To : All Counsel/Senior Law Clerks/Prosecutions All Court Prosecutors/Magistracies 致：刑事檢控科各律師/高級律政書記 裁判法院各法庭檢控主任 A Publication of the Prosecutions Division of the Department of Justice 律政司刑事檢控科律政司刑事檢控科律政司刑事檢控科律政司刑事檢控科出版出版出版出版的刊物的刊物的刊物的刊物

CRIMINAL APPEALS BULLETIN 刑事上訴案判例簡訊刑事上訴案判例簡訊刑事上訴案判例簡訊刑事上訴案判例簡訊

June Edition/2011

2011年年年年 6月號月號月號月號 General Editor 總編輯

Robert S K Lee, SC 李紹強 資深大律師 Editors 編輯

Wesley W C Wong 黃惠沖 William Y H Tam 譚耀豪 David C Y Leung 梁卓然 Martin S T Hui 許紹鼎 Edmond C M Lee 李俊文 Virginia S Y Lau 劉少儀 Irene Fan 范凱琳

Hermina W H Ng 吳穎軒 Betty Y Y Fu 傅悅耳

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INDEX

Page(s)

A. Case-stated Appeal

以案件呈述方式上訴

3 – 4

B. Criminal Appeal / Against Conviction

刑 事 上訴 案件 /針對定 罪

5 – 10

C. Criminal Appeal /Against Sentence

刑 事 上訴 案件 /針對刑 罰

11 – 12

D. Magistracy Appeals / Against Conviction

裁 判 法院 上訴 案件 /針 對 定罪

13 – 18

E. Practice and Procedure

常 規 與程 序

19 – 24

[ ] – denotes paragraph number in the judgment.

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A. Case-stated Appeal 以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴 SFC v TSOI BUN COURT OF FIRST INSTANCE HCMA 451/2010 Lunn J Date of Hearing: 5 October 2010, 3 March & 3 June 2011 Date of Judgment: 13 June 2011 Counsel for the Appellant: Adrian Bell SC Counsel for the Respondent: Gary Plowman SC & Derek Chan Criminal Law and Procedure – Appeal by way of case stated – Magistrate required to set out the basis on which he acted and came to the verdict Criminal Law and Procedure – Deputy magistrate declined to be reappointed – whether this amounts to “absence” within the meaning of s 118(1)(f) of Magistrates Ordinance Cap 227 刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序－－－－以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴－－－－裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據

刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序－－－－暫委裁判官暫委裁判官暫委裁判官暫委裁判官拒絕再接受委任拒絕再接受委任拒絕再接受委任拒絕再接受委任－－－－這情況是否足以構成香港法例第這情況是否足以構成香港法例第這情況是否足以構成香港法例第這情況是否足以構成香港法例第

222227272727 章章章章《《《《裁判官條例裁判官條例裁判官條例裁判官條例》》》》第第第第 118(1)(f)118(1)(f)118(1)(f)118(1)(f)條所指的條所指的條所指的條所指的「「「「缺席缺席缺席缺席」」」」 The Respondent faced 5 summonses for “price-rigging”, contrary to s 296(1)(b) and (4) of the Securities and Futures Ordinance, Cap 571 (“SFO”) to which he pleaded not guilty. The prosecution case was that the Respondent intentionally or recklessly rigged the ‘calculated opening price’ by artificially increasing/depressing it, thereby allowing him to sell/buy at a profit. He did so by placing large orders in the last few seconds of the period before the market opened, which were in the opposite direction (buy/sell) to orders he had placed earlier. In consequence, the ‘calculated opening price’ was moved significantly. As soon as the market opened, the Respondent unwound the positions that he had created in the pre-market opening period. It was the Respondent's case that his trading activity was legitimate and there were legitimate reasons for the adjustments that he made to his trading position shortly before the end of the premarket opening sessions. The Respondent elected not to give evidence. Expert evidence was led on behalf of the prosecution and defence, with 2 lengthy reports from each of the experts. In his oral reasons for verdict, the deputy magistrate said:

“The central issue in this case is the contest of different expert opinions between PW1 [Mr Cheng] and DW1 [Mr White] to decide the question if the defendant had entered into artificial transaction or device by his trading activities. I have considered PW1 and DW1’s evidence in court, and the content of their expert reports. While I must say the defendant’s trading activities in respect of the five summonses did give rise to great suspicion, I am not satisfied beyond all reasonable doubt that the defendant had entered into artificial transactions or device. Hence I acquit the defendant of the five summonses on the benefit of doubt.”

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The Appellant appealed by way of case stated. In the Case Stated, the deputy magistrate set out a number of questions of law for the opinion of the Court of First Instance. On 5 October 2010, the Court of First Instance determined that the Case Stated was deficient and directed the deputy magistrate to amend the Case Stated to include the material findings of facts. At the time of the trial, the magistrate had sat as a deputy magistrate, then being a practising member of the Bar. In due course, he declined to be reappointed as a deputy magistrate as he ceased to practise as a barrister. The Appellant invited the Court to remit the case for rehearing before another magistrate. The Respondent submitted the questions of law posed in the Case Stated were ones that the Court of First Instance could resolve on the Case Stated as drafted. Held, reversing the acquittal of the 5 summonses and ordering a trial de novo in the magistracy:

(1) An appeal by way of case stated is not an appeal by way of a re-hearing. Rather, the appellate court is limited to an examination of whether or not there was an error of law or an excess of jurisdiction. Li Man Wai v Secretary for Justice [2003] 6 HKCFAR 466 applied [28].

(2) The deputy magistrate was required in stating and signing a case to set forth the grounds on which the determination was made. His reasons need not be elaborate but they must be sufficient to show the parties and the Court of First Instance the basis on which he acted. His failure to do so is an error of law which goes to the root of the appeal. Without a properly drafted Case Stated it is not possible to conduct the appeal. Accordingly, it is an error of law which is not only procedural but also substantive and one which falls within the ambit of the powers of the Court in hearing an appeal by way of case stated including the power to reverse the determination and order a trial de novo [35].

(3) The term “absence” in s 118(1)(f) of the Magistrates Ordinance connotes not only physical absence but also absence from judicial office, including such absence that has been brought about by the expiry of a term of appointment [38]. The term of the appointment of the deputy magistrate had expired and he declined to be reappointed. His absence from judicial office rendered a step in the appeal impossible. Those circumstances fall within s 118(1)(f) [39].

(4) The Court observed that there was no delay on the part of SFC or the Respondent and that the proceedings had dragged on for years and they must have caused the Respondent stress and anxiety; on the other hand, the alleged misconduct had occurred between February to September 2007 (resulting in a profit of HK$2.2 million) and it was of a serious nature and the purpose of the legislation is to protect the investing public. In all the circumstances, the Court took the view that there was good cause to order a trial de novo [40]-[44].

