.
Result - Application dismissed.
[See also Practice and Procedure: Ed]
Statement / Admissions / Confession / Voire Dire
MA
1121/2002
McMahon DJ
CHAN
Wai-keung,
Spender
Rules and Directions for the Questioning of Suspects/Effect of principle (d)
and Rule III/Open to police to question suspect caught in possession of
suspected dangerous drugs
《 查 問 疑 犯 及 錄 取 口 供 的 規 則 及 指 示 》 - ( d) 項 原 則 及 第 III 條 規 則
的效力 - 警方有權查問在管有懷疑危險藥物時被捕的疑犯
(20.2.2003)
*Paul Madigan
#Jeremy
Cheung
The Appellant was convicted of an offence of possession of 0.11
grammes of ketamine, contrary to s 8(1)(a) and (2) of the Dangerous Drugs
Ordinance, Cap 134.
The facts as found by the magistrate were that during a police licence
check at a discotheque in Wanchai, the Appellant was seen to be behaving
suspiciously by one of the officers, PW1, who asked him what he was holding in
his hands. The Appellant then unclasped his hand and showed the packet he was
holding to PW1. It was subsequently found to contain the charged drug. When
arrested and charged, the Appellant said the drugs were for his own
consumption. He adopted and repeated that admission under caution during a
later post-recorded statement and interview. These admissions were allowed
into evidence.
On appeal, it was submitted, inter alia, that the admission of the
Appellant should have been ruled inadmissible evidence. It was said that the
Appellant’s verbal and recorded statements under caution were made in
response to police questions which were in breach of principle (d) in the
preliminary notes of the Rules and Directions for the Questioning of Suspects
and the Taking of Statements, issued to the Hong Kong Police Force by the
Secretary for Security (‘the Rules and Directions’). Principle (d) stated:
Whenever 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.
308
CCAB 2003
Statement / Admissions / Confession / Voire Dire
The Appellant submitted that as the police evidence was that the
Appellant was caught red-handed, he should have been charged and not
questioned. It was said that the Appellant should have been told he might be
prosecuted whilst at the scene and charged without delay once back at the police
station without being further interviewed so as to comply with principle (d).
The triggering of principle (d) would then have brought into play the provisions
of Rule III of the Rules and Directions, which indicated that only in exceptional
cases should questions relating to the offence be put to an accused after he had
been charged or informed he might be prosecuted, and that this might be
necessary to prevent or minimize harm or loss to some other persons or to the
public or to clear up an ambiguity in a previous answer or statement.
Held :
(1)
By its own terms principle (d) applied at a point of time when a police
officer was already making inquiries of a suspect. It did not seek to prevent the
initiation of inquiries of a suspect. It was concerned not with preventing
enquiries being made of a suspect but of ensuring that once enquiries of him had
resulted in evidence being obtained warranting him being charged or prosecuted
then he should be so charged or told he would be prosecuted. Principle (d) was
triggered only when ‘enough’ evidence had been obtained so as to warrant the
charging of the suspect or his prosecution;
(2)
A police officer was not required to jump to conclusions or make
assumptions in considering whether enough evidence had been obtained to
warrant the charging or prosecution of a suspect. Even where the facts were
familiar to an experienced police officer and were such as to lead him to an
educated guess that the suspect would very likely be charged and prosecuted he
was still obliged and entitled to proceed on the basis of the actual evidence
before him, not on the basis of assumptions, no matter how well-founded. It
would be quite wrong for a suspect to be charged not on the evidence available
to the police, but on educated police guesses or assumptions based on that
evidence. It was the duty of a police officer to investigate criminal offences, and
to do so reasonably and thoroughly;
(3)
Before a prudent police officer would consider himself to be in a position
fairly and accurately to assess whether a suspect should be charged or informed
that he might be prosecuted, he would, in most cases, need to be satisfied that
the investigation had been undertaken to the extent that any version of events
that a suspect wished to provide, after caution, was available to be taken into
account. Most police officers would, even in cases where there was other
substantial evidence pointing to a suspect’s guilt, still wish to take into account
any such information a suspect wished to provide under caution before arriving
at the important decision that there was enough evidence available so that the
suspect should be charged or told he might be prosecuted. There was no
inherent unfairness in that. It was a sensible and reasonable part of the
investigatory process. It allowed an officer to place other evidence into the
perspective of any explanation of events the suspect wished to offer. An
investigating officer would be entitled to conclude there was not enough
evidence to warrant charging a suspect or informing him he might be prosecuted
until all elements of the offence required to be proven were supported by
evidence he considered reliable;
(4)
Very often the question of whether there was ‘enough’ evidence so as to
warrant charging a suspect or informing him that he might be prosecuted might
require the police to give the suspect the opportunity to participate in enquiries
which went to elements and matters pertinent to the suspected offence, such as
the suspect’s state of mind or intent. An officer was entitled to ask reasonable
questions concerning the details or circumstances of matters connected with any
309
CCAB 2003
Statement / Admissions / Confession / Voire Dire
statement of admission made by a suspect, and he was entitled to do so to be
able to make an assessment of the weight or reliability to be attached to the
suspect’s statement;
(5)
Questioning could continue beyond generalities such as the words said
by the Appellant at the scene of arrest that ‘it is for my own consumption’. The
officer was entitled to make enquiries as to whether the Appellant knew what the
substance was and the circumstances of the Appellant coming into possession of
the drug he was allegedly found to be holding;
(6)
A police officer was not required to terminate an interview and proceed
to comply with the provision of principle (d) simply because a suspect answered
a particular question in a way which amounted to an admission of an offence.
The interviewing officer was entitled to make further inquiries so as to place that
admission in a proper and fair context and to determine the scope and nature of
the offence in respect of which the suspect was making admissions so as to be
able to conclude he had enough evidence to properly charge, or to express
accurately what offence the suspect might be prosecuted for. Principle (d) was
not designed to obstruct proper and fair police enquiries, so far as those
enquiries related to matters of investigation: R v Lai Kin-ming [1984] HKC 1.
What principle (d) did was to prevent police, when taken in conjunction with
Rule III (b), subjecting a suspect to enquiries not for any proper investigatory
purpose but so as to have him or allow him to simply further incriminate
himself;
(7)
Even if there had been a breach of principle (d), that of itself did not
render inadmissible any admission: R v Choi Shang-yi [1989] 1 HKC 334. The
fundamental tests to be applied in determining the admissibility of a defendant’s
admissions in evidence remained those of voluntariness and fairness.
Result - Appeal dismissed.
FAMC
16/2003
Li CJ
Chan &
Ribeiro PJJ
YEUNG
Ka-yee
Section 51 of Police Force Ordinance, Cap 232/Delivery of those in custody
to custody of officer at police station/Non-compliance not necessarily
causing oppression/Effect of Notice to Persons in Custody/Applicant aware
of right to be advised by lawyer
香港法例第232章《警隊條例》第51條 - 將被羈押的人交付警署的
人員羈押 - 沒有遵守規定未必會造成壓迫 - 給在羈留人士的通告的
效力 - 申請人知道有權獲律師提供意見
(30.5.2003)
*Gavin Shiu
#John Haynes
The Applicant (D1 at trial), together with D2 and D3, was convicted of
murder. The victim was lured by D2 to a Cheung Chau holiday flat where she
was robbed by the three defendants. During the robbery she was suffocated by a
pillow pressed over her face by one of them while the other two held her down
on a bed. They hid the body near a small beach. When they went back to the
beach about a week later to better conceal the body, they were arrested by the
police.
The Applicant sought a certificate on two questions of law which related
to the allegedly oppressive police conduct after her arrest and the obligation of
the police to inform her of her right to have access to legal advice. Reliance was
also placed on the substantial and grave injustice ground.
At trial, the prosecution relied on the records of police interviews of the
Applicant. The admissibility of these records was challenged on the grounds of
improper conduct and oppression by the police but they were admitted in
evidence after a voire dire. In her interviews, the Applicant put the blame on
D2, admitting, however, that she had assisted in holding the victim down on the
310
CCAB 2003
Statement / Admissions / Confession / Voire Dire
bed while D2 pressed the pillow over the victim’s face. When she testified in
court, the Applicant maintained that it was D2 who killed the victim but
retracted what she had said in her statements and denied having assisted in
killing the victim. She sought to explain the difference by saying that police
conduct had made her too scared to deny in her statements to the police that she
had taken part in the killing. D2 in evidence put all the blame on the Applicant
while D3 also blamed D2.
