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CCAB 2008 Sentence (Quantum) – Arms & Ammunition 111 Sentence (Quantum) Arms & Ammunition CA 48/2007 Ma CJHC McMahon J (5.12.2007) *J Reading SC & Lam Tak- wing #Chong Tin- chun CHAN Ching-man Possession of an imitation firearm/Air pistol pointed at shop assistant after theft/Bad criminal record of defendant/No guideline sentence 管有仿製火器 管有仿製火器 管有仿製火器 管有仿製火器 於盜竊後用手型指着店 於盜竊後用手型指着店 於盜竊後用手型指着店 於盜竊後用手型指着店 被人犯 被人犯 被人犯 被人犯 纍纍 纍纍 纍纍 纍纍 無刑指引 無刑指引 無刑指引 無刑指引 The Applicant pleaded guilty to three charges: two of theft and one of possession of an imitation firearm, an air pistol (contrary to s 17(2) of the Firearms and Ammunition Ordinance, Cap 238). He was sentenced to 2 years 8 months’ imprisonment for one of the theft charges, to run concurrently with the sentence of 6 years for the firearms charge. As for the other theft charge, the Applicant was sentenced to 6 years’ imprisonment, one year of which was to run consecutively to the other sentences. In all, the Applicant was sentenced to 7 years’ imprisonment. On appeal, although it was accepted that there was no tariff sentence for this offence or a sentencing guideline, complaint was made of the 6 years’ imprisonment (based on a starting point of 9 years) for the firearms charge. The facts showed that on 20 May 2006, the Applicant entered the King Fook Jewellery Store in the Miramar Hotel together with another person, D1, who was armed with a knife. There the Applicant tried on a Rolex watch and then ran away together with D1. At the exit to the shop, a member of staff tried to stop the Applicant, at which point the Applicant produced the imitation firearm, pointing it at the member of staff who immediately squatted down. The Applicant then escaped into a taxi in which another accomplice (D3 at trial) was waiting for him. D1 was subdued in the shop and was not able to escape. Those were the facts relevant to one of the theft charges and the firearms charge. The other charge related to a theft committed by the Applicant a month earlier (on 17 April 2006) when, after trying on a Rolex wristwatch, he ran out of the shop. In sentencing the Applicant, the judge regarded as serious the fact that while escaping, he produced the air pistol and pointed it at a person to threaten him. The judge said: It does not need me to illustrate or say more about the gravity of theft occurring in jewellers’ shops and a thief departing and displaying an imitation firearm to make good his escape. The mischief is obvious. If this had been a robbery – and it very nearly was – you would have faced a starting-point of something like 12 years, but I remember it is only theft that is involved and not a robbery and I will generously reflect that difference by taking a starting-point of nine years. And I say generously because it would be the production of the pistol in the course of the dishonest removal of property from a jeweller’s shop in the course of ordinary trade where people are around in the streets and the like, is a robbery if you produce it a second or two before; it is theft if you produce it just after. The facts are not all that different but the difference in the starting-point you have is big.

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Page 1: Sentence (Quantum) Arms & AmmunitionCCAB 2008 Sentence (Quantum) – Arms & Ammunition 113 The Applicant claimed that the grenade, the scythe and the toy guns were given to him by

CCAB 2008 Sentence (Quantum) – Arms & Ammunition

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Sentence (Quantum) Arms & Ammunition CA 48/2007 Ma CJHC McMahon J (5.12.2007) *J Reading SC & Lam Tak-wing #Chong Tin-chun

CHAN Ching-man

Possession of an imitation firearm/Air pistol pointed at shop assistant after theft/Bad criminal record of defendant/No guideline sentence 管有仿製火器管有仿製火器管有仿製火器管有仿製火器 –––– 於盜竊後用手槍型氣槍指着店員於盜竊後用手槍型氣槍指着店員於盜竊後用手槍型氣槍指着店員於盜竊後用手槍型氣槍指着店員 –––– 被告人犯案被告人犯案被告人犯案被告人犯案

纍纍纍纍纍纍纍纍 –––– 無判刑指引無判刑指引無判刑指引無判刑指引

The Applicant pleaded guilty to three charges: two of theft and one of possession of an imitation firearm, an air pistol (contrary to s 17(2) of the Firearms and Ammunition Ordinance, Cap 238). He was sentenced to 2 years 8 months’ imprisonment for one of the theft charges, to run concurrently with the sentence of 6 years for the firearms charge. As for the other theft charge, the Applicant was sentenced to 6 years’ imprisonment, one year of which was to run consecutively to the other sentences. In all, the Applicant was sentenced to 7 years’ imprisonment. On appeal, although it was accepted that there was no tariff sentence for this offence or a sentencing guideline, complaint was made of the 6 years’ imprisonment (based on a starting point of 9 years) for the firearms charge. The facts showed that on 20 May 2006, the Applicant entered the King Fook Jewellery Store in the Miramar Hotel together with another person, D1, who was armed with a knife. There the Applicant tried on a Rolex watch and then ran away together with D1. At the exit to the shop, a member of staff tried to stop the Applicant, at which point the Applicant produced the imitation firearm, pointing it at the member of staff who immediately squatted down. The Applicant then escaped into a taxi in which another accomplice (D3 at trial) was waiting for him. D1 was subdued in the shop and was not able to escape. Those were the facts relevant to one of the theft charges and the firearms charge. The other charge related to a theft committed by the Applicant a month earlier (on 17 April 2006) when, after trying on a Rolex wristwatch, he ran out of the shop. In sentencing the Applicant, the judge regarded as serious the fact that while escaping, he produced the air pistol and pointed it at a person to threaten him. The judge said: … It does not need me to illustrate or say more about the gravity of

theft occurring in jewellers’ shops and a thief departing and displaying an imitation firearm to make good his escape. The mischief is obvious. If this had been a robbery – and it very nearly was – you would have faced a starting-point of something like 12 years, but I remember it is only theft that is involved and not a robbery and I will generously reflect that difference by taking a starting-point of nine years. And I say generously because it would be the production of the pistol in the course of the dishonest removal of property from a jeweller’s shop in the course of ordinary trade where people are around in the streets and the like, is a robbery if you produce it a second or two before; it is theft if you produce it just after. The facts are not all that different but the difference in the starting-point you have is big.

Page 2: Sentence (Quantum) Arms & AmmunitionCCAB 2008 Sentence (Quantum) – Arms & Ammunition 113 The Applicant claimed that the grenade, the scythe and the toy guns were given to him by

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Held : (1) The judge was correct to say that the production of a firearm (albeit an imitation one) was to be regarded with much seriousness. All the more so when it was used to threaten. Although this was not a robbery, the circumstances were nevertheless extremely serious and the sentence ought to reflect this. Sight must not be lost of the fact that the production of the imitation firearm was hardly unintentional. The Applicant and D1 were armed. It was presumed that they fully intended to use their weapons should the occasion arise for their use. In Attorney General v Lam Wing-kwong [1993] 2 HKCLR 227, 229, it was said:

... considerable emphasis must therefore be placed upon the ingredient of intent to use the fire-arm in the course of an arrestable offence…

(2) In R v Hui Fuk-ming Cr App 513/1992, Macdougall VP said (in the context of a robbery and an offence under section 18(1) of the Firearms and Ammunition Ordinance):

If an offender takes the matter one step further and puts his intention into action by actually carrying a genuine or an imitation firearm during the course of a robbery, his conduct is more culpable and therefore deserving of a more severe punishment. Regrettably, the use of firearms, both genuine and imitation, has become far too prevalent in Hong Kong in recent times. Such conduct calls for the imposition of heavy sentences, and the general level of sentencing has increased accordingly.

(3) The sentence of 6 years was entirely justified. In some cases, the better sentencing approach might be to impose consecutive terms or partly consecutive terms, since afterall the section 17(2) offence was a separate one which assumed that a scheduled offence had also been committed. But in this case, the sentence imposed was neither manifestly excessive nor wrong in principle. Although the Applicant, aged 20, was aged 18 at the time of the offence, his previous record was poor. He had previously been convicted of robbery, theft, criminal intimidation and possession of dangerous drugs. Result - Application dismissed.

CA 237/2007 Yeung JA & Barnes J (14.3.2008) *Tam Sze-lok #S K Khattak

LUI Fui

Possession of ammunition without a licence/Grenade capable of causing serious injuries/No intention to use grenade for illegal purpose/Risk of grenade falling into the wrong hands/Spectrum of criminality 無牌管有彈藥無牌管有彈藥無牌管有彈藥無牌管有彈藥 – 榴彈可造成嚴重損害榴彈可造成嚴重損害榴彈可造成嚴重損害榴彈可造成嚴重損害 – 並無意圖使用榴彈作非法並無意圖使用榴彈作非法並無意圖使用榴彈作非法並無意圖使用榴彈作非法

用途用途用途用途 – 榴彈錯落他人手中的風險榴彈錯落他人手中的風險榴彈錯落他人手中的風險榴彈錯落他人手中的風險 – 由嚴重至輕微的刑責程度由嚴重至輕微的刑責程度由嚴重至輕微的刑責程度由嚴重至輕微的刑責程度 The Applicant pleaded guilty to an offence of possession of ammunition without a licence and was sentenced to 33 months’ imprisonment. The Applicant was arrested on 28 October 2006 whilst playing video games with Wong Man-fai (‘Wong’) at an amuse-ment games centre. In his shoulder bag, the police found a black pistol-like air gun. He admitted it belonged to him and had nothing to do with Wong. Later the police took him to his home for a search. At the Applicant’s home, the police found a scythe, a brownish green cloth bag containing two pistols and a grenade inside a plastic box. Only the grenade was the subject of the charge as the airgun and the pistols were toys. The grenade contained an explosive substance including potassium perchlorate, aluminium and sulphur.

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The Applicant claimed that the grenade, the scythe and the toy guns were given to him by a group of war games players. However, he was unable to provide the name or the contact means of any of those players. He also admitted that he knew the grenade contained an explosive substance and therefore he had wrapped it carefully with a plastic bag and aluminium foil to reduce the risk of explosion. The prosecution expert’s view was that the grenade was a ‘plastic bodies hand grenade’ of conventional design. It was a practice or stun grenade from the Mainland, designed by the military for training purposes or as a stun grenade for law enforcement purposes. The explosive substance was a flash powder, which could cause explosion in the form of a loud bang and a bright flash simulating an explosion. The heat caused by the grenade upon explosion would cause burning out to 0.5 meter and the blast would cause temporary disorientation to anyone within 2 or 3 meters in a confined space, and deafness for several minutes. The fragments produced would be plastic casing, which could cause minor injures at close range. The judge said the offence was a serious one. The grenade was a live one and could be detonated by the removal of the safety pin and throwing it out. The judge emphasised that the Applicant knew the grenade could be explosive as he took special care to wrap it and put it in a container to avoid accidental explosion. By his possession of the grenade, the judge said the Applicant had created a grave risk to the community, as the grenade could fall into the wrong hands and be used for illegal purposes. The judge noted that the Applicant’s 8 previous convictions were mostly drug related, and took a starting point of 4½ years’ imprisonment and reduced it by one-third on account of the guilty plea. He further reduced the sentence by another 3 months to 33 months to reflect that the charge was only laid until the Applicant had almost served out a sentence of possession of dangerous drugs. At the time of sentence on 4 July 2007, the Applicant was serving 10 months’ imprisonment for a drug offence imposed on 15 November 2006. The judge ordered the two sentences to be served consecutively as the present offence occurred whilst the Applicant was on bail for the drug offence. On appeal Held : (1) The maximum penalty for the offence of possession of arms or ammunition without a licence was 14 years’ imprisonment. There were varying degrees of seriousness, and a tariff sentence for the offence was not feasible. At the top of the scale was possession for illegal purposes such as robbery, injury to persons or damage to property, whereas possession as a hobby with no risk of the firearm or ammunition being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale; (2) In light of the nature of the grenade and the expert’s evidence, the judge was perfectly entitled to reject the suggestion that the grenade was for fun when it was capable of causing serious injuries and when the Applicant was unable to provide the name and contact means of any of his alleged war game players; (3) There was no evidence to suggest that the Applicant had intended to use the grenade for any illegal purpose, and the judge did not sentence him on that basis. The judge had pointed out that the Applicant had ‘created a situation of grave risk to the community, as no one could be sure that the grenade might not

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fall into the wrong hands and be used for illegal purposes’. The judge was entitled to take the view that what the Applicant did posed a real threat to the public; (4) On the facts of the case and the background of the Applicant, the Applicant’s suggestion of a probation order or a community service order was far-fetched and totally unrealistic. Result - Application dismissed.

Assault/Wounding AR 12/2007 Ma CJHC Stuart-Moore VP & Stock JA (26.3.2008) *I G Cross SC & Tsang Oi-kei #M C Blanchflower SC & Bernard Yuen

SJ v HAU Ping-chuen

Wounding with intent/Armed attack on defenceless victim/ Normal range of sentence/Simple offer of compensation not a basis for reducing sentence/Customary one-third discount for guilty plea covered confession at the scene 有 意 圖 而 傷 人有 意 圖 而 傷 人有 意 圖 而 傷 人有 意 圖 而 傷 人 –––– 持 械 襲 擊 無 自 衛 能 力 的 受 害 人持 械 襲 擊 無 自 衛 能 力 的 受 害 人持 械 襲 擊 無 自 衛 能 力 的 受 害 人持 械 襲 擊 無 自 衛 能 力 的 受 害 人 –––– 正 常 量 刑 幅正 常 量 刑 幅正 常 量 刑 幅正 常 量 刑 幅

度度度度 –––– 純粹提出賠償並非減刑理據純粹提出賠償並非減刑理據純粹提出賠償並非減刑理據純粹提出賠償並非減刑理據 –––– 因認罪而獲得的慣常三分一因認罪而獲得的慣常三分一因認罪而獲得的慣常三分一因認罪而獲得的慣常三分一

刑期減免已包括在現場的供認刑期減免已包括在現場的供認刑期減免已包括在現場的供認刑期減免已包括在現場的供認

The Respondent pleaded guilty to a charge of wounding with intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212. The facts showed that the victim and the Respondent belonged to an indigenous clan at Ping Kong Village, Sheung Shui. On 24 June 2007, an evening meeting was held amongst the indigenous villagers. The victim, who was the resident village representative, and another representative (PW3) chaired the meeting. The Respondent did not attend, although his brother did. The victim proposed a new practice of allocating the limited number of invitation cards among villagers to attend banquet dinners held jointly with four other clans. The proposal was supported by all the Ping Kong Village residents except the Respondent and his family. One of the results of this proposal would be that the Respondent’s family would no longer be invited automatically to banquets as they had been in the past. After the meeting, the Respondent and his brother separately telephoned PW3 to complain about the new arrangement but to no avail. During the early hours of 25 June 2007, the victim went to meet his nephew (PW2) whose house was nearby. The Respondent, who had been waiting outside the victim’s house, yelled at him, asking why his invitation had been cancelled. The victim replied that it was a resolution passed at the meeting and not his responsibility. The Respondent then took out a knife and attempted to stab the victim. The victim managed to fend off two of the stabbing motions with his arms but he was cut by the knife on his abdomen. As the victim slipped, the Respondent continued to stab at him. The victim cried for help and alerted PW2. When PW2 rushed out of his house, he saw the Respondent stabbing the victim’s left inner thigh. The victim ran away but the Respondent continued to attempt to stab at the victim until PW2 yelled ‘What are you doing?’. It was only then that the Respondent stopped and ran off towards his own house.

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When the police arrived, the Respondent surrendered himself, and admitted to having stabbed the victim because of what the victim had done. He told the police where he had discarded the knife, and the knife, measuring 11 inches altogether, was found on the path leading to the Respondent’s house. The victim, who sustained a 5-centimetre cut wound over the abdomen and a 5-centimetre cut wound on his left groin, was hospitalised for three days. He suffered no long-term ill effects. The Respondent had two previous convictions. The latest of these related to offences of criminal intimidation and criminal damage for which, respectively, he received a 4-month suspended sentence and a fine on 7 October 2000. The judge said the Respondent ought to have sought a ‘declaration in court ’ rather than attacking the victim, and, having adopted a starting point of 27 months’ imprisonment, she said the Respondent was entitled to a discount of one-third. She then, by error, reduced the sentence to 16 months, instead of 18 months. The judge continued:

To his credit, the defendant surrendered himself when the police arrived at the village to investigate. He also led the police to the pond where he had thrown the knife, and that knife has been retrieved. I am going to give him one and a half month’s discount for that act.

There has been an offer as well, of compensation for $20,000, if I thought it appropriate. I am sure this was intended with good heart and not intended to buy his way out of a custodial sentence. Taking it on that basis, I give him another half a month discount. However, I do not think in this case, compensation is appropriate.

On review Held : (1) The additional discount of 2 months for the Respondent’s ‘co-operation ’ at the scene of the crime and for his ‘offer of compensation ’ were given contrary to normal sentencing practice and inappropriate in the circumstances. The surrender of the Respondent to the police when they arrived and the recovery of the knife as a result of the Respondent’s so-called co-operation mattered very little in the circumstances as this amounted to no more than a confession at the scene of the crime. Furthermore, a simple offer to make a payment by way of compensation was not a proper basis for reducing sentence and in this case, when the judge had found that it would not be right to make such an award, this was clearly inappropriate. The one-third discount for the Respondent’s guilty plea covered the full extent of the discount he should have received; (2) In HKSAR v Tse Hok-lam [2005] HKLRD (Yrbk) 344, the usual range of sentence for wounding with intent was described as being ‘3 to 12 years’ imprisonment’. That was not to say that there might not be offences contrary to s 17(a) which called for higher or lower sentences than the normal range described in Tse Hok-lam if the circumstances were so unusual that they merited sentences above or below the usual bracket; (3) The general rule was that a s 17(a) wounding offence would normally carry a minimum of 3 years’ imprisonment. There was a host of wounding with intent decisions which might be used in favour of a lenient view whereas others

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favoured a stricter view. At the end of the day, a sentencing court obtained a ‘ feel’ for the appropriate result with regard to the attitude of courts over a period of time to a great variety of circumstances; (4) The attack on the victim could just as well be described as a revenge attack as one which had arisen from any perceived provocation. Whichever description was more apt, it was clear that the Respondent felt aggrieved at what had occurred but his response was out of all proportion to his grievance. By taking the law into his own hands in that way, the Respondent acted in an extremely dangerous manner, using a knife which was both large and sharp; (5) The least starting point which could be imposed for an offence as serious as this was 5 years, reduced to 3 years and 4 months for the guilty plea. The Respondent’s earliest release date was 4 April 2008 and, bearing in mind the nature of the proceedings, a further reduction of 6 months was appropriate to take this factor into account. Result - SJ’s application allowed. Sentence of 2 years and 10 months’

imprisonment substituted. CA 413/2007 Tang VP McMahon & Lunn JJ (26.3.2008) *Ned Lai #I/P(1) Walter Lau (2)

(1) YIP Kam-wah (2) CHENG Yiu-fai

Wounding/Affray/Dispute with neighbours turning vio lent/ Injuries caused by weapon/Affray sentencing case specific/ Factors affecting case seriousness 傷人傷人傷人傷人 – 毆鬥毆鬥毆鬥毆鬥 – 與鄰居爭執演變成暴力行為與鄰居爭執演變成暴力行為與鄰居爭執演變成暴力行為與鄰居爭執演變成暴力行為 – 損傷由武器造成損傷由武器造成損傷由武器造成損傷由武器造成 – 毆毆毆毆鬥 案 的 判 刑 視 乎 每 宗 案 件 的 特 定 情 況 而 定鬥 案 的 判 刑 視 乎 每 宗 案 件 的 特 定 情 況 而 定鬥 案 的 判 刑 視 乎 每 宗 案 件 的 特 定 情 況 而 定鬥 案 的 判 刑 視 乎 每 宗 案 件 的 特 定 情 況 而 定 – 影 響 案 件 嚴 重 性 的 因影 響 案 件 嚴 重 性 的 因影 響 案 件 嚴 重 性 的 因影 響 案 件 嚴 重 性 的 因

素素素素 A1 pleaded guilty to two offences of wounding, contrary to s 19 of the Offences against the Person Ordinance, Cap 212 (charges 1 and 2). After trial, A2 was convicted of an offence of affray, contrary to common law. A1 was sentenced to 16 months’ imprisonment for each offence, 8 months of the sentence imposed on charge 2 being ordered to be served consecutively, making a total of 2 years’ imprisonment. A2 was sentenced to 15 months’ imprisonment. The prosecution case was that the Applicants were the occupants of a ‘metal’ house in Tsuen Wan. PW1, a neighbour, suspected them of tampering with her car. She went to their house with PW2 and PW3 to speak to them about her suspicions, and a dispute arose. A2 lunged at PW2 and PW1 pushed him across a pathway onto an old sofa where they grappled. A1 at some stage armed himself with a hammer and a chopper and attempted to strike PW2 with the chopper. PW2 defended himself with a wooden pole, but received a small wound to a finger. Two of the Applicants’ neighbours (D3 and D4 at trial) came to assist A1 and A2. They struggled with PW3 and at one stage D4 also armed himself with a chopper and threatened PW3 with it. PW3 was able to break free from D3 and D4 and went to assist PW2. He received a chop injury to his chest from A1 as he did so. PW1 then shouted she had called the police and the fighting stopped. The police arrested the four defendants. The incident was short-lived and those involved were in close proximity to one another. The injury sustained by PW2 was minor, comprising a centimetre long cut to his finger. The injury inflicted upon PW3 was more significant, being an 8-cm laceration to his chest.

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On appeal Held : (1) The two offences of which A1 was convicted were really part and parcel of the same incident. The 2-year starting point adopted for each of the offences was on the high side given the nature of the injuries suffered. Both PW2 and PW3 were discharged from hospital immediately after treatment of their injuries; (2) The maximum sentence for an offence of wounding pursuant to s 19 was 3 years’ imprisonment. Effectively the global starting point taken by the judge in respect of A1’s involvement in this incident was at the maximum. Even if the starting points for the individual sentences of 2 years’ imprisonment were not manifestly excessive, the notional or global starting point taken by the judge resulted in a totality after plea of 2 years’ imprisonment, and this was manifestly excessive; (3) Affrays differed greatly on their facts and the sentence imposed on a defendant must always be case specific. A court should take into account the nature of the affray itself, for example, where it occurred and the number of persons placed in fear by it, the number of participants, its duration, whether it was spontaneous or organised, the nature of the violence, whether weapons were used and whether injuries were occasioned and if so how serious those injuries were: R v Nguyen Quang Thong [1992] 2 HKCLR 10, 15. The role of a particular defendant, so far as that could be ascertained, was also a factor; (4) The affray took place in a reasonably isolated location. It was not a fight in a crowded street. The number of persons involved was limited, as were the persons at the scene who were liable to be put in fear by the affray. Whilst a weapon was used and another brandished, the injuries sustained by PW2 and PW3 were not of the worst sort. A sentence after trial of 15 months’ imprisonment was manifestly excessive. Result - Appeals allowed. Sentences of A1 to run concurrently, making a

totality of 16 months’ imprisonment. Sentence of A2 varied to enable his immediate release.

CAs 482 & 509/2006 Stuart-Moore VP McMahon J (16.5.2008) *Alain Sham & Ada Chan #J Hemmings (1) H M Mughal (2) A Raffell (3) Thomas Iu (4) David Ma (5)

(1) TSANG Ho-wai (2) LO Ka-ho (3) CHAN Chin-hong (4) NG Tak-wing (5) HUNG Man-yee

Wounding with intent/Stepmother organising chopping of 7-year-old stepson out of jealousy/Heavy deterrent required/ Aggravating features/Discount of 50% for prosecution testimony/Consequences of crime relevant to level of sentence 有意圖而傷人有意圖而傷人有意圖而傷人有意圖而傷人 –––– 繼母因妒忌而策劃斬傷繼母因妒忌而策劃斬傷繼母因妒忌而策劃斬傷繼母因妒忌而策劃斬傷 7777 歲繼子歲繼子歲繼子歲繼子 –––– 必須判以極具必須判以極具必須判以極具必須判以極具

阻嚇性的刑罰阻嚇性的刑罰阻嚇性的刑罰阻嚇性的刑罰 –––– 加重刑罰的因素加重刑罰的因素加重刑罰的因素加重刑罰的因素 –––– 為控方作證獲減刑為控方作證獲減刑為控方作證獲減刑為控方作證獲減刑 50% 50% 50% 50% –––– 罪罪罪罪

行後果與量刑等級相關行後果與量刑等級相關行後果與量刑等級相關行後果與量刑等級相關

The victim was a 7-year-old boy, and a deliberate attempt was made to chop off his right hand (count 1). This act was brought about by a gang of five, including the child’s stepmother, Hung Man-yee (‘Hung’). The crime was motivated by jealousy and hatred on her part. The attack on the boy reflected in count 1 (wounding with intent) had been preceded by an assault (common assault) on him (count 2). Hung (A5) pleaded guilty to counts 1 and 2 in the Magistrates Court and was committed for sentence. A1, A2, A3 and A4, who had played various parts in the planning and execution of the crime, were committed for trial on count 1, and A1 and A2 were also charged with count 2. A1 pleaded guilty to count 2,

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A2 pleaded guilty to both counts and A3 to count 1. A1 and A4 were convicted on count 1 after trial. Having adopted an 18-year starting point for count 1, the judge sentenced A1 to 18 years’ imprisonment. A2 and A3 had not only pleaded guilty but also gave evidence for the prosecution with the result that they received discounted sentences of 10 years and 9 years’ imprisonment, respectively. A4, a taxi driver who had provided the transportation to and from the crime scene, in ignorance that a child was the target of attack, was sentenced to 8 years’ imprisonment. Hung was sentenced to 12 years’ imprisonment, to reflect a discount of a third for her guilty plea. Concurrent sentences on count 2 in the cases of A1, A2 and Hung were imposed, of which no complaint was made. On appeal against the sentence on count 1 Held : (1) The stepmother of a 7-year-old boy was sufficiently jealous of the higher regard paid to him by her husband over her own child that she was prepared not merely to contemplate but to allow a scheme to be put into effect whereby the whole of the rest of the victim’s life was bound to be affected. She had the money available to pay others to achieve her object which, whether it was her idea or A1’s, was to cut off the child’s hand. Save for the fact that the hand was not completely severed, the attack otherwise went according to plan; (2) Although the victim had made a remarkable recovery, he would bear the physical scars for the rest of his life and have restricted use of his hand. The trauma of such an incident would have been considerable and could not be underestimated; (3) It was apparent that the gravity of this offence, so far as the instigators, Hung and A1, were concerned, and also on the part of those prepared to carry it out, namely, A2 and A3, richly merited extremely severe sentences. Not only was this a case deserving of condign punishment for the offenders themselves but it also called for a heavy deterrent element in a jurisdiction where attacks on innocent victims with knives or other lethal weapons were by no means unknown. A further aggravating factor, which would have left any right-thinking member of society aghast at the particular horror of the attack, was the fact that the target was a child as young as seven; (4) The offence was carried out in cold blood after careful planning had been given to it. The earlier assault (count 2) involving Hung, A1 and A2 failed to moderate Hung’s hatred for her stepson. This was so great that she was prepared to make sure he would be left with a physical handicap he would be bound to carry with him for the rest of his life. Hung provided the money and left most of the rest of this evil plan to A1 to organise. Whether it was Hung or A1 who first thought of chopping off the child’s hand was beside the point. Hung knew perfectly well that this was what was intended when she paid the reward for the attack to be carried out; (5) No mercy was shown to the victim. Each member of the gang except for A4 was aware that a child’s right hand was to be cut off in order to achieve permanent disability. Persons who committed serious acts of violence against others for financial reward would be treated with particular severity by the courts, as would those who paid for such offences to be carried out. An assault

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on a victim performed as a ‘contract’ should be regarded as an aggravated offence and sentencers should bear this in mind when selecting an appropriate starting point for sentence after trial; (6) A1 had shown no remorse and for him there was no mitigation. Hung’s only mitigation was that she pleaded guilty and for this she received the full discount. Although the relative youth of A2 and A3 was not mitigation in the circumstances of this case, they each gave evidence for the prosecution, having pleaded guilty, and the normal discount for this was 50 per cent. A2 was not given this, and, in principle, he should have been. The evidence A2 and A3 gave ensured the conviction of A1 who played a central role in this despicable crime. In addition, as the judge intended that A3 should receive a slightly lower sentence than A2, it was only right that this distinction should remain and in his case also his sentence had to be reduced; (7) A4’s position was only different in that he had not apparently been told that the selected target of this chopping was a child. Nevertheless, out of greed, he was prepared to act as the driver who was needed by the others to carry out an attack, not knowing the identity of the victim or the reasons why he was to be attacked but well aware of the nature of the weapons to be used; (8) A4 was a middle-aged man without a previous record who, had he known a child-victim was involved, would not have helped in this venture. The judge compared this case to a wounding offence carried out with intent to cause grievous bodily harm by a group of young men, and took a reduced starting point of 7 years’ imprisonment, which he then increased to 8 years because of the serious harm caused to the victim. A court was often entitled to look at the consequences of a crime when considering an appropriate level of sentence and this offence was no exception to the good sense of such an approach. A4 was prepared to drive two masked and armed men to carry out a knife attack not knowing who the victim or victims would be and, to this extent, his offence was aggravated by what in fact took place. Result - Applications of Hung, A1 and A4 dismissed. A2’s and A3’s

sentence on count 1 reduced, respectively, to 9 years and 8 years. CA 37/2008 Tang VP Burrell J (5.6.2008) *Ned Lai #I/P

LAU Yuk-huen

Wounding with intent/Husband attacking wife with chopper after serious provocation/Domestic violence must be stopped/ Defendant aged 66 not old 有意圖而傷人有意圖而傷人有意圖而傷人有意圖而傷人 –––– 丈夫受到重大激怒後用菜刀襲擊妻子丈夫受到重大激怒後用菜刀襲擊妻子丈夫受到重大激怒後用菜刀襲擊妻子丈夫受到重大激怒後用菜刀襲擊妻子 –––– 家庭暴家庭暴家庭暴家庭暴

力須予制止力須予制止力須予制止力須予制止 –––– 被告人被告人被告人被告人 66666666 歲不算年老歲不算年老歲不算年老歲不算年老

The Appellant pleaded guilty to an offence of wounding with intent. The victim was his wife. At the time of the offence they lived together in Tai Po, their two daughters had moved out in 2005. The admitted facts indicated they had lived together ‘under a tense relationship and an unpleasant atmosphere’. Following an argument, the Appellant chopped the victim at her head, neck and left face. She tried to ward off the chopper with her hands, and sustained further injuries in consequence. She was hospitalised for two weeks with open wounds on her left cheek, scalp, back and both hands. When questioned by the police, the Appellant admitted that he chopped the victim because he was angry with her for falsely accusing him of stealing her money. The judge adopted a starting point of 4½ years’ imprisonment and gave a discount of one-third for the guilty plea, and sentenced the Appellant to 3 years’ imprisonment.