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B. Criminal Appeal / Against Conviction 刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件 / 針對針對針對針對 定 罪定 罪定 罪定 罪 香港特別行政區香港特別行政區香港特別行政區香港特別行政區 訴訴訴訴 馮顯樺馮顯樺馮顯樺馮顯樺

高等法院上訴法庭

CACC 263/2009

上訴法庭法官張澤祐、楊振權及袁家寧

聆訊日期： 2011 年 5 月 11 及 12 日

判案理由書日期： 2011 年 5 月 31 日

答辯人代表律師： 高級助理刑事檢控專員李運騰

申請人代表律師： 林沙文及葉榮燊

定罪定罪定罪定罪－－－－「「「「藉公職作出不當行藉公職作出不當行藉公職作出不當行藉公職作出不當行為為為為」」」」罪罪罪罪－－－－卧底行動卧底行動卧底行動卧底行動－－－－誘捕誘捕誘捕誘捕－－－－應否擱置審訊應否擱置審訊應否擱置審訊應否擱置審訊－－－－應否剔除不利的證應否剔除不利的證應否剔除不利的證應否剔除不利的證

據據據據－－－－不同控罪應否同案審理不同控罪應否同案審理不同控罪應否同案審理不同控罪應否同案審理

申請人是一名駐守旺角警區特別職務隊警長，被控一項「藉公職作出不當行為」罪，

即就非法毒品及色情活動向同案另外兩名被告劉、朱、和兩名卧底廉署人員提供竟見。

案情指廉署接獲資料指有警員包庇罪犯向他們預告警方行動，故展開卧底行動調查。

其後，申請人與同案被告和卧底人員有兩次會面。在第一次會面中，當申請人知悉卧底人員

打算開設提供毒品及女士服務的非法會所時，向卧底人員提出一些建議，以避免或減輕警方

行動對非法會所做成的不利或不便。在第二次會面中，申請人與劉陪同卧底人員視察打算用

作會所的場地，再作出一些建議，以減輕經營非法毒品和賣淫場所會導致的風險。上述兩次

會面均有秘密錄音，前者更有錄影。

開審前，申請人要求和劉及朱分開審訊，但遭原審法官拒絕。審訊期間，申請人、劉

和朱都申請永久擱置審訊及摒棄案中指他們和卧底人員的對話為證供，但亦遭原審法官否

決。

申請人沒有作供自辯，但傳召其太太及另一退休警長替他作供。申請人的立場是他在

兩次會面時只是言行上一些表述，並無實質的犯罪行為，而他表達的意見亦是一般常識。辯

方稱以申請人的職位，他不能向卧底人員提供任何協助，故他的有關言行不構成嚴重的不檢

行為。

經審訊後，申請人被裁定罪名成立及被判入獄 6 個月。申請人不服定罪，提出上訴許

可申請。其上訴理由指原審法官不應將針對申請人的控罪和針對劉及朱的控罪一併審理。因

在申請人還沒有參與事件前，卧底人員已有和劉及朱多番接觸，期間都有談及申請人，內容

更對申請人極為不利。因此原審法官理應將申請人和劉及朱分案處理。同案審理的做法對申

請人做成極大損害，亦令申請人喪失了傳召劉及朱替他作供的機會，令他不能獲得公平審

訊。申請人亦指支持控罪的證據是透過誘捕及調查人員過份使用帶引問話而取得，故原審法

官不應拒絕擱置審訊或拒絕將針對申請人的證據摒棄。申請人再指他在兩次會面的言行並不

符合藉公職作出不當行為控罪所需的犯罪元素，他的言行，即使不當，但亦非太嚴重。

裁決裁決裁決裁決，駁回針對定罪的上訴許可申請：

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同案審理

(1) 法庭有酌情權決定多過一名被告人面對不同控罪時應否同案審理。當構成針對多名被

告人的個別罪行之可利用證據在時間上或與其他因素是有關連的情況下，而將他們同案審理

是符合司法公正時，將他們根據同一公訴書一起審理是恰當的。但應否這樣做，要由法官根

據其酌情權作出：Assim [1996] 2 QB 249 [38]。 考慮不同罪行是否性質相似時，事實和法律

都必須考慮在內：Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567 [39]。有關

應否同案審理的決定屬酌情權，以錯誤行使酌情權作為上訴理由，成功機會不大[40]。

(2) 本案中，針對申請人的控罪和針對劉、朱的控罪，雖然不同，但都是源自同一卧底行

動，亦涉及共通背景及證人[42]。在聆訊開始前，劉及朱已經承認了控罪，申請人是可以傳

召他們為自己作證。申請人選擇不這樣做，不能以此支持他指審訊對他不公的立場。再者，

考慮到劉和朱所承認的控罪，申請人會傳召他們作供的說法是不切實際的[44]。 雖然劉及朱

確曾有在申請人不在場時說過一些對申請人不利的話，但本案是由一專業法官單獨審理。原

審法官必能分辨甚麼證據可以作為指控申請人的證據，甚麼證據不能[45]。原審法官有充份

理由，行使酌情權就針對申請人的控罪和針對劉、朱的控罪共同審理，此做法對申請人並無

任何不公[48]。

誘捕

(3) 不論剔除可接受證據的酌情權的界限多廣，都不能因罪行的證據是由一名挑撥者的慫

恿所導致而要剔除，原因是誘捕(entrapment)並非罪行的答辯理由：R v Sang [1980] AC 402 [51]。

(4) 就案件涉及誘捕時，假若法庭每次都拒絕擱置審訊，會導致一個看法，就是法庭縱容

執法機構的非法和瀆職行為，削弱公眾對刑法的信心及破壞其聲譽。另一方面來說，假若法

庭在這類案件每次都擱置審訊，公眾會因為法庭沒有保護他們免受嚴重罪行困擾而作出指

責：R v Latif [1996] 1 WLR 104 [54]。

(5) 本案和 Tei xeira de castro v Portugal [1998] 28 EHRR 101 案不同。兩名卧底廉署人員的

行為根本不能和 Tei xeira de castro 案的警員的行為相提並論。他倆的調查並沒有違反任何規

則。他們有資料亦有理由認為有警員包庇犯罪行為而調查申請人。申請人的罪行是向一些打

算進行違法活動的人士提供協助，而構成罪行主要的基礎是他的言行；並無證據顯示有任何

強迫、煽動、唆使、或鼓動他說出構成犯罪的說話。申請人無需前往指會用作會所的場地，

更沒有人以任何形式強迫、煽動、唆使、或鼓動他說任何話[55]-[60]。

(6) 法庭處理卧底調查罪行的案件時，需要平衡兩個對立的要求：其一是犯罪者理應被定

罪及受罰；其二是不應有濫用程序而導致公憤的情況出現。不可能訂下規則覆蓋被告人以罪

行是誘使或是由執法機構行為所導致而要求擱置審訊的申請。最終要決定的問題是法庭是否

遭利用去檢控由執法機構不當行為所導致的人為罪行而令執行司法蒙羞。決定該問題是應先

考慮以下四項因素：（一）罪行是否執法人員所煽動的；（二）如罪行是執法人員煽動的，

在提出煽動時，執法人員是否有合理基礎懷疑被告人可能干犯有關罪行或同類罪行或是否忠

誠地調查和被告人被控的類似罪行；（三）作出煽動前，被告人是否有意圖有機會出現時干

犯有關或同類罪行；及（四）罪行是否是執着的再三要求，恐嚇、詐騙和一些和有關罪行或

同類罪行無關的報酬或誘使所導致的。在平衡有關因素時，法庭特別着重考慮是否有人遭執

法人員說服或強迫去干犯一宗他不應會干犯的罪行，或執法人員有否超越給予該人犯罪的機

會，而同一犯罪機會由他人提供時，該人是否會作出同一反應，即按執法人員給予他的機會

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而自由行事：R v Loosely [2001] 4 All ER 897 及 Ridgeway v The Queen (1995) 184 CLR 19 [61]-[62]。

(7) 即使被告人能得到公平審訊，法庭仍有權因被告人遭執法機構誘捕而將審訊擱置。但

作出擱置前，法庭需信納審訊是濫用司法程序而嚴重程度更是對公眾良知的公然侮辱，及公

眾對執行公義的信心蕩然無存。法庭需考慮的因素包括“犯罪機會測試”(Opportunity test) 及將罪行的性質及嚴重程度和執法機構行為相比，以達到合理比重。考慮“比重”時，法庭

要決定執法機構的活動和行為是否屬可接受範圍內或是太過份，即使執法機構的活動和行為

太過份，法庭作出擱置命令前，亦必先要信納查案者在被告人犯罪的過程中所扮演的角色是

對公眾良知的公然侮辱。假若被告人已抱有犯罪的意圖而執法機構只是向他提供一個正常機

會去干犯罪行，則“誘 捕”的指稱不一定成立。尤其是當嚴重罪行是秘密行事，難於偵察

時，則執法機構扮演較主動角色是有需要的，亦是值得原諒的：HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621 [67]-[70]。