The first point raised by the Applicant related to an alleged breach of s
51 of the Police Force Ordinance, Cap 232 by the arresting officers. Section 51
provided that every person taken into custody by the police should be forthwith
delivered into the custody of the officer in charge of a police station. It
transpired that after her arrest, instead of taking the Applicant and the other two
defendants immediately to the police station, the police took them to the rooftop
of the holiday villa where the robbery and murder took place. They were kept
there for two hours before they were taken to the police station. The explanation
given by the police was that they took this course for better security, to avoid
media attention, to preserve evidence and to preserve the anonymity of the
intelligence officers. The Applicant’s case was that, in breach of s 51, the police
took her to the rooftop to be ill-treated and she did indeed suffer ill-treatment
there, including being slapped on the head. In her summing-up, the judge
directed the jury on this matter as follows:
You have heard the defence say that the police failed to comply
with the requirement under section 51 of the Police Force
Ordinance that arrested persons be forthwith delivered into the
custody of the officer in charge of a police station or a police
officer authorized in that behalf by the Commissioner of Police.
The defence say that by taking the accused to the roof of Bella
Vista Villa and keeping them there for a time before taking them
to Cheung Chau Police Station, the police failed in that duty.
The police officers have said that they do not understand the
forthwith requirement as one which prohibited what they did.
I direct you to assume that, as a result of the accused being taken
to the roof and kept there for a time, that requirement was not
complied with. Even so, what matters is why the accused were
taken to the roof and what happened there. If the accused were
ill-treated as alleged, then subsequent out-of-court statements by
them would be unreliable whatever ‘forthwith’ means. But if the
accused were treated properly, then the out-of-court statements
would not be rendered unreliable merely because taking the
accused to the roof and keeping them there amounted to noncompliance of the ‘forthwith’ requirement no matter how
honestly and sincerely the police behaved.
You are concerned with whether the out-of-court statements are
reliable. As to that, in respect of each accused, the focus of your
attention should be on whether you are sure that his or her outof-court statements were made and were made without any
improper treatment which might affect its reliability.
Here, the allegations of impropriety made by each of the accused
against police officers are very serious. If you are unsure that
any admission was made in the circumstances free from such
impropriety, then you should give that confession no weight.
Where, however, you are sure that the truth about the taking of
an out-of-court statement comes from the police and not from the
311
CCAB 2003
Statement / Admissions / Confession / Voire Dire
accused concerned, then you would be entitled to give that
statement full weight.
Although, having had the alleged ill-treatment put squarely to them, the
jury must have been satisfied that there was no ill-treatment and rejected the
Applicant’s evidence, the Applicant’s contention was that the mere fact of the
two hours delay in conveying her to a police station, notwithstanding the
explanations for the delay put forward and without that delay involving any
mistreatment of the Applicant, could itself amount to oppression so as to render
the admission unreliable for the simple reason that such delay constituted a
breach of s 51. It was said that to hold otherwise would be to trivialise the
important constitutional protection offered by that section.
As regards the second point, it appeared that before the Applicant was
interviewed, she was shown a Notice to Persons in Custody setting out her right
to have access to lawyers and that she signed a copy acknowledging that she had
read and understood it. She made no request for a lawyer. She was however not
reminded of this right immediately before the interview started. The Notice was
in the following terms:
Provided that no reasonable delay or hindrance is reasonably likely to
be caused to the process of investigation or the administration of justice, a
person in custody has the right to:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
make telephone calls to friends or relatives;
make private telephone calls to, or communicate in
writing or in person with a solicitor or barrister;
have access upon request to a list of solicitors provided
by the Police;
have a solicitor or barrister present during any interview
with the Police;
communicate privately with a solicitor or barrister
claiming to have been instructed by a third person on
your behalf;
refuse to communicate with a solicitor or barrister whom
you have not personally requested;
have letters posted or delivered with the least possible
delay;
be provided with a copy of your cautioned statements or
questions and answers under caution as soon as possible
after interview;
refuse to answer subsequent questions until a copy of
cautioned statements or questions and answers under
caution are provided;
be provided with a supply of writing materials upon
request.
It was argued that the contents of the Notice were not sufficient to
safeguard the rights of an arrested suspect in that it ought expressly to have
stated that the right in paragraph (4) was to have a solicitor or barrister present
to advise during a police interview. It was also argued that the Applicant should
have been orally reminded of the right to have access to a lawyer immediately
before the interview commenced.
Held :
(1)
Section 51 was an important provision for the protection of those taken
into police custody. However, it was not reasonably arguable that an issue of
oppression must necessarily arise whenever there had been any kind of non-
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CCAB 2003
Statement / Admissions / Confession / Voire Dire
compliance with its provisions. Some breaches might amount to oppression, but
an assessment of the facts was required to see whether there was in fact
oppression: Secretary for Justice v Lam Tat-ming & Another (2000) 3 HKCFAR
168, 177. Here, the Applicant’s case was that oppression had occurred because
she had been diverted to the rooftop to be mistreated, that she was in fact
mistreated and that this was what had frightened her into making an unreliable
admission. The judge properly put the Applicant’s case to the jury and the
judge’s direction on oppression was unarguably correct. No question of great
and general importance arose on the facts of this application;
(2)
Whether a suspect had been sufficiently reminded of his right to have
access to a lawyer was a matter of fact. The Notice to Persons in Custody was
not deficient as alleged by counsel. Any person reading the Notice would
understand it to include a right to be advised by a lawyer during an interview.
The Applicant had not been deprived of such right. No question of law of great
and general importance arose;
(3)
It was not reasonably arguable that there was any substantial and grave
injustice.
Result - Application refused.
Stay of Proceedings
HCAL
172/2002
Hartmann J
(19.6.2003)
SJ
v
CHEUNG
Chung-chit
District Court trial/Stay of proceedings due to absence of defence
witness/Stay a remedy of last resort/Need for inquiry/ Possible remedial
measures require consideration/Effect of s 65B, Cap 221
區域法院審訊 - 因辯方證人缺席而擱置法律程序 - 擱置是萬不得已
下的補救方法 - 需要進行研訊 - 須考慮可行的補救措施 - 第221章
第65B條的效用
*Kevin Zervos
SC
& Clifford
Tavares
The Respondent was charged with an offence of possession of false
instruments, contrary to s 75(1) of the Crimes Ordinance, Cap 200, or in the
alternative, with possession of false instruments contrary to s 75(2).
#Cheng Huan
SC,
Andrew Bruce
SC,
Rosaline Wong
& Amanda Li
The Respondent had been arrested by police at a hotel in Kowloon. He
came to the hotel reception to see a man named Nakamori. When searched, an
envelope was found in his possession which contained what appeared to be US
banknotes. There were 88 such notes in the envelope, each of which had a face
value of one million United States dollars. These purported to be what were
known as silver certificates. An expert later declared the certificates to be
counterfeit, and this was never in dispute.
At trial, the Respondent, who appeared with two co-defendants, sought a
stay of proceedings on the basis that there was a witness of considerable
assistance who declined to attend the trial to give evidence. This witness, a man
named Wang Li Xin lived in the Mainland, and had made a detailed witness
statement. This was to the effect that Wang, himself doing a favour for a friend,
had in all innocence persuaded the Respondent to bring the counterfeit silver
certificates to Hong Kong, assuring him that there was nothing illegal in the
venture. Wang, however, was concerned that if he himself came to Hong Kong
he would be arrested by the authorities here.
313
CCAB 2003
Stay of Proceedings
The district judge ordered that there be a permanent stay of proceedings
against the Respondent, who was then discharged. That order of stay was
challenged on the bases that it was wrong in law, both in substance and
procedurally, and that it was Wednesbury unreasonable in that, in coming to her
decision, the judge failed to take into account matters of material relevance.
Held :
(1)
Only in exceptional cases would the fairness which was the touchstone in
every case be achieved by stopping a trial before it had begun. The exercise of
judicial discretion to order a permanent stay of proceedings was a remedy of
‘last resort’. Before it ordered a stay a court must be satisfied that a fair trial
was no longer possible. Cogent reasons required that stays be exceptional both
in principle and practice. As said in HKSAR v Lee Ming-tee and Another [2001]
1 HKLRD 599, 614:
In the first place, it is only in very unusual circumstances that a
court can properly be satisfied that a fair trial is ‘impossible’.
The ‘fairness’ achievable is judged in practical and not absolute
terms. As Brennan J pointed out in Jago v District Court of New
South Wales (1989) 168 CLR at p.49:
If it be said that judicial measures cannot always
secure perfect justice to an accused, we should ask
whether the ideal of perfect justice has not sounded in
rhetoric rather than in law and whether the legal right
of an accused, truly stated, is a right to a trial as fair
as the courts can make it. Were it otherwise, trials
would be prevented and convictions would be set aside
when circumstances outside judicial control impair
absolute fairness.