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On appeal, the Appellant submitted that he attacked the victim under extreme provocation. He said she was partly responsible for the incident. It was accepted that the victim’s accusation was unfounded. The Appellant and the victim had been married for 30 years, but were now divorced. He had apologised to the victim. The Appellant was 66 years old at the time of the offence. Held : (1) The court took a very serious view of domestic violence: HKSAR v Fan Tak-kwan Cr App 10/2007; HKSAR v Yu Koon-man 253/2007, disapproved; (2) The victim had not fully recovered, and her hand movement was now very much restricted. She was receiving physiotherapy, and could not hold anything which weighed more than ½ kilogramme. The cut wound to the back was still causing pain, and that was being followed up on a regular basis; (3) Leave had been granted as the Appellant was aged 66 years and in a suitable case, for humanitarian reasons, old age and poor health could result in a reduced sentence. However, the Appellant, aged 66, could not be regarded as old. There was no evidence of poor health. Although the Appellant had been seriously provoked by the victim and the risk of recurrence was small, it was a vicious attack. It was important that no one should think that if he had been provoked the court would give him a lenient sentence. Domestic violence must be stopped. It could not be said that the sentence of 3 years’ imprisonment was manifestly excessive. Result - Appeal dismissed.

AR 11/2007 Stock JA Burrell & Wright JJ (29.7.2008) *David Leung #I/P

SJ v MA Kwai-chun

Common assault/Attack on public officer acting in execution of duty/General sentencing policy of deterrence/Individual justice requires consideration of circumstances of offence/Fine of $500 not manifestly inadequate sentence 普通襲擊普通襲擊普通襲擊普通襲擊 –––– 襲擊正在執行職責的公職人員襲擊正在執行職責的公職人員襲擊正在執行職責的公職人員襲擊正在執行職責的公職人員 –––– 一般判刑政策是刑罰一般判刑政策是刑罰一般判刑政策是刑罰一般判刑政策是刑罰

須 起 阻 嚇 作 用須 起 阻 嚇 作 用須 起 阻 嚇 作 用須 起 阻 嚇 作 用 –––– 為 替 個 別 案 件 秉 行 公 正為 替 個 別 案 件 秉 行 公 正為 替 個 別 案 件 秉 行 公 正為 替 個 別 案 件 秉 行 公 正 ,,,, 須 考 慮 罪 行 的 個 別 情須 考 慮 罪 行 的 個 別 情須 考 慮 罪 行 的 個 別 情須 考 慮 罪 行 的 個 別 情

況況況況 –––– 罰款罰款罰款罰款 500500500500 元的刑罰並非明顯不足元的刑罰並非明顯不足元的刑罰並非明顯不足元的刑罰並非明顯不足

In August 2005, the Court of First Instance granted an injunction which prohibited the Respondent from entering court buildings, save for the purpose of attending hearings, and from contacting judiciary staff. On 24 July 2006, an order for continuation of injunction was made. The order was served on the Respondent at her home by a legal executive of the Department of Justice. On the back of the sealed copy of the order there appeared the name of a Senior Government Counsel (‘SGC’) of the Civil Division of the Department of Justice whom the Respondent had met in the course of the proceedings for the injunction. The magistrate found that the Respondent was upset that the order had been delivered to her person at her home in the evening. She thought her privacy had unnecessarily been invaded and that the order could have been delivered through the letter box. So the following day, 28 November 2006, the Respondent telephoned the SGC and aired her discontent in a manner the magistrate called ‘very unfriendly’. The Respondent went to the Department of Justice where, by arrangement, she met the legal executive. By ill luck the SGC appeared, and

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when the Respondent tried to talk to her she turned her back to return towards her office. The Respondent reached out and pulled the SGC’s hair and the collar of her upper garment. The SGC was pulled backwards and almost lost her balance, but she held onto a desk for support. A number of persons came to her assistance. At hospital, the diagnosis on the SGC was ‘Left posterior neck tenderness. Range of movement of neck full. No scalp lesions identified. Complained pain at scalp’. She lost several hairs. The magistrate fined the Respondent, who was aged 60 years and had a previous conviction for common assault in 2004, $500, with 3 days’ imprisonment in default of payment. On review, it was submitted that the sentence was manifestly inadequate, and that the offence merited an immediate custodial sentence. Held : (1) Any assault upon a public officer in the execution of that officer’s duty was regarded by the courts as serious. The general sentencing policy was one that had deterrence as its uppermost aim. An assault by a litigant upon a legal officer carrying out duties in relation to the litigation carried its own aggravating characteristic, namely, the possibility or prospect of an indirect adverse effect upon the free administration of justice; and this would be so whether the assault was carried out with a view to dissuading that officer from carrying out his or her function or as an act of vengeance for that officer having done so. In the normal course, such conduct would call for the imposition of an immediate custodial term; (2) Whatever a general sentencing policy might be, it must never be one that ignored the need for individual justice. As stated in HKSAR v Leung Pui-shan Cr App 317/2007:

…sentencing is an art which must carefully be moulded not only to the category of offence but to the offender. There is a danger of sentencing becoming over-mechanical with too little regard for unusual circumstances that might arise in relation to the commission of particular offences and too little regard to circumstances peculiar to the offender.

(3) Whatever the general policy, an immediate custodial term for an assault on a public officer was not an inevitable sentence that had regard only to the category of offence and no regard to the facts peculiar to its commission or to the offender. The cases which might demand a dispensation other than imprisonment would probably be unusual, but a court that ignored the circumstances in which the assault was committed, the nature and consequences of it, and the circumstances attaching to the offender at the time of the offence and at the time of sentence, was a court performing a mechanical and not a judicial function and was a court that was not applying art to its sentencing function; (4) The seminal decision in relation to reviews of sentence, which had been regularly followed by the courts in this jurisdiction, was AG’s Reference (No. 4) of 1989 (1989) 11 Cr App R (S) 517, 521, in which Lord Lane CJ said:

A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must be had of course to reported cases, and in

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particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.

(5) The Respondent was a 60 year-old woman with psychiatric difficulties; the offence was a split second reaction, an act of desperation accompanied by no prior intention to assault, committed in a moment of frustration; the Respondent was taken to hospital on the day of the offence for treatment of her condition, which was delusional; the assault was conduct which fell at the lower end of this type of offence; the Respondent was detained for 7 days in a psychiatric hospital in direct consequence of her mental condition when she committed assault; (6) The sentence was not outside the range of sentences which the magistrate, applying his mind to all the relevant factors, could reasonably consider appropriate. Result - SJ’s application dismissed.

Bribery/Corruption/ICAC CA 477/2006 Ma CJHC & Stuart-Moore VP (28.2.2008) *I C McWalters SC #A Macrae SC & MaggieWong

CHAN Kau-tai

Corruption/Public servant accepting advantages/Dominant consideration the impact of the corruption/Retrial sentencing/ Use of partially consecutive sentences appropriate to achieve correct totality/Ill-health not a basis for reducing sentence 貪污貪污貪污貪污 –––– 公職人員接受利益公職人員接受利益公職人員接受利益公職人員接受利益 –––– 貪污的影響是主要的考慮貪污的影響是主要的考慮貪污的影響是主要的考慮貪污的影響是主要的考慮 –––– 重審的重審的重審的重審的

判 刑判 刑判 刑判 刑 –––– 為 達 致 正 確 整 體 刑 期 而 將 部 分 刑 期 分 期 執 行 是 恰 當 的為 達 致 正 確 整 體 刑 期 而 將 部 分 刑 期 分 期 執 行 是 恰 當 的為 達 致 正 確 整 體 刑 期 而 將 部 分 刑 期 分 期 執 行 是 恰 當 的為 達 致 正 確 整 體 刑 期 而 將 部 分 刑 期 分 期 執 行 是 恰 當 的 ––––

身體欠佳不是減刑的理據身體欠佳不是減刑的理據身體欠佳不是減刑的理據身體欠佳不是減刑的理據

The Applicant was convicted after trial of nine counts of corruption. Six of the counts were offences of being a public servant accepting an advantage, contrary to ss 4(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201 (‘the Ordinance’), while three of the counts involved the acceptance of an advantage by a public servant, contrary to ss 4(2)(c) and 12(1) of the Ordinance. The judge imposed an overall sentence of 6 years’ imprisonment, and ordered partially consecutive sentences to obtain an appropriate totality. The Applicant’s sentence was the outcome of a retrial. At the original trial he was convicted of ten counts and sentenced to 7 years’ imprisonment. At the retrial, he was acquitted of one of the counts (Count 1) of which he was originally convicted, and which involved the alleged acceptance of an advantage of $11.5 million. The evidence showed that the Applicant, the chief building services engineer of the Housing Department, abused his position to solicit and accept bribes from private sector contractors. Between 28 November 2000 and 2 August 2001 he accepted $1.5 million in advantages of which $1.1 million was paid to him in cash. He did so in circumstances where the Housing Department had been involved in the construction of public housing estates and the

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contractors from whom he accepted bribes were involved in the construction of those estates. In sentencing, the judge described the Applicant’s conduct as a gross breach of the trust reposed in him. He said that instead of directing his efforts to the benefit of the Housing Department and the public he was there to serve, he had used the opportunity to create openings from which he could derive financial benefit, normally either by pushing or by steering contractors to use equipment supplied by suppliers who were prepared to pay bribes to the Applicant for this assistance. On appeal, the essence of his application was that the totality of his sentence for the offences was of greater length than the sentence he received on those counts at his original trial. Held : (1) A sentence of 7 years’ imprisonment at the original trial was replaced by a term of 6 years’ imprisonment on an indictment which no longer included the Count 1 offence. Totality had to be looked at afresh. Most of the offences involved different offerors from different companies and the bribes were for different purposes. There was, therefore, no error of principle in ordering partially consecutive sentences in order to obtain an appropriate totality; (2) A 6-year sentence for the criminality involved in the nine counts was appropriate. The dominant consideration in cases of this kind was the impact of the corruption, particularly on the public interest. The value of the bribe or bribes received was also a matter of significance. The Applicant was behaving in the classic mould of one who was prepared to do almost anything it was in his power to achieve provided the price he was paid for doing it was sufficient. It was hard to imagine a more blatant case of public corruption, and the sentence received might well have been heavier than the one the judge imposed; (3) As regards the Applicant’s ill-health, of which the judge had been aware, he was being treated in the custodial ward at Queen Mary Hospital. He was said to be fit for a liver transplant, and his son had volunteered to be a donor. The Applicant was plainly in good hands, and medical grounds would ‘seldom, if ever, be a basis for reducing the sentence for crimes of gravity’: Yip Kai-foon v HKSAR (2003) 3 HKCFAR 31, 35; (4) The Applicant’s crimes were extremely serious, and he first became ill before his corrupt activities began. There was no basis for reducing the sentence on the grounds of ill-health. If the Applicant’s health became worse and intervention on humanitarian grounds was considered necessary, this would be a matter for the Executive to consider. Result - Application dismissed.

MA 674/2008 Beeson J (25.9.2008) *Ned Lai #L Lok SC & Edward Shum

CHAN Kun-hoi

Offering advantage to an agent/General sweetener offered over period of time/Need for deterrent sentence/Discount for offer to testify against co-defendant who pleaded guilty in consequence/Prevention of Bribery Ordinance (Cap 201) s 9 向代理人提供利益向代理人提供利益向代理人提供利益向代理人提供利益 –––– 在一段期間內提供一般甜頭在一段期間內提供一般甜頭在一段期間內提供一般甜頭在一段期間內提供一般甜頭 –––– 須判處阻嚇須判處阻嚇須判處阻嚇須判處阻嚇

性刑罰性刑罰性刑罰性刑罰 –––– 因自願指證同案被告人並導致同案被告人認罪而獲得的因自願指證同案被告人並導致同案被告人認罪而獲得的因自願指證同案被告人並導致同案被告人認罪而獲得的因自願指證同案被告人並導致同案被告人認罪而獲得的

減刑減刑減刑減刑 –––– 香港法例第香港法例第香港法例第香港法例第 201201201201 章章章章 《《《《 防止賄賂條例防止賄賂條例防止賄賂條例防止賄賂條例 》》》》 第第第第 9999 條條條條

The Appellant pleaded guilty to one offence of offering advantages to an agent, contrary to ss 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance,

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Cap 201. His co-defendant faced a mirror charge of accepting advantages as an agent. The Appellant was sentenced to 5 months’ imprisonment, and his co-defendant (D2) was sentenced to 6 months’ imprisonment. After he was charged, the Appellant indicated that he would plead guilty and that he was prepared to give evidence against D2, who intended to plead not guilty. He gave a non-prejudicial statement, in which he pointed out that D2 had taken the initiative and that he had ‘followed the flow’ , making the payments over a 2-year period as a general sweetener rather than as encouragement to do any particular task. Thereafter, D2, like the Appellant, pleaded guilty, having changed his position in the meantime. Had the trial of D2 proceeded, the Appellant would have been called as a witness for the prosecution. The magistrate recognised the Appellant’s clear record, age (66), the support he received from family, friends, employees and contractors, and that, comparatively, the money involved was small. But he stated:

…the courts in Hong Kong have steadfastly set their faces against watering-down, or making light of the corrosive effect of corruption. In the case of SJ v Li Cheuk-ming [1999] 1 HKLRD 59 (English translation at 63)(Application for Review No. 2 of 1998) CA, the Court of Appeal held that a community service order is not excluded as a proper sentence even for offences that are serious, including bribery and corruption. But Chan CJHC said, at 66A:

‘however, bribery and corruption have for ages been regarded as crimes which are intolerable in a civilized society. They are cancerous activities in a healthy and sound society and their impact to the entire society could be serious, far-reaching and adverse. They must be eradicated quickly and thoroughly, otherwise they would spread to the whole community like a prairie fire that never burns out and the consequence is disastrous.’

The magistrate also referred to Lai Yuk-kui v R [1981] HKLR 691 and R v Chan Koon-kwok, Arthur [1990] 2 HKLRD 458, as authorities for the principle that sentences in cases of bribery and corruption should contain the element of general deterrence. In the latter case, the court stated ‘attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of the Prevention of Bribery Ordinance may be properly marked’. In Lai Yuk-kui, the Court of Appeal said ‘an immediate custodial sentence should normally be imposed whether the offender is a public officer or not. The usual minimum imprisonment for relatively minor cases of corruption in the public sector should be twelve months’. The magistrate stated: I did not consider the personal and family circumstances of the

Appellant amounted to exceptional circumstances. His medical condition reflected age and the anxiety of waiting for the trial to conclude. Such condition was not so serious that, in itself, it should be regarded as an exceptional circumstance. There were other members of his family who were capable of running the Appellant’s business with the aid of loyal staff in the absence of the Appellant. The Appellant’s good works did him credit but did

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not amount to exceptional circumstances. I acknowledged that the practice of giving general sweeteners was common in the catering industry. I considered that the Appellant was fully aware of the unlawfulness of such practice and did nothing to resist ‘going with the flow’. A person in his position should have used his authority and standing within the catering and general communities to demonstrate that he would stand up for generally accepted standards of probity and honesty and refuse to adopt prevalent corrupt practices.

The magistrate decided that the only way of dealing with the Appellant was to pass an immediate custodial sentence. He took a starting point of 9 months. He gave the Appellant credit for his plea of guilty and reduced the sentence to 6 months. He then noted R v Yan Im-kun Cr App 680/1996, as authority for the proposition that the Appellant should be given credit for his offer to give evidence and for his having made and fully adopted a witness statement. The magistrate accepted that some discount should be given for those factors and further reduced the sentence to 5 months. D2 was sentenced at the same time to a period of imprisonment of 6 months, calculated on the same basis as the magistrate had calculated the sentence for the Appellant. He did not, however, give the co-defendant any further reduction. On appeal, it was submitted that the magistrate erred in taking a starting point of 9 months for the Appellant and D2, as their relative culpability should be reflected by different starting points; in particular, it was D2 who had made the approach to him for payment of money. It was also argued that the magistrate failed to give sufficient credit for the Appellant’s willingness to give evidence for the prosecution. The sentence of 5 months was said to be manifestly excessive as the magistrate had failed, sufficiently, to take into account the Appellant’s personal circumstances, in particular, his old age and personal health. Held : (1) The magistrate took careful note of the personal circumstances of the Appellant, and he found, rightly, that there were no exceptional circumstances to justify a substantial discount; (2) The magistrate correctly treated deterrence as part of the sentence. As the authorities indicated, absent special circumstances, a sentence of immediate imprisonment was necessary, and the magistrate adopted an appropriate starting point. The giving and receipt of a general sweetener had covered a period of 2 years. The perniciousness of a system of general sweeteners could be even more damaging to society than one where specific tasks were performed for the advantage offered; (3) Whilst the magistrate gave credit for the offer to give evidence, he failed to take into account sufficiently the effect of the Appellant’s plea on D2. D2 only decided to change his plea when he realised the Appellant was going to give evidence. Some additional credit would therefore be given to recognise that the Appellant’s non-prejudicial statement and his offer to give evidence were instrumental in effecting D2’s change of plea. Result - Appeal allowed. Sentence of 4 months’ imprisonment substituted.

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C & E MA 157/2008 Line DJ (27.3.2008) *Frederick Chung #Andrew Kan

CHAN Yau-fat

False trade description/Sale of medicines bearing a forged trademark/Medicines sold producing intended effect/No risk to health/Sentencing factors 虛 假 商 品 說 明虛 假 商 品 說 明虛 假 商 品 說 明虛 假 商 品 說 明 – 出 售 有 偽 造 商 標 的 藥 物出 售 有 偽 造 商 標 的 藥 物出 售 有 偽 造 商 標 的 藥 物出 售 有 偽 造 商 標 的 藥 物 – 所 售 藥 物 產 生 預 定 效所 售 藥 物 產 生 預 定 效所 售 藥 物 產 生 預 定 效所 售 藥 物 產 生 預 定 效

果果果果 – 不會危害健康不會危害健康不會危害健康不會危害健康 – 量刑考慮因素量刑考慮因素量刑考慮因素量刑考慮因素 The Appellant pleaded guilty to an offence of possession of goods to which a forged trademark was applied, contrary to s 9(2) of the Trade Descriptions Ordinance, Cap 362. The Appellant was a salesman at a dispensary that sold medicines in Tsuen Wan. Customs officers went to the premises in May 2007 to buy some Cialis. They bought some pills purported to be such without a prescription, bearing the forged trademark of ‘Cialis’. The Appellant was not at the premises on that occasion. In September 2007, customs officers again visited the premises and found 68 tablets purporting to be Cialis and 64 tablets purporting to be Viagra, with forged trademarks applied. Analysis of the drugs revealed that they had the active ingredients that dealt with the condition the pills were designed for and nothing was found in the pills which could be identified as being harmful to anyone who took them. The magistrate considered that selling medicines which had not been through the rigorous procedures that allowed them to be sold on prescription under the specific names of Cialis and Viagra was a serious matter, and sentenced the Appellant, who had a position of responsibility at the dispensary as a senior salesman, to 4 months’ imprisonment. On appeal Held : (1) Selling medicines under false trade descriptions was so serious as to justify an immediate custodial sentence. Anyone in the dispensing trade must know that if they indulged in such an activity for profit, they faced a loss of liberty. The area of activity was small enough that what the court did in relation to those found to be cheating within it could have an impact. If dispensers knew that they could cheat but not risk their liberty, they were more likely to do so. So it had to be prison; (2) The Appellant was a decent married man, this was his first offence and he had honestly admitted his crime; (3) The drugs being sold without prescription were being sold for recreational use and the evidence of the Government Chemist was that they would have had the effect their purchasers intended. It was not a case where the medication that was being falsely described was going to have an injurious effect. Even though the Appellant cheated, the purchasers he misled had not been harmed and would get what they wanted; (4) Any dispenser who passed on anything which he judged to have a health risk by including something in it that would be injurious to people who took it would face a very much longer sentence of imprisonment. Result - Appeal allowed. Sentence of 3 months’ imprisonment substituted.

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MA 312/2008 Beeson J (24.7.2008) *Winston Chan #J Acton-bond & Victor Cheung

FONG Tat-wing

False trademark/Possession for sale of counterfeit batteries/ Heavy fine a sufficient penalty for small trader for first offence/Fine to be punitive not crippling 虛假商標虛假商標虛假商標虛假商標 –––– 管有偽製電池作售賣用途管有偽製電池作售賣用途管有偽製電池作售賣用途管有偽製電池作售賣用途 –––– 對首次犯罪的小商人判對首次犯罪的小商人判對首次犯罪的小商人判對首次犯罪的小商人判

處巨額罰款是足夠的刑罰處巨額罰款是足夠的刑罰處巨額罰款是足夠的刑罰處巨額罰款是足夠的刑罰 –––– 罰款是為懲罰款是為懲罰款是為懲罰款是為懲 罰而非為使被告人嚴重受罰而非為使被告人嚴重受罰而非為使被告人嚴重受罰而非為使被告人嚴重受

損損損損

The Appellant pleaded guilty to an offence of possession for sale or for any purpose of trade or manufacture goods to which a false trademark was applied, contrary to s 9(2) as read with s 18(1) of the Trade Descriptions Ordinance, Cap 362. The agreed facts were that customs officers carried out an anti-piracy operation targeting mobile phone batteries on sale in Ap Liu Street, Sham Shui Po. One officer asked for a specific model of a NOKIA battery. The Appellant said these were available for $20 each. A search of the stall was made and a number of suspect counterfeit batteries was seized. After examination they were identified as 3 counterfeit NOKIA and 22 counterfeit MOTOROLA batteries. The Appellant admitted that he had bought the stock second-hand for $8 each and would sell them for $15 each. He had called the respective service hotlines 3 years before for clarification. Although he knew there were risks with false laser labels he had not clarified the matter further as he did not have time to do so. The counterfeit batteries made up a small part of his stock. The Appellant, aged 30, had a clear record. He had worked as a hawker for 3 years and from his earnings of $8,000 he gave $2,000 to his parents. He admitted his failure to keep up to date with the guidelines from the telephone companies as to what was or was not a breach of their trademarks. The magistrate considered SJ v Lam Chi-wai [1994] 4 HKC 343, and decided that a deterrent sentence was called for. That judgment held that for hawkers and small traders of counterfeit goods, heavy fines, not necessarily linked to the value of the goods, might be imposed in future. The magistrate also remarked that second-hand products of this nature could prove dangerous to customers, which he considered another reason for the court’s concern and a deterrent sentence. Having considered the mitigation, including the small quantity of goods and the low value of the items, he imposed a sentence which he thought should deter not only the Appellant, but also others who might wish to emulate him. He added a financial penalty to ensure that the Appellant did not benefit from any ill-gotten gain and to serve as a reminder that any offences in future would not profit him. The Appellant was sentenced to 4 months’ imprisonment, suspended for 3 years, and a fine of $10,000. In default of payment of the fine, a period of imprisonment of one month was imposed. On appeal Held : (1) The quantity of the offending items was small in comparison with the amount of stock on the Appellant’s stall. The value of the counterfeit batteries was low, as was the potential profit for the Appellant. The goods were on sale as second-hand goods in an area known as a place for the sale of second-hand goods. There was no suggestion that the Appellant was a wholesaler. He was a hawker of second-hand goods, and given the small number of infringing items it

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was fair to say that counterfeit goods were not the purpose of his business. He was a first offender and pleaded guilty; (2) There were clearly cases of this nature where the facts were such that a sentence of immediate imprisonment was justified even for a first offender. The case of Lam (supra), involved 14,000 counterfeit items which had a value of approximately $500,000; the offender was rightly treated as a wholesaler, he had a record which marked him as a persistent offender and he was subject to a suspended sentence at the time. This was not such a case; (3) A custodial sentence of 4 months’ imprisonment from a starting point of 6 months was heavy, and its suspension for 3 years did not detract from the fact that this was a case of magisterial overkill. The addition of a sizeable fine and the order made for imprisonment in default of payment supported that contention; (4) The Court of Appeal in Lam did not purport to set guidelines, but the judicial comment showed the court intended to send a serious warning to potential offenders. Hawkers and small traders of counterfeit goods (such as the Appellant) were warned that in future they risked heavy fines which the court need not link to the value of the goods themselves; (5) The Appellant, a first offender, could have been dealt with appropriately by way of a heavy fine. Although it need not be linked to the value of the goods, such a fine should be punitive without being crippling where, as here, the offender was a minor trader. Result - Appeal allowed. Fine of $6,000 substituted.