(8) 卧底行動是執法人員調查非法活動的重要武器之一，而對嚴重罪行，包括貪污罪行更

是不可或缺的：Secretary for Justice v Lam Tat-ming (2000) 3 HKCFAR 168 [71]。

申請人的言行是否構成不當行為

(9) 作為警隊的一份子，申請人須當作為一直在當值中。而其職責是採取合法措施以“維

持公安”和“防止刑事罪及犯法行為的發生和偵查刑事罪及犯法行為”：《警隊條例》第 21

及 10 條[87]。

(10) 申請人明知兩名卧底廉署人員打算從事一些非法業務，仍然透過可疑人物，先後兩次

和他們會面，目的只有一個，就是協助他們進行一些申請人明知是違法的行為。申請人是資

深警務人員，必然會在作出不當言行過程中，盡量作出掩飾及淡化該些不當言行的嚴重性。

申請人的行為不但違反其身為警務人員的職責，更會傷及社會風化、助長罪惡、損害公共秩

序。他向犯罪份子提供協助，令他們的罪行更容易得逞及難於偵破，必然會令警隊蒙羞。申

請人的言行完全符合藉公職作出不檢行為所需的五項犯罪要素 [88]-[89]。

[English Translation of CACC 263/2009 above] HKSAR v FUNG HIN WAH EDWARD COURT OF APPEAL CACC 263/2009 Cheung, Yeung & Yuen JJA Date of Hearing: 11 & 12 May 2011 Date of Reasons for Judgment: 31 May 2011 Counsel for the Respondent: Alex Lee SADPP Counsel for the Applicant: S K Khattak & Roy Bowie Yip Conviction – “Misconduct in public office” – Undercover operation – Entrapment – Whether trial should be stayed – Whether adverse evidence should be excluded – Whether different charges should be dealt with in the same trial

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The Applicant was a police sergeant attached to the Mongkok District Special Duty Squad. He was charged with one count of “misconduct in public office”, i.e. giving advice to the co-accused LAU, CHU and two undercover ICAC officers on illegal drug and vice activities. The case was that the ICAC, on information that a police officer had been protecting criminals by informing them in advance about police operations, launched an undercover investigation. Since then, the Applicant met the co-accused and the undercover officers twice. On the first occasion, when the Applicant learned that the undercover officers intended to open an illegal club that provided services relating to drugs and women, he gave them some advice on how to avoid or mitigate the adverse effects or inconvenience caused by police operations against the illegal club. On the second occasion, the Applicant and LAU accompanied the undercover officers to inspect the premises intended to be used as the club and gave them further advice on how to mitigate the risks of operating the club for illegal drug and prostitution activities. Both meetings were covertly audio recorded and the first meeting was even videotaped. Before the trial, the Applicant asked for a separate trial from LAU and CHU but was rejected by the trial judge. During the trial, the Applicant, LAU and CHU all applied for a permanent stay of the proceedings and exclusion of the conversations among them and the undercover officers but that was also refused by the trial judge. The Applicant did not give evidence in his own defence but called his wife and another retired police sergeant as his witnesses. The Applicant’s stance was that during the two meetings, he was merely representing what he had said and done without any substantive criminal act. The opinions he expressed were just common knowledge. The defence submitted that the Applicant could not have given any assistance to the undercover officers given his position and therefore what he had said and done did not constitute serious misconduct. The Applicant was convicted after trial and sentenced to 6 months’ imprisonment. The Applicant applied for leave to appeal against conviction on the ground that the trial judge should not have allowed the charge against the Applicant and that against LAU and CHU to be tried together. Before the Applicant was involved in this case, the undercover officers had already had a number of contacts with LAU and CHU and had, in the course of it, talked about the Applicant which was very unfavourable to the Applicant. Therefore the trial judge should have dealt with the Applicant’s case separately from that of LAU and CHU. Joinder of offenders had caused great prejudice to the Applicant and deprived him of the opportunity to call LAU and CHU to give evidence for him. He was thereby denied a fair trial. The Applicant also contended that the evidence in support of the charge was obtained by entrapment and improper use of leading questions by the investigators. Therefore the trial judge should not have refused to stay the proceedings or exclude the evidence against the Applicant. The Applicant also argued that what he had said and done in the two meetings did not satisfy the essential elements of the offence of misconduct in public office. What he had said and done, even if improper, was not grossly serious. Held, application for leave to appeal against conviction dismissed: Joinder of offenders (1) The court has a discretion to decide whether several offenders charged with committing individual offences may be tried together. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can, subject always to the discretion of the court, be tried together on one indictment: Assim [1996] 2 QB 249 [38]. The law and the facts have been and should be taken into account in deciding

9

whether offences are similar or dissimilar in character: Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567 [39]. The decision on joinder is discretionary and the chances of success on appeal on the ground of wrongful exercise of discretion are small [40]. (2) In the present case, though the charge against the Applicant was different from that against LAU and CHU, both arose from the same undercover operation and involved common background and witnesses [42]. LAU and CHU had pleaded guilty before the trial. The Applicant could have called them to give evidence for him. By electing not to do so, the Applicant could not use it in support of his assertion that the trial was unfair to him. Moreover, having regard to the offences to which LAU and CHU pleaded guilty, it would be unreal to say that the Applicant would have called them to give evidence [44]. Although LAU and CHU had said something unfavourable to the Applicant in his absence, the trial judge, being a professional judge sitting alone, should be able to distinguish which evidence could be used against the Applicant and which could not [45]. The trial judge had sufficient reasons to exercise his discretion to decide hearing the charge against the Applicant and that against LAU and CHU together in the same trial. It had not caused any injustice to the Applicant. Entrapment (3) Whatever be the ambit of the judicial discretion to exclude admissible evidence, evidence of a crime is not excluded because the crime was instigated by an agent provocateur. The reason is that there is no defence of entrapment: R v Sang [1980] AC402 [51]. (4) When entrapment is involved, if the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crimes: R v Latif [1996] 1 WLR 104 [54]. (5) The present case is different from Tei xeira de castro v Portugal [1998] 28 EHRR 101. The conduct of the two undercover ICAC officers should by no means be put on a par with that of the police officers in Tei xeira de castro case. Their investigation had not violated any rules. They investigated the Applicant because they had information and reasons to believe that a police officer had been sheltering criminals. The Applicant’s offence was giving assistance to those having the intention to engage in illegal activities and the essential basis of the offence was what he had said and done. There was no evidence to show that he was pressurised, incited, enticed or instigated to say anything that constituted the offence. It was not necessary for the Applicant to go to the premises to be used for the club. Nor did anyone in any manner pressurised, incited, enticed or instigated him to say anything [55]-[60]. (6) When dealing with undercover operations, it is necessary to balance two competing ends: first, those who commit crimes should be convicted and punished; second, there should not be an abuse of process which results in a public outcry. It is not possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the process of the court is being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether the conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the