More importantly, the court’s primary endeavour is to ensure
that a fair trial takes place, employing the law’s available
resources, and not to abort it on the ground that fairness cannot
be attained, save as a last resort. To quote Brennan J again:
A power to ensure a fair trial is not a power to stop a
trial before it starts. It is a power to mould the
procedures of the trial to avoid or minimise prejudice
to either party. (Jago v District Court of New South
Wales (1989) 168 CLR 23 at p.46).
(2)
In HKSAR v Lee Ming-tee and Another (above), the duty placed on a
court to take practical steps when possible to avoid or minimise prejudice to
either party was emphasised. The court commented that it approached stay
applications where it was said that a fair trial was impossible ‘in practical rather
than absolute terms and placing its faith primarily in the efficacy of measures
available to overcome any potential unfairness’. It had been said by Brennan J
in Jago v District Court of New South Wales (1989) 168 CLR 23:
When an obstacle to a fair trial is encountered, the responsibility
cast on a trial judge to avoid unfairness to either party but
particularly to the accused is burdensome, but the responsibility
is not discharged by refusing to exercise the jurisdiction to hear
and determine the issues. The responsibility is discharged by
controlling the procedures of the trial by adjournments or other
interlocutory orders, by rulings on evidence and, especially, by
directions to the jury designed to counteract any prejudice which
the accused might otherwise suffer.
314
CCAB 2003
Stay of Proceedings
(3)
If a stay was a matter of ‘last resort’ and was to be avoided if possible by
the taking of practical measures, this indicated that invariably an inquiry was
necessary. Although a formal inquiry did not always have to be held, the court
was under a duty to attempt to control procedures to avoid or minimise
unfairness and some inquiry must be made as to how that could best be done.
The headnote to R v Takeshi Machiya [1990] 1 HKC 73 read:
In order to ascertain whether or not injustice would be done to
the defendant if the trial were to proceed, and so that the exercise
of the judge’s discretion could be a properly informed one, it was
clearly necessary for the trial judge to consider that which they
would have said were they to line up to proof. The trial judge
should have held a form of preliminary inquiry, considered the
victim’s statement, and any other evidence relevant to the issue
before coming to a decision. AG v Ma Chiu-keung [1988] 2
HKLR 64 applied.
(4)
There was nothing of substance in the concern that there were dangers in
a judge assuming an inquisitorial role if compelled to make an inquiry. The
courts had an obligation to control their own procedures so that, as far as
possible and in accordance with the law, a fair trial was assured. From time to
time that placed upon judges the obligation to seek answers, and to make some
sort of inquiry. In guarding the integrity of the judicial process in their courts
common law judges could not be entirely passive;
(5)
As the Respondent’s legal representatives at trial had filed a notice
pursuant to s 65B of the Criminal Procedure Ordinance, Cap 221, giving notice
of the intention to tender the witness statement of Wang Li Xin at the trial, and
as neither the prosecution nor his co-defendants had objected to the admissibility
of the statement into evidence, Wang’s statement was, potentially at least,
admissible into evidence in the trial proceedings when the order for stay was
made. The judge erred in holding that Wang’s statement was not at that time
admissible into evidence. If no objection was received then Wang’s statement
would have been received into evidence. That error in law was a material error;
(6)
A duty was imposed upon a judge to seek practical measures to avoid or
diminish unfairness and if necessary to make some form of inquiry. It was
incumbent upon the judge to at least put the prosecution and the co-defendants
to an election: would an objection to the s 65B application be raised or not? If
no objection was raised, the statement would have been admitted into evidence
and the judge then would have been in a position to exercise her judicial
discretion whether or not to grant a stay in a materially different factual context.
On this basis alone the decision by the district judge was materially wrong in
law and had therefore to be quashed;
(7)
There was substance to the submission that the judge did not turn her
mind to the possible remedial measures that might have allowed the trial to
proceed. For example, would the police have been prepared to give an
undertaking not to arrest the witness for any alleged criminal offence in respect
of the counterfeit silver certificates if he came to Hong Kong to testify? The
answer was not known as the question was not asked;
(8)
The judge did not appear to have turned her mind to the issue of whether
in her final deliberations to determine if the prosecution had proved its case she
could avoid or minimise the risk of unfairness by directing herself in a manner
designed to counteract such unfairness. Such fundamental matters had to be
considered before a step of last resort was taken.
Result - Order of certiorari issued, quashing the order to stay the proceedings
315
CCAB 2003
Stay of Proceedings
and to discharge the Respondent. Case remitted to District Court for
fresh determination. Costs to the Applicant.
FACC 1/2003
Li CJ
Bokhary &
Chan PJJ
Clough &
Sir Anthony
Mason NPJJ
(22.8.2003)
*Michael
Thomas SC
Roger
Beresford
& Graham
Goodman
#GJX McCoy
SC & A S
King
for the
Respondent
(1)
John Griffiths
SC
& Adrian Bell
for the SFC
(the
intervener) (2)
HKSAR
and
(1) LEE
Ming-tee
and
(2) The SFC
Disclosure/Principles based on common law right to fair trial/Distinction
between ‘prosecution ’ and ‘investigation ’ / Duty upon prosecution
alone/Relevant material and information disclosable/Extent of duty to
disclose/No basis for permanent stay of proceedings
披露資料 - 原則基於普通法中可獲得公平審訊的權利 - ‘控方’與‘調
查當局’的區別 - 責任由控方獨力承擔 - 相關資料及信息可予披露 披露資料責任的範圍 - 缺乏永久擱置法律程序的理據
This was an appeal by the Secretary for Justice from an order dated 13
December 2002 by Seagroatt J, to stay permanently criminal proceedings
against the Respondent on the ground of abuse of the court’s process.
On 11 February 2003, the Appeal Committee granted leave to appeal on
the grounds that points of law of great and general importance were involved in
the decision and that it was reasonably arguable that substantial and grave
injustice had been done. At the same time the Appeal Committee granted the
Securities and Futures Commission (‘SFC’) leave to intervene in the appeal.
The Respondent had been charged with two counts of conspiracy to
defraud, and four counts of publishing a false statement of account, contrary to s
21(1) of the Theft Ordinance, Cap 210.
The prosecution case depended, inter alia, upon Meocre Li, the expert
accountant, who had prepared a written report into the affairs of the Allied
Group Ltd of which the Respondent had been chairman.
Seagroatt J stayed the trial on the ground of abuse of process for two
reasons. The first was the failure of Meocre Li to disclose to the Department of
Justice (‘DOJ’) and to the court his connection with a company called
Guangdong Kelon, a listed company which had been suspended, and to a
company called Kin Don, a listed public company, of which he was chief
executive officer, and which in 1999 had been investigated by the SFC. The
second was the termination by the SFC of the inquiry under s 56(1) of the
Securities Ordinance, Cap 333, into Meocre Li’s conduct in relation to the Kin
Don matter in order to protect his status and standing as an expert witness for
the prosecution in the pending trial. The judge found that the SFC improperly
closed the inquiry in order to avoid disclosure before the forthcoming trial of
possible misconduct on the part of Meocre Li.
Having concluded that the findings of fact made by Seagroatt J,
especially particular inferences which he drew, could not be sustained, and that
the judge, in material instances, had proceeded on a misapprehension of the
effect of the evidence, the Court of Final Appeal turned its attention to the duty
of disclosure, and to the nature and scope of the duty. The questions which
arose for consideration were:
(1)
What was meant by the expression ‘the prosecution’ in the
formulation of the duty?
(2)
Was the duty confined to the prosecutor or did it extend also to
witnesses and to bodies such as the SFC in the present case?
(3)
To what material and information did the duty relate?