Company Ordinance MA 960/2008 Poon DJ (12.12.2008) *Jones Tsui #Lo Chi-ho (I/P)

WINNER COSMOS LTD

Company failing to file annual return/Level of fine/Sentencing considerations/Costs to Companies Registry of instituting prosecution 公 司 沒 有 將 周 年 申 報 表 存 檔公 司 沒 有 將 周 年 申 報 表 存 檔公 司 沒 有 將 周 年 申 報 表 存 檔公 司 沒 有 將 周 年 申 報 表 存 檔 –––– 罰 款 級 數罰 款 級 數罰 款 級 數罰 款 級 數 –––– 判 刑 時 須 考 慮 的 事判 刑 時 須 考 慮 的 事判 刑 時 須 考 慮 的 事判 刑 時 須 考 慮 的 事

宜宜宜宜 –––– 公司註冊處就提出訴訟獲判給訟費公司註冊處就提出訴訟獲判給訟費公司註冊處就提出訴訟獲判給訟費公司註冊處就提出訴訟獲判給訟費

The Appellant failed to file an annual return as required by the law, and through its representative pleaded guilty before a magistrate and was ordered to pay a total fine of $4,800, i.e. $3,000 (principal fine for private companies) plus (60 (days in default) x $30 (daily fine)). Under s 109(4) of the Companies Ordinance (‘the Ordinance’), Cap 32: If a company fails to comply with this section…, the company

and every officer of the company who is in default should be liable to a fine, and, for continued default, in a daily default fine.

Contravention of s 109(4) attracted a fine at Level 5, which was a

maximum of $50,000, and a maximum daily default fine of $700. On appeal

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Held : (1) The summary of penalties provided by the Respondent set out the range of fines and daily default fines at the magistracies. The principal fine ranged from $2,000 to $12,000, whilst the daily default fine ranged from $10 to $100. It was clear that the fines imposed were within the range; (2) Although the Appellant submitted that the exorbitant fines together with the higher filing fee equalled 62 times the original filing fees, a similar argument was disposed of in HKSAR v The K2 Limited MA 1002/2005, as follows: A factor that is not to be ignored is this, that the cost of

prosecuting companies like this who fail, for whatever reason to meet their obligation, is $5,598. There is a provision in section 352 of the Companies Ordinance that allows the fines levied for the offences like this to go to defraying the actual costs of the prosecution. Of course, here, it would be immediately appreciated that the fine of $4,560 is less than the cost to the taxpayer of actually bringing the prosecution.

(3) The total fine of $4,800 could in no way be described as exorbitant. It was clear that the company had failed to meet its obligation required by the law, and this caused the Companies Registry to take out prosecution. In doing so costs of $5,428 had been incurred which could not be totally covered by the fines. Fines imposed under the 12th Schedule should not be confused with the annual registration fee, which, under the 8th Schedule of the Ordinance, had specially prescribed a fee of $1,740 for annual returns to be delivered more than three months after but within six months after the anniversary of incorporation; (4) The argument that whilst other government departments could send out reminders, none was ever sent out by the Companies Registry, and that the court could take such breach of duty by the Companies Registry into account when considering the appropriate levels of fine, was misconceived. What was being dealt with was a filing of annual returns, not payment notice, and there was no basis to depart from the fines imposed by the magistrate. Result - Appeal dismissed.

Conspiracy to Defraud CA 334/2007 Stuart-Moore VP Stock JA Beeson J (22.7.2008) *I McWalters SC #L Lok SC & P Pannu

HUI Man-tai

Conspiracy to defraud/Defendants causing traffic accidents to obtain compensation from drivers/Defendent’s status as police officer required deterrent sentence 串謀詐騙串謀詐騙串謀詐騙串謀詐騙 –––– 被告人製造交通意外從而向司機索取賠償被告人製造交通意外從而向司機索取賠償被告人製造交通意外從而向司機索取賠償被告人製造交通意外從而向司機索取賠償 –––– 被告人被告人被告人被告人

身為警員身為警員身為警員身為警員 ,,,, 須判處阻嚇性刑罰須判處阻嚇性刑罰須判處阻嚇性刑罰須判處阻嚇性刑罰

After trial, the Applicant, a 30-year old police constable attached to the Traffic Division, was convicted of conspiracy to defraud, contrary to common law and punishable under s 159C(6) of the Crimes Ordinance, Cap 200. The charge of which the Applicant was convicted related to one other conspirator apart from himself, namely, Ng Chun-ming, Chris (D1) who was also a police officer in the Traffic Division. It was particularised that they:

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…on divers dates between the 1st day of June, 2005 and the 17th day of February, 2006, in Hong Kong, conspired together to defraud such drivers who were driving their vehicles on the roads on a number of occasions in Hong Kong (‘the said drivers ’) by:-

(1) dishonestly and intentionally causing a vehicle with registration number HA891 (‘the vehicle’) to collide with the vehicles which were driven by the said drivers; and

(2) dishonestly demanding for monetary compensations from the said drivers in respect of damage caused to the vehicle as a result of the collisions;

thereby induced and caused the said drivers to hand over various sums of money in cash to the said Ng Chun-ming, Chris and/or the said Hui Man-tai.

The allegation was that the Applicant agreed with D1 that while one of them remained the passenger, the other would drive a Saab motor car in such a way that it deliberately collided with other vehicles on public roads. This was done so that they could then demand compensation from the drivers of the other vehicles involved. There were nineteen incidents of colliding with other vehicles causing minor damage during the 8½ months covered by the conspiracy. Of these, six were at the Kai Leng roundabout in Sheung Shui and, in Tsim Sha Tsui, five were in Canton Road and three were in Austin Road. These were specially selected locations where cars needed to change lane so that when the drivers did change lanes they would feel responsible for the accidents they assumed they had caused. Two of the staged accidents at the Kai Leng roundabout were within an hour of each other on 25 July 2005 and, on 6 September 2005, two more accidents occurred at the same location within thirty-five minutes of each other. Four of the accidents in Canton Road occurred between 2 February 2006 and 17 February 2006 and in Austin Road, two of the accidents were on consecutive days, 25 January 2006 and 26 January 2006. The same Saab motor car, which had been cheaply purchased, was involved in every incident. The Applicant was its registered owner and the prosecution alleged that both the Applicant and D1 were present in the car on every occasion. Most of the victim-motorists involved in these accidents paid in cash and ‘settlement notes’ were written out to record the payments they had made. On other occasions, when no settlement could be reached, police were called to the scene and a formal road accident report would be made on a form ‘Pol 284A’. The Applicant was sentenced to 30 months’ imprisonment and disqualified from driving for 18 months pursuant to s 69(1)(h) of the Road Traffic Ordinance, Cap 374. On appeal, it was submitted that the sentence was manifestly excessive. It was said that as the Applicant was not on duty when the offences occurred, it was wrong for the judge to have treated his position as a police officer as an aggravating feature. The collisions were said to be trivial and the sums paid in compensation to be small. It was argued also, arising from comments the judge made when disqualifying the Applicant from driving for 18 months (a ban that would have ended by the time of release from prison) that the Applicant had been made a victim of double-punishment in the sense that although not convicted of dangerous driving he had effectively been sentenced for it.

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Held : (1) Police officers in whom the public placed trust to uphold the law, but who themselves broke the very laws they were empowered and entrusted to uphold, had to be made examples in terms of deterrent sentencing so that others would not be tempted to follow along similar lines and so that public confidence would be maintained; (2) On the facts of this case, it was plainly beside the point whether the Applicant was on or off duty; (3) This was not in reality a case of conspiracy to drive dangerously which, if accepted, should have carried a maximum of 3 years’ imprisonment. The conspiracy was to cause collisions with cars being driven by other motorists so that compensation could be claimed from them. There was an element of dangerous driving involved in the offences but that was incidental to the main purpose behind their dishonest scheme. Result - Application dismissed. Pursuant to s 83W, Cap 221, five months

loss of time ordered.

Cruelty to Animal AR 4/2008 Stuart-Moore ACJHC Yeung JA Reyes J (10.10.2008) *I G Cross SC & Tsang Oi-kei #Andy Hung

SJ v IU Chi-yung

Animal cruelty/Defendant cruelly beat barking deer and caused unnecessary suffering/Offence most serious where cruelty inflicted out of sadistic sense of fun at seeing animal suffer over prolonged time through torture/Animal suffering for relatively short perio d/Reason for act of cruelty often a determining factor in deciding whether custodial sentence required and its length/Each case depended on its own facts 殘酷對待動物殘酷對待動物殘酷對待動物殘酷對待動物 –––– 被告人殘酷地打赤麂導致牠受到不必要的痛苦被告人殘酷地打赤麂導致牠受到不必要的痛苦被告人殘酷地打赤麂導致牠受到不必要的痛苦被告人殘酷地打赤麂導致牠受到不必要的痛苦 ––––

如對動物施虐是如對動物施虐是如對動物施虐是如對動物施虐是 變態地以目睹動物在虐待下長時間受苦作為取樂變態地以目睹動物在虐待下長時間受苦作為取樂變態地以目睹動物在虐待下長時間受苦作為取樂變態地以目睹動物在虐待下長時間受苦作為取樂 ,,,,

則罪行最為嚴重則罪行最為嚴重則罪行最為嚴重則罪行最為嚴重 –––– 涉案涉案涉案涉案 動物受苦時間相對較短動物受苦時間相對較短動物受苦時間相對較短動物受苦時間相對較短 –––– 作出殘酷行為作出殘酷行為作出殘酷行為作出殘酷行為

的原因通常是裁定是否須判處監禁及刑期長短的決定性因素的原因通常是裁定是否須判處監禁及刑期長短的決定性因素的原因通常是裁定是否須判處監禁及刑期長短的決定性因素的原因通常是裁定是否須判處監禁及刑期長短的決定性因素 –––– 每每每每

一案件均視乎各自的案情一案件均視乎各自的案情一案件均視乎各自的案情一案件均視乎各自的案情

The Applicant was convicted after trial of an offence of cruelty to an animal, contrary to s 3(1)(a) of the Prevention of Cruelty to Animals Ordinance, Cap 169. The particulars of offence were that the Respondent, together with another man, on 31 December 2007, at Pui O Beach, ‘cruelly beat a barking deer and caused unnecessary suffering’ to the deer. The evidence showed that the Respondent, armed with a spade, and the other man, armed with a wooden club, ran to where the deer was standing and that they each struck the deer violently with their instruments. The Respondent hit the deer at least twice by raising the spade above his shoulder before striking it. During the attack, the deer emitted a ‘horrifying scream’, and the magistrate concluded that this occurred ‘because the deer was feeling the severe pain from the attack’, and he found that this sound lasted for ‘a substantial part of the one minute PW1 estimated it took her to reach the beach’ .

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A pre-sentence report indicated that the Respondent had committed the offence as a result of alcohol, that he had learned his lesson and was remorseful. He was not considered to be aggressive or impulsive and his prospects for reform were good. He was married with three young children, and earned $10,000 a month as an electrician. The Respondent told the probation officer he was annoyed by the barking of dogs, and attacked the deer as he thought it was a dog. A district councillor provided a letter in which the Respondent was described as a long-standing volunteer in his office, who was conscientious and enthusiastic in his work and praised by residents for his assistance to the elderly in his spare time. The incident had ‘struck a great blow to his family’, and a lenient sentence was sought so that he could ‘turn over a new leaf and contribute to society’. The magistrate rejected the submission that the Respondent had committed the offences whilst under the influence of drink. He found that he had been in full control of his faculties, and had concocted a false account to the effect that dogs had bitten the deer to death. The magistrate also rejected the Respondent’s account to the probation officer, and was satisfied that the Respondent had known it was not a dog he was attacking. The magistrate stated that in December 2006 a maximum sentence of 3 years’ imprisonment and a fine of $200,000 was introduced, and that this represented a sixfold increase in the maximum term of imprisonment for the offence as well as an increase by forty times of the maximum financial penalty. He observed that there had been a publicity campaign against cruelty to animals and he recognised the principle that, where the legislature had increased the maximum sentence for an offence, the new legislative view of the seriousness of the offence should be given full weight in sentencing. The Respondent had shown no remorse until after conviction, and even this was not genuine as he had sought to mislead the probation officer about what had occurred. The magistrate adopted a starting point of 8 months’ imprisonment from which he deducted a month for clear record and another month for the Respondent’s voluntary works on behalf of the elderly. On review, it was submitted that the sentence of 6 months’ imprisonment was manifestly inadequate and/or wrong in principle. Held : (1) Whilst the behaviour of the Respondent was, to any right minded member of society, very shocking indeed, the offence was not in the most serious category where, for example, cruelty had been inflicted out of a misguided and sadistic sense of fun at seeing an animal suffer over a prolonged time through torture; (2) The animal’s suffering was relatively short. Whilst the Respondent’s dreadful actions were to be deplored, a sentence of 6 months’ imprisonment was appropriate in the circumstances; (3) Each case would depend on its own facts, and the reason an act of cruelty to an animal was committed would often be a determining factor in deciding whether a custodial sentence was appropriate and, if so, its length. Result - Application dismissed.

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MA 431/2008 Line DJ (30.9.2008) *Sheroy Tam #I/P

SHU Ngai-fung

Animal cruelty/Animals confined in small cages in wet weather/Sentencing considerations/Courts rigorous in treating animal cruelty cases/Prevention of Cruelty to Animals Ordinance (Cap 169) s 3 殘酷對待動物殘酷對待動物殘酷對待動物殘酷對待動物 –––– 動物在雨中被禁閉在細小的籠內動物在雨中被禁閉在細小的籠內動物在雨中被禁閉在細小的籠內動物在雨中被禁閉在細小的籠內 –––– 判刑時須考判刑時須考判刑時須考判刑時須考

慮的事宜慮的事宜慮的事宜慮的事宜 –––– 法庭從嚴處理殘酷對待動物的案件法庭從嚴處理殘酷對待動物的案件法庭從嚴處理殘酷對待動物的案件法庭從嚴處理殘酷對待動物的案件 –––– 香港法例第香港法例第香港法例第香港法例第 169169169169

章章章章 《《《《 防止殘酷對待動物條例防止殘酷對待動物條例防止殘酷對待動物條例防止殘酷對待動物條例 》》》》 第第第第 3333 條條條條

The Appellant pleaded guilty to two offences of cruelty to animals by failing to provide sufficient water, contrary to s 3(1)(b) of the Prevention of Cruelty to Animals Ordinance, Cap 169, and one offence of cruelty to animals by failing to provide adequate shelter from the sun and rain, contrary to ss 5 and 21 of the Prevention of Cruelty to Animals Regulations, Cap 169A; to one offence of cruelty to animals by failing to provide a large enough cage, contrary to ss 2 and 21 of the Prevention of Cruelty to Animals Regulations, Cap 169A; and two offences of keeping a dog without a licence, contrary to ss 20(1) and (2) of the Rabies Regulations, Cap 421A. The animals affected were four dogs and three cats.

On 22 February 2008, an inspector from the SPCA went to the rooftop where the Appellant had his premises. He found the animals confined in three cages. In one there was a golden retriever, a mongrel dog and a terrier cross. In the second was a French bulldog and three cats. The dogs were soaking wet. The cage having the three dogs was too small for its purpose. The inspector caused the animals to be taken away. The Appellant was sentenced to concurrent terms of community service for 100 hours on Charges 1 and 2. On Charges 3 and 4, he was fined $5,000 each. On Charges 5 and 6, he was fined $1,000 each. The magistrate made an order under s 5(2)(a) of the Ordinance, returning the animals to the care and control of the SPCA. On appeal

Held : (1) There was no question of any deliberate cruelty by way of physical abuse or mistreatment by way of beating of these animals. They showed no fear of humans and had healthy appetites. But the impression was one of overall neglect; (2) Although the Appellant submitted that he was looking after some of the animals for friends, he was not equipped to take on animal welfare, because he had a job as a lorry driver that kept him away from the dogs for many hours; (3) As regards the day in question, the Appellant submitted that he had asked his brother to exercise the dogs and look after them, but he had not done so, and this coincided with him being delayed in his return from work. He said he kept them together in a small cage to keep them warm and happy; (4) This was an unusual case where the Appellant loved the animals in his charge, and whereas inadequacy led to the situation which developed the infliction of animal cruelty was never his intent. Although a less grave sentence would be imposed, this was no indication that the courts would be other than rigorous when it came to treating cruelty to animals. Result - Appeal allowed. Community service order of 100 hours reduced to

50 hours. Fines of $5,000 reduced to $3,000 each. Fine of $1,000 reduced to $500 each.

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Cruelty to Child CA 24/2008 Stock & Cheung JJA McMahon J (14.11.2008) *R S K Lee SC & Kam Yuk #H Y Wong

DING Yuk-kwan

Cruelty to a child/Guidelines not appropriate/Legislative intent that offence be treated seriously/Need to protect the vulnerable and deter/Sentencing considerations/Totality/Consecutive sentences appropriate for unrelated offences 虐 待 兒 童虐 待 兒 童虐 待 兒 童虐 待 兒 童 –––– 引 用 判 刑 指 引 並 不 恰 當引 用 判 刑 指 引 並 不 恰 當引 用 判 刑 指 引 並 不 恰 當引 用 判 刑 指 引 並 不 恰 當 –––– 立 法 原 意 是 從 嚴 對 待 罪立 法 原 意 是 從 嚴 對 待 罪立 法 原 意 是 從 嚴 對 待 罪立 法 原 意 是 從 嚴 對 待 罪

行行行行 –––– 有需要保護易受傷害者並起阻嚇作用有需要保護易受傷害者並起阻嚇作用有需要保護易受傷害者並起阻嚇作用有需要保護易受傷害者並起阻嚇作用 –––– 判刑時須考慮的事判刑時須考慮的事判刑時須考慮的事判刑時須考慮的事

宜宜宜宜 –––– 整體刑期整體刑期整體刑期整體刑期 –––– 互不相關的罪行宜處以分期執行的刑罰互不相關的罪行宜處以分期執行的刑罰互不相關的罪行宜處以分期執行的刑罰互不相關的罪行宜處以分期執行的刑罰

The Applicant pleaded guilty on 4 December 2007 to an offence of cruelty to a child, contrary to s 27(1) of the Offences against the Person Ordinance, Cap 212. The charge asserted that the Applicant on or about 28 March 2006, being a person who had attained the age of 16 years and having the care or custody of his son, who was then a child aged 4 months, wilfully ill-treated the child ‘in a manner likely to cause the said child unnecessary suffering or injury to the said child’s health’. At the date of the offence, the Applicant, aged 31 years, lived with his parents, his common-law wife and their two children, namely, the child in question (a boy), as well as a girl who was a little older than the boy. At the time of the offence, the Applicant, who had previous convictions for dishonesty but not for violence, was on the run from the police. The facts showed that the baby in question was born in November 2005, prematurely. He suffered from a number of complications. On 28 March 2006, the baby was brought to the hospital in Tseung Kwan O by his mother. The baby suffered three convulsions that day. The baby had bruises over his right periorbital area and a CT scan was performed which showed intracranial haemorrhage. Petechiae were noticed over the orbital area and nasal region and retinal haemorrhage was suspected. The child was admitted to the paediatric intensive care unit and haemorrhaging suggested shaken baby syndrome. On 31 March 2006 an EEG was conducted and that showed diffuse symmetrical cerebral dysfunction and on 6 April 2006 an operation was performed to install a subdural drain. The baby was discharged from hospital on 24 April 2006. Although initially the Applicant claimed he had dropped the baby onto the floor on the day in question, he later admitted that at about 1 pm on 28 March 2006 the baby had cried and he thus shook the baby for about half an hour to make him sleep. The baby fell asleep and he put the baby back to bed. But when the baby cried again, he shook him for about ten minutes during which time he accidentally dropped the baby onto the floor. Afterwards the baby had a seizure and he telephoned his wife who returned home and the couple then took the baby to hospital. The paediatrician who examined the baby concluded that as a result of the injury inflicted the seizures had resulted, and there was a mild degree of brain atrophy and a mild delay in attaining expected developmental milestones. The specialist found that the child was at ‘high risk for cognitive and learning impairment, vision and language effects, behavioural and neuropsychological problems’. There was a need to monitor the child for post-traumatic epilepsy, although EEG records ten months after the incident were normal. He considered that severe force must have been inflicted to have caused the haemorrhaging detected. At the date of sentencing, the Applicant was serving 21 months’ imprisonment imposed in January 2007 for a series of unrelated matters, namely,

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offences of dishonesty dating from the 1990’s. The judge adopted a starting point for sentence of 30 months’ imprisonment, and reduced this by one-third to 20 months for the guilty plea. This was ordered to run consecutively to the sentence he was already serving. On appeal Held : (1) Offences contrary to s 27(1) varied so greatly in their background and gravity as well as in the personal circumstances of the perpetrators that they did not lend themselves to guidelines, so that a comparison with other cases was of limited value; (2) The maximum sentence for this offence was 10 years’ imprisonment, a maximum that was greatly increased in 1995, thereby indicating the legislature’s intention that the offence be treated seriously. Some assessment - and the approach was an art - must be made as to where within the range of seriousness the offence at hand lay and then, amongst all the factors that must be taken into account, were primarily the need to protect the vulnerable and the need to deter. That those who had the custody and care of children would suffer stress in the performance of that function was well known but there was a societal imperative that demanded, for the protection of children, the exercise of control. A further highly material consideration was whether there had been visited upon the child long-term disability or a real danger of it. The court would take into account as well whether the maltreatment was an isolated act or had been constituted by a course of conduct. This was not an exhaustive list of factors but merely an indicator of the more obvious ones; (3) In this case, although there was no suggestion of a course of conduct over a period of days or months, there was prolonged shaking of the child, in one instance for about half an hour; and the shaking was renewed when the first assault had not had the desired effect. This was in itself serious conduct. The immediate consequences to the child were also very serious, causing unconsciousness and convulsions, hospitalisation for a month and an operation. Some permanent long-term damage was discerned, with a high risk of cognitive and learning impairment. As against that, this was a single incident; (4) Neither the starting point nor the resulting sentence could be criticised. It was not in the least severe. It might be said to have been on the lenient side; (5) On totality, the imprisonment the Applicant was undergoing at the date upon which he was sentenced for this child cruelty offence was in relation not only to an altogether different offence or offences but to altogether different offences committed years previously. It was only because the Applicant had for some years deliberately avoided trial for the dishonesty offences by not appearing in court when he was supposed to, that he happened to be serving a term of imprisonment for those offences at the time that he came to be sentenced for the offence against his child. It would have been odd if the judge had made any order other than that the sentences were to run consecutively. Result - Application dismissed.