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accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if the opportunity arose. (4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence. In balancing the relevant factors the court has placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer: R v Loosely [2001] 4 All ER 897 and Ridgeway v The Queen (1995) 184 CLR 19 [61]-[62]. (7) Even if the trial of a defendant could be conducted fairly, the court still had jurisdiction to stay proceedings in a criminal trial on the basis that the defendant was subjected to entrapment by the law enforcement authority. Before exercising the discretion to stay, the court would have to be satisfied that the trial was an abuse of process which amounted to an affront to the public conscience with severe consequences for public confidence in the administration of justice. The considerations for the court included the "opportunity test" and reasonable proportionality between the nature and seriousness of the offence and the conduct of the law enforcement authority. In considering the question of proportionality, the court would have to determine whether the law enforcement authority's activities and behaviour remained within acceptable bounds or went too far. Even if they went too far, the court must be satisfied that the investigators' role in the defendant's commission of an offence was an affront to the public conscience before a stay would be granted. If the law enforcement authority did no more than provide the defendant with an unexceptional opportunity to commit the offence where that person had already formed a generic intent to commit the offence, then it might well be that no “entrapment” had taken place. Where serious offences were of a sort normally carried out in secrecy and were difficult to detect, then a more pro-active role on the part of the law enforcement authority was necessary and excusable: HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621 [67]-[70]. (8) The use of undercover operations is an essential weapon in the armoury of the law enforcement agencies. It plays an important part in combating crimes especially serious crimes, including corruption: Secretary for Justice v Lam Tat-ming (2003) 3 HKCFAR 168 [71]. Whether what the Applicant had said and done amounted to misconduct (9) Being a member of the police force, the Applicant was deemed to be always on duty which was to take lawful measures for “preserving the public peace” and “preventing and detecting crimes and offences”: Sections 21 and 10 of the Police Force Ordinance [87]. (10) The Applicant, knowing the two undercover ICAC officers had the intention to engage in illegal business, met them on two occasions through the suspects. His sole purpose was to assist them to do some act which he knew was illegal. Being a senior police officer, the Applicant when saying or doing anything improper, would during the course of which, conceal and tone down the seriousness of it. The Applicant’s conduct was not only a breach of his duties as a police officer, but also would corrupt public morals, encourage crimes and undermine public order. By giving assistance to criminals so that the offences would succeed more easily and be more difficult to detect, he would certainly bring disgrace to the police force. What the Applicant had said and done fully satisfied the five elements required for the offence of misconduct in public office [88]-[89].

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C. Criminal Appeal / Against Sentence 刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件 / 針對針對針對針對 刑 罰刑 罰刑 罰刑 罰 HKSAR v MINNEY, JOHN EDWIN COURT OF APPEAL CACC 383/2010 Stock VP, Fok JA & Line J Date of Hearing and Judgment: 6 April 2011 Date of Handing Down Reasons for Judgment: 16 June 2011 Counsel for the Respondent: Kevin P Zervos SC DPP & Wong Sze-lai Lily SPP Counsel for the Applicant: Philip Dykes SC and Giles Surman Criminal sentencing – Possession of dangerous drugs – Whether the latent risk sentencing principle is unconstitutional 刑事罪判刑刑事罪判刑刑事罪判刑刑事罪判刑－－－－管有危險藥物管有危險藥物管有危險藥物管有危險藥物－－－－潛在風險潛在風險潛在風險潛在風險判刑原則判刑原則判刑原則判刑原則是否違憲是否違憲是否違憲是否違憲 The Applicant was convicted in the District Court upon his own pleas of 2 offences of possession of dangerous drugs. On the day in question, a party of police officers entered a bar at Lamma Island and demanded to search the Applicant therein. The Applicant took out 2 plastic bags containing a total of 0.85g of cocaine from his trousers’ pocket and threw them to the floor. Under caution, the Applicant said that they were for his own consumption (Charge 1). Thereafter, the Applicant was taken to his residence. Upon search, a total of 1.05g of cannabis resin and 5.63g of cocaine were seized. Under caution, the Applicant admitted that the cannabis resin and cocaine seized from his residence were for his own consumption (Charge 2). In sentencing, the Judge adopted a starting point of 6 months’ imprisonment for Charge 1 and 12 months for Charge 2. He then considered the latent risk factor and increased the starting points by 3 months to 9 months and 15 months’ imprisonment respectively. Taking into account mitigation and the pleas, the Judge imposed concurrent sentences of 6 months and 10 months respectively. On appeal, the Applicant accepted that, without the enhanced element, the prison sentences for the two offences would not be susceptible to challenge. However, he sought to appeal against the uplift of 3 months on each sentence referable to the latent risk sentencing principle. The basis of the Applicant’s challenge was that the latent risk sentencing principle was unconstitutional since it imputed to a person convicted of a possession offence an unproven predilection or propensity to commit the more serious offence of trafficking. This contravened the presumption of innocence protected in Article 87 of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap 383. Held, application for leave dismissed:

(1) There can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s. That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but that simply

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reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society [28].

(2) What the established risk will be is something that will vary from case to case and it is not possible to predict all circumstances. They will include leaving drugs in a place, for example a shared flat, where others have access to them; taking, as in the present case, a number of packets to a pub where friends may prevail upon the possessor to share what he has; and buying in such a quantity as to create a temptation to sell in order to fund the next purchase. It is the real risk of dissemination of drugs which the courts are looking to deter by this sentencing policy and there is nothing objectionable or contrary to policy or to the presumption of innocence in a sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence give rise. It is not a question of punishing a person for a crime he has not committed. It is not a question of punishing him for a crime he may commit. It is a question of punishing him for the crime which he has committed taking into account the circumstances of its commission and the dangers to society which those circumstances create [29].

(3) It is “the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender’s. The risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender” (HKSAR v Wan Sheung-sum [2000] 1 HKLRD 405 applied) [30].

(4) If a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn counsel for the accused, to enable the accused to challenge the issue, if necessary by the giving of evidence; and a judge is not to sentence for unproved trafficking, namely an unproved actual intention to traffic [31].

(5) The degree of enhancement for the risk factor must bend to the circumstances of each case and the existence of the risk factor and the degree of risk is not a matter of mathematics upon which the court can provide a tariff [32].

(6) Consideration of the possession of a quantity of dangerous drugs will involve consideration of the risk of some of those drugs finding their way into circulation, although a greater quantity in one man’s hands may reflect less risk than a smaller quantity in the hands of another. Consideration of the risk in question does not amount to a finding that the Applicant had the necessary intention to make him guilty of trafficking in the dangerous drugs. If it did, it would be impermissible [33].

(7) There is a distinction to be made between sentencing on the basis that trafficking was the intent or purpose of the defendant’s possession of the drugs and sentencing on the basis that his possession in the circumstances produced a risk of those drugs finding their way into the hands of others. The former would not be permissible, but the latter is. Sentencing rightly enjoys the flexibility to meet the differing degrees of potential abuse to which the possession may give rise, whether it be for mitigation or aggravation [37].

(8) In the present case, the sentencing Judge did not assume a present intention on the part of the Applicant to traffic in the drugs in question; and the view that he reached that there was "a risk some of the cocaine may fall into the hands of others" was reasonable. No imputation or attribution of an intention to traffic on the part of the Applicant was involved in his reasoning [41].

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D. Magistracy Appeals / Against Conviction 裁 判 法院 上 訴案 件裁 判 法院 上 訴案 件裁 判 法院 上 訴案 件裁 判 法院 上 訴案 件 /針 對針 對針 對針 對 定罪定罪定罪定罪 香港特別行政區香港特別行政區香港特別行政區香港特別行政區 訴訴訴訴 香港驗車有限公司香港驗車有限公司香港驗車有限公司香港驗車有限公司

高等法院原訟法庭

HCMA 809/2010

高等法院原訟法庭法官彭鍵基

聆訊日期：2011 年 3 月 25 日

裁決日期： 2011 年 5 月 13 日

答辯人代表律師： 檢控官戚雅琳

申請人代表律師： 王詠文

《《《《僱員補償條例僱員補償條例僱員補償條例僱員補償條例》》》》————僱主未有為僱員購買一份有效的保險僱主未有為僱員購買一份有效的保險僱主未有為僱員購買一份有效的保險僱主未有為僱員購買一份有效的保險————在案發時上訴公司和控方證人是在案發時上訴公司和控方證人是在案發時上訴公司和控方證人是在案發時上訴公司和控方證人是

否僱主和僱員的關係否僱主和僱員的關係否僱主和僱員的關係否僱主和僱員的關係

上訴人沒有在案發當日為控方證人區先生購買一份有效的保險。本案唯一的爭議點

是：控方能否在無合理疑點下，證明在 2009 年 10 月 13 日區先生是上訴人的僱員。裁判官最

後接納了控方證人的證供和參考了終審法院在 Poon Chau Nam v Yim Siu Cheong trading as Yat Cheung Air-Conditioning & Electric Co. [2007] 2 HKC 135的案例，裁定本案的表徵全部都是支