316
CCAB 2003
Stay of Proceedings
Held :
(1)
The principles related to disclosure articulated by English courts were
based on the defendant’s common law right to a fair trial and on the principle of
openness. It was therefore appropriate to have regard to them in ascertaining the
common law of Hong Kong. The principles recognised that the prosecution was
under a duty of disclosure to the defence which extended to material in the
possession or control of the prosecution which might undermine its case or
advance the defence case;
(2)
An additional foundation for the application of these principles was
provided by arts 39 and 87 of the Basic Law and by art 11(2) of the Hong Kong
Bill of Rights Ordinance, Cap 383. Article 39 provided that the ICCPR should
remain in force and should be implemented through the laws of the HKSAR as it
had been by the Bill of Rights. Article 87 preserved the principles previously
applied in criminal proceedings and the rights previously enjoyed by parties to
proceedings in Hong Kong. Article 87 also guaranteed the right to a fair trial;
(3)
Article 11(2) of the Bill of Rights, which implemented art 14(3) of the
ICCPR, provided in ‘the determination of any criminal charge … everyone shall
be entitled to the following minimal guarantees, in full equality … (b) to have
adequate time and facilities for the preparation of his defence …’ That article
entitled the defendant, where practicable, to the provision of copies of
statements of witnesses on which the prosecution intended to rely (Vincent v R
[1993] 1 WLR 862, 867, R v Deputy District Judge Lee, exp Chow Po-bor
[1993] 3 HKPLR 101). It was, however, acknowledged by the Appellant that
the Basic Law and the Bill of Rights did not take the duty of disclosure further
than it was taken by the common law;
(4)
A distinction was often drawn between the prosecution (which consisted
of those persons who presented and prepared the case for the prosecution) and
the investigation (which consisted of those persons who investigated the
commission of the alleged offence). In some cases this distinction might not be
easy to draw. That was often the case in summary proceedings. In judicial
review of convictions entered in summary proceedings, persons standing outside
the prosecution had been identified with the prosecution (see, for example, R v
Liverpool Crown Court, exp Roberts [1986] Crim LR 622, where a police
officer was held to have been part of ‘the total apparatus of the prosecution’).
However, in the context of trials on indictment the distinction between the
prosecuting authority and the investigating authority had generally been
observed. In this case the distinction was between on the one hand the DPP, the
legal officers of the CCU of the Prosecutions Division who prepared and
presented the case and briefed counsel and counsel and, on the other, the
Commercial Crime Bureau of the Hong Kong Police;
(5)
The duty rested with the prosecution or prosecuting counsel. The duty
should be considered as one imposed upon the prosecution generally (in this
case the DOJ), though it was generally performed by counsel who was briefed
and conducted the prosecution. It would be unduly restrictive to say that the
duty was confined to prosecuting counsel;
(6)
There was no suggestion in the English authorities that, in the case of
trials on indictment, the duty of disclosure to the defence was imposed on
anyone other than the prosecution. There were powerful reasons for confining
to the prosecution the duty of disclosure. First, it was for prosecuting counsel in
the first instance to make a careful assessment of the materials in the possession
of the prosecution, in the light of the issues and the circumstances of the case,
with a view to ascertaining whether there was relevant material which might
assist the defence in advancing its case or undermining the prosecution case.
317
CCAB 2003
Stay of Proceedings
Should a dispute arise for the trial judge to determine, he in effect reviewed the
prosecutor’s assessment. Secondly, it was unrealistic to impose a duty of
disclosure on anyone other than the prosecution. The witness ordinarily lacked
the professional skill and experience and the knowledge of the issues and
circumstances of the case which were essential to the making of a judgment of
whether it was necessary or not to make a disclosure. Thirdly, it would only add
to the complexity of conducting a trial if witnesses and other strangers to the
proceedings were expected of their own motion to volunteer to the court
information which they conceived to be material to the proceedings. The
orderly conduct of the trial would be set at risk if the duty to disclose were not
confined to the prosecution;
(7)
The prosecution duty was to disclose to the defence material (including
information) in its possession or control. That would ordinarily include
materials that had been gathered by the investigating agency (the police) and it
was the responsibility of the prosecution to make the investigating agency aware
of the need to make available all relevant materials. In that sense, the
prosecutor’s duty was to disclose to the defence all relevant material in its
possession or control and in the possession or control of the investigating
agency;
(8)
In order to ensure that all disclosable material was provided to the
defence, prosecuting counsel should instruct investigating officers and, where
appropriate, witnesses to bring to counsel’s attention any material that might be
disclosable. In other words, disclosable material known to a witness, including
an expert witness, should be channelled through prosecuting counsel who should
take appropriate steps to facilitate that happening;
(9)
The prosecution had a duty to ascertain and disclose to the defence
relevant material (including information) in its possession or control and in the
possession or control of the investigating agency (including the police), subject
to relevance, privilege and public interest immunity. The prosecution’s duty
extended to material in the possession or control of any other government
department or agency if there were particular circumstances suggesting that it
might have such material. In Kyles v Whitley 514 US 419 (1995), Souter J, in
the context of the constitutional requirement of due process, said:
This in turn means that the individual prosecutor has a duty to learn
of any favorable evidence known to the other acting on the
government’s behalf in the case, including the police. But whether
the prosecutor succeeds or fails in meeting this obligation (whether,
that is, a failure to disclose is in good faith or bad faith …), the
prosecution’s responsibility for failing to disclose known, favorable
evidence rising to a material level of importance is inescapable.
(9)
As the duty of disclosure rested with the prosecution, it followed that
neither Meocre Li nor the SFC were under a direct duty of disclosure to the
court, as the judge seemed to suggest;
(10) The prosecution’s duty was to disclose to the defence relevant material
(including information) which might undermine its case or advance the defence
case. The duty was not limited to the disclosure of admissible evidence.
Information not itself admissible might lead by a train of inquiry to evidence
which was admissible. And material which was not admissible might be
relevant and useful for cross-examination of a prosecution witness on credit;
(11) In R v Keane [1994] 1 WLR 746, 752, Lord Taylor of Gosforth CJ
adopted a test which had been suggested earlier by Jowitt J in R v Melvin,
318
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Stay of Proceedings
unreported, 20 December 1993, where Jowitt J said ‘I would judge to be
material in the realm of disclosure that which can be seen on a sensible
appraisal by the prosecution (1) to be relevant or possibly relevant to an issue
in the case; (2) to raise or possibly raise a new issue whose existence is not
apparent from the evidence the prosecution proposes to use; (3) to hold out a
real (as opposed to a fanciful) prospect of providing a lead on evidence which
goes to (1) and (2) ’. The Melvin categories might be accepted as a broad
statement of what, on a sensible appraisal by the prosecutor, was subject to
disclosure. The Melvin formulation and the recognition that the credibility of a
prosecution witness was relevant for the purpose of the Melvin categories had
the consequence that disclosable material relevant to the cross-examination of a
prosecution witness could not be restricted to the three instances of disclosable
material relevant to the credibility of a prosecution witness sanctioned by
authority and referred to by Steyn LJ in R v Brown [1994] 1 WLR 1607. It
extended to other significant material which a reasonable jury could regard as
tending to shake confidence in the credibility of the witness;
(12) As to whether the prosecution had a duty to disclose to the defence the
existence of the SFC inquiry into Mecore Li, had he or the SFC informed the
prosecution of the inquiry, it was correct to say that in the usual run of things to
establish that a witness was the subject of a disciplinary inquiry and no more
would not reflect adversely on the credibility of the witness. But crossexamination on the facts underlying the inquiry could reflect adversely on the
credibility of the witness, depending on what the circumstances and answers
might be. If the witness was called as an expert witness and the inquiry was
conducted by the relevant professional body in response to concerns about the
professional competence of the witness, this would raise a doubt about the
professional standing and competence of the witness: R v Brooks [2002] EWCA
Crim 2107. Also, in some circumstances, there would be the possibility that
disclosure of the existence of the inquiry would enable the defence to pursue a
train of inquiry which would lead to material which would be of advantage to
the defence. The proposition that the fact a prosecution witness was the subject
of a disciplinary inquiry was not disclosable could not be accepted as a universal
and all-embracing proposition. Every case had to be judged according to its
own particular circumstances. On credit, only significant material that a
reasonable jury or tribunal of fact could regard as tending to shake confidence in
the reliability of the witness was disclosable and the answers of the witness in
cross-examination on credibility alone could not generally be rebutted by
evidence: Hobbs v Tinling [1929] 2 KB 1, HKSAR v Wong Sau-ming [2003] 2
HKLRD 90;
(13) In the context of the prosecution’s duty of disclosure there were two
aspects in relation to the existence of a pending inquiry into the conduct of a
prosecution witness. The first was the possible use of the inquiry or the facts
which underlay it as a basis for attacking the credibility of the witness. The
second was the use of the inquiry to launch a train of inquiry which might assist
the defendant in advancing his or her case by ultimately ascertaining admissible
evidence or material which could be used to damage the credibility of the
witness;
(14) There was no basis for the grant of a permanent stay. It was not a case
where the Respondent could not get a fair trial. It was for the judge to weigh
countervailing considerations of policy and justice and then, in the exercise of
the discretion, to decide whether there was an abuse of process which required a
stay. Although the judge carried out this exercise, he did so having arrived at
two important conclusions which could not be sustained. One was the finding
that the SFC improperly terminated the inquiry into Meocre Li in order to avoid
compromising his status and standing as a witness. The other was that Meocre
Li had a duty to disclose the Guangdong Kelon matter to the prosecution,
319
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Stay of Proceedings
entailing a consequential duty on the prosecution to make disclosure to the
defence;
(15) A re-trial would not occasion an affront to the public conscience.