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* 張 維 新 及 林 德 穎 Cheung Wai-sun& Winnie Lam #上 訴 人 自

辯 I / P

香港特別行政區訴香港特別行政區訴香港特別行政區訴香港特別行政區訴 SITI FATIMAHSITI FATIMAHSITI FATIMAHSITI FATIMAH

H K S A R v S I T I F A T I M A H 高等法院上訴法庭 – 高院刑事上訴2008年第116號

高等法院上訴法庭法官楊振權

高等法院上訴法庭法官袁家寧

高等法院原訟法庭法官湯寶臣

宣判日期:二零零八年十一月廿一日

COURT OF APPEAL OF THE HIGH COURT CRIMINAL A P P E A L NO . 1 1 6 O F 2 0 0 8 Ye u n g & Y u e n J J A To n g J D a t e o f J u d g me n t : 2 1 N o v e mb e r 2 0 0 8 虐待兒童虐待兒童虐待兒童虐待兒童 –––– 法庭難以將不同的案件歸類而作出判刑指引法庭難以將不同的案件歸類而作出判刑指引法庭難以將不同的案件歸類而作出判刑指引法庭難以將不同的案件歸類而作出判刑指引 –––– 上訴上訴上訴上訴

人沒有律師代表是另一個不適合作出判刑指引的理由人沒有律師代表是另一個不適合作出判刑指引的理由人沒有律師代表是另一個不適合作出判刑指引的理由人沒有律師代表是另一個不適合作出判刑指引的理由 –––– 應根據案應根據案應根據案應根據案

件的個別情況而決定恰當的刑期件的個別情況而決定恰當的刑期件的個別情況而決定恰當的刑期件的個別情況而決定恰當的刑期 –––– 嬰兒傷勢迅速痊癒並沒有後遺嬰兒傷勢迅速痊癒並沒有後遺嬰兒傷勢迅速痊癒並沒有後遺嬰兒傷勢迅速痊癒並沒有後遺

症是考慮因素症是考慮因素症是考慮因素症是考慮因素

上 訴 人 被 控 一 項 虐 待 在 她 看 管 下 的 兒 童 罪 , 違 反 香 港 法 例 第

212 章 《 侵 害 人 身 罪 條 例 》 第 27(1) 條 。 上 訴 人 否 認 控 罪 , 在 審 訊

後,被區域法院暫委法官裁定罪名成立。在取得報告及聆聽過求情

後,暫委法官判上訴人監禁 4 年。

案中的嬰兒梁鈞淘(‘嬰兒’)生於 2006 年 10 月 16 日。上訴

人自 2006 年 12 月 5 日起受聘於梁家,她的主要工作是照顧嬰兒,

也須要做其他一般家務。

2007 年 3 月初,嬰兒的父母要短暫離港,他們安排了嬰兒的

外祖母在他們家留宿以便協助照顧。3 月 3 日凌晨 4 時許,外祖母

突然聽到嬰兒的哭聲,她便走到嬰兒房間查看,她當時見到嬰兒在

牀上大哭,上訴人提出嬰兒是肚餓,但嬰兒卻不肯喝奶,上訴人又

指嬰兒是肚痛並替他塗抹藥油,然而嬰兒一直哭到早上,整天也睡

不安寧,不肯進食。

外祖母在在 3 月 4 日接手看顧嬰兒。她覺得嬰兒看似患病,

並注意到嬰兒的手有異樣,她心生疑竇,故堅持不需上訴人而親自

替嬰兒洗澡。她發現嬰兒的左手結實紅腫,像一根「紅蘿蔔」般,

她就此詢問上訴人,但對方回應說不知情。

嬰兒的父母在 3 月 5 日回家後,立即帶了嬰兒去看醫生。在

醫生建議下,嬰兒被送往伊利沙白醫院跟進。經檢驗後,醫生指出

x 光 片 顯 示 嬰 兒 的 左 右 手 均 出 現 骨 折 , 以 嬰 兒 的 情 況 來 看,骨折是

由「扭動」的動作所造成的,而這種骨傷是不可能由一個 4 個月大

的嬰孩自己造成的,而嬰兒亦沒有任何先天性毛病或營養不良導致

他的骨骼容易折斷。

在 判 刑 之 前 , 暫 委 法 官 先 取 得 感 化 報 告 及 嬰 兒 的 醫 生 報 告 。

在聽取求情後,決定判上訴人監禁 4 年。她在判刑理由書裡指出:

18. 最後本席無從得知被告人為何對一名四個月大的嬰孩作出此等行為。一名四個月大的嬰孩,毫無

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反抗能力,也不能以言語與人溝通,只能以哭表達情緒。

19. 現今社會,很多母親都要出外工作,支持家庭,外傭協助照顧家庭成員,包括初生嬰兒,已成趨勢 。 被 告 人 身 為 傭 工 , 有 責 任 確 保 [ 鈞 ] 淘 的 安全,而並非蓄意令他受不必要的傷害及痛楚。

20. 有 關 條 文 在 1995 年 已 修 改 增 加 最 高 刑 期 至 十年。可見法例對這類案件視為嚴重。有關法例是保護未成年人[士],包括初生嬰兒。

21. 本席參考了新近的醫生報告,及近期區域法院的另 一 件 案 例 DCCC1165/2006 , 判 刑 時 , 本 席 考慮到被告大律師之求情,所有報告內容,被告人以往並無定罪紀錄。

22. 本席認為必須下令被告人監禁以起阻嚇及懲罰之作用。

23. 下令被告人入獄四年。

裁決裁決裁決裁決:

(1) 法 庭 認 為 很 難 可 以 將 各 種 各 樣 的 虐 待 行 為 、 意 圖 及 後 果 等 歸

類 並 作 出 合 理 的 判 刑 指 引 。 另 一 方 面 , 由 於 上 訴 人 沒 有 大 律 師 代

表,在缺乏上訴方在法律原則上的協助下,法庭不認為這是一個適

合去確定判刑指引的機會;

(2) 法庭注意到 R v Lam Wai-man [1993] 3 HKLRD 855 及 SJ v Lam Lui-yin [2007] 1 HKLRD 248 兩宗案例在判刑上的差別。Lam Wai-man 案涉及一名 21 個月大的嬰兒被母親虐待和誤殺的罪行。

原審法官分別採用 9 年及 12 年作為虐兒及誤殺的量刑基準,最後

總 刑 期 判 定 為 9 年 。 上 訴 庭 認 為 涉 案 行 為 屬 長 時 間 的 嚴 重 傷 害 行

為,並提到法例剛把最高刑期從兩年提升到 10 年,受害嬰孩最後

死亡,是為非常嚴重的後果;

(3) Lam Lui-yin 一案亦涉及嬰孩受虐最後死亡的罪行。同樣地,

被告人是嬰孩的母親。原審法官在判刑時把嬰孩所受的傷分為一般

的傷勢及致命的頭部重創。前者成為虐兒罪的基礎案情,法官決定

以兩年為判刑基準。律政司不服這項判刑,向上訴庭提出覆核並獲

批准。上訴庭將虐兒刑期改判為 4 年。在聆訊時,雙方代表大律師

似乎沒有討論過 Lam Wai-man 一案。首席法官馬道立的主要判詞如

下:

( 1 ) T h i s w a s a c a s e o f p a r e n t s h a v i n g p h y s i c a l l y a b u s e d a n d w i l f u l l y i l l - t r e a t e d a c h i l d o n m o r e t h a n j u s t i s o l a t e d o c c a s i o n s . I t h a d c o n t i n u a l l y t a k e n p l a c e o v e r a p e r i o d o f m o n t h s . B o k - y a m w a s a c h i l d w h o a t t h e t i m e o f h i s d e a t h w a s j u s t 2 y e a r s 4 m o n t h s o l d . T h e R e s p o n d e n t s k n e w t h a t h e r e q u i r e d m o r e c a r e a n d u n d e r s t a n d i n g t h a n a n o r m a l h e a l t h y c h i l d . B o r n w i t h h e a r t a n d l u n g d i s e a s e s , h e h a d b e e n i n h o s p i t a l f o r o v e r 2 y e a r s . W h e n h e w e n t h o m e i n D e c e m b e r

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2 0 0 3 , h e d e s e r v e d t o b e w e l l l o o k e d a f t e r r a t h e r t h a n b e i n g s u b j e c t e d t o t h e c o m p l e t e o p p o s i t e .

( 2 ) N o t o n l y w a s B o k - y a m s u b j e c t e d t o p h y s i c a l a b u s e o n a l a r g e s c a l e , h e w a s a l s o d e p r i v e d o f t h e m e d i c a l c a r e a n d a t t e n t i o n h e e v i d e n t l y n e e d e d . W e h a v e a l r e a d y m e n t i o n e d t h e f o l l o w - u p t r e a t m e n t s h e h a d t o a t t e n d , b u t h e w a s d e p r i v e d o f t h a t b y t h e R e s p o n d e n t s . T h i s w a s n o t a c a s e o f i g n o r a n c e : t h e R e s p o n d e n t s d e l i b e r a t e l y c h o s e n o t t o t a k e B o k - y a m f o r t r e a t m e n t a n d f o r n o g o o d r e a s o n a t a l l ( i n f a c t q u i t e t h e o p p o s i t e ) .

( 3 ) I n s u m m a r y , t h i s c a s e i n v o l v e d a b o y w h o n a t u r a l l y p l a c e d t h e t r u s t o f l o o k i n g a f t e r h i m o n t h o s e w h o w e r e r e s p o n s i b l e f o r h i s w e l f a r e , h i s p a r e n t s . T h e y h a v e s a d l y l e t h i m d o w n . D r L i S h u k H a n , t o w h o m w e h a v e e a r l i e r r e f e r r e d , d e s c r i b e d h i m a s a ‘ l o v e l y b o y , p l a y f u l a n d a c t i v e ’ . A l l t h e d o c t o r s a n d n u r s e s a t t h e h o s p i t a l r e l a t e d t o h i m a n d b o n d e d w i t h h i m . B o k - y a m d e s e r v e d b e t t e r a t h o m e . I n s t e a d , h e w a s s u b j e c t e d t o n e g l e c t a n d i l l - t r e a t m e n t .

(4) 從以上看來,上訴庭在處理 Lam Lui-yin 案時都是根據案件

的 個 別 情 況 去 決 定 恰 當 的 刑 期 而 不 是 採 用 比 較 案 例 的 方 式 來 考 慮

的;

(5) 以本案來說,法庭認為上訴人當然不應該以這種殘忍手法去

扭傷受她看顧的嬰兒的手骨,然而,證據並不顯示上訴人是持續地

作出虐待行為。她可能受不了照顧初生嬰孩的壓力而一時失控。值

得慶幸的是嬰兒的傷勢已迅速痊癒,沒有嚴重的後遺症。上訴人是

初犯,亦因此而失去工作。法庭認為在這情況下,2 年 9 個月的刑

期已是恰當的處罰。

結果結果結果結果︰上訴得直。4年的刑期減為2年9個月。

[English digest of CA 116 of 2008, above] Yeung & Yuen JJA Tong J (21.11.2008) *Cheung Wai-sun & Winnie Lam #I/P

SITI FATIMAH

Cruelty to child/Difficult for court to categorize cases for the purpose of setting sentencing guidelines/Appellant acting in person as reason not to set sentencing guidelines/Necessary to decide appropriate sentence on individual circumstances of each case/Baby’s quick recovery from injuries without permanent defect a relevant consideration The Appellant was charged with one count of ill-treatment of a child of whom she was in charge, contrary to section 27(1) of the Offences against the Person Ordinance, Cap 212. The Appellant denied the charge, but was convicted after trial. Having considered the reports and mitigation, the Deputy Judge sentenced the Appellant to 4 years’ imprisonment. The baby in question, Leung Kwan-to (‘the baby’), was born on 16 October 2006. The Appellant had been employed to work for the Leung’s family since 5 December 2006. Her main duty was to look after the baby. She was also required to carry out other general household chores.

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In early March 2007, the baby’s parents needed to leave Hong Kong for a short period. They arranged the baby’s maternal grandmother to stay overnight at their home to assist in the care of the baby. Shortly after 4 am on 3 March, the grandmother suddenly heard the baby crying. She went to the baby’s room to check on what happened. She saw the baby crying loudly on the bed. The Appellant suggested that the baby might be hungry. However, the baby refused to drink milk. The Appellant also suggested that the baby might be suffering from abdominal pain. She applied medical oil on him. However, the baby continued crying until the next morning, and slept restlessly throughout the day, refusing to take in any food. On 4 March, the grandmother took over the baby. It seemed to her that the baby was ill. She also found something unusual with the baby’s arm. Since she felt suspicious, she did not allow the Appellant to bathe the baby and insisted on doing it herself. She found that the baby’s left arm was red and swollen like ‘a carrot’, and she asked the Appellant about this. The Appellant said she had no idea. When the parents came home on 5 March, they immediately took the baby to see a doctor. At the doctor’s suggestion, the baby was sent to Queen Elizabeth Hospital for treatment. After examination, the doctor said that X-ray films showed fractures on both of the baby’s left and right arms; in light of the baby’s condition, the bone fractures should have been caused by a ‘twisting’ motion; it was impossible for a 4-month-old baby to have inflicted such injuries upon itself; and the baby was not suffering from any congenital disease or malnutrition that made him more susceptible to bone fracture. Prior to sentencing, the Deputy Judge called for the Appellant’s probation report and the baby’s medical report. Having heard the mitigation, she sentenced the Appellant to 4 years’ imprisonment. In her Reasons for Sentence, she indicated: 18. Lastly, I cannot understand why the Defendant

committed such acts on a 4-month-old baby. A 4-month-old baby was defenseless and incapable of verbal communication. It could only express its emotions through crying.

19. In society nowadays, many mothers need to leave home

to work in order to support the family. It has become a trend to rely on foreign housemaids to help look after their family members, including new born babies. The Defendant, as a housemaid, had the responsibility to ensure the safety of Kwan-to rather than wilfully causing the baby unnecessary suffering and injury to his health.

20. The relevant provision was amended in 1995 to increase

the maximum sentence to 10 years’ imprisonment. It shows that the Legislation takes a serious view of this type of offence. The relevant Ordinance is intended to protect the minors, including new born babies.

21. I have referred to the recent medical report and a recent

district court case DCCC 1165/2006. In sentencing, I have also considered the mitigation by the Defendant’s counsel, all the reports and the Defendant’s clear record.

22. To deter and punish, I am of the view that a sentence of

imprisonment should be imposed on the Defendant.

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23. The Defendant is sentenced to 4 years’ imprisonment. Held: (1) The court found it difficult to categorize various abusive acts, intents, consequences etc. for laying down a set of reasonable sentencing guidelines. Besides, the Appellant was not represented. In the absence of assistance on legal principles from the Appellant, the court did not consider it appropriate to set sentencing guidelines; (2) The court noted the difference in the sentences imposed in R v Lam Wai-man [1993] 3HKLRD 855 and SJ v Lam Lui-yin [2007] 1 HKLRD 248. The case of Lam Wai-man involved a mother who ill-treated and unlawfully killed a 21-month baby. The trial judge adopted starting points of 9 and 12 years’ imprisonment respectively for ill-treatment and manslaughter, and imposed a total sentence of 9 years’ imprisonment. The Court of Appeal found there to be grave abuse which lasted for some time. The court acknowledged that the maximum sentence had been increased from two years to ten years, and that the death of the baby victim was a very serious consequence; (3) Lam Lui-yin was also a case where a baby was ill-treated to death. Similarly, the defendant was the baby’s mother. When sentencing, the trial judge distinguished between general injuries and fatal head injuries. The former being the basis for the subject offence. The trial judge adopted 2 years’ imprisonment as the starting point. The Secretary for Justice applied to the Court of Appeal for review and the application was allowed. The court substituted the sentence with a term of 4 years for ill-treatment of the baby. At the hearing, it appeared that counsel for both parties did not refer to the case of Lam Wai-man. The judgment given by Ma CJ was as follows: (1) This was a case of parents having physically abused and

wilfully ill-treated a child on more than just isolated occasions. It had continually taken place over a period of months. Bok-yam was a child who at the time of his death was just 2 years 4 months old. The Respondents knew that he required more care and understanding than a normal healthy child. Born with heart and lung diseases, he had been in hospital for over 2 years. When he went home in December 2003, he deserved to be well looked after rather than being subjected to the complete opposite.

(2) Not only was Bok-yam subjected to physical abuse on a

large scale, he was also deprived of the medical care and attention he evidently needed. We have already mentioned the follow-up treatments he had to attend, but he was deprived of that by the Respondents. This was not a case of ignorance: the Respondents deliberately chose not to take Bok-yam for treatment and for no good reason at all (in fact quite the opposite).

(3) In summary, this case involved a boy who naturally

placed the trust of looking after him on those who were responsible for his welfare, his parents. They have sadly let him down. Dr Li Shuk Han, to whom we have earlier referred, described him as a ‘lovely boy, playful and active’. All the doctors and nurses at the hospital related to him and bonded with him. Bok-yam deserved better at

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home. Instead, he was subjected to neglect and ill-treatment.

(4) The above showed that the court in Lam Lui-yin had determined an appropriate sentence in light of the individual circumstances rather than adopting a comparison approach; (5) In the present case, the court no doubt disapproved the cruelty of the Appellant in twisting the arms of the baby, who was in her care, causing him injuries. However, there was no evidence to show that the Appellant had continually committed the abusive acts. It might be that she could not withstand the pressure of looking after a new born baby and had lost her control in a momentary lapse. Fortunately, the baby had quickly recovered from the injuries with no serious permanent effects. The Appellant was a first offender and had lost her job in consequence. In view of these circumstances, the court found that a sentence of 2 years and 9 months’ imprisonment was already an appropriate punishment. Result - Appeal allowed. Sentence reduced from 4 years to 2 years and 9

months.

Dangerous Drugs CA 154/2007 Stock & Yeung JJA (5.2.2008) *Sin Pui-ha #I/P

GARCIA Palacios Marco Antonio

Narcotics/Trafficking in cocaine/Foreign element an aggravating factor/Quantity of drugs the most significant factor on sentence/ Extent of upward increase in sentence for very large quantity 毒品毒品毒品毒品 –––– 販運可卡因販運可卡因販運可卡因販運可卡因 –––– 外地因素是加重刑罰的因素外地因素是加重刑罰的因素外地因素是加重刑罰的因素外地因素是加重刑罰的因素 –––– 毒品的數毒品的數毒品的數毒品的數

量是判刑的最重要因素量是判刑的最重要因素量是判刑的最重要因素量是判刑的最重要因素 –––– 涉及非常大量毒品時的加刑幅度涉及非常大量毒品時的加刑幅度涉及非常大量毒品時的加刑幅度涉及非常大量毒品時的加刑幅度

The Applicant, a Peruvian, arrived at the airport from Buenos Aires, via Kuala Lumpur, and was intercepted and detained by Customs and Excise officers. He subsequently excreted at Queen Elizabeth Hospital 161 pellets weighing just over 1,072 grammes of a mixture containing 857.37 grammes of cocaine with an estimated market value of about $933,000. The Applicant pleaded guilty to an offence of trafficking in cocaine, and after the judge adopted a starting point for sentence of 25 years he was sentenced to imprisonment for 16 years and 8 months. In sentencing, the judge referred to HKSAR v Hong Chang-chi [2002] 1 HKLRD 486, and emphasised the seriousness of non Hong Kong residents importing drugs into Hong Kong, and explained why such non resident status afforded no mitigation. On appeal Held : (1) As decided in AG v Pedro Nel Rojas [1994] 2 HKCLR 69, heroin and cocaine were very closely alike in their degree of harm, and trafficking in heroin and cocaine should therefore attract similar sentence tariffs as laid down in R v Lau Tak-ming [1990] 2 HKLR 370;

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(2) Amounts of over 600 grammes of narcotics, be it heroin or cocaine, fell into the ‘very large quantities’ category and there should be an upward increase in the ‘cut off sentence’ of 20 years suggested in R v Cheng Yeung [1989] 2 HKLR 258, bearing in mind that the maximum sentence was life imprisonment. In AG v Ching Kwok-hung [1991] 2 HKLR 125, Silke VP elaborated that ‘By upwards we mean , as was indicated in Lau Tak-ming, beyond any cut off sentence, but bearing in mind the dangers of a mathematical progression causing injustice’ ; (3) Whilst mathematical progression could cause injustice, there should still be a logical connection between the quantity of drugs involved and the starting point. The quantity of drugs involved in any drug trafficking case was the most significant factor on sentence; (4) The Applicant was involved in about 850 grammes of cocaine (250 grammes above 600 grammes), which called for an upward adjustment from the ‘cut off sentence’ of 20 years. The judge increased the ‘cut off sentence’ by 5 years, a significant increase of 25%; (5) Although the ‘foreign element’ was an aggravating factor, the 25% increase might leave little room for distinguishing this from other cases involving perhaps 2,000 grammes or 3,000 grammes of narcotics. The starting point adopted in Pedro Nel Rojas (supra), a case involving over 1,500 grammes of cocaine, was just over 22 years; (6) The 25-year starting point was manifestly excessive, and a starting point of just over 22 years was adequate to reflect the gravity of the offence, even taking into consideration the aggravating feature of the ‘foreign element’ . There should be a one-third discount for the guilty plea. Result - Appeal allowed. Sentence of 15 years’ imprisonment substituted.

AR 5/2007 Cheung & Yeung JJA McMahon J (18.3.2008) *R S K Lee #Wong Po-wing

SJ v CHAN Ka-wah

Trafficking in dangerous drugs/Sentencing guidelines to be followed save in exceptional circumstances/Suspended sentence to be activated and ordered to run consecutively to new sentence save in exceptional circumstances 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 除非情況特殊除非情況特殊除非情況特殊除非情況特殊 ,,,, 否則須依循判刑指引否則須依循判刑指引否則須依循判刑指引否則須依循判刑指引 –––– 除非情除非情除非情除非情

況特殊況特殊況特殊況特殊 ,,,, 否則須執行緩刑否則須執行緩刑否則須執行緩刑否則須執行緩刑 ,,,, 並下令緩刑與新的刑期分期執行並下令緩刑與新的刑期分期執行並下令緩刑與新的刑期分期執行並下令緩刑與新的刑期分期執行

The Respondent was convicted after trial of an offence of trafficking in dangerous drugs, namely, packets containing 45.46 grammes of a mixture containing 18.11 grammes of heroin, which he tried to throw out of a window during a police raid at his flat. At the time of sentence, the Respondent was serving a 6-month sentence, suspended for 2 years, for a shoplifting offence. The judge sentenced the Respondent to 3 years’ imprisonment for the drugs offence, and activated the suspended sentence and ordered that it run concurrently with the 3 years’ imprisonment. On review, it was submitted that the judge erred in not following the sentencing guidelines in sentencing the Respondent on the weight of the narcotic content. Held : (1) Sentencing was never an easy task, but relatively more straightforward in drug trafficking cases where there were clear guidelines laid down by the

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Court of Appeal. It was important to follow the guidelines so that people who engaged in such evil business could be assured of the length of the inevitable custodial sentence, and hopefully act as a deterrent; (2) To achieve consistency in sentencing, the quantity of the narcotic content was the dominant factor in sentencing as demonstrated in R v Lau Tak-ming and Others [1990] 2 HKLR 370, 387, where Silke VP said ‘In the light of all this the one constant is the quantity of narcotic. It is contained in all the mixtures whatever their size. And that is the basis for the tariff we now set out’. Whilst a judge retained some degree of discretion and other factors might be taken into account to determine an appropriate sentence, the sentence imposed should normally be ‘within the suggested bands’ ; (3) Whatever role a drug trafficker might play, the guidelines in Lau Tak-ming should be followed unless there were exceptional circumstances: HKSAR v Manalo [2001] 1 HKLRD 557, 560; (4) The Respondent was well aware that he was assisting in his girlfriend’s drug trafficking. Whether his role was that of a storekeeper or disposer of the drugs mattered little in principle and whatever his role was, the guidelines should have been applied; (5) If a defendant committed a fresh offence during the period of a suspended sentence, he would be sentenced for the fresh offence, and the suspended sentence, in the absence of any exceptional circumstance, would be activated and served consecutively to the sentence for the fresh offence, otherwise the suspended sentence would lose its meaning and effect: R v Ithell (1969) 53 Cr App R 210. The length of the sentence for the fresh offence was not an exceptional circumstance. Result - SJ’s application allowed. Sentence of 5 years’ imprisonment

substituted. Activated sentence of 6 months’ imprisonment to be served consecutively. Final sentence of 5 ½ years’ imprisonment.

AR 7/2006 & CA 126/2007 Ma CJHC Stuart-Moore VP Stock JA (6.6.2008) *K Zervos SC & Winsome Chan #L J Poots (R) Cheung Kam-chuen (A)

SJ v HII Siew-cheng (R) HKSAR v WONG Yat-san (A)

Dangerous drugs/Trafficking in ketamine and ecstasy/New sentencing guidelines/Ketamine and ecstasy both highly dangerous with potential for psychological dependence/No good reason to treat traffickers in either drug differently/Same sentencing guidelines for each drug/No retrospective effect 危險藥物危險藥物危險藥物危險藥物 –––– 販運氯胺酮及忘我販運氯胺酮及忘我販運氯胺酮及忘我販運氯胺酮及忘我 –––– 新判刑指引新判刑指引新判刑指引新判刑指引 –––– 氯胺酮和忘我兩氯胺酮和忘我兩氯胺酮和忘我兩氯胺酮和忘我兩

者 均 高 度 危 險者 均 高 度 危 險者 均 高 度 危 險者 均 高 度 危 險 ,,,, 有 可 能 造 成 心理上的依賴有 可 能 造 成 心理上的依賴有 可 能 造 成 心理上的依賴有 可 能 造 成 心理上的依賴 –––– 沒有充分理由對氯胺沒有充分理由對氯胺沒有充分理由對氯胺沒有充分理由對氯胺

酮 及 忘 我 的 販 運 者 給 予 不 同 對 待酮 及 忘 我 的 販 運 者 給 予 不 同 對 待酮 及 忘 我 的 販 運 者 給 予 不 同 對 待酮 及 忘 我 的 販 運 者 給 予 不 同 對 待 –––– 兩 種 危 險 藥 物 的 判 刑 指 引 相兩 種 危 險 藥 物 的 判 刑 指 引 相兩 種 危 險 藥 物 的 判 刑 指 引 相兩 種 危 險 藥 物 的 判 刑 指 引 相

同同同同 –––– 不具追溯力不具追溯力不具追溯力不具追溯力

Hii Siew Cheng (‘Hii ’), the Respondent in AR 7/2006, was convicted on 12 June 2006 of an offence of trafficking in ketamine. He pleaded guilty to unlawfully trafficking in 1.97 kilogrammes of a powder containing 1.64 kilogrammes of ketamine, and was sentenced to 7 years and 4 months’ imprisonment. In the absence of specific guidelines for sentencing ketamine traffickers, the judge followed the practice of using the sentencing guidelines in HKSAR v Lee Tak-kwan [1998] 2 HKC 371, for trafficking in MDMA, or ‘ecstasy’. Prior to this, the judge had heard evidence about ketamine and ecstasy from a number of experts in the course of which comparisons as to the adverse effects of each were drawn. In the absence of specific guidelines for ketamine and when justifying her decision to adopt the sentencing guidelines for ecstasy in Hii’s case, the judge relied on Seabrook v HKSAR (1999) 2 HKCFAR 184, 192. On review, it was submitted that the time had now been reached, in the light of present medical knowledge about ketamine and its prevalence in Hong

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Kong, for sentencing guidelines to be provided which dealt with ketamine in its own right. It was further argued that the ecstasy guidelines in Lee Tak-Kwan, being applied in many ketamine trafficking cases, were themselves out of date as the Court of Appeal’s observations in that case had been overtaken by recent medical research into ecstasy. It was said that if the judge in Hii’s case had correctly found that ecstasy and ketamine were both addictive in the sense she had described, it was not appropriate for ketamine or ecstasy traffickers to be sentenced on the existing ecstasy guidelines when these guidelines related to what was understood at that time to be a non-addictive drug. In these circumstances, it was said that just as sentencing guidelines were needed for ketamine, so also the guidelines for ecstasy needed to be updated so that they were kept in line with modern medical knowledge. For that reason, arrangements were made for the consolidation of a case concerned with ecstasy so that it could be used as a means of revisiting, if necessary, the ecstasy guidelines. For that purpose, CA 126/2007 was consolidated with the review hearing. In that case, Wong Yat-san (‘Wong’) had been sentenced on 29 March 2007 to 5½ years’ imprisonment after trial for trafficking in 1,510 blue tablets containing a total of 5.35 grammes of ice mixed with 85.11 grammes of ecstasy, with a street level value of $125,300. Held : (1) Whichever of the two drugs was the more prevalent, the most important features of the evidence were that both drugs were prevalent and both drugs were targeted at the young, particularly those aged under 21. Each drug had serious side effects which impinged not just upon the consumers but also on the community at large. It was plain, also, that ecstasy and ketamine were frequently taken by the same users to fill a gap as, for example, when ketamine was snorted before an ecstasy tablet had time to take effect or when ketamine was taken after the effects of ecstasy had begun to wane. Sometimes, they were taken simply to produce a new and different experience; (2) It mattered little which of these drugs was the more prevalent. They were both, potentially at least, highly dangerous and they were addictive in the sense that they had the potential for psychological dependence. No good reason had been shown for treating traffickers of ketamine differently from those who trafficked in ecstasy; (3) The most significant changes since Lee Tak-kwan’s case was the element of addictiveness which had been established in regard to each drug. It was this which primarily distinguished the evidence available and the evidence available in Lee Tak-kwan which led the court to say that ecstasy was not addictive and that psychological dependence was rare. These two drugs, different in their own ways, pharmacologically and in the harm they could do, were not to be distinguished when it came to dealing with those who were caught trafficking in them; (4) On the information presently before the court, ketamine and ecstasy had been rightly described as the most popular and the second most popular psychotropic substances of abuse amongst young drug takers, respectively. It was apparent, also, that these two types of drug were often taken in combination to complement each other and that, with each, a tolerance to them developed giving rise to psychological dependence and the adverse effects of toxicity. While there was no ‘solid evidence’ of long-term effects due to toxicity related to the abuse of heroin, it was ‘highly likely’ to be a factor. Relevant criminal studies had shown this to be so and human studies of a similar kind were impossible for obvious ethical reasons;

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(5) In those circumstances, and subject only to the weight of the respective ‘doses’ normally used for each drug so that priority of treatment was achieved, there should be sentencing guidelines for both ketamine and ecstasy and those should be the same. Moreover, having regard to the addictive and toxic elements of both drugs, the sentencing guidelines should be higher than those outlined in Lee Tak-kwan; (6) Sentencing guidelines were called for in regard to ketamine, which had been shown not only to be a prevalent drug in Hong Kong but also, seemingly, the most popular of all amongst those under 21 who abused drugs. Ecstasy was closely associated with ketamine. Furthermore, both drugs had been shown to be addictive in the sense that they gave rise to psychological dependence. These were the prime factors taken into account in the formulation of the guidelines which should be the same for both types of drug; (7) The following tariffs for sentence after trial for traffickers in ketamine and ecstasy would apply:

(1) Up to 1 gramme - within the sentencer’s discretion (2) Over 1 gramme to

10 grammes - 2 to 4 years’ imprisonment

(3) 10 to 50 grammes - 4 to 6 years’ imprisonment (4) 50 to 300 grammes - 6 to 9 years’ imprisonment (5) 300 to 600 grammes - 9 to 12 years’ imprisonment (6) 600 to 1,000 grammes - 12 to 14 years’ imprisonment (7) Over 1,000 grammes - 14 years upwards

(8) It was not envisaged that a trafficker in ketamine or ecstasy who visited a discotheque or similar premises would be given a non-custodial sentence under any circumstances save where these were exceptional in the extreme. The guidelines were intended to deter traffickers who frequented such premises where young people were likely to be. In very many instances, it was likely to be the small-time pushers of drugs, often with a mere handful of tablets to supply to others, who shouldered the responsibility for taking young people off the rails and started them on a path of self-destruction through drugs; (9) As regards ‘social trafficking’, the Court of Appeal, in HKSAR v Wong Suet-hau and Another [2002] 1 HKLRD 69, said:

51. In our opinion, while some of the ‘social’ or ‘non-commercial’ trafficking cases involving small quantities of drugs can properly be regarded, when all the circumstances are examined, as falling into the lower end of the sentencing scale applicable to the dangerous drug in question, we are firmly of the view that this factor should not, in itself, provide a general basis for imposing a lighter sentence, than would have been imposed for commercial trafficking. The ‘friend’ who starts off or perpetuates another’s abuse of drugs, is as dangerous to the community as the commercial supplier of small quantities, who will generally traffic in drugs with those already addicted.