持雙方實際關係是僱主和僱員，而非辯方所稱的外判商。

裁決裁決裁決裁決，上訴得直，撤銷定罪裁決，發還上訴人已繳的罰款：

(1) Poon 案是一宗民事案件，案中列出的原則對法庭推論勞資雙方實際關係時極有幫助，

但在刑事案件中，法庭所作出的推論必須建基在案件中已獲證事實上，而所作的推論是唯一

合理的推論，法庭才能把被告人定罪。即使裁判官逐一審核了案中的有關表徵來達成一個整

體印象後(overall impression)，他仍必須進一步考慮在案件中可能對辯方有利的證據，才能決

定控方是否已在無合理疑點下證明被告犯了被檢控的罪名[13]-[15] 。

(2) 法庭列出下列對辯方有利的證據：

（一） 區先生在 2008 年 10 月至 2009 年 12 月期間在上訴人公司服務。在此之前，上

訴人的驗車工作是外判給另一公司。其後因為此公司提高了驗車費用，上訴人

便把驗車工作判予控方證人[16]。

（二） 控方證人在每月初和月中透過電郵以報表方式向上訴人提交工作和收支記錄，

並將代收的款項存進上訴人公司指定銀行的戶口。根據呈堂的文件顯示，上訴

人透過電郵提交的報表中，自 2009 年 3 月 1 日至 2009 年 10 月止 ，控方證人

應得的 350 元都是登錄在報表中「外判商師傅」一欄[17]。

（三） 2009 年 9 月 15 日至 30 日的報表中下端的 Remark 一欄有「外判商」的字樣出

現；如控方證人聲稱表內的數字是出自他的手筆，那為何他對「外判商」字樣

視而不見，也從來沒有要求上訴人更正[18]。

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（四） 控方證人區先生和上訴人的關係維持了一年多，他每月兩次填寫有關報表，這

些文件證據和區先生的行為都是可能支持他是外判商身份的說法[19]。

（五） 從另一角度來看，假設上訴人和控方證人的關係是僱主和僱員的話，上訴人理

應每月依法為控方證人作強積金供款，而證人亦需要從他的收入中提供部份款

項作為強積金供款。即使上訴人故意地或因疏忽而沒有為控方證人作強積金供

款，控方證人亦應主動提醒上訴人有關的安排。本案中沒有證據顯示控方證人

曾要求或提醒上訴人履行強積金供款的責任，而控方證人亦省卻了每月的強積

金供款，此情況維持了一年多，這顯然是控方證人樂於保持當時狀況[20]。

（六） 雙方證供顯示在 2009 年 10 月後，控方證人的驗車數目大幅減少，辯方作持的

理由是控方證人表現欠佳，於是便把部份工作判給另外兩位分別姓林和姓彭的

驗車師傅。這樣的做法，正好是支持了控方證人可能是上訴人的承判商[21]-

[22]。

（七） 雙方合作初期，控方證人聲稱上訴人曾答應他每月驗車數目不少於 30 輛，但當

驗車數目在 2009 年 10 月後大幅減少時，沒有證據顯示控方證人向上訴人要求

提供最低的驗車數目或要求支付每個月 30 乘以 350 元的總數。由此可見，雙方

的合作基礎存在著一定的彈性，而非以月薪或包薪方式作為報酬的安排[23]。

（八） 本案是因控方證人和上訴人的股東朱先生出現金錢上的糾紛才揭發，雖然裁判

官已提醒自己控方證人不是一個獨立的證人，但在雙方各執一詞下，加上文件

證供未能排除控方證人是外判商的情況下，裁判官更應該謹慎處理本案兩位證

人的可信性[24]。

(3) 本案的要點並非是由控方在毫無疑點下證明上訴人和控方證人的關係是僱主和僱員，

而是控方能否在無合理疑點下能證明在 2009 年 10 月 13 日上訴人是控方證人的僱主。基於本

案控方證人的證供和本案的呈堂證物並不能支持僱主和僱員關係是唯一合理的推斷，再者，

控方證人在處理強積金方面的行為與他聲稱是上訴人的僱員的身份並不吻合，裁判官就雙方

是僱主和僱員的身份的推斷並非是唯一合理的推斷，因此上訴人的定罪裁決並不穩妥。基於

裁判官的推斷方式，和他拒絕接納辯方證人朱先生的證供，上訴人失去了依賴上訴人是基於

錯誤但誠實地相信第一證人是承判商的身份作為本案的辯護理由，對上訴人並不公平[25]-

[26]。

[English Translation of HCMA 809/2010 above] HKSAR v HONG KONG MOTOR INSPECTION LIMITED COURT OF FIRST INSTANCE HCMA 809/2010 Pang J Date of Hearing: 25 March 2011 Date of Judgment: 13 May 2011

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Counsel for the Respondent: Noelle Aileen Chit PP Counsel for the Appellant: Vivian Wong Employees’ Compensation Ordinance – Employer’s failure to take out valid insurance policy for employee – Whether employer-employee relationship between Appellant Company and the prosecution witness existed at material time On the material day, the Appellant failed to take out a valid policy of insurance for the prosecution witness Mr Au. The only issue in the present case is whether the prosecution could prove beyond reasonable doubt that Mr Au was an employee of the Appellant on 13 October 2009. The magistrate eventually accepted the prosecution witness’ evidence, having referred to the CFA case of Poon Chau Nam v Yim Siu Cheong trading as Yat Cheung Air Conditioning & Electric Co. [2007] 2 HKC 135 and found that all the indicia in the present case were in support of an actual employer and employee relationship between both parties. The status of the prosecution witness was not a contractor as claimed by the defence. Held, appeal allowed, conviction quashed and the Appellant’s fine refunded: (1) Poon Chau Nam is a civil case. The principles in that case are of great assistance to the court in drawing an inference on the actual relationship between the employer and the employee. However, in a criminal case, the court’s inference must be based on proved facts, and it must be the only reasonable inference to be drawn. Only under such circumstances can the court convict the defendant. Even though the magistrate had examined each of the relevant indicia in the case to form an overall impression, she still had to move one step further to consider the evidence in the case that might be favourable to the defence. Only then could she determine whether the prosecution had proved beyond reasonable doubt that the defendant had committed the offence charged [13]-[15]. (2) The Court made a list of evidence which was favourable to the defence as follows: (I) Between October 2008 and December 2009, Mr Au served the Appellant company.

Prior to that, the Appellant’s vehicle inspection work was contracted out to another company. Later, as the said company increased the inspection fee, the Appellant proceeded to contract out the vehicle inspection work to the prosecution witness [16].

(II) At the beginning and in the middle of each month, the prosecution witness submitted

the record of his work, income and expenditure in a return form via e-mail to the Appellant, and deposited the fees he collected on behalf of the Appellant Company into the bank account designated by the Appellant Company. The documentary exhibits showed that from 1 March 2009 to October 2009 the amount of $350 payable to the prosecution witness was entered in the column of ‘Contractor/Inspector’ in the return forms submitted via e-mail by the Appellant [17].

(III) The word ‘Contractor’ appeared in the column of ‘Remark’ in the lower portion of

the return forms between the 15th and 30th of September 2009. If, as the prosecution witness claimed, he personally entered the figures in the return forms, then why was he blind to the word ‘Contractor’, and why did he never ask the Appellant for correction [18]?

(IV) The relationship between the prosecution witness Mr Au and the Appellant lasted for

more than one year. Mr Au completed the return forms twice each month. The documentary evidence and Mr Au’s behaviour both supported the contention that Mr Au’s status was a contractor [19].

16

(V) Viewing from another angle, if the relationship between the Appellant and the prosecution witness was one of employer and employee, the Appellant should make monthly contribution payment to the Mandatory Provident Fund for the prosecution witness as required by law, and the prosecution witness should also make contribution to the Mandatory Provident Fund out of his own income. Even though the Appellant omitted, wilfully or negligently, to make contribution for the prosecution witness, the prosecution witness should proactively remind the Appellant of the relevant arrangement. In the present case, there is no evidence to show that the prosecution witness had requested or reminded the Appellant of the obligation to make payment to the Mandatory Provident Fund, and the prosecution witness also evaded making monthly payment to the Mandatory Provident Fund. Such a situation lasted for more than one year. The prosecution witness was obviously happy to maintain that situation [20].