Indeed, it was more likely that public confidence in the administration of justice
would be shaken if the Respondent was not brought to a second trial simply
because the SFC and Meocre Li failed to inform the prosecution of the inquiry,
thereby putting the prosecution in breach of its duty of disclosure to the defence.
Result - Appeal allowed. Order of permanent stay set aside. Case remitted for
trial to Court of First Instance.
Verdict
CA 147/2002
Stuart-Moore
VP
Pang &
Lugar-Mawson
JJ
CHOW
Kai-shun,
Alexander
District Judge/No need for Reasons for Verdict to address matters not in
issue/Counsel on appeal not to present different case to that presented at
trial
區域法院法官 - 裁決理由無須處理非爭論事項 - 律師上訴時不應提
出與原審時不同的論據
In the course of dismissing an application for leave to appeal against two
convictions for soliciting an advantage, contrary to s 4(2)(a) of the Prevention of
Bribery Ordinance, Cap 201, Stuart-Moore VP said:
(3.1.2003)
*Kevin Zervos
A District Court Judge’s Reasons for Verdict must be case
specific. There is no need for him to deal with matters that are
not in issue and for him to do so often clouds the real issues.
Further, an applicant cannot run his case in a particular way at
trial and make various concessions on the evidence and then
seek to present, as (counsel) has sought to do this morning, a
different case on appeal.
#TRW JenkynJones
MA 267/2001
Lugar-Mawson
J
(5.3.2003)
*Ian
McWalters
#Alexander
King & Edwin
Choy
CHUNG
Sim-ying,
Tracy
Duties of magistrate/Assessment of witnesses/Content of magistrate’s
reasons/Extent of duty to resolve differences/ Magistrate entitled to borrow
prosecutor’s words to express a point which commended itself
裁判官的責任 - 對證人的評估 - 裁判官給予的理由的內容 - 法庭在
解決分歧方面的責任範圍 - 裁判官有權借用檢控官的語句表達他贊
同的論點
After trial, the Appellant was convicted of six offences of misconduct in
public office, contrary to common law, and six offences of obtaining a pecuniary
advantage by deception, contrary to s 18(1) of the Theft Ordinance, Cap 210.
On appeal
Held :
(1)
Running through the grounds of appeal was a misconception of what the
law required a magistrate to do, both in assessing the credibility of witnesses and
in preparing his Reasons. The following principles could be distilled from the
authorities:
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CCAB 2003
Verdict
(2)
(a)
the trial magistrate was appointed to resolve issues of
credibility as he, being the one who heard and saw the
witnesses, was in the best position to do so;
(b)
it was not for an appellate court to usurp his function and an
appellate court would only interfere with a finding that
depended on the credibility of a witness in the most
exceptional of circumstances;
(c)
the appellate court’s interference was justified if it concluded
that the magistrate took a perverse view of a witness or,
having regard to the whole of the evidence, the magistrate’s
finding was unreasonable or irrational.
In R v Muriel Georgina Leung MA 251/92, Stock J said:
Magistrates are appointed because they are considered competent to
exercise the functions required of magistrates. These functions include a
heavy diet of fact finding, bringing to bear on each case their experience
of human conduct, their intelligence and their common sense. They
exercise their powers of assessment no less frequently than any other
tribunal of fact. That is not to say that they are incapable of error. No
one is infallible and it is the possibility of error, both as to fact and law,
for which the appellate machinery is designed. I see no basis for any
presumption that their powers of assessment are to be regarded with
added caution. It remains the fact that he who has observed a witness is
in a better position to assess credibility than he who has not.
(3)
As to what must be in a magistrate’s reasons, s 114(b) of the Magistrates
Ordinance, Cap 227, provided no more than that it must contain ‘his findings on
the facts and other grounds of his decision’. It was well-established that a
magistrate was not required to go into minute detail describing his thought
process in respect of each and every item of evidence. He was required to show
no more than that he was aware of the issues raised by the charges and the
important matters of evidence raised during the trial. Also that he had taken
these matters into account in making his decision and, where appropriate, had
shown why he did so. He must also demonstrate that he had acted with care in
dealing with evidence which might in some way be tainted, or unworthy of
belief, for reasons developed either in the defence case, or which were manifest
from the prosecution case itself;
(4)
The thrust of the Appellant’s case on appeal had been that his Reasons
showed that the magistrate did not discuss and determine a number of matters
and by reason of that failure, it must be taken that he did not consider them.
That was not the correct approach to the issue. In R v Wong Kam-tong and
Others [1982] HKC 113, 117, Huggins VP said of the duty of a District Court
judge in preparing his Reasons for Verdict:
While a judge must show in his reasons for verdict that he has
evaluated the evidence and must, therefore, deal with any major
discrepancies, that does not mean that he must deal with all the
inconsistencies relating to peripheral matters. Equally, it must
not be assumed that he has overlooked or ignored such
inconsistencies. We are entitled to assume, in the absence of
indication to the contrary, that the judge had a grasp of the case
presented to him. The fact that a judge’s note omits part of the
evidence is not to be taken as proving that he has ignored the
evidence, particularly, where the points made appear in the
record of counsel’s submissions. Some of the weaknesses in the
321
CCAB 2003
Verdict
evidence he did mention and he gave reasons for concluding that
they were not fatal. It must be assumed that these weaknesses
which he did not mention were, in his opinion, no greater barrier
to his accepting the substance of the prosecution case.
(5)
In HKSAR v Chin Mak-chung Cr App 87/2000, the applicant’s counsel
embarked on an exercise similar to that adopted in this case, and examined the
transcript of evidence with a fine-tooth comb in order to find as many
differences as possible in the prosecution witnesses’ evidence which the
magistrate failed to mention. The court said:
It is appropriate, we think, for us to reiterate that it is not
necessary for judges or magistrates to resolve in their Reasons
for Verdict every single conflict in the evidence. They only need
to decide those issues of fact which need to be decided in order to
answer the ultimate question, which is whether the prosecution
has proved each of the ingredients of the offence beyond
reasonable doubt. That is not to say that peripheral factual
issues never need to be resolved. What issues of fact need to be
resolved in a particular case will depend on the circumstances of
that case.
(6)
There was nothing sinister, if the magistrate found that a particular point
made by the prosecution commended itself to him and was borne out by the
evidence, in the magistrate borrowing the prosecutor’s words to express that
point. The wrong would be for him to borrow these words without first
satisfying himself that the point was properly made.
Result - Appeal dismissed.
Witness / Examination
FACC 5/2002
Li C J
Bokhary &
Chan PJJ
Sir Noel
Power & Sir
Gerard
Brennan NPJJ
(9.4.2003)
*John Reading
SC
& Lam Wingsai
#Andrew
Bruce SC &
Richard Wong
WONG
Sau-ming
Cross-examination as to credit/Challenge to credibility based on outcome of
earlier trial/Scope for cross-examination on acquittal in previous
case/Extent of finality rule/Relevance of previous discreditable conduct of
witness
就可信性進行盤問 - 基於早前審訊結果而質疑可信程度 - 就先前案
件的無罪裁定進行盤問的範疇 - 終結規則的應用範圍 - 證人先前的
不可信行為是否相關
After trial, the Appellant was convicted of an offence of trafficking in
dangerous drugs, and sentenced to 8 years’ imprisonment.
The prosecution’s case depended essentially on the evidence of PW1, PC
3432. On 5th October 1997, PW1 and six other officers were on surveillance in
Wong Tai Sin and saw the Appellant meet a man called ‘Tong’ and get into a
taxi driven by a man called ‘Li’. Police told the Appellant to get out and after a
search of his person police found an open plastic bag containing the dangerous
drugs. PW1 was the only witness who gave evidence that the drugs were found
on the Appellant. Nothing incriminating was found on Tong or Li or in the taxi.
The defence case was that when the Appellant was searched no drugs
were found on him. PW4, Sgt 17246, found the bag containing the heroin on
322
CCAB 2003
Witness / Examination
the front seat. The Appellant said he had nothing to do with it. At the police
station PW4 asked him if he had any information to give, and told him if he
could manage to get someone to come out with dangerous drugs, then one case
could be ‘swapped for another’. He said nothing. PW4 later offered the
Appellant, Tong and Li the deal that if one accepted responsibility, the other two
would be released. After Tong, his triad brother, told him to take the blame, he
agreed to become the scapegoat.
As police credibility was critical, defence counsel applied to the judge to
admit in evidence the Summary of Evidence and the Reasons for Verdict in an
earlier case, HKSAR v Leung Tat-ming (‘Leung’) NKCC 7674/1997, (‘the
earlier case’), and to allow cross-examination of the police witnesses based on
such materials. The judge agreed.