In the unlikely event that an habitual abuser of ketamine or ecstasy or both, with no previous convictions for trafficking in dangerous drugs, was caught in the act of supplying a close acquaintance such as a boyfriend or girlfriend who was also a regular consumer of drugs, this might well give rise to circumstances where a non-custodial sentence would be justified. However, care must be taken in regard to mitigation of this kind that regular traffickers, in order to avoid what in

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practice would be an inevitable sentence of imprisonment, did not succeed in availing themselves of mitigation along such lines; (10) The new guidelines did not have retrospective affect so that the tariff bands for trafficking in ketamine and ecstasy would only apply to offences committed after this judgment was given. It followed that Hii and Wong were not affected by them. Result - (1) Application for review of sentence allowed, but no alteration

made to Hii’s sentence; (2) Wong’s application for leave to appeal allowed, and sentence

of 5 years’ imprisonment substituted. * 陳 淑 慧 Winsome Chan #潘 展 平 J a c k s o n P o o n

香港特別行政區訴黃炳基香港特別行政區訴黃炳基香港特別行政區訴黃炳基香港特別行政區訴黃炳基

H K S A R v W O N G P i n g - k a y 高等法院上訴法庭 – 高院刑事上訴2007年第274號

高等法院上訴法庭法官張澤

高等法院上訴法庭法官楊振權

宣判日期:二零零八年五月二十九日

COURT OF APPEAL OF THE HIGH COURT CRIMINAL A P P E A L NO . 2 7 4 O F 2 0 0 7 C h e u n g & Ye u n g J J A D a t e o f J u d g me n t : 2 9 M a y 2 0 0 8 販運可卡因販運可卡因販運可卡因販運可卡因 –––– 被告人的高齡不是減刑因素被告人的高齡不是減刑因素被告人的高齡不是減刑因素被告人的高齡不是減刑因素 –––– ‘‘‘‘ 極大份量極大份量極大份量極大份量 ’’’’ 的可卡的可卡的可卡的可卡

因的量刑基準因的量刑基準因的量刑基準因的量刑基準 ---- 被告人過往刑事紀錄對量刑基準影響不大被告人過往刑事紀錄對量刑基準影響不大被告人過往刑事紀錄對量刑基準影響不大被告人過往刑事紀錄對量刑基準影響不大

申 請 人 承 認 一 項 販 運 毒 品 罪 , 被判入獄16年8個月,涉案毒品

為1455.19克混合劑內含810.77克可卡因。

申 請 人 年 齡 超 過 60 歲 , 有 多 次 犯 罪 紀 錄 , 其 中 11 次 和 毒 品 有

關,最近一次在2001年,申請人因製毒而被判入獄。

原審法官以25年為量刑基準,並因申請人認罪而將刑期扣減三

分一至16年8個月,但原審法官不同意就申請人的年齡而要將量刑基

準下調。。

裁決裁決裁決裁決:

(1) 法 庭 不 同 意 由 於 申 請 人 已 有 60 歲 , 故 16 年 8 個 月 的 判 刑 等 同

‘ 終 身 監 禁 ’ , 屬 ‘ 摧 毀 性 判 刑 ’ , 而 必 須 扣 減 。 法 庭 強 調 ,販運

毒 品 罪 行 嚴 重 , 必 須 施 行 重 刑 以 收 阻 嚇 之 用 , 無 論 罪 犯 年 長 、年少

或 有 其 他 殘 障 都 不 是 強 烈 或 充 分 的 減 刑 理 由 , 目 的 是 避 免 鼓 勵從事

販 運 毒 品 罪 行 人 士 利 用 該 些 年 長 、 年 少 或 有 其 他 殘 障 的 人 參 與邪惡

罪行: R v Chen Chun-yeh Cr App 513/1996。假若申請人因年紀老

邁 而 有 可 能 老 死 獄 中 , 他 可 以 在 有 需 要 時 向 行 政 長 官 提 出 申 請,要

求 特 赦 , 但 被 告 人 年 紀 老 邁 並 非 法 庭 在 判 刑 時 遠 離 有 關 量 刑 指引及

作 出 特 殊 安 排 的 理 由 。 當 然 法 庭 是 可 以 根 據 個 別 案 件 , 以 被 告人年

紀大而在判刑時酌量作出輕微的調整;

(2) 販 運 可 卡 因 罪 行 之 量 刑 基 準 和 販 運 海 洛 英 罪 行 相 同 : AG v

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Pedro Nel Rojas [1994] 2 HKCLR 69; R v Lau Tak-ming & Ors

[1990] 2 HKLR 370。 Lau Tak-ming 一案並沒有就販運超過600克海

洛 英 罪 行 作 出 明 確 量 刑 指 引 , 但 有 案 例 裁 定 上 調 之 幅 度 不 應 和毒品

分量之增加成正比。本案涉及約800克可卡因,較可導致20年量刑基

準 的 600 克 多 200 克 , 屬 ‘ 極 大 份 量 ’ 類 別,原審法官採納的25年量

刑 基 準 並 非 完 全 不 合 乎 比 例 , 但 亦 屬 過 高 , 22 年 的 量 刑 基 準 已 足

夠: HKSAR v Li Lap-fo Cr App 639/1999; HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697; HKSAR v Lam Kam-kwong [2002] 1

HKC 541;

(3) 原審法官強調申請人有多次犯案紀錄,最後一次更被判入獄12

年 , 但 他 忽 略 了 判 刑 在 上 訴 後 , 減 至 6 年 8 個 月 。雖然被告人的纍纍

案底可以是加刑因素:HKSAR v Chan Pui -chi [1999] 3 HKC 848,

但 就 販 毒 案 件 而 言 , 該 加 刑 因 素 所 佔 的 比 重 不 大 , 故 不 論 申 請人製

毒罪行最終被判刑期多少,對本案適用的量刑基準影響不大。

結果結果結果結果︰ 上訴得直。判刑由16年8個月減至14年8個月。

[English digest of CA 274 of 2007, above] Cheung & Yeung JJA (29.5.2008) *Winsome Chan #Jackson Poon

FAN Shek-hung

Trafficking in cocaine/Old age of defendant not a mitigating factor/Sentencing tariff for ‘very substantial quantities’ of cocaine/Criminal record of defendant not having much effect on starting point The Applicant pleaded guilty to a count of trafficking in a dangerous drug and was sentenced to imprisonment for 16 years and 8 months. The quantity involved was 1,455.19 grammes of a mixture containing 810.77 grammes of cocaine. The Applicant was over 60 years old and had numerous previous convictions, 11 of which related to dangerous drugs. The most recent case was in 2001 when he was sentenced to jail for manufacturing a dangerous drug. The trial judge adopted a starting point of 25 years’ imprisonment and reduced this by one-third for sentence for the Applicant’s guilty plea, to 16 years and 8 months. However, the trial judge refused to reduce the starting point for the Applicant’s old age. Held : (1) The court did not agree that the term of 16 years and 8 months, considering that the Applicant was 60 years of age, was equivalent to ‘life imprisonment’ and that it, being a ‘destructive sentence’, must be reduced. The court emphasised the gravity of the trafficking offence and the necessity to impose deterrent sentences. No matter the offenders were old or young in age, or had any disability, none of these would be a strong or a sufficient mitigating factor. The purpose was to discourage drug syndicates from recruiting aged, young or disabled people to participate in evil crimes: R v Chen Chun-yeh Cr App 513/1996. If the Applicant was too old and might possibly die in prison, he could seek pardon from the Chief Executive when necessary. However, his old age was not a reason for the court to depart from the sentencing norm and make special arrangements. No doubt, the court, depending upon the circumstances of each individual case, could still exercise discretion in making minor adjustments in sentence on the basis of a defendant’s old age; (2) The sentencing guidelines for trafficking cocaine and heroin were the

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same: AG v Pedro Nel Rojas [1994] 2 HKCLR 69; R v Lau Tak-ming & Ors [1990] 2 HKLR 370. In Lau Tak-ming, no clear sentencing guidelines were laid down for trafficking heroin of over 600 grammes. However, it was held in some cases that any upward adjustment should not be directly proportional to the quantity of drugs involved. The present case involved 800 grammes of cocaine, with 200 grammes in excess of 600 grammes which, according to the guidelines, attracted a starting point of 20 years’ imprisonment. It fell into the ‘very substantial quantities’ category. Although the starting point of 25 years adopted by the trial judge was not completely non-proportional, it was still excessive. A starting point of 22 years would have been sufficient. HKSAR v Li Lap-fo Cr App 639/1999; HKSAR v Chiu Ho-chung [2001] 1 HKLRD 697;HKSAR v Lam Kam-kwong [2002] 1 HKC 541; (3) The trial judge emphasized that the Applicant had numerous previous convictions, 11 of which related to dangerous drugs and in the last case he was even sentenced to 12 years’ imprisonment. The trial judge overlooked the subsequent reduction of sentence to 6 years and 8 months as a result of the Applicant’s appeal. While the Applicant‘s lengthy criminal record could be an aggravating factor (HKSAR v Chan Pui-chi [1999] 3 HKC 848), as far as drug trafficking cases were concerned, such an aggravating factor would not be given much weight. Accordingly, in any event, the previous sentence imposed on the Applicant for the manufacturing offence would not have much effect on the starting point applicable to the present case. Result - Appeal allowed. Sentence reduced from 16 years and 8 months to 14

years and 8 months. CA 43/2006 Stuart-Moore & CJHC McMahon & Wright JJ (16.6.2008) * R S K Lee SC & Kathie Cheung #J McGowan (1) E C Mumford SC & Valerie Lim (2) I/P (3)

(1) TSE Kwan-wai

(2) WONG Fat-shun

(3) YUEN Tim-

yeung

Conspiracy to manufacture dangerous drugs/Approximately 2½ kilogrammes of cocaine manufactured/Manufacturing more serious than trafficking or possession of dangerous drug/Level of sentence for general dogsbody 串謀製造危險藥物串謀製造危險藥物串謀製造危險藥物串謀製造危險藥物 –––– 製造大約製造大約製造大約製造大約 2½2½2½2½公斤可卡因公斤可卡因公斤可卡因公斤可卡因 –––– 製造危險藥物較製造危險藥物較製造危險藥物較製造危險藥物較

販運或管有危險藥物嚴重販運或管有危險藥物嚴重販運或管有危險藥物嚴重販運或管有危險藥物嚴重 –––– 用於普通幫工的量刑等級用於普通幫工的量刑等級用於普通幫工的量刑等級用於普通幫工的量刑等級

A3 was convicted after trial of an offence of conspiracy to manufacture a dangerous drug, contrary to s 6(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and ss 159A and 159C of the Crimes Ordinance, Cap 200. A3’s role in the conspiracy was that of a general dogsbody: see Criminal Appeals/Against Conviction. A3 was sentenced to 20 years’ imprisonment. He received a lesser sentence than A1 who was sentenced to 24 years’ imprisonment and A2 who was sentenced to 22 years’ imprisonment, as the judge regarded A3 as having played a subsidiary role in the conspiracy. He provided a place for the illegal activities and kept the raft supplied with food and water. On appeal Held : (1) As stated in R v Cheung Wai-kwong and Another [1997] 3 HKC 496:

Manufacturing is undoubtedly much more serious than trafficking or possession of dangerous drugs. A person involved in the manufacturing process is clearly nearer to the source of evil than a trafficker. He deserves a heavier sentence …

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(2) In this case, PW11 manufactured a total of approximately 2½ kilogrammes of cocaine before the police interrupted matters. In no way was A3’s sentence either wrong in principle or in any way excessive. Result - Application dismissed. [For manufacturing generally and quantum of sentence, see Sentencing

in Hong Kong, 5th ed., at pp 595-596: Ed] CA 374/2007 Stuart-Moore VP McMahon J (18.6.2008) *Anthea Pang #John Halley

(1) NG Yau-kau

(2) KAN Chi-fai

Trafficking in dangerous drugs/Two offences closely linked/ Separate acts of trafficking properly attracting separate startin g points/Police under no obligation to make arrests after first transaction/Undercover operations necessary to discover scope of operations and identity of suspects/Totality of sentences on high side given linkage/Discount for guilty plea reduced after unsuccessful factual challenge in Newton hearing 販販販販 運危險藥物運危險藥物運危險藥物運危險藥物 –––– 兩項罪行有密切關連兩項罪行有密切關連兩項罪行有密切關連兩項罪行有密切關連 –––– 對先後發生的販運各自對先後發生的販運各自對先後發生的販運各自對先後發生的販運各自

採用不同的量刑起點是恰當的採用不同的量刑起點是恰當的採用不同的量刑起點是恰當的採用不同的量刑起點是恰當的 –––– 警方沒有義務於第一次交易後執警方沒有義務於第一次交易後執警方沒有義務於第一次交易後執警方沒有義務於第一次交易後執

行拘捕行拘捕行拘捕行拘捕 –––– 有需要進行卧底行動以偵查犯罪活動的範圍及疑犯的身有需要進行卧底行動以偵查犯罪活動的範圍及疑犯的身有需要進行卧底行動以偵查犯罪活動的範圍及疑犯的身有需要進行卧底行動以偵查犯罪活動的範圍及疑犯的身

分分分分 –––– 由於罪行互相關連由於罪行互相關連由於罪行互相關連由於罪行互相關連 ,,,, 故此整體刑期偏高故此整體刑期偏高故此整體刑期偏高故此整體刑期偏高 –––– 被告人在案情聆被告人在案情聆被告人在案情聆被告人在案情聆

訊中質疑事實失敗後始認罪訊中質疑事實失敗後始認罪訊中質疑事實失敗後始認罪訊中質疑事實失敗後始認罪 ,,,, 須削減因認罪而獲得的減刑須削減因認罪而獲得的減刑須削減因認罪而獲得的減刑須削減因認罪而獲得的減刑

The Applicants pleaded guilty to two counts of trafficking in a dangerous drug. Count 1 involved 998 tablets containing 8.53 grammes of methamphetamine, and Count 2, 2,961 tablets containing 24.55 grammes of the same drug. Both Applicants were sentenced to 4 years’ imprisonment for Count 1 and 5 years’ imprisonment for Count 2. The judge ordered 3 years of the latter sentence to run consecutively. That resulted in a total sentence of 7 years for each Applicant. The facts showed that on 1 February 2007, A1 was introduced to an undercover police officer (PW1) and after a brief conversation, he told PW1 that he had methamphetamine for sale at $21 a tablet. PW1 agreed to purchase 1,000 tablets, and shortly afterwards A2 delivered the drugs to an agreed place. Upon confirmation of the delivery of the drugs, PW1 paid $21,000 to A1. The following day a further delivery of drugs, the subject of Count 2, took place in much the same way. It had been agreed that this transaction would take place in the event the first transaction was successfully completed. This time PW1 paid $63,000 to A1 for the 2,961 tablets delivered. The methamphetamine contained in the tablets was not in the refined crystalline form of methamphetamine hydrochloride (‘ ice’), but the judge adopted the guidelines established in AG v Ching Kwok-hung [1991] 2 HKLR 125. Prior to sentencing, A1 gave evidence in a Newton enquiry as to his belief that the tablets contained a less potent drug than methamphetamine. His evidence was adopted by A2 in his own case. The judge rejected A1’s evidence and concluded that both Applicants were aware the tablets they sold to the undercover police contained methamphetamine. On appeal, it was submitted that the totality of the sentences imposed on each Applicant was manifestly excessive. It was said that because of the offences being so closely linked, in the sense the second transaction was dependent on the first, and their taking place on consecutive days, the judge should not have adopted separate starting points for each transaction but that the

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proper approach to sentence would have been to calculate an overall starting point based on the combined quantity of narcotic and then to impose a totality of sentence, after discounting the sole mitigation of the Applicant’s plea of guilty. The further argument was that, even if the approach taken by the judge was correct, in considering the totality of sentence she did not give sufficient weight to the nexus between the two offences, nor to the fact that the Applicants should have been arrested after the first transaction, thus preventing the subject of Count 2 from occurring. Held : (1) Where there were separate incidents of trafficking, as in this case, regardless of whether the undertaking of the second transaction was dependent on the successful completion of the first transaction, it was not just the totality of drugs in the defendants’ possession which went to the overall criminality of the offence, but also the separate acts of trafficking. In cases such as the present the approach taken by the judge in adopting separate starting points and then arriving at a discounted sentence in respect of each offence was the correct approach. Matters pertaining to the totality of sentence were then able to be taken into account and a proper totality arrived at by ordering the sentences to be served partly, at least, concurrently. There was no error of principle in the judge’s sentencing approach: HKSAR v Lau Yau-fat Cr App 278/2000, HKSAR v Leung Ka-ho Cr App 304/2007; (2) The judge no doubt gave consideration to the ‘linkage’ between the two offences, and particularly that the second offence took place only a day after the first offence, when ordering the sentences for the two offences to be served partly concurrently. The police were under no obligation to arrest the Applicants after the first transaction. It was quite obvious that the purpose of undercover operations such as that in the present case was, amongst other things, to discover the scope of the supply operation and the identity and roles of those involved. To bring such an operation to a premature conclusion by arresting suspects at the point of time of a first offence would negate the undoubted value of such operations. There was no suggestion that the second offence was committed at the instigation or request of the undercover police, and if this had been so it might well have been a significant mitigating factor. Rather, it appeared quite clear that the drug trafficking operation of the Applicants was an activity conducted independently of the police involvement and would have continued had the arrests of the Applicants not brought it to an end. But the totality of the sentences arrived at were on the high side given the ‘linkage’ between them. This, however, was balanced by the judge allowing a full one-third discount to each Applicant even though each challenged, in a Newton hearing, the prosecution’s assertion that they knew they were selling and delivering tablets containing, specifically, methamphetamine; (3) Having rejected that assertion, the judge nevertheless allowed each Applicant the benefit of a full discount for their guilty pleas. She should not have done so. A plea of guilty was a potent mitigating factor because it indicated remorse. Where that was diluted by a defendant’s unsuccessful challenge to a factual aspect of the case relevant to mitigation, the full discount should not normally be given. The judge was over-generous in the discount she allowed each Applicant for his plea of guilty. Result - Applications dismissed.

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MA 379/2008 Line DJ (3.6.2008) *Chong Kwan-yu #J McGowan

YU Young-Chae

Trafficking in dangerous drugs/Defendant caught leaving Hong Kong with drugs/Change of labelling from simple possession to trafficking not a grave aggravation/ Consideration should be paid to conduct rather than label 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 被告人在帶同毒品離開香港時被捕被告人在帶同毒品離開香港時被捕被告人在帶同毒品離開香港時被捕被告人在帶同毒品離開香港時被捕 –––– 罪名從簡罪名從簡罪名從簡罪名從簡

單的管有危險藥物罪改為販運危險藥物罪單的管有危險藥物罪改為販運危險藥物罪單的管有危險藥物罪改為販運危險藥物罪單的管有危險藥物罪改為販運危險藥物罪 ,,,, 只是名稱上的改變只是名稱上的改變只是名稱上的改變只是名稱上的改變 ,,,, 並並並並

不構成重大的加重刑罰因素不構成重大的加重刑罰因素不構成重大的加重刑罰因素不構成重大的加重刑罰因素 –––– 判刑時應考慮行為本身而非罪行名判刑時應考慮行為本身而非罪行名判刑時應考慮行為本身而非罪行名判刑時應考慮行為本身而非罪行名

稱稱稱稱

The Appellant pleaded guilty to an offence of trafficking in dangerous drugs, namely, 21.69 grammes of ketamine, 6.35 grammes of ecstasy, and 0.55 grammes of nimetazepam. The Appellant pleaded guilty to trafficking because he was caught leaving Hong Kong with the drugs in his pocket, at the airport. He was returning to Korea, and thus exporting. But it was accepted that the drugs were for his own consumption. Applying the guideline, a starting point of 2 years’ imprisonment for proper trafficking would have been appropriate. The Appellant, a Korean, was a visitor to Hong Kong, aged 33 years and of previous good character. He was the chief executive of an advertising company. The magistrate recognised that the drugs were for self-consumption and took a 20-month starting point which he reduced to 12 months for the ‘technical nature of the offence’, and then to 8 months for the guilty plea. On appeal Held : (1) As the Appellant submitted, if he had been stopped on the way to the airport, he would have been charged with simple possession and would probably have been unlucky to have received a custodial sentence. Had he received one, it would have been measured in just a few months. The change of labelling to trafficking because there was exportation was not such a grave aggravation as to raise the right sentence to as long as 8 months; (2) The Appellant had served just over 3 months’ imprisonment already, and this adequately fitted the mischief of his conduct; (3) A sentence of 8 months’ imprisonment paid too much regard to the label given to the conduct, rather than the conduct itself. Result - Appeal allowed. Sentence of 3 months’ imprisonment substituted.

CA 455/2007 Stuart-Moore VP Yeung JA (4.7.2008)

*David Leung #F Whitehouse

IP Yuet-ho

Manufacturing dangerous drugs/Cocaine and ‘ice’/Gravamen of offence/Scale of manufacture/Sentence for possession of drugs intended for own consumption to be served concurrently in principle 製造危險藥物製造危險藥物製造危險藥物製造危險藥物 –––– 可卡因及可卡因及可卡因及可卡因及 ‘‘‘‘ 冰冰冰冰 ’’’’ –––– 罪行重點罪行重點罪行重點罪行重點 –––– 製造的規模製造的規模製造的規模製造的規模 ––––

管有危險藥物擬作自用的刑期管有危險藥物擬作自用的刑期管有危險藥物擬作自用的刑期管有危險藥物擬作自用的刑期 ,,,, 原則上同期執行原則上同期執行原則上同期執行原則上同期執行

The Applicant was intercepted by the police on 1 December 2006 as he tried to enter a flat in Yaumatei. He was taken inside and Lo Chun-tung (‘Lo ’) was found playing TV games at the sitting room. In the Applicant’s shoulder bag, the police found 0.4 gramme of a solid containing 0.31 gramme of cocaine.

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Inside the flat, the police seized 73.91 grammes of a solid containing 50.7 grammes of cocaine, and 3.06 grammes of a solid containing 3.04 grammes of ‘ ice’. The cocaine was worth $66,445 and the ‘ice’ was worth $1,147. Later, Lam Fung-yee (‘Lam’) also entered the premises with keys, claiming to be visiting the Applicant. Lam was found to be carrying three plastic bags of 1.4 grammes of a crystalline solid containing 1.39 grammes of ‘ ice’. The Applicant admitted that the dangerous drug found inside the premises belonged to him. He further told the police that he rented the premises in October 2006 after ‘Ah Wai’ promised to supply him with cocaine and to reward him for selling the cocaine he owned. He further admitted that he was responsible for breaking the cocaine into powder form and then would mix it with water and soda powder before putting the mixture into tubes to heat it up. The mixture, after cooling, would be broken into lumps and then put into plastic bags. The Applicant and Lo were indicted for five offences. Charge 1 of manufacturing a dangerous drug and Charge 2 of trafficking in a dangerous drug were both joint charges against the Applicant, Lo and Lam, and they related to the dangerous drugs found inside the premises. Charge 3 of possession of a dangerous drug against the Applicant related to the cocaine found in his shoulder bag. Charges 4 and 5 were separately directed at Lam and Lo respectively. The Applicant pleaded guilty to Charges 1, 2 and 3. The judge sentenced him to 8 years 8 months’ imprisonment and 6 years respectively on Charges 1 and 2, and the 4 months’ imprisonment on Charge 3, to be served consecutively. The total sentence was 9 years’ imprisonment. On appeal, the Applicant submitted that the starting point of 13 years adopted by the judge for Charge 1 was manifestly excessive, even though it was suggested by defence counsel to the judge. He said 11 years should be adopted instead. It was further submitted that the sentence on Charge 3 should be wholly concurrent. Held : (1) Dangerous drugs related offences were serious offences and a fortiori if the offence was one of manufacturing dangerous drugs because, unlike a drug trafficking offence when the quantity involved was static, the quantity of dangerous drugs seized in a manufacturing case only represented those that had, so far, been manufactured, and had not been disposed of; (2) In R v Wong Chun-ping and Others [1984] HKLR 247, 257, Roberts CJ said:

The quantity of drugs found on the premises where manufacturing is taking place, or has taken place, is of some value in indicating the scale of the manufacturing operation. And we suggest that a person convicted of manufacturing should normally receive a longer sentence than he would have done if convicted of unlawful possession, for the purpose of trafficking of the amount of DD found on the premises. However, the serious aspect of manufacturing is that the process of distribution and trafficking in DD depends upon a refining process being undertaken between the grower and the consumer.

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It is therefore the act of manufacture that is the worst feature of this most serious offence, not merely the actual amount of drug which is found on the premises where the process takes place.

For instance, it may well happen that a quantity of 100 grammes of a mixture containing salts of esters of morphine is present in premises where manufacturing is found to have taken place. The Chan Chi-ming [1979] HKLR 491 tariff would have suggested a sentence of 3 to 5 years which would be wholly inadequate for the offence of manufacturing.

We suggest for the consideration of courts that only in exceptional cases, for instance if it is clear that the capacity of the equipment is very small, should a court consider a sentence of less than ten years’ imprisonment, on a conviction for manufacturing dangerous drugs. Much higher sentences should be imposed if it is shown that the manufacturing station had been producing or was likely to produce substantial quantities of DD.