(VI) The evidence from both parties showed that the number of vehicles inspected by the

prosecution witness dropped substantially after October 2009. The defence explained that part of the work was contracted out to two other vehicle inspectors surnamed Lam and Pang respectively because the prosecution witness performed unsatisfactorily. Such arrangement was actually in support of the contention that the prosecution witness’ status was the contractor of the Appellant [21]-[22].

(VII) The prosecution witness claimed that when they first worked together, the Appellant

had promised him the number of vehicle inspection orders would not be less than 30 each month. However, when the number of vehicle inspection orders dropped substantially after October 2009, no evidence showed that the prosecution witness had requested the Appellant to provide the minimum number of vehicle inspection orders, or to pay a monthly sum calculated on the basis of $350 multiplied by 30. Hence, it can be seen that to some extent the two parties cooperated on a flexible basis, and the remuneration arrangement was not one in the form of monthly salary or all-inclusive salary [23].

(VIII) The present case arose as a result of the pecuniary dispute between the prosecution

witness and the Appellant’s shareholder Mr Chu. Although the magistrate had reminded herself that the prosecution witness was not an independent witness, she should have handled the credibility of the two witnesses with extra caution because they each stated their own version of the case, and on the basis of the documentary evidence it is impossible to rule out that the prosecution witness could be a contractor [24].

(3) The crux of the present case is not that the prosecution had to prove beyond reasonable doubt an employer-employee relationship between the Appellant and the prosecution witness. Rather, the crux is whether the prosecution could prove beyond reasonable doubt that the Appellant was the employer of the prosecution witness on 13 October 2009. On the evidence of the prosecution witness and the exhibits of the present case, it is unable to establish that an employer-employee relationship is the only reasonable inference that could be drawn. Furthermore, the prosecution witness’s conduct in handling his Mandatory Provident Fund was not consistent with his allegation that he was an employee of the Appellant. The magistrate’s inference of an employer-employee relationship between the two parties is not the only reasonable inference that could be drawn. Therefore, the conviction of the Appellant is not safe. Because of the way in which the magistrate draw the inference and her refusal to accept the evidence of the defence witness Mr Chu, the Appellant could not rely on the defence that the Appellant had held a mistaken but honest belief in the prosecution witness’s status as a contractor. This is unfair to the Appellant [25]-[26].

17

香港特別行政區香港特別行政區香港特別行政區香港特別行政區 訴訴訴訴 甄國基甄國基甄國基甄國基

高等法院原訟法庭

HCMA 699/2010

原訟法庭法官湯寶臣

聆訊日期： 2011 年 3 月 24 日

判案日期：2011 年 6 月 3 日

答辯人代表律師： 檢控官莫韻妍

上訴人代表律師： 羅志霖

刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序————猥褻侵犯猥褻侵犯猥褻侵犯猥褻侵犯————控方證人庭上證供與即時投訴的內容表面看來不吻合控方證人庭上證供與即時投訴的內容表面看來不吻合控方證人庭上證供與即時投訴的內容表面看來不吻合控方證人庭上證供與即時投訴的內容表面看來不吻合————大律大律大律大律

師沒有就此向控方證人作出質詢師沒有就此向控方證人作出質詢師沒有就此向控方證人作出質詢師沒有就此向控方證人作出質詢————影響審訊的公平性影響審訊的公平性影響審訊的公平性影響審訊的公平性————定罪不穩妥定罪不穩妥定罪不穩妥定罪不穩妥

上訴人被控在港鐵車廂內，猥褻侵犯一名女子，就一項「猥褻侵犯」罪被定罪。上訴

人不服定罪，提出上訴[1]及[3]。

受害人在作供時表示在案發時感覺到臀部被東西觸碰[5]，以為是手袋之類的物件，但

當她望後時，看見一隻正在縮回的手，即站在她身後的上訴人的左手手背[6]。受害人就事件

的「即時投訴」由女警記錄在其口供內[17]，記錄內容並沒提到有見到手[22]。辯方大律師

卻沒有在盤問時向受害人就有關內容提出質詢[18]。其中一個上訴理據為代表上訴人的大律

師就此在原審時有嚴重的疏漏[15]。

裁決裁決裁決裁決，上訴得直，定罪撤銷，刑罰擱置：

(1) 一位稱職的大律師必會將女警的記錄向控方證人提出質疑。至於控方證人對這些表面

看來是不吻合的描述是否有合理解釋，又或者女警對這份記錄有否補充或澄清，那卻是另一

問題[23]。辯方大律師解釋沒有提問的原因為：(1)女警所作的是初步記錄，而(2)控方證人

也沒有簽名作實。這兩點不應構成妨礙辯方提問的理由。女警所記錄的是控方證人向她所作

的即時投訴，有關記錄是否正確可由女警確認，如果記錄正確，就算沒有控方證人的簽署，

辯方也可提出盤問[24]。辯方大律師顯然對這份記錄及相關的適用原則有所誤解，致令他認

為不可提出質疑，這不是辯護策略上的取捨。控方證人是否有見到上訴人「縮手」是本案的

重點之一，辯方應該提出讓裁判官可對整體情況作公平考慮。有關的盤問，雖然不一定會影

響最後裁決，但對上訴人來說，辯方律師沒有替他提出這一點，足以影響審訊的公平性，定

罪因此變得不穩妥[25]。

18

[English Translation HCMA 699/2010 above] HKSAR v YEN KWOK KEI COURT OF FIRST INSTANCE HCMA 699/2010 Tong J Date of Hearing: 24 March 2011 Date of Judgment: 3 June 2011 Counsel for the Respondent: Winnie Mok PP Counsel for the Appellant: Caesar Lo Criminal law and procedure – Indecent assault – Prosecution witness’ evidence given in court apparently inconsistent with contents of recent complaint – Counsel failed to question prosecution witness on this matter – Fairness of trial affected – Conviction unsafe The Appellant was charged with indecently assaulting a female in an MTR train. He was convicted of one charge of indecent assault. He appealed against conviction [1, 3]. The victim gave evidence that at the material time she felt something touching her hip [5]. She thought it was an object such as a handbag. However, when she glanced at her back, she saw a hand withdrawing. It was the back of the left hand of the Appellant who was standing behind her [6]. The victim’s “recent complaint” about the incident was recorded by a policewoman in her statement [17]. In this record, there was no mention about seeing a hand [22]. Defence counsel failed to cross-examine the victim regarding this relevant part [18]. One of the grounds of appeal was that counsel for the Appellant at trial was flagrantly incompetent [15]. Held, appeal allowed, conviction dismissed and sentence set aside: (1) A competent counsel would have definitely questioned the prosecution witness about the record made by the policewoman. However, it would be another matter whether the prosecution witness could reasonably explain about these apparent inconsistencies in the description, or whether the policewoman could add anything to or clarify the record [23]. Defence counsel explained that no question was raised because: (1) the statement taken by the policewoman was only an initial record; and (2) it was not confirmed by the signature of the prosecution witness. These two points should not constitute any reasons which hindered the defence from raising any question. What the policewoman put in the record was the recent complaint made by the prosecution witness to her. The correctness of the record could be confirmed by the policewoman. If the record was correct, despite absence of the prosecution witness’ signature, defence counsel could still cross-examine [24]. Obviously there was some misunderstanding about the record and the applicable principles on the part of defence counsel, causing him to refrain from asking questions. This was not a tactical decision in defence. One of the vital points in the present case was whether the prosecution witness did see the appellant “withdrawing his hand”. Defence counsel should have raised it for the magistrate to fairly consider the overall circumstances. Such cross-examination might not ultimately affect the finding. However, to the Appellant, his defence counsel’s failure to raise this point for him would be sufficient to affect the fairness of the trial. Thus, the conviction was rendered unsafe [25].