The earlier case was a trial before a magistrate. Leung was charged with
trafficking in dangerous drugs. After trial, he was acquitted. A number of the
police witnesses in the present case, namely PW1, PW3, PW4 and PW5, were
also prosecution witnesses in the earlier case. It appeared the offence occurred
within a few weeks of 5th October 1997, the relevant date in the present case.
The prosecution’s case depended essentially on the evidence of PW1 which was
to the effect that he arrested Leung and found a plastic bag containing dangerous
drugs in his shirt pocket.
Leung’s defence was that he was arrested by PW5 and PW3, not by PW1
who only took a cautioned statement from him after his arrest. He was searched
but nothing was found on him. PW5 told Leung that ‘someone said you sold
heroin and I have witness to that, if you have, you’d better take it out ’. Leung
denied this. PW3 left them and came back with the drugs in question and
alleged that they were Leung’s. Later, after giving the cautioned statement,
PW3 asked for the pager number of Leung. PW5 gave Leung his pager number
and asked him to provide drug information. Later, Leung was paged by PW5.
On returning the call, PW4 told him to come out. Leung refused. PW4 then
threatened him that ‘When he was seen, he would be arrested every time ’.
The details of the earlier case were set out in the Summary of Evidence
- the defendant would be referred to as Leung and the police officers would be
referred to by their abbreviations in the present case, namely, PW1, PW3, PW4
and PW5.
HKSAR v Leung Tat-ming, NKCC 7674 of 1997
Summary of Evidence
1. The prosecution was that:
(i)
[Leung] was intercepted at the junction of Ferry Street and
Shantung Street, Mongkok by [PW1]. Upon search, a
transparent plastic bag, containing suspected dangerous drugs
was found at the left shirt pocket of [Leung];
(ii)
[Leung] was arrested and cautioned. Under caution, [Leung]
said “Ah sir, I have just received pay therefore I purchase
more drugs for my own consumption so that it is cheaper”.
2. The Defence was that:(i)
He was not arrested by [PW1] and he was just responsible to
take a cautioned statement from him;
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CCAB 2003
Witness / Examination
(ii)
He was intercepted by [PW5] and [PW3]. He was taken to a
lane where he was searched. Nothing was found;
(iii)
[PW5] told [Leung] that ‘some one said you sold heroin and I
have witness to that, if you have, you’d better take it out’.
[Leung] denied;
(iv)
[PW3] left them and came back with the drugs in question and
alleged that the drugs were [Leung’s];
(v)
[PW4] was called to the scene and then [Leung] was taken
back to police station;
(vi)
At the police station, [PW1] took a statement from [Leung];
(vii)
After the statement, [Leung] went to the toilet. Inside the
toilet, [PW3] asked for the pager number of [Leung]. [PW5]
gave his pager’s number to him so that if he had any drugs
information, he would inform [PW5];
(viii)
On 5th November 1997, [Leung] was paged by [PW5]. When
[Leung] returned call, [PW4] asked [Leung] to come out.
[Leung] refused. [PW4] then threatened [Leung] that ‘When
he was seen, he would be arrested every time’.
The magistrate acquitted Leung. In his Reasons for Verdict, he
concluded that after considering the prosecution’s evidence, there were some
dubious points in the case and therefore he gave the benefit of doubt to Leung.
In the Reasons for Verdict, for convenience, the same designations for Leung
and the police officers, as were used for the Summary of Evidence, would be
used. The Reasons stated:HKSAR v Leung Tat-ming, NKCC 7674 of 1997
Reasons for Verdict
I accept it was a fact that [Leung] was requested by the police to
act as an ‘informer’. [PW5] also admitted the same in his
testimony. According to [PW5], he talked with [Leung] about
something after [PW1] had taken a cautioned statement from him.
[PW5] said he was not sure whether [PW1] was still present there
that time. If [PW5’s] testimony is true, that means [Leung] agreed
to be his informer and gave him his pager number. At this stage,
[Leung] had already been arrested, and as said in the allegations
made by the prosecution for the case, were found in possession of
dangerous drugs, and has admitted verbally to the charge after
being cautioned by the police. As it shows, [Leung] would not
have any benefits if he agreed to be the police’s informer.
I have reservations as regards [PW5’s] testimony. When he was
asked by the defence counsel about his conversation with [Leung],
he was trying to get away from the question by saying that he was
not sure whether [PW1] was there at the scene. There were also
contradictions in some other areas of [PW5’s] testimony. For
example, when the defence counsel pointed out to him that he or
his colleagues had rung [Leung] about a week after the incident
arranging an interview for him to meet [PW4], he denied such
allegation. He even said up to today, he had not rung [Leung].
However, at another point, he agreed that (he) had talked with
[Leung] on the phone. He said he was returning [Leung’s] call.
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CCAB 2003
Witness / Examination
Why did [Leung] ring him? According to [PW5], he was told
don’t have any information to give right now. (I’ll) call you if I’ve
any later. I’ve reconsidered [Leung’s] testimony as regards this
area. When giving his testimony, [Leung] talked about the
telephone conversation which shows clearly that he was not willing
to be an informer. His attitude remained the same when he went to
lodge a complaint with the CAPO later. In this respect, the
possibility that [Leung’s] version is true and is greater.
[PW5’s] statement has an impact on that of [PW1]. As [PW1]
said in his testimony, he had never left [Leung] until he brought
[Leung] to see the duty officer and handed to him the dangerous
drugs. If this is the case, I wonder why he said had not heard any
conversation between [PW5] and [Leung].
In [Leung’s]
testimony, which I considered again, he said it was [PW5] and
[PW3], who had intercepted him instead of [PW1]. If [PW3] was
not playing an important role in this case nor was he taking part in
anything special, why did [Leung] have such a deep impression of
him and could even identify him in the ID Parade conducted four
or five months later?
After considering all the testimonies of the prosecution, I conclude
that there are some dubious points in the case. Therefore, I’ll give
this benefit of doubt to [Leung] and [Leung] is not guilty of the
charge.
In his ruling admitting the Summary of Evidence and the Reasons for
Verdict in the earlier case and allowing cross-examination by reference to such
materials, the judge stated:It seems to me to fall squarely within the principle of Edward’s case
as further approved by R v Lam Wai-keung (1994) HKLR 9. In my
view, the complaint as to misconduct in [the earlier case] by both
witnesses is sufficiently close in its nature to the complained of
conduct in the present case so as to make the expressed disbelief of
the magistrate of their evidence in that case relevant to their credit in
this case.
In fact, the judge had made a ruling of a similar nature in an earlier High Court
case. The same counsel appeared for the defence in that case and in the present
case. In the present case, the prosecution and defence agreed there was no need
for the matter to be re-argued and a similar ruling should be made.
In his summing-up, the judge referred the jury to the Summary of
Evidence and the Reasons for Verdict in the earlier case. He directed them:Bear in mind it is a matter for you to decide to what extent the
magistrate disbelieved those witnesses on that previous occasion.
It is also a matter for you to decide to what extent, if at all, the
magistrate’s disbelief of the witnesses in that case undermines their
credibility in the present case.
By this direction, the approach which the jury was asked to adopt to the
acquittal in the earlier case was that they should first decide to what extent the
magistrate had in fact disbelieved the police officers. Then they should decide
‘to what extent, if at all ’ the magistrate’s disbelief undermined their credibility
in the present case.
The Court of Appeal by a majority dismissed the Appellant’s appeal.
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CCAB 2003
Witness / Examination
The Appeal Committee granted leave to appeal, and the questions in the
appeal were formulated as follows:
(1) Whether, and if so in what circumstances, the witness in
question can be cross-examined on the previous case?
(2) If such cross-examination can be permitted, is the finality rule
applicable to answers given on such cross-examination?
Held :
General Principles
The relevant general principles were:
(1)
First, where the veracity of the witness was challenged on crossexamination as to credit, subject to the judge’s discretion to disallow improper
questions, cross-examination about discreditable acts was widely permitted. Its
purpose was to show that the witness ought not to be believed on oath;
(2)
Secondly, the cardinal test of relevance in the law of evidence applied to
such cross-examination. The subject matter of the cross-examination must be
relevant to the witness’s veracity. Relevance was a matter of degree;
(3)
Thirdly, in applying the test of relevance, the court should in its
discretion usually permit questions in cross-examination as to credit if the truth
of the imputation conveyed would materially affect the court’s opinion as to the
witness’s veracity on the subject matter of his testimony. Conversely, questions
in cross-examination as to credit were usually not permissible if the truth of the
imputation conveyed would not have any material impact on such opinion. The
imputation might relate to matters which were so remote in time or were of such
a kind that the truth of the imputation would not have any material impact on the
court’s assessment of the witness’s veracity. The matters about which the
witness was questioned in cross-examination as to credit must relate to his likely
standing after cross-examination with the tribunal in question;
(4)
Fourthly, as a general rule, answers to questions in cross-examination as
to credit on any ground including veracity were final and evidence was not
admissible to contradict them. This could conveniently be referred to as ‘the
finality rule ’. The rule was conducive to a fair trial. Its rationale was that, as a
matter of commonsense, a criminal trial should be kept within proper limits.