(3) In HKSAR v Wong Ping-kay [2002] 3 HKLRD 161, the defendant mixed heroin and caffeine with a blender and then put the mixture in straw containers for sale. The total quantity of heroin seized was 14.88 grammes with a retail value of just over $10,000. Under the tariff in R v Lau Tak-ming [1990] 2 HKLR 370, trafficking in 14.88 grammes of heroin would attract a starting point of just over 5 years, yet the Court of Appeal adopted a starting point of 10 years on the basis that ‘it was comparatively a small scale manufacturing operation’; (4) The present case involved 50.7 grammes of cocaine and 3 grammes of ‘ ice’ with a retail value of over $60,000. The quantity of the drugs and their mixed nature made it a more serious case than Wong Ping-kay (supra); (5) The quantity of drugs involved was certainly a relevant factor, albeit not the only one in the sentence of drug manufacturing cases: R v Cheung Wai-kwong [1997] 3 HKC 496; (6) The quantity of drugs involved in the present case was not an insignificant quantity, and indicated that it was a larger operation than what was involved in Wong Ping-kay (supra); (7) The summary of facts admitted by the Applicant suggested that he rented the premises in October 2006 for the purpose of manufacturing dangerous drugs and a reasonable inference was that by the time of his arrest, he had been doing it for almost two months. The Applicant also admitted that there was a large number of manufacturing and packaging paraphernalia in the premises. The judge was entitled, on those facts, to conclude: ‘In the present case, the scale of the operation, whilst not large, does appear to be rather larger than the Wong (Ping-kay) case’; (8) The process of manufacturing cocaine, as described by the Applicant, was a simple process and did not require a large quantity of sophisticated equipment. The pictures taken of the premises indicated that the Applicant had employed not less than three burners, a few test tubes and a large number of plastic containers and bags in his manufacturing process. This was not, as submitted, a ‘low-scale operation’; (9) The Applicant carried a small quantity of cocaine (0.31 gramme) in his shoulder bag when he returned to the premises in which another larger quantity of cocaine (50.7 grammes) was found. The Applicant was sentenced to 6 years’ imprisonment for trafficking in that larger quantity of cocaine and a small

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amount of ‘ice’. If the small quantity of cocaine found in the Applicant’s shoulder bag, possibly for his own consumption, were to be included in the larger quantity found inside the premises to form the subject matter of a drug trafficking charge, it was unlikely that the sentence for the drug trafficking charge would be different; (10) A consecutive term of 4 months’ imprisonment for the Applicant’s possession of the 0.31 gramme of cocaine could not be supported. If this amount had been part of the cocaine in the trafficking charge, it would have made no difference to the sentence. It could not be right that because the Applicant was going to consume this quantity himself he should face a longer sentence than he would have received if all the cocaine was to be trafficked by him. Result - Appeal allowed. Sentence on Charge 3 ordered to run concurrently

to sentences on Charges 1 and 2. New total sentence of 8 years and 8 months’ imprisonment.

[For manufacturing dangerous drugs generally and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at pp 595-596 : Ed]

CA 41/2007 Stuart-Moore VP Yuen JA Suffiad J (12.8.2008) *Anthea Pang #I/P

BUGAAY Evelyn Ayad

Dangerous drugs/Trafficking in cocaine/Sentencing for international courier/Age, good character and foreignness not available as mitigation/Failure to follow sentencing principles harming to sentencing policy 危險藥物危險藥物危險藥物危險藥物 –––– 販運可卡因販運可卡因販運可卡因販運可卡因 –––– 對國際帶家的判刑對國際帶家的判刑對國際帶家的判刑對國際帶家的判刑 –––– 年齡年齡年齡年齡 、、、、 良好品格良好品格良好品格良好品格

與外國人身分並非求情理由與外國人身分並非求情理由與外國人身分並非求情理由與外國人身分並非求情理由 –––– 不遵循判刑原則有損判刑政策不遵循判刑原則有損判刑政策不遵循判刑原則有損判刑政策不遵循判刑原則有損判刑政策

The Applicant was convicted after trial by jury of trafficking in 2.89 kilos of a powder containing 1.90 kilos of cocaine, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The facts disclosed that the Applicant travelled by air from Ghana to Ethiopia on 21 April 2006 before she transferred to a flight bound for Hong Kong via Bangkok. She lost her rucksack and she reported the loss. The rucksack was eventually located and found to contain a large, single slab concealed inside the lining. At trial, the issue related to her knowledge of the drugs concealed in the rucksack, the retail value of which was estimated at $2,225,300. In sentencing, the judge said the Applicant was a courier and that a quantity of cocaine of this size warranted a starting point of 22 years’ imprisonment. This was reduced to 21 years because of the age (50), the previous good character and the fact of imprisonment far from home. On appeal Held : (1) The starting point adopted by the judge was remarkably lenient. It appeared that it was taken without reference to the sentences imposed in similar cases involving international couriers trafficking in large quantities of cocaine. Such traffickers were subject to the same sentencing guidelines in R v Lau Tak-ming and Ors [1990] 2 HKLR 370, 387, which were applicable to those who trafficked in heroin (AG v Pedro Nel Rojas [1994] 1 HKC 342, 345). Here, the quantity of cocaine was more than three times the upper tariff limit for 400 to 600 grammes for which the Lau Tak-ming guidelines provided a sentencing bracket of 15 to 20 years’ imprisonment;

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(2) In R v Ho Chi-ming [1995] 2 HKCLR 29, which was concerned with a courier taking 1.213 kilogrammes of salts of esters of morphine (heroin) to Taiwan, Litton VP stated that ‘there is nothing wrong in principle in adopting, as the judge did, a starting point of 25 years’ imprisonment.’ The prosecutor at trial brought to the judge’s attention the judgment in HKSAR v Hong Chang-chi [2002] 1 HKC 295, which not only made reference to Ho Chi-ming’s case but also focused on the starting point of 27 years taken by a sentencing judge for a Taiwanese courier who was trafficking in just over 3 kilogrammes of cocaine which he brought into Hong Kong’s airport after a visit by him to Peru. The judgment in Hong Chang-chi made extensive reference to Pedro Nel Rojas (supra) before stating (at p 302):

24. This court in HKSAR v Leang Sze Keong (unrep., Cr App 566/1997) was dealing with circumstances which are very similar to the situation which has arisen in the present case. The appellant in that case had pleaded guilty to trafficking in a mixture containing just over 889 gms of heroin hydrochloride which had been strapped to his body after he had arrived on a flight from Bangkok. The sentencing Judge had taken a starting point of 25 years’ imprisonment which this Court upheld.

25. Similarly, in R v Ho Chi Ming Cr App 447/1995, unreported, the applicant in that case, aged 23, was found with a mixture containing just over 1.2 kgs of heroin hydrochloride strapped to his body when he was stopped at Kai Tak Airport as he was about to go to Taiwan. The judge took a starting point of 25 years which this Court found not to have been wrong in principle.

26. The quantity in the present case was approximately three times the amount in Ho Chi Ming’s case and well over three times the weight of heroin in Leang Sze Keong’s case. Whilst the starting point adopted by the judge in the present case might be considered as being on the high side, it was neither wrong in principle nor manifestly excessive.

(3) The judge in this case made reference to a combination of three factors which he said had persuaded him to reduce the Applicant’s sentence by a year. In doing so he fell into error. None of the factors to which he referred should have had any effect on the Applicant’s sentence; (4) The first two factors, age and good character, were plainly irrelevant in a matter of this gravity. The couriers who were selected by international drug syndicates to carry drugs of the value in the present case, almost invariably had no criminal record. Part of their usefulness to the syndicate was that they were able to pass as normal, law-abiding, passengers whatever their age group. In any event, a clear record (or good character) in itself was not a factor for which a discount was generally appropriate and age would usually be relevant only where extreme youth was concerned; (5) The third factor taken into account by the judge, which was concerned with the Applicant having to spend time in a Hong Kong prison as a Philippines’ national, was again covered by the judgment in Hong Chang-chi (supra) and was also a matter of no consequence in regard to sentence. In particular, with regard to foreign nationals who turned to drug trafficking in Hong Kong, the court stated (at p 302):

21. The Applicant only came to Hong Kong for the purpose of furthering his criminal enterprise. Anyone who acts in this way, to undermine the laws of Hong Kong, deserves no sympathy.

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What is more, it should be made clear to non-residents of Hong Kong, whether from the Mainland (or Taiwan) or from far-flung jurisdictions, that if they come here in order to break the law, they will be treated no differently, and certainly no more leniently, than other criminals who are normally resident here.

22. When it comes to importing drugs from other jurisdictions into Hong Kong, the public interest demands that the message should be made more clearly than in almost any other situation. Drug traffickers from abroad, importing drugs into Hong Kong, should plainly understand that they will receive no sympathetic consideration whatsoever on account of their status as foreigners or, as in this case, on account of their incarceration some distance from home. On the contrary, in cases of this kind, the very act of importation from abroad, is an aggravating factor. Those who live outside this jurisdiction, such as the applicant in the present case, must be disabused of any notion that Hong Kong is anything other than resolute in dealing with such offences.

(6) It was important that the principles involved in the sentencing of traffickers such as the Applicant in this case should be adhered to or great harm would be done to Hong Kong’s sentencing policy which had for long sought to achieve parity of treatment so far as humanly possible for all such offenders. A single sentence, such as this, which was considerably out of step with all the sentences which had been imposed in accordance with proper sentencing principles and guidelines could, understandably, lead to feelings of grievance on the part of those who had been properly sentenced; (7) There could be no purpose in having guidelines for drug traffickers or in providing generalised principles for sentencing if these were merely given lip-service. Unfortunately, this appeared to have occurred in this case where an appropriate sentence would have been 24 to 25 years’ imprisonment. The Applicant was remarkably lucky that she did not receive such a sentence but, as the prosecution had not sought a review, matters would be left as they stood. Result - Application dismissed.

CA 318/2007 Stuart-Moore VP Beeson J (3.10.2008) *Wong Kam-hing # I/P

NAZIR Mohamed Abubakar

Trafficking in dangerous drugs/Defendant arriving at airport with 1,317.86 grammes of heroin in his body/Aggravating factor that trafficking involved international boundaries/Damage done by heroin incalculable/Importance of punishment and deterrence 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 被告人身藏被告人身藏被告人身藏被告人身藏 1,317 .861 ,317 .861 ,317 .861 ,317 .86 克海洛英抵達機場克海洛英抵達機場克海洛英抵達機場克海洛英抵達機場 –––– 涉及跨涉及跨涉及跨涉及跨

國界的販運為加重刑罰因素國界的販運為加重刑罰因素國界的販運為加重刑罰因素國界的販運為加重刑罰因素 –––– 海洛英造成的傷害難以估計海洛英造成的傷害難以估計海洛英造成的傷害難以估計海洛英造成的傷害難以估計 –––– 懲懲懲懲

罰與阻嚇的重要性罰與阻嚇的重要性罰與阻嚇的重要性罰與阻嚇的重要性

The Applicant pleaded guilty to an offence of trafficking in a mixture containing 1,317.86 grammes of heroin hydrochloride, contrary to ss 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. The facts showed that when the Applicant’s baggage was examined by a customs officer at the airport following his arrival on a flight from Tehran via Doha, he was x-rayed and the presence of foreign objects in his body was suspected. In due course, he discharged 149 packets which contained the heroin identified in the charge. The market value of this quantity was estimated to be $1,012,380.

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At the time of the offence, the Applicant was aged 33 and had come from Tanzania where he lived. He was, apparently, in dire financial straits which was why he yielded to the temptation. The Applicant was sentenced to 16 years 8 months’ imprisonment, after a starting point for sentence of 25 years had been adopted. On appeal Held : (1) Whilst his dire financial straits were the reason for the trafficking, this was no excuse; (2) The damage done by heroin to individuals, families and society as a whole was incalculable and for this reason alone high penalties were imposed for those who were caught in order not merely to punish the offender but to deter others who were thinking of taking a similar risk in return for the monetary rewards they were offered. When the trafficking involved international boundaries, as here, it was an aggravating factor; (3) There was ample authority for the 25-year starting point adopted (HKSAR v Ng Sai-ho Cr App 528/1997, HKSAR v Leang Sze-keong Cr App 566/1997) and the Applicant had received the full benefit for pleading guilty in the form of a one-third discount. The fact that others in similar circumstances to himself, as the Applicant had been able to discover, had received lower sentences for trafficking in larger quantities of heroin was not to the point. The issue was the propriety of the Applicant’s sentence, and it was not manifestly excessive. Result - Application dismissed.

CA 315/2007 Stuart-Moore ACJHC Yeung JA Reyes J (21.10.2008) *David Chan #Jeremy Cheung

CHONG Chee-meng

Trafficking in dangerous drugs/Importation of cocaine/ Defendant claiming in mitigation that drugs for own consumption/Purpose of Newton hearing/Mitigation within peculiar knowledge of defendant/Evidential burden and legal burden on defendant/Defendant entitled to full discount for guilty plea as Newton hearing partially resolved in his favour 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 進口可卡因進口可卡因進口可卡因進口可卡因 –––– 被告人求情時聲稱毒品屬自用被告人求情時聲稱毒品屬自用被告人求情時聲稱毒品屬自用被告人求情時聲稱毒品屬自用 ––––

牛頓牛頓牛頓牛頓 聆訊的目的聆訊的目的聆訊的目的聆訊的目的 –––– 求情理據只屬被告人所知範圍以內求情理據只屬被告人所知範圍以內求情理據只屬被告人所知範圍以內求情理據只屬被告人所知範圍以內 –––– 被告人被告人被告人被告人

兼負證供責任和法律責任兼負證供責任和法律責任兼負證供責任和法律責任兼負證供責任和法律責任 –––– 牛頓牛頓牛頓牛頓 聆訊部分結果聆訊部分結果聆訊部分結果聆訊部分結果 對被告人有利對被告人有利對被告人有利對被告人有利 ,,,, 因因因因

此被告人有權因認罪而獲得十足刑期減免此被告人有權因認罪而獲得十足刑期減免此被告人有權因認罪而獲得十足刑期減免此被告人有權因認罪而獲得十足刑期減免

The Applicant, carrying a Singaporean passport, arrived at the airport from the Philippines, and was stopped by customs officers. In his bag, they found two tissue papers, one wrapping 33.73 grammes of a mixture containing 24.49 grammes of cocaine and the other wrapping 36.62 grammes of a mixture containing 26.96 grammes of cocaine (the total quantity being 70.35 grammes of a mixture containing 51.45 grammes of cocaine with a retail value of about $63,000). When asked what the tissue papers contained, the Applicant said ‘Medicine, I used it. Make me more energetic at work. Can it not be consumed in Hong Kong?’ and then, ‘Cocaine. I used it myself.’ He further claimed to have bought the cocaine in the Philippines. The customs officer also found from the same bag: 4 candles; a glass test tube containing traces of cocaine; a paper box containing 4 plastic straws with

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cocaine traces; two plastic bottle caps with cocaine traces; two rolls of adhesive tape. The Applicant pleaded guilty to trafficking in 70.35 grammes of a powder containing 51.45 grammes of cocaine. Having accepted the facts presented by the prosecution, he claimed he intended to use all the cocaine for his own consumption. The judge held a Newton hearing into his claim. The Applicant admitted to being a cocaine user with a daily consumption of 10 to 12 grammes, which would make him feel more focused. He said that when arrested he was on his way to Shenzhen via Hong Kong, intending to stay there for five to six days. He said he needed the cocaine to keep him awake at night so he could continue to watch the Forex Market. In the event, the judge, having taken the view that the Applicant had the evidential burden to prove that he intended to use all the cocaine in his possession for his own consumption, rejected his claim. A starting point for sentence of 8 years’ imprisonment was adopted, but the judge concluded that a full discount of one-third (64 months) was not justified, as there had been a Newton hearing. The discounted sentence, the judge held, would be 66 months, but the sentence was nevertheless further reduced to 56 months because she was satisfied that part of the cocaine was for the Applicant’s own consumption. On appeal, it was submitted that the judge erred in placing an evidential burden on the defence, and in holding that the question was whether he had ‘discharged the evidential burden that all the cocaine that he was found in possession of was for his own consumption’ . Held : (1) When there were disputes as to facts relevant to or closely bound up with the ingredients of an offence, a Newton hearing was required and the prosecution must establish their version of the facts (facts that the prosecution sought to rely on) to the requisite criminal standard of proof; (2) In R v Kerrigan (1993) 14 Cr App R (S) 179, 181, it was said that ‘ it is clear beyond any argument and well-established by authority, that in a Newton type hearing the judge has to approach the question of fact which he has to decide in accordance with the criminal onus and standard of proof’ . That approach had consistently been followed in common law jurisdictions, including Hong Kong. However, this approach only applied to a situation where the prosecution sought to rely on, or was obliged to establish, the disputed facts; (3) In R v Cheng Ching-kwong [1986] HKC 109, Silke JA observed that ‘we accept that where there is controversy, and a contested issue is tried at this stage of the trial, then the burden of proof is that of beyond a reasonable doubt in relation to matters which the Crown seeks to prove’ ; (4) In R v Gardiner (1982) 140 DLR (3d) 612, 648, Dickson J said:

It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied on by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender.

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(5) In R v Anderson (1993) 177 CLR 536, it was stated:

If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstances as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance… Thus, in the present case where the Crown relied on commercial purpose as a circumstance of aggravation, it was for the Crown to satisfy the sentencing judge beyond reasonable doubt that the Appellant had such a purpose. If the Crown failed to discharge that onus, the Appellant was entitled to be sentenced on the basis that his cultivation of cannabis had not been shown to have been for such a purpose.

(6) In R v Bryant (1980) 1 NELR 264, 271, Bryant J said:

These authorities are, we think, more than adequate in themselves to support the view already expressed, that there was in the present case no proper basis on which the court could treat Bryant as the person who had struck Constable Hughes with the hammer. The onus was on the prosecution to establish that allegation, as it was disputed, by proper proof.

When a defendant sought to establish facts, disputed by the prosecution, the approach was different; (7) In R v Chan Leong [1995] 3 HKC 108, 111, Litton VP said:

In conclusion, it may be helpful to add this observation. Here, the facts relevant to the exercise of the discretion to prosecute were so closely bound up with the ingredients of the offence under s 38(1)(b) that, quite rightly, the magistrate concluded this was a strict Newton situation. However, it is worth bearing in mind that the burden of establishing facts in mitigation are generally upon the defence, since such extraneous matters would not normally be within the knowledge of prosecution witnesses...

(8) The Applicant was charged with trafficking in a dangerous drug, and under the Dangerous Drugs Ordinance, Cap 134, ‘trafficking, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking’ ; (9) The Applicant admitted that he had brought the cocaine into Hong Kong from the Philippines, which per se was trafficking in a dangerous drug. It was never part of the prosecution case whether the cocaine was for the Applicant’s own consumption or not. What the Applicant intended to do with the cocaine was not closely bound up with the ingredients of the offence as alleged in this case. Personal consumption of drugs which were being trafficked might be a mitigating factor: R v Chan Mung-lung [1992] 2 HKCLR 127, R v Chung Kam-fai [1993] 1 HKC 42; (10) The Applicant wished to put forward in mitigation that all the cocaine was for his own consumption. The prosecution did not accept that. The dispute was about extraneous matters, which did not form part of the prosecution case, and on which the prosecution witnesses were unlikely to have any knowledge. They were, however, within the peculiar knowledge of the Applicant and, as such, the onus of satisfying the judge rested on the defence upon a balance of probability;

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(11) In Gross v O’Toole (1982) 74 Cr App R (S) 283, the court accepted the basic premise that it was for the defence to establish its own mitigation to the court’s satisfaction, and whether they did that by a speech or evidence or both was essentially a matter for them, not the court; (12) In R v Guppy [1994] Crim L R 614, it was held that where the offender raised extraneous matters in mitigation, the burden of proof rested upon him to the civil standard; (13) The judge said the Applicant had the evidential burden to raise that he intended to use all the cocaine for his own consumption and that he had failed to discharge such an evidential burden. The evidential burden was just the burden to adduce sufficient evidence to raise an issue for the determination of the tribunal of fact: Hung Chan-wa and Another v HKSAR [2005] 3 HKLRD 297, 318; HKSAR v Ng Po-on [2008] 4 HKLRD 176, 186; (14) The Applicant sought to put in issue whether he intended to use the cocaine for his own consumption. If established, that would be a mitigating factor. The Applicant clearly had the evidential burden to at least adduce sufficient evidence to raise the issue for the determination by the judge in the Newton hearing. The judge was right to proceed on the basis that the Applicant had the evidential burden on the issue of whether he intended to use all the cocaine for his own consumption. The Applicant also had the legal burden to prove, to the civil standard, that he intended to use the cocaine for his own consumption, as that was an extraneous matter raised by him in mitigation; (15) If the judge were to be faulted, it was in being generous to the Applicant. She should have ruled that he had not only the evidential burden to raise the issue, but also the legal burden of proof, on a balance of probability, that he intended to use the drug for his own consumption. The judge instead required that she be satisfied beyond a reasonable doubt (which she was) that the Applicant only intended to use a small part of the cocaine for his own consumption; (16) The judge was entitled to reject the Applicant’s case that he intended to use all the cocaine for his own consumption. The Applicant was correctly sentenced on the basis that only a small part of the cocaine was intended for his own consumption; (17) The judge refused to give a full one-third discount despite the guilty plea because the Applicant raised issues of fact resulting in a Newton hearing. That was presumably because the judge considered that what the Applicant did, by falsely claiming that all the cocaine was for his personal consumption, had unnecessarily lengthened the trial and disclosed a lack of genuine remorse. The judge’s reasoning would only have been sound if the Newton hearing was completely unnecessary and had not served any purpose: R v Underwood [2005] 1 Cr App R 178; (18) After the Newton hearing, the judge found that only part of the cocaine was for the Applicant’s own consumption and on that basis reduced the sentence by 10 months. The issues at the Newton hearing were at least partially resolved in the Applicant’s favour. The Newton hearing could not be said to have been completely unnecessary or a waste of time. There was, therefore, no foundation for the judge to penalise the Applicant by not giving him the full one-third discount for his guilty plea. The credit due to the Applicant for a guilty plea should not have been reduced. Result - Appeal allowed. Sentence reduced from 56 months to 54 months’

imprisonment.

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CA 70/2008 Stock JA McMahon J (7.11.2008) *Winsome Chan #I/P

(1) KUO Yao- chung (2) WU Chia-ming

Trafficking in heroin by Taiwanese defendants/International dimension/Economic and family circumstances not mitigation/ Intention to transport drugs to Zhuhai not a mitigating factor/ Status as first offenders in Hong Kong not relevant given volume of drugs 台灣被告人販運海洛英台灣被告人販運海洛英台灣被告人販運海洛英台灣被告人販運海洛英 –––– 涉及國際犯罪層面涉及國際犯罪層面涉及國際犯罪層面涉及國際犯罪層面 –––– 經濟及家庭狀況經濟及家庭狀況經濟及家庭狀況經濟及家庭狀況

並非求情理由並非求情理由並非求情理由並非求情理由 –––– 意圖運送毒品往珠海並非求情因素意圖運送毒品往珠海並非求情因素意圖運送毒品往珠海並非求情因素意圖運送毒品往珠海並非求情因素 –––– 涉案毒品涉案毒品涉案毒品涉案毒品

的數量令作為在香港初犯者的身分沒有作用的數量令作為在香港初犯者的身分沒有作用的數量令作為在香港初犯者的身分沒有作用的數量令作為在香港初犯者的身分沒有作用

The Applicants pleaded guilty to separate offences of trafficking in heroin, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134. A1 was convicted of trafficking in 603.05 grammes, and A2 of trafficking in 669.06 grammes. Following the guidelines in R v Lau Tak-ming and Another [1990] 2 HKLR 370, the judge adopted a starting point of 20 years’ imprisonment. He reduced that to a sentence of 13 years’ imprisonment given their pleas. Both Applicants were Taiwanese nationals. They had collected the drugs in Phnom Penh and divided them up between themselves, and secreted them on and in their bodies. They then flew to Hong Kong on the same flight and were arrested together at the airport upon their arrival. Under caution both Applicants admitted bringing the drugs to Hong Kong from Phnom Penh. On appeal, the Applicants submitted that the harsh economic circumstances in Taiwan forced them to act as a drug ‘mule’, and A1 pointed to the hardship to his family caused by his imprisonment and his having diabetes, while A2 said the drugs were intended for the Mainland. Held : (1) The economic and family circumstances of the Applicants fell far short of triggering any humanitarian considerations, and their status as first offenders in Hong Kong was of no consequence to sentence given the volume of drugs involved;

(2) That the Applicants might have intended to transport the drugs to Zhuhai and not dispose of them in Hong Kong was not a mitigating factor : Attorney General v Pedro Nel Rojas [1994] 1 HKC 342; (3) Taking into account the international dimension of the offences the starting point of sentence adopted by the judge might be considered lenient. Result - Applications dismissed.

CA 299/2007 Stuart-Moore VP Beeson & Saw JJ (25.9.2008) *R S K Lee, SC

MTWAZI Carlos Adam

Trafficking in dangerous drugs/Importation of heroin from Iran/Youth of defendant not relevant as mitigation unless extreme/‘Foreignness’ not a basis for sentencing discount 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 從伊朗進口海洛英從伊朗進口海洛英從伊朗進口海洛英從伊朗進口海洛英 –––– 除非極度年輕除非極度年輕除非極度年輕除非極度年輕 ,,,, 否則被告否則被告否則被告否則被告

人年輕並非相關的求情因素人年輕並非相關的求情因素人年輕並非相關的求情因素人年輕並非相關的求情因素 –––– ‘‘‘‘ 外國人身分外國人身分外國人身分外國人身分 ’’’’ 不是減刑的理據不是減刑的理據不是減刑的理據不是減刑的理據

The Applicant pleaded guilty at the magistrates court to one count of trafficking in dangerous drugs, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134, and was committed for sentence to the Court of First Instance.

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#I/P

The particulars of the offence alleged that the Applicant trafficked 1,479.36 grammes of a mixture containing 1,117.16 grammes of heroin hydrochloride. The facts showed that the Applicant arrived at the airport from Iran via Qatar, and when taken to the hospital he discharged 117 pellets which contained the drugs. The judge applied the guidelines contained in R v Lau Tak-ming and Another [1990] 2 HKLR 370, and adopted a starting point of 24 years’ imprisonment, which he reduced to 16 years for the timeous plea of guilty. He considered there were no other factors justifying a further discount. On appeal, the Applicant submitted that the sentence was too severe as he was aged only 18 years at the time of the offence, he came from a poor family and had limited education. It was said he was remorseful and that as a foreigner incarcerated in Hong Kong he would be all the more isolated than others might be. Held : (1) It had long been recognised that only in cases of extreme youth would the age of a person who committed a serious offence be of relevance, and the Applicant was not of such an age; (2) That the Applicant was a foreigner serving his sentence in Hong Kong was not a factor which the court would take into account in mitigation in any substantial degree: HKSAR v Hong Chong-chi [2002] 1 HKC 298; (3) The judge was aware that the Applicant was a foreign national and came from a culturally different background from that of other prisoners, but quite properly did not increase the amount of discount by reason of this; (4) The starting point of 24 years’ imprisonment was appropriate for the importation of this quantity of heroin hydrochloride, and apart from the plea there were no factors to justify an increased discount. Result - Application dismissed.