19

E. Practice and Procedure 常 規 與程 序常 規 與程 序常 規 與程 序常 規 與程 序

HKSAR v CHENG KAM SHUI COURT OF FIRST INSTANCE HCMA 744/2010 Deputy Judge Stuart-Moore Date of Hearing: 8 June 2011 Date of Judgment: 24 June 2011 Counsel for the Respondent: Cecilia Chan SPP Counsel for the Appellant: Cheng Huan SC, Charlotte Draycott SC, Francis Cheng Magistrate giving reasons - Time within which magistrate to make a statement of findings for purposes of appeal - Section 114(b) of Magistrates Ordinance - In giving reasons, magistrate not duty-bound to deal with each and every difference in the evidence 裁判官給予理由裁判官給予理由裁判官給予理由裁判官給予理由－－－－裁判官裁判官裁判官裁判官為上訴為上訴為上訴為上訴而而而而作出裁斷陳述書的時限作出裁斷陳述書的時限作出裁斷陳述書的時限作出裁斷陳述書的時限－《－《－《－《裁判官條例裁判官條例裁判官條例裁判官條例》》》》第第第第

114(b)114(b)114(b)114(b)條條條條－－－－裁判官裁判官裁判官裁判官在在在在給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧 The Appellant appealed against conviction on two out of seven charges of offering an advantage to an agent, contrary to ss 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. He was found to have, without lawful authority or reasonable excuse, offered advantages to an agent, as an inducement to or reward for or otherwise on the account of the said agent showing or having shown favour to his company in relation to the affairs or business of the agent’s principal. When convicting the Appellant on 23 August 2010, the magistrate gave brief reasons for verdict and the Appellant was sentenced on 6 September 2010. The Appellant filed his appeal against conviction on 7 September 2010 and that was followed by a notice of appeal against sentence (since abandoned) on 20 September 2010. On 4 October 2010, the magistrate gave “a statement of the findings on the facts and other grounds of the decision” (“2nd Reasons”). The magistrate issued his 2nd Reasons just 14 days after the Appellant’s notice of appeal against sentence. Relying on the filing date of the notice of appeal against conviction, the Appellant sought to argue on appeal that because the magistrate had exceeded the “15 days either mandated or required under s 114(b) of the Magistrates Ordinance, Cap 227”, the 2nd Reasons were defective in law; they also violated two cardinal principles, namely, that justice must be seen to be done and that a defendant should “face a trial without undue delay”. It was further suggested that it was unfair that the magistrate should be allowed to cover “lacunas” in his brief reasons for verdict by issuing the 2nd Reasons. Held, appeal dismissed: (1) The Court agreed with the judgment in HKSAR v Ong Siu-kin Kevin HCMA 733-735/2009 that s 114(b) of the Magistrates Ordinance, Cap 227, which allows 15 days for the production of the statement of findings, is directory rather than mandatory. In any event, the trial process had not concluded until sentence had been passed and, on this basis, the 2nd Reasons were provided within the timescale visualised in the Ordinance [19]-[24]. (2) The further suggestion that the magistrate, in providing the 2nd Reasons, was attempting to cover “lacunas” in the brief reasons for verdict is effectively a contradiction of the complaint that “justice delayed is justice denied”. Here, after a lengthy trial, the magistrate had provided the brief

20

reasons for verdict without any delay, enabling the Appellant to know immediately on what basis he had been convicted. There is no validity in the criticism that the magistrate had supplemented his brief reasons for verdict when that is precisely what the procedure under the Magistrates Ordinance provides that he should do and where there had been no material departure from anything said in the brief reasons [25]. (3) A magistrate, confronted with a number of discrepancies, is not duty-bound to deal with each and every difference which arises in the proceedings before him so long as really significant differences appear to have been grasped and not merely ignored. The magistrate, for his part, had shown that he was alive to the point taken by the defence at trial. As a result of his enquiry, PW1 had given an explanation which made perfectly good sense and enabled the magistrate to say that “on closer examination” he considered there was “no significance” in the discrepancy [40]-[42]. HKSAR v HABIBULLAH ABDUL RAHMAN & OTHERS COURT OF APPEAL CACC 302/2008 Stock VP, Hartmann JA & Wright J Date of Hearing: 17 September 2010 Date of Ruling: 13 May 2011 Counsel for the Respondent: David Leung DDPP (Ag.) Counsel for the Appellants: Adrian Bell SC (A2), Michael Blanchflower SC & Chyvette Ip (A4),

Collingwood Thompson QC & Lincoln Cheung (A6) Costs – Appeal against convictions of some charges successful – Appropriate costs order is to adopt a global approach – Drawing a line based on time is artificial – Unsuccessful application for bail pending appeal – No reason to exclude it from the general costs order made – Application for a certificate of 3 counsel – Evidence was complicated but not to the extent to require the attention of more than 2 counsel – Certificate of 2 counsel granted

訟費訟費訟費訟費－－－－某些控罪的定罪上訴得直某些控罪的定罪上訴得直某些控罪的定罪上訴得直某些控罪的定罪上訴得直－－－－訟費命令宜採取整體方式處理訟費命令宜採取整體方式處理訟費命令宜採取整體方式處理訟費命令宜採取整體方式處理－－－－以時間為基礎劃以時間為基礎劃以時間為基礎劃以時間為基礎劃

分界線是分界線是分界線是分界線是矯作矯作矯作矯作的的的的－－－－申請保釋等候上訴不成功申請保釋等候上訴不成功申請保釋等候上訴不成功申請保釋等候上訴不成功－－－－沒理由不包括在一般沒理由不包括在一般沒理由不包括在一般沒理由不包括在一般訟費命令內訟費命令內訟費命令內訟費命令內－－－－申申申申

請請請請 3333 名大律師的證明書名大律師的證明書名大律師的證明書名大律師的證明書－－－－證據雖然複雜但不致於須由多於證據雖然複雜但不致於須由多於證據雖然複雜但不致於須由多於證據雖然複雜但不致於須由多於 2222 名大律師處理名大律師處理名大律師處理名大律師處理－－－－獲發獲發獲發獲發 2222

名大律師的證明書名大律師的證明書名大律師的證明書名大律師的證明書 A2 (Ng) was convicted of one count of conspiracy to defraud after trial (Charge 1) and her appeal against conviction was allowed by the Court of Appeal. A4 (Fan) was convicted of two counts of conspiracy to defraud (Charges 1 and 2) and one count of making of a false statement by a company director (Charge 5). Her appeal against conviction of Charges 1 and 5 was allowed but her appeal against conviction of Charge 2 was dismissed. A6 (Koo) was convicted of Charges 2 and 5. His appeal against conviction of Charge 2 was allowed but that of Charge 5 was dismissed. They made the following applications for costs:- Ng applied for costs of trial and appeal together with costs of all preliminary and incidental proceedings. Fan applied for 75% of her overall costs. Koo applied for 90% of his costs of the appeal and trial together with costs of all preliminary and incidental proceedings and also a certificate for 3 counsel.

21

Held, allowing the application for costs by each of the Applicants with certificate for two counsel: (1) There were no grounds for suggesting that Ng had by her conduct brought suspicion upon herself. There was no direct evidence of any intimate involvement by Ng in the drafting of the documents forming the subject matters of Charges 1 and 2 nor the fact that her particular attention was drawn to the two representations forming the subject of the two charges. Ng should be compensated for her costs of trial, appeal and those of all preliminary and incidental proceedings [9]-[11]. (2) There was no basis to suggest that Fan had brought suspicion upon herself as to deny her costs of the trial. Though 14 grounds were raised and only a limited number of them were successful, none of the grounds was totally lacking in merit or supported in argument by manifestly unsubstantiated allegations. Fan must be awarded a percentage of her costs. Drawing a line based on time would be artificial and a global approach should be taken. A just and reasonable proportion of Fan’s costs which she should be entitled to recover is two thirds of her costs of trial and of appeal [22]-[26].