The court should focus on the issues in the case. Its attention should not be
diverted to collateral issues such as credit, the exploration of which might
unnecessarily blur or confuse the real issues in a cloud of detail. Although the
rule had sometimes been criticized, it was well-established and necessary.
However, the distinction between questions going to the issues in the case and
those going to credit was sometimes difficult to draw and, in some cases, could
be a rather thin one;
(5)
Fifthly, there were well-established exceptions to the finality rule. It was
unnecessary to go into them for the purposes of this case. They allowed proof
by independent evidence of matters which tended to affect the credibility of the
witness. As the common law developed in Hong Kong, there might be possible
room for relaxation of the finality rule and the list of exceptions was not closed;
Permissibility of Cross-examination
(6)
The two questions raised should be considered separately:
326
CCAB 2003
Witness / Examination
A.
The first question concerned the permissibility of cross-examination as to
credit on the ground of veracity by reference to the acquittal in the previous case
in the situation in question, and the position applying the relevant general
principles appeared to be as follows:
(a)
To be permissible, such cross-examination must satisfy the
test of relevance. It must be relevant to the veracity of the
witness. Questions must be of such a nature that the truth of
the imputation conveyed would have a material effect on
the court’s assessment of the witness’s veracity;
(b)
Where in the situation in question, it was sought to crossexamine a witness by reference to an acquittal in a previous
case, two main difficulties arose. The first difficulty was
the meaning to be attributed to the verdict of acquittal.
Although in the situation in question, the prosecution’s case
in the previous case depended essentially on the evidence of
the witness in question, the court would have been bound to
acquit unless it was satisfied beyond reasonable doubt on
the whole of the evidence that the defendant was guilty of
the offence charged. In acquitting, the court might not have
found that the witness had lied. Unless in acquitting, the
court had found that the witness had lied (or, which
amounted to the same thing, the court had disbelieved the
witness), the acquittal could not properly be regarded as
relevant to the veracity of the witness in the instant case. It
would not have a sufficiently material impact on the court’s
assessment of his veracity.
B.
Secondly, even where the acquittal in the previous case involved a
finding that the witness in question had lied, that finding might have been in
circumstances of such a different kind or might be so remote in time as to render
it irrelevant in the instant case. Again, such a previous finding would not have a
sufficiently material impact on the court’s opinion on his veracity;
(7)
In principle, in order to satisfy the test of relevance, cross-examination as
to credit on the ground of veracity by reference to an acquittal in an earlier case
should only be permitted where the following threshold requirements were met.
It must clearly be established that:
(1)
The verdict of acquittal in the previous case involved a
finding by the court that the witness in question had lied (or
which amounted to the same thing, that the court had
disbelieved the witness); and
(2)
The circumstances of the previous case were of such a kind
when compared to those in the instant case and the previous
finding was not so remote in time that the finding of lying in
the previous case would materially affect the court’s
assessment of the witness’s veracity in the instant case.
Unless these requirements were satisfied, cross-examination
by reference to the acquittal in the previous case should not
be permitted;
(8)
Whether the first threshold requirement was met depended on an
examination of the verdict of acquittal in the context of the issues in the earlier
case. A jury verdict would ordinarily be a non-speaking verdict, so that the
respective reasons of the several jurors leading to their unanimous or majority
327
CCAB 2003
Witness / Examination
verdict could not be ascertained. The verdict was opaque. That being so, it
would only be in very exceptional circumstances that a jury verdict would be
able to meet the first requirement; for example, where the jury expressed its
view that the witness in question had lied in a rider to its verdict. Similar
considerations might apply to a verdict of acquittal given by a judge sitting
alone where no reasons or virtually no reasons were given. But where a judge
sitting alone acquitted and gave reasons, those reasons should be examined in
the context of the issues to decide whether a finding was made that the witness
in question had lied;
(9)
As to the second threshold requirement, assuming a previous finding of
lying could be established, the circumstances of the previous case must be of
such a kind when compared to those in the instant case and the previous finding
must not be so remote in time that the previous finding would materially affect
the court’s assessment of the witness’s veracity. Otherwise, the previous finding
would not be relevant to the cross-examination as to credit;
(10) In coming to a judgment, all the circumstances had to be considered. In
considering whether the circumstances were of the kind referred to, all the
circumstances of the two cases had to be considered. The circumstances to be
examined could not be exhaustively defined. They might include matters such
as the nature and types of offences, the nature of the prosecution’s case, the
modus operandi of the witness, and the allegations made against the witness by
the defence. The question of remoteness or proximity in time had to be taken
into account;
(11) The second question could now be considered. If the threshold
requirements were met, the court should usually in its discretion allow crossexamination by reference to the acquittal in the previous case. It might be that,
having regard to the nature of such requirements, where they were met, the
prospect of the witness denying that he was found to have lied might be limited
in reality. But what if when cross-examined, the witness denied this? Was
evidence admissible to contradict his answer?
(12) If the finality rule applied, the answer would be no. One was here
concerned with cross-examination as to credit and the general rule was that
evidence was not admissible to contradict answers given in such crossexamination. None of the well-established exceptions to the rule was engaged.
However, this would not accord with justice and commonsense. At this stage,
the court would already have held in relation to the threshold requirements that
the witness was found to have lied in the previous case. Notwithstanding any
denial of the previous finding by the witness in the instant case, fairness required
that the finding should be before the court. The court would then have a
balanced picture of the witness’s credibility and could take the finding into
account in assessing his veracity in the instant case. This would involve the
admission of evidence to contradict the answer of the witness in the instant case.
But the evidence would be limited to proof of the finding. The admission of
evidence in these limited circumstances should be regarded as a further
exception to the finality rule;
(13) This case concerned a verdict of acquittal by a court in a previous case.
In principle, a similar approach would apply to a ruling of a court after holding a
voir dire;
How the approach would work in practice
(14) In a jury trial, where counsel for the defendant wished to cross-examine a
witness by reference to an acquittal in a previous case, he should usually seek a
ruling from the judge as to whether such cross-examination should be permitted.