CACC 196/2008 Yeung JA Wright J (2.12.2008) *Sin Pui-ha #Thomas Iu

LAU Shing-tak

Trafficking in dangerous drugs/Defendant in possession of cocaine and ketamine/Assessment of starting point/Comparisons with other cases of limited value/No mitigation that defendant did not know exact nature of drugs/Persons engaged in narcotics trade for reward not deserving sympathy 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 –––– 被告人管有可卡因及氯胺酮被告人管有可卡因及氯胺酮被告人管有可卡因及氯胺酮被告人管有可卡因及氯胺酮 –––– 評定量刑起點評定量刑起點評定量刑起點評定量刑起點 ––––

與其他案件作比較的價值有限與其他案件作比較的價值有限與其他案件作比較的價值有限與其他案件作比較的價值有限 –––– 被告人不知道毒品的確實性質不被告人不知道毒品的確實性質不被告人不知道毒品的確實性質不被告人不知道毒品的確實性質不

屬求情因素屬求情因素屬求情因素屬求情因素 –––– 為報酬而從事毒品貿易的人不值得同情為報酬而從事毒品貿易的人不值得同情為報酬而從事毒品貿易的人不值得同情為報酬而從事毒品貿易的人不值得同情

The Applicant pleaded guilty to an offence of trafficking in a dangerous drug. The facts showed that on 14 September 2007 police officers involved in an anti-narcotics operation approached a vehicle of which the Applicant was the driver. A red and white carrier bag was found on the front passenger seat. It contained a quantity of dangerous drugs which was subsequently analysed and found to be 998.56 grammes of a solid block which contained 686.54 grammes of cocaine and 1,230.84 grammes of powder which contained 984.63 grammes of ketamine.

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The Applicant explained to the police that he had been engaged by a person whom he had known for five years to deliver the bag from Sheung Shui to Tsim Sha Tsui in return for a small financial reward. When handed the paper bag he had opened it and saw a number of plastic bags inside it which he ‘guessed’ contained dangerous drugs. The Applicant accepted the estimate of the street value of the drugs as $863,250. The judge adopted a starting point of 24 years’ imprisonment and reduced that to 16 years for the guilty plea. On appeal, it was submitted, first, that the starting point was manifestly excessive in comparison with other cases, and, second, that the Applicant failed to appreciate ‘the domestic consequences of his actions’, and had he known ‘the precise nature and quantity of the drugs he was conveying, he would not have carried on in the way he did ’. Held : (1) An offender was to be sentenced on the factual basis of the offences committed by him. Even where a tariff was prescribed or guidelines were provided, the tariff was, or guidelines were, applied to the facts of the individual case, and the individual offender, before the court. For this reason, comparison with sentences imposed in these cases was of limited value; (2) Whilst the judge correctly identified the appropriate individual starting points in respect of each of the quantities of cocaine and ketamine, taking an overall 24-year starting point in respect of the quantity of mixed drugs in question would set the bar at such a level as to render extremely difficult the imposition of an appropriate sentence in respect of the very much larger quantities of drugs that came before the courts from time to time; (3) The starting point adopted was manifestly excessive, having regard to the fact that the larger proportion of drugs trafficked by the Applicant was ketamine. The appropriate starting point would have been 21 years’ imprisonment; (4) The Applicant was prepared to carry whatever drugs were in the packet and whatever the quantity of them in order to earn money. He was quite willing to accept the cargo irrespective of what it might have been. A person who voluntarily made himself a willing link in the chain of distribution of illicit drugs of any kind, who willingly lent his assistance for a small financial reward to those engaged in this evil trade, could hardly expect to attract sympathy if it turned out that the consequences would be greater than he anticipated. Result - Appeal allowed. Sentence of 14 years’ imprisonment substituted.

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Employment Ordinance AR 2/2007 Tang VP Yeung & Yuen JJA (20.6.2008) *R S K Lee SC & Lam Tak-wing # I/P

SJ v Sing Pao Newspaper Management Ltd

Employment Ordinance/Late payment of wages by employer/ Lowness of outstanding wages not a mitigating factor/ Legislative increase in maximum penalties/Chaos in management not a special reason for a low fine/Fines to carry deterrent effect/Importance of punctual payment 《《《《 僱傭條例僱傭條例僱傭條例僱傭條例 》》》》 –––– 僱主過期支付工資僱主過期支付工資僱主過期支付工資僱主過期支付工資 –––– 尚未清付的工資款額低不是尚未清付的工資款額低不是尚未清付的工資款額低不是尚未清付的工資款額低不是

減刑因素減刑因素減刑因素減刑因素 –––– 法例修訂提高最高刑罰法例修訂提高最高刑罰法例修訂提高最高刑罰法例修訂提高最高刑罰 –––– 管理上的混亂並非特別理管理上的混亂並非特別理管理上的混亂並非特別理管理上的混亂並非特別理

由由由由 ,,,, 可促使法庭判處偏低的罰款額可促使法庭判處偏低的罰款額可促使法庭判處偏低的罰款額可促使法庭判處偏低的罰款額 –––– 罰款額須起阻嚇作用罰款額須起阻嚇作用罰款額須起阻嚇作用罰款額須起阻嚇作用 –––– 準準準準

時支付工資的重要性時支付工資的重要性時支付工資的重要性時支付工資的重要性

The Respondent was a member of the Sing Pao Group of Companies (‘ the Group’). It had over 300 employees. The newspaper Sing Pao was published by the Group. It had been in operation for 67 years and had, up to the date of the offences, a clear record. The Respondent was a costs centre of the Group, responsible for making payment to employees and for other expenditure. Section 23 of the Employment Ordinance, Cap 57, provided:

Wages shall become due on the expiry of the last day of the wage period and shall be paid as soon as is practicable but in any case not later than 7 days thereafter.

Section 25 of the Employment Ordinance provided:

…where a contract of employment is terminated any sum due to the employee shall be paid to him as soon as is practicable and in any case not later than 7 days after the day of termination.

Section 63C of the Employment Ordinance provided:

Any employer who wilfully and without reasonable excuse contravenes section 23, 24 or 25 commits an offence and is liable to a fine of $200,000 and to imprisonment for 1 year.

As from 30 March 2006, the penalty had been revised to:

…a fine of $350,000 and to imprisonment for 3 years. The Respondent was charged with 11 offences under s 63C for contravention of ss 23 or 25. On 3 January 2007, the Respondent pleaded guilty to the charges, 10 of which concerned the late payment of wages to three of its employees and the remaining one, the late payment of termination payment to one of those employees. Five out of the ten charges for the contravention of s 23 occurred after 30 March 2006 as well as the eleventh Charge under s 25. So the amended s 63C applied to them. The magistrate imposed fines totalling $4,200 for the 11 charges; these ranged from $500 to $200. In doing so, he recognised that prior to the 30 March 2006 amendment the average fine for such offences in 2005 was about $3,200, but that he was of the view that there were special reasons why he should impose the lower fines. On 5 January 2007, the magistrate, on his own initiative, decided to review his decision under s 104(5) of the Magistrates Ordinance, Cap 227. He did so because he thought that on the question of special reasons, he should have

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required the Respondent to provide further background material, and if necessary, even further evidence and that insofar as he had not done so, he had erred. In the event, the magistrate affirmed his decision. On review Held: (1) The magistrate had under-rated the importance of the punctual payment of wages or termination payment, which was the principal purpose of ss 23 and 25; (2) The view which the legislature took of late payment was reflected even before the amendment in 2003, in the sentence of a maximum fine of $200,000 and imprisonment for 1 year. After amendment, they had become $350,000 and imprisonment for 3 years. It was against such penalties that the normal fines for such offences should be considered; (3) There was no special reason to reduce the fine, and it was not helpful for the magistrate to compare the culpability of the defendant with employers who deliberately delayed payment in order to punish or harass his employees. In such circumstances the court might properly consider a custodial sentence. In any event, the fine should be much more substantial than the average or median fine; (4) The Respondent was a limited company but under s 64B when a relevant offence committed by a body corporate was proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, the director, manager, secretary or any other similar officer shall be guilty of the like offence. A custodial sentence was an available and necessary deterrent; (5) The lowness of the amount of wages outstanding should not be regarded as a mitigating factor. That often reflected the lowness of the wages paid to the wage earner. The under-estimation of the impact of a late payment of wages to a person already earning very low wages was to be cautioned against. It was hardly a mitigating factor to say that an employer was only withholding $3,000 when that represented the entire wage for the employee for the relevant wage period; (6) The magistrate mentioned that compensation was an important factor in employer/employee cases, and short delays in payment of wages should attract lenient sentences. If wages were never paid, non-payment would normally make the offence more serious so that the fines would be much substantial and in suitable cases imprisonment would be appropriate. Subject to the powers of the Secretary for Justice, the consent of the Commissioner for Labour was required before an employer would be prosecuted and such consent should not be given unless he had had the opportunity to be heard (s 64). So the court was unlikely to be concerned with trivial cases or cases with strong mitigating factors; (7) The magistrate treated the Respondent as a first offender. Subsequent to these offences, the Respondent was prosecuted on more than one occasion for late payment of wages, but this was to be ignored. It didn’t matter whether the Respondent should be treated as a first offender, as the sentences were manifestly inadequate. For repeated offenders, substantial fines and imprisonment were real options; (8) Although the court would not wish to push a struggling employer over the brink, and the means of an employer was a relevant consideration, no

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evidence as to means had been made available, despite an adjournment to enable the Respondent to provide such. An employer who had fallen on hard times and was making honest and reasonable efforts to salvage his business should be encouraged to do so; (9) The review would be allowed by substituting a fine of $3,000 for each of the offences committed prior to the amendment and a fine of $4,000 for each offence committed afterwards. The total fine would be $39,000. This was on the basis that the late payment was the result of management chaos arising out of change of management, and that the management had been taking bona fide and reasonable efforts to improve its position; (10) To be effective, fines under s 23 or s 25 must carry deterrent effect and employees should know that chaos in management was not a special reason for a low fine. Depending on the circumstances more substantial penalties than those imposed would be required. Result - SJ’s application allowed. Total fine of $39,000 substituted.

False Instruments MA 16/2008 McMahon J (23.4.2008) *Raymond Cheng #J McGowan

SHIH Tian-liang

Using a copy of a false instrument/Security guard altering date of birth on identity card to obtain employment beyond 65 years/Offence not in worst category/Effect of prior good character and unblemished work history/Community service order a sufficient protection for employers 使用虛假文書的副本使用虛假文書的副本使用虛假文書的副本使用虛假文書的副本 –––– 保安員藉更改身分證的出生日期求取保安員藉更改身分證的出生日期求取保安員藉更改身分證的出生日期求取保安員藉更改身分證的出生日期求取 65656565 歲歲歲歲

以後仍受僱以後仍受僱以後仍受僱以後仍受僱 –––– 罪行並非屬最差類別罪行並非屬最差類別罪行並非屬最差類別罪行並非屬最差類別 –––– 以往良好品格及無瑕工作以往良好品格及無瑕工作以往良好品格及無瑕工作以往良好品格及無瑕工作

紀錄的影響紀錄的影響紀錄的影響紀錄的影響 –––– 判處社會服務令足以保障僱主判處社會服務令足以保障僱主判處社會服務令足以保障僱主判處社會服務令足以保障僱主

The Appellant pleaded guilty to an offence of using a copy of a false instrument, contrary to s 74 of the Crimes Ordinance, Cap 200, and was sentenced to 4 months’ imprisonment. The facts showed that the Appellant had been employed as a security guard at a block of flats since 1998. His date of birth was November 1943 and the policy of his employer was that the age of security guards could not exceed 65 years. In about July 2007, in anticipation of the expiry of his then current employment contract, the Appellant submitted an application for renewal of his contract for a period of 18 months. Together with that application he provided an altered copy of his Hong Kong identity card in which his stated date of birth had been altered to 1947. That date, if accepted as true, would have enabled him to renew his contract without infringing the age limit imposed by his employer of 65 years. His application was unsuccessful, and the police were alerted. In sentencing, the magistrate said: I took on board the fact that this offence was likely to be detected

at an early stage since the defendant’s particulars would have already been on the employer’s file. Nonetheless, this represented a deliberate and dishonest attempt on the

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defendant’s part to obtain a pecuniary advantage by deception, and I considered this merited a custodial sentence as a starting point. I took a starting point of 6 months’ imprisonment which I reduced to 4 months to reflect the defendant’s plea. I did not consider there were grounds to suspend it.

On appeal Held : (1) The Appellant had worked for about 40 years in Hong Kong and had an unblemished character. His motivation was simply to be able to work for, effectively, an extra six months so as to supplement his MPF payment of about $300 per month and so be less of a burden on his family. In the circumstances of the case the falsification of a copy of his identity card was not the worst sort of offence envisaged by s 74, though any presentation of a deliberately falsified document to an employer for the purpose of gaining more favourable employment terms might well be considered serious, and offenders would run the risk of an immediate custodial sentence: HKSAR v Poon Lap-fung MA 413/1998; HKSAR v Wong Shing-kong MA 317/2002 ; (2) Insufficient weight had been given to the prior good character and unblemished work history of the Appellant and to the relatively limited scope of the offence. While it was true that even long-term good character paled into insignificance in respect of more serious crimes (AG v So Chin-chiu [1994] 1 HKLR 106), for offences such as the present where, if any custodial sentence was imposed, it would be a matter of months rather than years, then a defendant’s previous good character might well be a factor which allowed a court to consider a non-custodial sentence as being appropriate. This was a case which required consideration as to whether a non-custodial sentencing option was suitable; (3) Whilst the magistrate was correct to say that a suspended sentence might not fully reflect the criminality involved in the offence and would not necessarily provide a sufficient deterrence for this activity, the imposition of a community service order was appropriate in the circumstances of this case and would protect the interests of the community and in particular that of employers regarding this sort of conduct. Result - Appeal allowed. Community service order of 150 hours substituted.

CA 144/2008 Tang VP Burrell J (13.6.2008) *Ned Lai # W N C Stirling

LAM Mei-kiu

Using a copy of a false instrument/Monies of incorporated owners temporarily borrowed/No intention to permanently deprive/Absence of loss relevant to sentence/Money never at real risk/Less than $250,000 involved/Global starting point of 24 months for 16 offences appropriate 使 用 虛 假 文 書 的 副 本使 用 虛 假 文 書 的 副 本使 用 虛 假 文 書 的 副 本使 用 虛 假 文 書 的 副 本 – 暫 時 借 去 業 主 立 案 法 團 的 款 項暫 時 借 去 業 主 立 案 法 團 的 款 項暫 時 借 去 業 主 立 案 法 團 的 款 項暫 時 借 去 業 主 立 案 法 團 的 款 項 – 無 永 久無 永 久無 永 久無 永 久

地 剝 奪 的 意 圖地 剝 奪 的 意 圖地 剝 奪 的 意 圖地 剝 奪 的 意 圖 – 沒 有 損 失 是 與 量 刑 相 關 的沒 有 損 失 是 與 量 刑 相 關 的沒 有 損 失 是 與 量 刑 相 關 的沒 有 損 失 是 與 量 刑 相 關 的 – 款 項 從 來 沒 有 被 永款 項 從 來 沒 有 被 永款 項 從 來 沒 有 被 永款 項 從 來 沒 有 被 永

久 地 剝 奪 的 真 正 風 險久 地 剝 奪 的 真 正 風 險久 地 剝 奪 的 真 正 風 險久 地 剝 奪 的 真 正 風 險 – 所 涉 款 項 少 於 港 幣所 涉 款 項 少 於 港 幣所 涉 款 項 少 於 港 幣所 涉 款 項 少 於 港 幣 2 5 0 , 0 0 0元元元元 – 1 6項 罪項 罪項 罪項 罪

行 的 整 體 量 刑 起 點 為行 的 整 體 量 刑 起 點 為行 的 整 體 量 刑 起 點 為行 的 整 體 量 刑 起 點 為 2 4個 月 屬 恰 當個 月 屬 恰 當個 月 屬 恰 當個 月 屬 恰 當 The Applicant was charged with 19 offences. Charges 1 and 2 were of fraud, contrary to s 16A of the Theft Ordinance, Cap 210. Charges 3 to 19 were for using a copy of a false instrument, contrary to s 74 of the Crimes Ordinance, Cap 200. On the fifth day of trial, and at the end of the prosecution case, he pleaded guilty to Charges 3 to 18. Earlier, on the fifth day of trial, the prosecution offered no evidence on Charge 19. The trial then continued on Charges 1 and 2, upon which she was acquitted.

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The judge sentenced the Applicant to 2½ years’ imprisonment. He considered a starting point of 2 years would have been appropriate for a single offence, but with a total of 16 charges, he adopted a global starting point of 3 years. The sentence of 2½ years was arrived at because the judge gave her a 4 months’ discount which was a little over 10% for her plea, and an extra 2 months’ discount for her clear record and generally favourable background. The Applicant and her husband were the directors and shareholders of Harbourfield Property Management Limited (‘Harbourfield’ ). She was the person in charge of the daily operations of Harbourfield. Harbourfield provided management service to a number of properties in Hong Kong, including Robinson Mansion. On 18 April 1997, a savings account number 014-703-1001-3000 was opened with the Bank of China (Hong Kong) Limited (‘BOC’) in the name of Harbourfield. This account was opened for the purpose of holding funds for the maintenance and repair of Robinson Mansion and was designated as a special fund account. That was referred to by the judge as the ‘3000 account’. On 4 July 2000, another account 014-703-1004-1638 (‘ the 1638 account’) was opened with the BOC. This account was to receive the management fees from the owners, and to pay out operational expenses incurred in the daily management of Robinson Mansion. In respect of both accounts, the Applicant and her husband were the authorised signatories. It was stated in the Summary of Facts that at the end of each month, the accounts staff of Harbourfield had to prepare a monthly income and expenditure account which was enclosed with a bundle of documents for the incorporated owners of Robinson Mansion. Included was a copy of the purported bank passbook extracts of the 3000 account and in some cases, both the 3000 account and the 1638 account. However, the copies supplied were false in that they had been altered by the Applicant who had deleted references to some withdrawals and repayments. According to the Summary of Facts, the effect of the deletion was to conceal the fact that the true balances were much lower than those in the false copies. That was to hide the fact that the Applicant had been using the monies of the incorporated owners as a free float for Harbourfield. It was common ground that there was no actual loss to the incorporated owners in that all the monies temporarily borrowed by the Applicant had been repaid to the incorporated owners. On appeal, it was submitted, inter alia, that the judge was wrong in not giving sufficient regard to the fact that the incorporated owners suffered no actual loss. Reference was made to HKSAR v Leung Shuk-man [2002] 3 HKC 424, where full restitution was described as a powerful factor in mitigation. Held : (1) The Applicant was not charged with theft. It was not the prosecution’s case that the Applicant ever intended to permanently deprive the incorporated owners of their money. But the fact that there was no actual loss was highly relevant to sentence. It was common for an offence under s 74 to be committed as part of a scheme to defraud resulting in financial loss to the victim. Though the Applicant pleaded guilty to 16 charges, the amount involved at any one time was less than $250,000; (2) In HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 776, the court set the following guidelines for theft involving a breach of trust:

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(a) over $15 million — 10 years or more; (b) $3 million to $15 million — 5 to 9 years; (c) $1 million to $ 3 million — 3 to 4 years; (d) $250,000 to $1 million — 2 to 3 years; (e) less than $250,000 — less than 2 years.

(3) The court was not concerned with theft but with the use of false instruments. Often in such cases some false documents would be involved. So in the present case, if the Applicant had been charged with say one count of theft of less than $250,000 and one count of the use of false instrument, the actual sentence was likely to be less than 2 years. That would be reduced if there had been full restitution; (4) The court would proceed on the basis that the money was never really at risk, and in any event at any one time less than $250,000 was involved. In such circumstances, a starting point of 18 months would be appropriate for each offence and, globally, a starting point of 24 months. For her plea (though a belated one) and her general good record and generally favourable background, she would be given a further discount of 6 months. The result was that her sentence would be reduced to 18 months. Result - Appeal allowed. Sentence of 18 months’ imprisonment substituted.

Fraud, etc * 李 運 騰 A l e x L e e #簡 定 濤 及 朱 穎 章 ( 1 ) Andrew Kan & Winnie Chu (1) 謝 英 權 ( 2 ) J a me s T z e ( 2 )

香港特別行政區訴香港特別行政區訴香港特別行政區訴香港特別行政區訴 羅達良羅達良羅達良羅達良 (((( 第一答辯人第一答辯人第一答辯人第一答辯人 ))))

馮國華馮國華馮國華馮國華 (((( 第二答辯人第二答辯人第二答辯人第二答辯人 ))))

H K S A R v L A W T a t - l e u n g ( R 1 ) F U N G K w o k - w a ( R 2 ) 高等法院上訴法庭 – 覆核申請2007年第3號

高等法院上訴法庭副庭長鄧國楨

高等法院上訴法庭法官張澤佑

高等法院上訴法庭法官袁家寧

耹訊日期:二零零八年二月廿七日

宣判日期:二零零八年二月廿七日

C O U R T O F A P P E A L O F T H E H I G H C O U R T A P P L I C A T I O N F O R R E V I E W N O . 3 O F 2 0 0 7 Ta n g V P C h e u n g J A Yu e n J A D a t e o f H e a r i n g : 2 7 F e b r u a r y 2 0 0 8 D a t e o f J u d g me n t : 2 7 F e b r u a r y 2 0 0 8 串謀詐騙串謀詐騙串謀詐騙串謀詐騙 –––– 僱員以公司資源進行私幫生意致公司損失僱員以公司資源進行私幫生意致公司損失僱員以公司資源進行私幫生意致公司損失僱員以公司資源進行私幫生意致公司損失 –––– 被告人被告人被告人被告人

沒有刑事紀錄沒有刑事紀錄沒有刑事紀錄沒有刑事紀錄 –––– 社會服務令不能對罪行起阻嚇作用社會服務令不能對罪行起阻嚇作用社會服務令不能對罪行起阻嚇作用社會服務令不能對罪行起阻嚇作用 –––– 沒有特殊沒有特殊沒有特殊沒有特殊

情況判處非監禁刑罰情況判處非監禁刑罰情況判處非監禁刑罰情況判處非監禁刑罰

第 一 答 辯 人 為 一 間 獲 環 保 署 核 准 清 理 廢 物 的 公 司 的 高 級 經

理。第二答辯人為另一間同類型公司的經營者。二人串同第一答辯

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人公司的司機利用第一答辯人的公司的資源向客戶提供服務,但卻

把服務當成第二答辯人公司所提供的。有關行為持續兩年之久,令

第一答辯人公司蒙受損失約280,000元。

第 一 答 辯 人 承 認 一 項 串 謀 詐 騙 罪 , 並 成 為 控 方 証 人,被判社

會 服 務 令 160 小 時 。 第 二 答 辯 人 否 認 控 罪 , 經 審 訊 後 被 判 社 會服務

令240小時。原審法官決定給予兩人自新的機會。

律政司司長就有關刑期向上訴庭申請覆核。

裁決裁決裁決裁決:

(1) 第 一 答 辯 人 所 干 犯 的 罪 行 包 括 違 反 誠 信 。 他 與 第 二答辯人為

犯案主謀。雖然二人並無犯罪紀錄,但本案罪行持續兩年之久,而

有關的罪行涉及貪污原素,因此,社會服務令能否針對罪行起阻嚇

作用為申請的關鍵﹔

(2) 上訴法庭在 SJ v Kwan Chi-cheong & Ors 覆核申請1999年第

1號一案中曾說:

根據該法例被控貪污的人,縱使初犯,除非只是技術上犯法,否則通常必定判處阻嚇性刑罰,即時入獄的判刑幾乎是無可避免的。

雖 然 Kwan Chi-cheong 是 根 據 香 港 法 例 第 201 章 《 防 止 賄 賂 條

例》作出裁決,上訴庭曾就與本申請同類型案件採用同樣的處

理 方 法 , 並否定社會服務令為適用的刑罰: HKSAR v Wong Yiu-kuen [2001] 1 HKC 486;

(3) 除 非 是 特 殊 情 況 下 , 否 則 法 庭 應 就 罪 行 判 處 即 時 監禁:律政司司長訴李卓明 [1999] 1 HKLRD 59;

(4) 本 案 並 無 牽 涉 任 何 特 殊 情 況 , 第 一 答 辯 人 與 第 二 答辯人的量

刑 起 點 應 為 2 年 監 禁 , 由 於 第 一 答 辯 人 已 完 成 社 會 服 務 令 , 加上本

案 是 刑 期 覆 核 , 起 點 減 為 1 年 半 , 而 第 一 答 辯 人 認 罪 並 轉 為 控方証

人,法庭在考慮各種因素後(包括他在服刑期間成立了新公司,所

以 判 處 入 獄 時 對 他 打 擊 特 別 大 ) , 判 處 他 入 獄 9 個 月 。 就 第 二答辯

人 , 鑑 於 他 已 完 成 社 會 服 務 令 , 加 上 本 案 是 由 律 政 司 司 長 申 請 覆

核,對他有心理負擔,因此判處入獄18個月。

結 果結 果結 果結 果 ︰ 批 准 覆 核 刑 期 申 請 。 第 一 答 辯 人 改 判 9個月監禁。第二答辯

人改判18個月監禁。

[English digest of AR 3 of 2007, above] Tang VP Cheung & Yuen JJA (27.2.2008) *Alex Lee

(1) LAW Tat-leung (2) FUNG

Kwok-wa

Conspiracy to defraud/Loss caused to company by employees engaged in private business using company resources/Defendants of clear record/Community service orders of no deterrent effect/No exceptional circumstances to justify non-custodial sentences R1 was the senior manager of a waste collection company appointed by the Environmental Protection Department and R2 was the operator of a similar company. R1 and R2 conspired with the driver of R1’s company to provide services to clients by using the resources of R1’s company, but in the name of R2’s company. This arrangement lasted for 2 years, causing a loss of about $280,000 to R1’s company.

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#Andrew Kan & Winnie Chu (1) James Tze (2)

R1 pleaded guilty to one count of conspiracy to defraud and became a prosecution witness. He was sentenced to serve a community service order of 160 hours. R2 pleaded not guilty and was, after trial, sentenced to serve a community service order of 240 hours. The trial judge decided to give them a chance to turn over a new leaf. On review Held : (1) The offences committed by R1 involved a breach of trust. He and R2 were the masterminds of the scam. Although each had a clear record, the offences in this case lasted over a span of 2 years, and involved an element of corruption. Therefore, the key issue in this application was whether a community service order had a deterrent effect for such an offence; (2) In SJ v Kwan Chi-cheong and others CAAR 1/1999, the Court of Appeal stated:

…even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence. This will almost invariably involve a sentence of immediate imprisonment.