(3) Although the application for bail pending appeal by Fan was unsuccessful, it was a legitimate application made in the course of the appeal to secure her liberty pending appeal. There is no good basis for excluding the bail application, though unsuccessful, from the general costs order made [27] & [28]. (4) Similar to the case of Fan, Koo’s application for bail was a legitimate application and there is no good basis for excluding the costs of his bail application, though unsuccessful, from the general costs order made [34]. (5) Taking into consideration of all matters, including the fact that Charge 5 did not stand entirely in isolation and had to be understood in terms of the broader evidence, Koo should be awarded three quarters of his costs [34] & [36]. (6) Although there was a substantial body of evidence which was complex, it was not so great or complex that it reasonably required the attention of more than two counsel. Koo was not charged with the first conspiracy to defraud which was the most complex and heavily laden with evidence. The fact that Koo faced professional ruin is relevant but of itself can never be determinative. A certificate for two counsel is appropriate [38]-[42].

22

香港特別行政區香港特別行政區香港特別行政區香港特別行政區 訴訴訴訴 陳錦文陳錦文陳錦文陳錦文及及及及其其其其他人他人他人他人

高等法院上訴法庭

CACC 293/2009

上訴法庭法官楊振權、關淑馨及朱芬齡

聆訊日期： 2011 年 6 月 14 日

判案理由書日期： 2011 年 6 月 29 日

答辯人代表律師： 高級檢控官陳淑文

第一申請人代表律師： 潘英賢

第二、第四及第五申請人代表律師： 李倩文

第三三三三申請人代表律師： 蕭國辰

常規與程序常規與程序常規與程序常規與程序－－－－處理刑事案件上訴的備審工序處理刑事案件上訴的備審工序處理刑事案件上訴的備審工序處理刑事案件上訴的備審工序－－－－取取取取得得得得聆訊謄本目的聆訊謄本目的聆訊謄本目的聆訊謄本目的－－－－要求要求要求要求大量大量大量大量無用的無用的無用的無用的聆訊謄本聆訊謄本聆訊謄本聆訊謄本

對真正有用的聆訊記錄的謄寫造成延誤對真正有用的聆訊記錄的謄寫造成延誤對真正有用的聆訊記錄的謄寫造成延誤對真正有用的聆訊記錄的謄寫造成延誤－－－－大律師有責任確保要求提供的聆訊謄本是必需的大律師有責任確保要求提供的聆訊謄本是必需的大律師有責任確保要求提供的聆訊謄本是必需的大律師有責任確保要求提供的聆訊謄本是必需的

本案原審時共涉 10 名被告人，分別被控兩類共 18 項“串謀詐騙控罪”。本案案情雖

不複雜，但審訊時間長達 176 天。經審訊後，各申請人最終被裁定罪名成立，各申請人提出

不服定罪的上訴許可申請。

準備上訴期間，代表第二至第五申請人的律師兩次要求法庭提供聆訊謄本。獲聆案官

批准，最終導致約 3,500 頁的聆訊謄本出現。

代表第二、四及五申請人的大律師之書面陳述內提及的謄本只有約 50 頁。而代表第三

申請人的大律師之書面陳述只提及其中一名證人的幾頁證供謄本，對取得的其他證人的證供

謄本隻字不提。兩名大律師口頭陳述時，更沒有主動提及過聆訊謄本的任何一頁。法庭向代

表第二、四及五申請人的大律師查詢為何她要取得這麼多頁無用的聆訊謄本時，她表示取得

該些謄本的目的是避免提出一些不能爭拗的論點及浪費法庭時間。代表第三申請人的大律師

更沒有向法庭解釋為何要法庭提供大批無用的聆訊謄本。兩名大律師在原審時都是獲法援署

指示分別代表第二至第五申請人。他們在長達 176 天的審訊都有在場，亦應對有關證供瞭如

指掌。

裁決裁決裁決裁決，駁回針對定罪的上訴許可申請：

(1) 法庭提供聆訊謄本，並非是給予控辯雙方一份紀念品，亦非是協助辯方律師找尋及／

或提出上訴理由。聆訊謄本目的只是協助法庭解決上訴理由所引發的爭議[19]。

(2) 處理刑事案件上訴的大律師必須明白，謄寫聆訊謄本涉及大量人力、物力。準備

3,500 頁的聆訊謄本涉及的費用數以 10 萬元計，而在本案，上述費用更全屬公帑。再者，準

備一些無用的聆訊謄本會對一些真正有用的聆訊記錄的謄寫造成延誤，影響其他上訴的進

行。大律師亦應明白，法庭決定是否批准發給聆訊謄本時，極度依賴大律師的誠信及能力，

因此大律師有責任確保他們要求法庭提供的聆訊謄本是必需的，而要求的聆訊謄本的數目亦

應盡量減至最少，避免浪費社會資源。遺憾地，處理本案的大律師，部分沒有適當地履行他

們的責任[20]。

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[English Translation HCMA 293/2009 above]

HKSAR v CHAN KAM MAN, BARRY AND OTHERS COURT OF APPEAL CACC 293/2009 Yeung, Kwan & Chu JJA Date of Hearing: 14 June 2011 Date of Reasons for Judgment: 29 June 2011 Counsel for the Respondent: Alice Chan SPP Counsel for A1: Albert Poon Counsel for A2, A4 & A5: Cindy Lee Counsel for A3: Gibson Shaw Practice and Procedure – Preparation for criminal appeal cases – Purpose for obtaining transcripts of proceedings – Requests for large quantities of unnecessary transcripts cause delay to transcription of genuinely useful records of proceedings – Duty of counsel to ensure that the requested transcripts are essential There were 10 defendants at trial. They were charged with a total of 18 offences of “conspiracy to defraud”. The facts of this case were not complicated but the trial lasted for as long as 176 days. All the Applicants were convicted after trial and they applied for leave to appeal against conviction. While preparing for the appeal, counsel for the A2 to A5 made two requests to the Court of Appeal for provision of transcripts of the proceedings below. Their requests were granted by the Master, resulting in the production of about 3,500 pages of transcripts. In her written submissions for the appeal, counsel for A2, A4 & A5 referred to only 50 pages or so of the transcripts. In his written submissions, counsel for A3 referred to only a few pages of the transcripts of evidence from one of the witnesses; he did not refer to any of the transcripts of evidence from other witnesses. The two counsel, in their oral submissions, did not even, out of their own volition, mention one page of the transcripts of proceedings. When counsel for A2, A4 & A5 was queried by the Court about obtaining a large quantity of transcripts she had no use for, she explained that the purpose was to avoid raising untenable arguments and wasting court time. Counsel for A3 did not explain to the Court the reason for requesting the lot of transcripts he had no use for. Both counsel were instructed by the Legal Aid Department to act for A2 to A5 in the trial. They were present throughout the 176 days of hearing. Hence, they should have a good knowledge of the evidence. Held, application for leave to appeal against conviction refused: (1) Transcripts provided by the Court are neither intended as souvenirs for both parties nor to assist defence counsel in finding and/or preparing grounds of appeal. The purpose of the transcripts of proceedings is only to assist the Court to resolve the issues arising from the grounds of appeal [19].

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(2) Counsel in criminal appeals must appreciate that a great deal of manpower and resources are involved in transcribing the proceedings. The costs for preparation of 3,500 pages of transcripts amount to hundreds of thousands of dollars. In the present case, the costs were all paid for by public funds. In addition, preparation of unnecessary transcripts will cause delay to transcription of genuinely useful records of proceedings, which in turn will hamper the progress of other appeals. Counsel should also be aware that the Court in deciding whether to grant requests for transcripts of proceedings relies almost entirely on the integrity and competence of counsel. Hence, counsel have a responsibility to ensure that they only request for transcripts that are necessary and keep the quantity of transcripts to a minimum, so as not to waste public resources. Regrettably, not all counsel in this case have performed their duties properly [20].