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Arguments should take place in the absence of the jury. The materials in the
previous case that should be placed before the judge should be as economical as
circumstances permit and should be kept within manageable proportions. In the
very exceptional circumstances, where it was suggested that a previous jury
verdict amounted to a finding that the witness had lied, the materials would
usually consist of the jury’s verdict and the judge’s summing-up or where
possible, a statement, agreed for the purposes of the instant case, of the
prosecution and defence cases in the previous case. Where the previous case
was before a judge sitting alone, the materials would usually consist of the
judge’s statement of reasons. If they were not self-explanatory, it might need to
be supplemented by other materials such as an agreed statement of the kind
referred to above;
(15) The judge should then consider whether the threshold requirements were
met and exercise his discretion accordingly. Where they were met, the judge
should usually exercise his discretion in favour of permitting cross-examination;
(16) The cross-examination would then be pursued. If the witness agreed that
he was found to have lied in the previous case, no question of the admission of
evidence to contradict his answer would arise and the jury should then be
appropriately directed on the previous finding. But if the witness denied this,
then the relevant materials to prove the previous finding could be put in
evidence to contradict the answer. The observations made earlier in relation to
the materials to be placed before the judge to enable him to consider whether to
permit cross-examination would similarly apply to such evidence;
(17) Where the witness denied that he was found to have lied in a previous
case and evidence was put in to contradict the answer, in directing the jury, the
judge should inform them that the evidence had been admitted because the judge
was satisfied as a matter of law that the witness was found to have lied in the
previous case and that they should proceed on the basis that there was such a
previous finding, notwithstanding the witness’s denial. This approach was
justified since the judge’s view that there was such a previous finding was on a
matter of law. The jury should not be asked to consider for themselves whether
such a previous finding had been made. But the judge should make clear that
evaluation of the credit of the witness was a matter for the jury. The judge
should direct that they should give the previous finding such weight, if any, as
they thought fit in assessing the veracity of the witness in the instant case;
(18) As to trials before a judge sitting alone, the matter should be dealt with in
a similar way with the appropriate modifications;
Other discreditable conduct and other tribunals
(19) On the approach laid down above, the threshold requirements included
whether the witness in question in the instant case was found by the court to
have lied in the previous case. In this appeal, it was unnecessary to deal with
other situations. But it should be observed that lying was only one type of
discreditable conduct. And there were tribunals which might make findings of
lying and other discreditable conduct. Although it was unnecessary to come to
any view, it might be that the approach laid down could apply with such
modifications as might be appropriate (1) to findings by a court of other types of
discreditable conduct of the witness in question provided that the nature of the
discreditable conduct was such that the test of relevance was satisfied. An
example would be a finding by a court that a police officer had misconducted
himself by fabricating a confession. And (2) to findings of lying and other types
of discreditable conduct of the nature referred to above by tribunals, other than
courts, for example, by disciplinary committees or tribunals;
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The authorities
(20) The main English authority was R v Edwards (1991) 93 Cr App R 48
which dealt with two earlier cases: R v Thorne (1978) 66 Cr App R 6 and R v
Cooke (1987) 84 Cr App R 286. Edwards had been applied in Hong Kong: R v
Lam Wai-keung [1994] 2 HKCLR 9. The Court of Appeal in the present case
applied it;
(21) The authorities had been read with care. Bearing in mind the experience
of the administration of criminal justice in Hong Kong, the approach as set out
in this judgment was considered to be the proper approach. It was unnecessary
to embark on an exercise comparing in detail the approach here to that adopted
in Edwards and subsequent cases. It was sufficient for the following points to
be made:
(a)
First, where on the proper approach adopted here, crossexamination was permitted, this approach differed from that
of Edwards in relation to the admission of evidence, limited
to proof of the previous finding that the witness had lied, to
contradict answers given in cross-examination. This should
be permitted as a further exception to the finality rule. In
contrast, this was rejected by Edwards which would
only allow cross-examination in limited circumstances, but
not the admission of evidence to contradict answers given in
cross-examination;
(b)
Secondly, it might be that the second threshold requirement
in the approach adopted here, which was considered
appropriate as a matter of principle, had not yet received
full attention in the English cases;
(c)
Thirdly, there might well be differences between the
approach adopted here and that in the English cases and that
the different approaches might well lead to different results
in certain cases. That being so, the English cases in these
matters should not be regarded as having any precedent
value in Hong Kong;
(d)
Finally, the criminal courts in Hong Kong should apply the
approach adopted here in guiding them. In applying it, it
had to be acknowledged that it might sometimes be difficult
to decide on which side of the line the case fell. The courts
would have to approach the matter with practical
commonsense.
Application of the proper approach (Bokhary PJ dissenting)
(22) The prosecution’s case depended essentially on the evidence of PW1, a
police officer. He said he searched the Appellant and found the dangerous drugs
in a bag on his person. The Appellant’s case was that he was searched by PW1
but no drugs were found on him and that drugs were found by another police
officer, PW4, in the bag in question on the front of the taxi but the Appellant
had nothing to do with it. In the circumstances, PW1’s veracity was an essential
matter. Should the defence have been allowed to cross-examine PW1 as to
credit by reference to the acquittal in the previous case where the prosecution’s
case also depended essentially on PW1’s evidence? If so, it would follow from
the proper approach that evidence of the Reasons for Verdict and the Summary
of Evidence in the previous case would be admissible to contradict answers
given by PW1;
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(23) The critical question was whether the threshold requirements were met.
As regards the first requirement, was it clearly established that PW1, the
relevant police officer in the instant case, was found to have lied in the earlier
case? Or, which amounted to the same thing, did the magistrate in the earlier
case disbelieve PW1? This depended on a proper understanding of the
magistrate’s Reasons for Verdict in the context of the Summary of Evidence. It
would not be appropriate to second guess whether the magistrate had other
unexpressed reasons in mind which laid behind the verdict and, if so, what they
were;
(24) In his Reasons for Verdict, the magistrate referred first to PW5’s
evidence and explained why he had reservations about it. He referred to an
evasive answer PW5 gave and said there were also contradictions in various
areas in his testimony of which examples were given. In one respect regarding
contacts between the police officers and Leung (the defendant in the earlier trial)
about Leung acting as a police informer, he said that the possibility that Leung’s
version ‘is true and is greater ’ ;
(25) At this point of his Reasons, the magistrate had not yet referred to PW1’s
testimony. He then stated that ‘PW5’s statement ’ , had an impact on that of
PW1. He referred to PW1’s testimony that he had never left Leung until he
brought Leung to see the duty officer. The magistrate then wondered why if this
was the case, PW1 said he had not heard any conversation between PW5 and
Leung. The magistrate appeared to have regarded this as an inconsistency
between the evidence of PW1 and PW5. This was the only reference made by
the magistrate to PW1’s testimony. He then referred to Leung’s testimony that it
was PW5 and PW3 who had intercepted him, and not PW1. He then asked that
if PW3 were not playing an important role (which was consistent with Leung’s
testimony), why Leung had such a deep impression of PW3 and could even
identify him in an identification parade a few months later?
(26) The magistrate then concluded ‘After considering all the testimonies of
the prosecution ’ - which included the evidence of four police officers, PW1,
PW3, PW4 and PW5 - ‘I concluded there are some dubious points in the case.
Therefore, I’ll give this benefit of doubt to [Leung] and [Leung] is not guilty of
the charge ’ ;
(27) The crucial question was whether the magistrate had found that the police
witnesses, particularly PW1, had lied. The magistrate held that he had doubts
about various points in the prosecution’s evidence and accordingly gave Leung
the benefit of doubt, as he was bound to do. On his Reasons, he did not find and
could not be regarded as finding that PW1 had lied in the witness box. Or which
amounted to the same thing, on his Reasons, he did not disbelieve and could not
be regarded as having disbelieved PW1. The position was therefore that the first
requirement was not satisfied. At the trial, after considering the Reasons for
Verdict and the Summary of Evidence, the trial judge should have made a ruling
that the defence should not be permitted to cross-examine PW1 by reference to
the acquittal in the previous case. That should have been an end of the matter;
(28) As the first threshold requirement was not satisfied, it was unnecessary to
consider whether the second requirement was met. It would appear, however,
that it was fulfilled in the present case. The circumstances of the previous case
were of such a kind when compared to those in the present case, and the
previous case was not so remote in time, that if the magistrate had found that
PW1 had lied (or which amounted to the same thing had disbelieved him), that
finding would materially affect the jury’s assessment of his veracity in the
present case. As to the circumstances, both cases involved dangerous drugs. On
the prosecution’s case in both cases, the modus operandi of the police officers
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was that PW1 found dangerous drugs on the respective defendants when
searched and the same four police officers (PW1, PW3, PW4 and PW5) were
involved. In both cases, the defence was that no drugs were found on the search
of the respective defendants, and that in the course of the events in question,
there were conversations when the police officers asked the respective
defendants to be a police informer. As to time, the events in the previous case
involving PW1 and other police officers and Leung appeared to have taken
place in October/November before 5 November 1997. The events in the present
case involving PW1 and other police officers occurred on 5 October 1997;
Was the defence prejudiced?
(29) At the trial, the judge allowed the defence to cross-examine PW1 by
reference to the acquittal in the previous case, and admitted in evidence the
Reasons for Verdict and the Summary of Evidence. He then directed the jury
that they should decide for themselves ‘to what extent the magistrate
disbelieved ’ the police witness on that previous occasion and ‘to what extent, if
at all, the magistrate’s disbelief of the witnesses in that case undermines their
credibility in the present case ’ . The course taken by the judge was erroneous.
He should not have permitted the cross-examination in question. No question of
the admission in evidence of the magistrate’s Reasons for Verdict and the
Summary of Evidence would have arisen. And no direction on the matter would
have been necessary;
(30) The Appellant was not prejudiced as a result of the judge having taken
the wrong course. On the judge’s direction, the jury would have come to one of
two possible views on the previous case: (i) the magistrate did not disbelieve the
police witnesses in question; or (ii) the magistrate did disbelieve them. As held
above, the magistrate did not disbelieve the witnesses in question. Regarding
(i), it would therefore have reflected a correct understanding of the magistrate’s
Reasons, and the Appellant would not be prejudiced. Although (ii) would have
reflected a misunderstanding of the magistrate’s Reasons, the Appellant was not
prejudiced either. On (ii), having come to the erroneous view that the magistrate
had disbelieved the police witnesses in the previous case, they would have taken
this into account in assessing the credibility of the police witnesses, particularly
PW1, in the present case. Taking this into account would not have prejudiced
the Appellant and, indeed, might have benefited him.
Result - Appeal dismissed.
END
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