Although the decision in Kwan Chi-cheong was made under the Prevention of Bribery Ordinance, Cap 201, the Court of Appeal had adopted the same approach in dealing with cases of a kind similar to this case, and had found a community service order inappropriate: HKSAR v Wong Yiu-kuen [2001] 1 HKC 486; (3) Save in exceptional circumstances, the court should impose an immediate custodial sentence for the offence : SJ v Li Cheuk-ming [1999] 1 HKLRD 59; (4) As this case involved no exceptional circumstances, the starting point for R1 and R2 should be 2 years’ imprisonment. Since R1 had already served the community service order and it was an application for a review of sentence, the starting point would be further reduced to 1½ years. Besides, R1 changed his plea to one of guilty and became a prosecution witness. Having taken into account all the considerations (including the fact that R1 had set up a new company when he was serving the sentence and therefore a custodial sentence would have a particularly large impact on him), the court would sentence him to 9 months’ imprisonment. In respect of R2, a sentence of 18 months’ imprisonment should be imposed because he had already served the community service order and would have suffered the psychological burden arising out of this application for review. Result - SJ’s applications allowed. Sentences of 9 months’ imprisonment

(R1) and 18 months’ imprisonment (R2) substituted. CA 284/2006 Stuart-Moore VP Burrell & Wright JJ (19.2.2008) *Alex Lee

(1) CHAN Nai-keung (2) CHIANG Pak-yeung (3) LEE Kwok-on

Conspiracy to defraud/Multiple offences/Each offence required a sentence which properly reflected its criminality/Inappropri ate use of compensation order/Defendant guilty of minor role in money laundering 串謀詐騙串謀詐騙串謀詐騙串謀詐騙 –––– 多項罪行多項罪行多項罪行多項罪行 –––– 每項控罪的判刑須恰當地反映其刑責每項控罪的判刑須恰當地反映其刑責每項控罪的判刑須恰當地反映其刑責每項控罪的判刑須恰當地反映其刑責 ––––

不適當使用補償令不適當使用補償令不適當使用補償令不適當使用補償令 –––– 被告人被裁定在洗黑錢中擔當次要角色被告人被裁定在洗黑錢中擔當次要角色被告人被裁定在洗黑錢中擔當次要角色被告人被裁定在洗黑錢中擔當次要角色

A1 and A2 were convicted after trial of five counts (3, 5, 7, 9 and 10) of conspiracy to defraud, contrary to Common Law and punishable under s 159C(6) of the Crimes Ordinance, Cap 200. Each was sentenced to a total of 6 years’ imprisonment and compensation orders were also made against them.

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#A Raffell (1) Lisa Remedios (2)David Ma (3)

The prosecution alleged that by virtue of D1 and D2’s professional status as proprietor and law clerk, respectively, in a firm of solicitors, a dishonest scheme was successfully implemented involving a number of other persons and companies based in Hong Kong to defraud Mainland businessmen. When the victims of these frauds realised that something was amiss, an approach to the law firm would be met by the response that it was not a matter for the law firm and that the issue lay between the Mainland victims and the Hong Kong companies with which they had dealt. However, when attempts were made to locate the individuals who had purported to act in good faith on behalf of the Hong Kong companies, they were difficult to trace. Reports were then made to the police. A3 was convicted of one offence of conspiracy to defraud and one offence of dealing with property known or believed to represent the proceeds of an indictable offence. He was sentenced to a total of 4 years and 3 months’ imprisonment. A3’s conviction for conspiracy to defraud was quashed on appeal, which left him with a sentence of 4 years’ imprisonment in respect of the money laundering charge. On appeal Held : (1) Whilst the sentences of A1 and A2 of 6 years were appropriate in their totality, the individual sentences making up that total were not correct; (2) There were a number of features of the case which aggravated the offences for the purposes of sentencing. First, these offences were committed when A1 and A2, as solicitor and solicitor’s law clerk respectively, held a position of trust in regard to all of the Mainland victims of the scam. Secondly, the offences were persistent and involved a total of $5,931,698; (3) The judge erred in passing sentences on the individual charges which far exceeded the guidelines in R v Barrick [1985] 81 Cr App R 78, as updated in R v Clark [1998] 2 Cr App R 137. The Clark guidelines had since been utilised, with the provision of accuracy conversion rate suitable for Hong Kong, in HKSAR v Cheung Mee-kiu [2006] 4 HKLRD 776; (4) The appropriate sentences on counts 3 and 10, involving sums of $468,000 and $471,698 respectively, would be 2 years’ imprisonment on each; on count 5, which involved $2,652,000, a sentence of 4 years’ imprisonment would be appropriate; on counts 7 and 9, each involving $1,170,000, a sentence of 3 years on each was appropriate. As such, each of the individual sentences imposed by the judge was manifestly excessive; (5) A correct sentence should always be imposed for each individual offence where there was a multiplicity of offences before the court. The error in the approach taken by the judge in this case was demonstrated by the fact that A1 and A2 each received precisely the same sentence on counts 3 and 10 (involving a loss to the victim of $468,000 and $471,698 respectively) as they received on count 5, involving a loss to the victim which was more than five times greater ($2,652,000); (6) Each offence required a sentence which properly reflected the criminality involved in its commission. This was not achieved in this case. It was clear also, despite a reference by the judge to the guidelines in Barrick and

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Clark, that whilst he achieved an appropriate totality in the end, all of the individual sentences were out of line with the guidelines provided in those authorities; (7) The actual losses incurred by the victim companies in the four counts on which compensation was being considered (3, 5, 7 and 10) amounted at most to $4,761,698. The judge accepted that the proceeds actually received by A1 and A2 amounted to ‘thirty per cent from each of the frauds practised’. From this it was to be assumed that the remaining seventy per cent of the proceeds went to other members of this fraudulent syndicate. Whilst, in theory, the judge might have ordered A1 and A2 each pay as much as a half share of the full amount lost by the Mainland companies, in practice this might well be regarded as unfair when so many others were involved in the scam with them. As thirty per cent of the full loss was $1,428,509, A1 and A2 could each have been ordered to pay a half of their joint gain, in which case they would have been liable to pay $714,254.50. In the event, the judge did not adopt either of these approaches; (8) Although the judge made the compensation orders as an expeditious way of disposing of any civil litigation which might otherwise result from this case, some of the principles in R v Miller (1979) 68 Cr App 56, 57, were not followed. Pain J said:

The principles which we feel ought to be followed are these: (1) a compensation order is not an alternative to a sentence; that is old law laid down in Lovett (1870) 11 Cox’s C.C. 602. (2) A compensation order in terms of money should be made only where the legal position is quite clear - that again is longstanding law. (3) In making a compensation order the Court must have regard to the means of the defendant. That arises from the provisions of section 1(4) of the Criminal Justice Act 1972 and that is where there is a new departure. (4) The compensation order must be precise. It must be related to an offence in respect of which the defendant has been convicted or to an offence which he has asked to have taken into account. It must specify the amount and if there is to be payment by instalments it must specify the instalments - only if this is done can the loser’s rights at Civil Law be adequately protected. (5) The compensation order must not be oppressive. The Court has to bear in mind that a prisoner who has just been discharged from jail is very often short of money. He must not be tempted to commit further offences to provide cash in order to bring his compensation order up to date. That matter is dealt with in the decision of Oddy (1974) 59 Cr App R 66; [1974] 1 W.L.R. 1212. (6) On the other hand there may be good moral grounds for making a compensation order including the order for payment by instalments to remind the defendant of the evil he has done. That derives from the decision of this Court in Bradburn (1973) 57 Cr App R 948. This, we think, may apply particularly in the case where a non-custodial penalty is imposed and the compensation which is appropriate is a sum which is not too great. (7) Finally, a compensation order must be realistic. An order for payment by instalments over a long period is to be avoided and the authority on that is Daly (1973) 58 Cr App R 333; [1974] 1 W.L.R. 133.

(9) The compensation orders could not be supported. First, as the judge’s order made A1 and A2 liable, jointly and severally, for the full sum lost in these frauds, neither was made aware of the exact limits of the order made against

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them as individuals. The orders lacked precision and, in theory at least, awarded compensation to the victim companies of twice the amount of their losses. Second, the judge erred in rejecting what A2 had said in his affirmation about his means and when finding that A2 had the ability to pay compensation. Third, no time limits were ever given to A2 within which compensation should be paid; the judge had merely stated that it should be paid ‘forthwith’, which was wholly unrealistic and oppressive; (10) The role of A3 in the laundering of $1,170,000 was a relatively minor one, and he was used as a ‘front ’ man by those far more deeply involved in this series of frauds. Result - Appeals allowed. Sentences of A1 and A2 on counts 3 and 10

reduced to 2 years’ imprisonment; on count 5 to 4 years’ imprisonment; on counts 7 and 9 to 3 years’ imprisonment. Sentences to overlap, producing a totality of 6 years’ imprisonment, as previously. Compensation orders quashed. Sentences of A3 reduced to 30 months’ imprisonment.

Homicide CA 532/2004 Stuart-Moore VP Yeung JA Suffiad J (21.12.2007) *K Zervos SC & Martin Hui #I/P

CHENG Wui-yiu

Conspiracy to murder/Criteria for life imprisonment /Triad-style execution of witness to prevent giving of testimony/ Gravity of offence justifying life sentence 串謀謀殺串謀謀殺串謀謀殺串謀謀殺 –––– 判處終身監禁的準則判處終身監禁的準則判處終身監禁的準則判處終身監禁的準則 –––– 以三合會方式把證人處決以以三合會方式把證人處決以以三合會方式把證人處決以以三合會方式把證人處決以

阻止其出庭作證阻止其出庭作證阻止其出庭作證阻止其出庭作證 –––– 罪行的嚴重性足以支持判處終身監禁罪行的嚴重性足以支持判處終身監禁罪行的嚴重性足以支持判處終身監禁罪行的嚴重性足以支持判處終身監禁

The Applicant was convicted after trial of conspiracy to murder, contrary to s 5 of the Offences against the Person Ordinance, Cap 212, and conspiracy to assist a person to retain the proceeds of the indictable offence, contrary to common law and s 25(1) and (5) of the Organized and Serious Crimes Ordinance, Cap 455. For the first offence, the Applicant was sentenced to life imprisonment, and the judge, pursuant to s 67B of the Criminal Procedure Ordinance, Cap 221, ordered that he should serve a minimum term of 22 years. For the second offence, the Applicant received a concurrent term of 5 years’ imprisonment. The particulars of the first offence alleged that the Applicant conspired with others to murder Tommy Chui in Singapore. This was to prevent Chui from testifying as a witness for the prosecution in a trial in Hong Kong, involving bribery. At trial, the Applicant’s counsel had submitted that it was not appropriate to pass a life sentence as this would give rise to disparity between the Applicant and the co-defendant, Cheung, who, after trial, had received a sentence of 27 years’ imprisonment. In sentencing, the judge explained why he considered a sentence of life imprisonment was appropriate. He referred to R v Hodgson (1968) 52 Cr App R 113, where the criteria for imposing a life sentence were set out:

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(1) Where the offence or offences are in themselves grave enough to require a very long sentence;

(2) When it appears from the nature of the offences or from the

defendant’s history that he is a person of unstable character likely to commit such offences in the future;

(3) When, if the offences are committed, the consequences to other

may be specially injurious, as in the case of sexual offences or crimes of violence.

The judge then referred to R v Cheung Hing-biu [1984] HKLR 87, where the court pointed out it was not necessary for all the three criteria to be met, a view confirmed in HKSAR v Cheung Lai-man [2004] 2 HKLRD 473. On appeal Held : (1) The circumstances of the murder were exceptionally grave. Prior to sentencing, defence counsel had informed the judge that there was nothing he was able to say in mitigation regarding the offence itself. The evidence showed that the conspiracy involved a triad-style execution of a witness in order to prevent him from testifying in Hong Kong in respect of very serious criminal charges. The killing had been planned and prepared over a period of about five months leaving nothing to chance; (2) The Applicant was directly involved in the killing and the disposal of the body, and had recruited Cheung into the gang. Cheung also described the Applicant as the person in charge of those involved in Singapore. As such, it was the Applicant who paid for the air tickets to and from Singapore and who gave instructions to Cheung as to when he should travel to Singapore. He also directed that Cheung be paid $200,000 for having taken a part in the killing of Tommy Chui; (3) The killing of Tommy Chui with the intention that he should be prevented from giving evidence struck, as the judge had said, ‘at the very heart of the integrity of the criminal justice system in Hong Kong.’ The rituals used showed that the murder intended to provide a public demonstration of a triad punishment of someone who had been disloyal to the brotherhood; (4) The combination of these factors warranted a life sentence; (5) As regards disparity, the judge noted that there had been no direct evidence at Cheung’s trial as to any physical involvement by Cheung in the abduction and killing of Tommy Chui. By contrast, at the Applicant’s trial, Cheung had described in detail the acts and involvement of the Applicant who physically abducted and killed Tommy Chui. Result - Application dismissed.

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CA 266/2005 Stuart-Moore & Tang VPP Yeung JA (18.1.2008) *K Zervos SC & Henry Hung #P Loughran

LIU Chun-yip

Manslaughter/Appellant a potential long-term danger to the community/Life imprisonment appropriate/Specified minimum sentence to be served of 16 years’ imprisonment 誤殺誤殺誤殺誤殺 –––– 上訴人對社會長期構成潛在危險上訴人對社會長期構成潛在危險上訴人對社會長期構成潛在危險上訴人對社會長期構成潛在危險 –––– 判處終身監禁是恰當判處終身監禁是恰當判處終身監禁是恰當判處終身監禁是恰當

的的的的 –––– 指明須服的最低刑期為指明須服的最低刑期為指明須服的最低刑期為指明須服的最低刑期為 16161616 年監禁年監禁年監禁年監禁

On 30 August 2006, the Appellant’s two convictions for murder were quashed, and convictions for manslaughter were substituted. The court was then required by s 83A(2) of the Criminal Procedure Ordinance, Cap 221, to ‘pass such sentence in substitution for the sentence passed at trial as may be authorized by law for the other offence, not being a sentence of greater severity’ . The killings occurred whilst the Appellant was suffering from a psychotic episode, and were related to drug abuse. He suffered from an abnormality of mind, induced by paranoid psychosis, which substantially impaired his mental responsibility for his acts at the material time. He continued to represent a long-term danger to the community. Whilst the psychiatrist did not recommend a hospital order, he recommended ‘psychiatric supervision indefinitely to monitor the Appellant’s condition and to advise him’ . Another psychiatrist opined that it was not safe to release the Appellant because he might again take the dangerous drugs which had contributed to his psychosis, and his psychosis might in any event ‘still relapse without re-abuse’ . Held : (1) The Appellant represented a potential long-term danger to the community, and a life sentence should be imposed: R v Hodgson (1968) 52 Cr App R 113, Attorney General’s Reference No 32 of 1996 (Whittaker) [1997] 1 Cr App R (S) 261; (2) As the life terms were discretionary, s 67B(1) of the Criminal Procedure Ordinance, Cap 221, required the court to specify the minimum to be served on each count. In HKSAR v Hui Chi-wai and Others (No. 2) [2003] 2 HKC 582, 591, Stock JA said of the effect of this section:

It is designed to draw from the court a minimum term which the convicted person must 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.

Result - Appellant sentenced to life imprisonment on each count, with a

minimum term to be served of 16 years’ imprisonment. [See also Basic Law and Bill of Rights: Ed]

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CA 510/2006 Stuart-Moore VP Hartmann & McMahon JJ (30.5.2008) *J Reading SC & Anthea Pang #AA Bruce SC

LAM Hon-man, Albert

Murder/Defendant aged 17 years at time of offence/Absence of remorse/Generally applicable sentence between 27 and 30 years/Sentence of 29 years’ imprisonment not manifestly excessive 謀殺謀殺謀殺謀殺 –––– 被告人犯案時被告人犯案時被告人犯案時被告人犯案時 17171717 歲歲歲歲 –––– 沒有悔意沒有悔意沒有悔意沒有悔意 –––– 一般適用的刑期介乎一般適用的刑期介乎一般適用的刑期介乎一般適用的刑期介乎 27272727

至至至至 30303030 年年年年 –––– 判處判處判處判處 29292929 年監禁並非明顯過重年監禁並非明顯過重年監禁並非明顯過重年監禁並非明顯過重

On 9 December 2006, the Applicant was convicted of the murder of Choi Wai-lok (‘the deceased’), a boy of 15 who was at the same school as the Applicant. The murder took place on 7 December 2005 when the Applicant was aged 17 years and 4 months. In view of the Applicant’s age, the judge was able to exercise her discretion under s 2 of the Offences against the Person Ordinance, Cap 212, to impose a determinate sentence. The judge took into account, when deciding the length of the sentence, seven previous decisions of the Court of Appeal providing ample authority from which to assess the appropriate range of sentence for an offence of this type. The judge exercised her discretion in the Applicant’s favour when deciding not to impose a life sentence. In doing so, she had taken into account all the surrounding factors, not least that this was, as she described it:

…a brutal murder. I note that there was no gang or triad involvement, torture, perverse conduct or interference with the body… However, there were a large number of wounds some of which were extremely forceful and from at least two of which the deceased would have died.

Although there was no motive for the killing, the judge found there was good reason to infer that the Applicant had carried the knife with him to the murder scene. The murder did not appear to have been committed on the spur of the moment. The post mortem established that the cause of death was ‘bleeding from multiple stab and cut wounds’ . On 15 December 2006, the Applicant was sentenced to 29 years’ imprisonment. On appeal Held : (1) There was plainly some foresight on the Applicant’s part. He had shown no remorse and still found himself unable to own up to the enormity of what he had done despite strong and extremely compelling evidence of guilt; (2) The Applicant’s sentence was not manifestly excessive. It was a cause of real concern that on the evidence this was a motiveless killing. No doubt he had reasons to kill the deceased but he had never revealed them. His attempts to cover his tracks showed him to be someone with a devious and scheming nature. In some respects, the discretionary course adopted by the judge, when she chose not to impose a life sentence, might be viewed as a merciful one; (3) The authorities indicated that for young offenders convicted in circumstances such as these the generally applicable sentence appeared to be between 27 and 30 years. Result - Application dismissed.

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CA 239/2007 Stuart-Moore VP McMahon J (12.6.2008) *Anthea Pang #John Haynes

WONG Shui-mouk

Manslaughter/Death caused by dangerous act/Defendant hitting victim on head with chopper after dispute/No starting point for sentence as gravity of offence varied greatly 誤殺誤殺誤殺誤殺 –––– 危險作為引致死亡危險作為引致死亡危險作為引致死亡危險作為引致死亡 –––– 被告人在爭執後用菜刀襲擊受害人被告人在爭執後用菜刀襲擊受害人被告人在爭執後用菜刀襲擊受害人被告人在爭執後用菜刀襲擊受害人

頭部頭部頭部頭部 –––– 由於罪行的嚴重性差異極大由於罪行的嚴重性差異極大由於罪行的嚴重性差異極大由於罪行的嚴重性差異極大 ,,,, 故此沒有量刑起點故此沒有量刑起點故此沒有量刑起點故此沒有量刑起點

Following a trial, the Applicant was acquitted of murder but convicted of unlawful act manslaughter. The killing resulted from a fairly trivial argument which got out of hand. It began with a faulty air-conditioner in the Applicant’s Mongkok flat where he was a tenant. Madam Ho was the owner of the flat. The dispute went on for some time and grew in intensity when the Applicant refused to pay his rent. When Madam Ho tried to speak to the Applicant on the telephone, he was abusive to her. Eventually, the water and electricity to the Applicant’s flat were cut off. Madam Ho obtained the assistance of her estranged husband (‘the deceased’) but each time he made his presence known, the Applicant called the police. For their part, the police advised the parties as to their civil remedies. Matters came to a head when a meeting, arranged for the evening of 16 August, flared up into violence. The deceased was chopped twice on the head, receiving serious wounds from which he died three days later. The evidence appeared to indicate that the Applicant had taken a somewhat aggressive and non-conciliatory stance towards Madam Ho, and the judge stated:

…by the time the landlady [Madam Ho] had arrived [ the defendant ] had managed to have the water turned on again. However, by this stage, the defendant’s wife with whom the landlady had had some dealings and who considered that he was adopting an unreasonable attitude over the dispute, had quarrelled with him and had left the premises to reside elsewhere. The landlady was still being conciliatory and had attempted to resolve the rental impasse although, by this stage, the defendant had decided to move out, in any event, and was trying to extract a fairly substantial sum as compensation for his moving expenses.

The argument on 16 August 2006 led to the Applicant getting hold of a large chopper. He alleged that the deceased had fetched it from the Applicant’s kitchen whereas Madam Ho said that the Applicant had gone into his kitchen to fetch the chopper. On either version, there was no doubt that it was the Applicant who chased the deceased down three flights of stairs brandishing the chopper. The chopper, which was used to strike the deceased twice when they reached the ground floor level of the building, weighed 370 grammes and had a 20-centimetre-long blade. By the time the deceased reached hospital, it was estimated that he had suffered more than 40% blood loss. The deceased went into a coma on the following day from which he never recovered consciousness. The pathologist stated that a heavy amount of force was required to produce the chop wounds to the deceased’s head. Each of these had fractured the skull. One wound was described as a deep cut wound and the other as a shelving deep cut wound. These were likely to have been inflicted from behind although, if the deceased had been bending down, it was possible that they could have been inflicted from the front.

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Although the Applicant had expressed the possibility of an offer of a plea of guilty to unlawful act manslaughter at the start of the trial which the prosecution had rejected, his defence at trial was run on the basis of a combination of self-defence and accident. He described how he had slipped when the deceased was bending forwards and the chopper came down accidentally on the deceased’s head to inflict the first blow. Thereafter, he said, he was acting in self-defence as each of them wrestled for the possession of the chopper. The judge sentenced the Applicant to 7 years’ imprisonment. On appeal, it was submitted that the judge’s decision not to adopt a starting point for sentence was ‘unhelpful’, having regard to the Applicant’s timely offer to plead guilty to manslaughter; the sentence failed to reflect a verdict of the jury which was consistent with the acceptance of the Applicant’s account (and other supporting evidence) and did not properly reflect the fact that the first head wound had been accidentally caused; the deceased’s behaviour had amounted to harassment and it was only his interference in the discussion between Madam Ho and the Applicant which led to his incident; and that insufficient attention was paid to various circumstances urged in mitigation. Held : (1) It was plain that the judge was fully conversant with all the features in aggravation and in mitigation of this offence. The judge also had available to her the background report to which she made reference in the course of her sentencing remarks. The judge said that:

Overall, the defendant came across as a man who had done the best for his family in his working life, but was a man who possibly had a short temper and who was acting aggressively to ensure that he came away from the tenancy dispute with as much cash as possible.

It was apparent that the Applicant himself accepted that this was so and he admitted that his stance had not been justified; (2) The judge said:

I note that the jury verdict meant that they accepted that the defendant did not intend to kill or seriously harm the victim. Nevertheless, in pursuing an unarmed man with a chopper and administering two blows to the head from behind, the defendant must have realised the risk of harm to the victim. The defendant’s assertion that one of the blows was caused when he slipped and brought the knife down on the victim’s head is highly improbable, particularly so in light of the heavy force needed to cause the fracture of the skull and the neat, almost parallel placement of the two chop marks very close together.

Manslaughter is committed in myriad ways. Unlawful act manslaughter covers a huge range of [factual] situations. It’s important to remember that a human life has been lost unnecessarily over a trivial matter and the sentencing court should, where appropriate, recognise with a sufficiently severe sentence those cases where there’s no compelling mitigation.

Apart from his clear record, the mitigation presented involves the plea that was offered initially to manslaughter. A deterrent element is necessary in sentencing so as to discourage other

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potential offenders from resorting to violence and from taking up weapons to solve what are, in essence, very minor disputes.

In manslaughter cases, it’s not always possible to set a starting-point to sentence and I do not take a starting-point in this case. In imposing sentence, however, I do take into account the plea that was offered. I sentence the defendant to 7 years’ imprisonment.

This approach was correct. The sentence was an appropriate one and, perhaps, also a merciful one; (3) There were sound and pragmatic reasons for a judge who was called upon to decide an appropriate level of sentence for manslaughter, after weighing in the balance the many factors in aggravation and in mitigation which were often present in such cases, to do so without first indicating a starting point. This was one category of offence which could vary so greatly in gravity and could be affected by so many considerations, both adverse and favourable to a defendant, that a starting point became a hindrance and an irrelevance in the quest for a just resolution to this complicated task. In R v Lee Sau-ping, Cr App 189/1995, Chan J, expressed the difficulty as follows:

…This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence.

Whatever way the delicate balance was achieved when arriving at an appropriate sentence for manslaughter, it was unlikely, at least in many such cases, that it would be of any real assistance to take a formal starting point. Result - Application dismissed.

CA 125/2007 Cheung & Yeung JJA Barnes J (6.11.2008) *Sin Pui-ha #I/P

NG Tung-mo

Manslaughter/Husband killing wife after provocation/No tariff for manslaughter/Duty of counsel to alert court to relevant sentencing authorities/Use of excessive violence/Children forgiving defendant and seeking leniency/Appropriateness of sentence of 8 years’ imprisonment 誤殺誤殺誤殺誤殺 –––– 丈夫受到激怒後殺死妻子丈夫受到激怒後殺死妻子丈夫受到激怒後殺死妻子丈夫受到激怒後殺死妻子 –––– 誤殺沒有量刑指引誤殺沒有量刑指引誤殺沒有量刑指引誤殺沒有量刑指引 –––– 律師有律師有律師有律師有

責任提醒法官相關的判刑案例責任提醒法官相關的判刑案例責任提醒法官相關的判刑案例責任提醒法官相關的判刑案例 –––– 過分使用暴力過分使用暴力過分使用暴力過分使用暴力 –––– 子女寬恕被告子女寬恕被告子女寬恕被告子女寬恕被告

人並要求輕判人並要求輕判人並要求輕判人並要求輕判 –––– 判處判處判處判處 8888 年監禁屬恰當年監禁屬恰當年監禁屬恰當年監禁屬恰當

The Applicant was charged with the murder of his wife. His offer to plead guilty to manslaughter at the trial was not accepted. After trial, he was convicted of manslaughter and sentenced to 8 years’ imprisonment. The Applicant was aged 56 years at trial. His wife was aged 43 at the time of death. They had four children, aged 14, 13, 11 and 9 years. The Applicant suspected his wife of an affair. On 28 June 2006, they argued. The deceased asked for a divorce and said she did not care about their children. She put an electric cord around her neck and threatened to commit suicide. The Applicant managed to remove the cord and throw it to the ground but was so enraged with the deceased’s demand for a divorce that he lost control and grabbed a two pound hammer which was nearby and hit the deceased. She later died from the attack on 2 July 2006. The autopsy report showed there were five skull injuries, four of which had underlying fractures. The Applicant then called his daughter to say he had killed the deceased and intended to kill himself. She pleaded with him not to do so and told him to

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get help for the deceased. The Applicant also called a relative in the Mainland who had acted as a mediator in their family disputes. The relative told him to call the police, which he later did and was then arrested. In sentencing the judge said:

This is a tragic case in which the accused has deprived his four children of their mother’s care during their formative years, by killing her, but also ensuring that they are deprived of his care for the period that he must be in prison. The domestic considerations make the case particularly difficult for sentencing court, but the accused must be dealt with in a manner that discourages others from solving marital disputes with a hammer, or some other heavy instrument. I take into account the defendant’s age and the circumstances in which this killing occurred. I take into account his offer of a plea to manslaughter. I note the marital history and the family circumstances past and present. I sentence him to 8 years’ imprisonment for this offence.

Held: (1) The Applicant’s counsel acted properly in asking the judge to impose a sentence of 7 to 8 years’ imprisonment. Counsel owed a duty to provide the judge with all relevant authorities on sentence, whether or not in his favour. Counsel referred the judge to cases in which the range of sentence was 7 to 10 years’ imprisonment, and urged the judge to accept a lower sentence of 7 to 8 years’ imprisonment; (2) There was no tariff for manslaughter cases because of the different circumstances of each case. The court took into account that a life had been taken away and in cases that arose from family problems, it was emphasised that violence should not be resorted to in order to resolve a marital dispute. The court also took into account the extent of the provocation and the degree of violence involved in a particular case. Regard would also be had to the offer to plead guilty to manslaughter; (3) The jury found the Applicant guilty of manslaughter on the basis of provocation. This arose because of his suspicion of infidelity of the deceased and her demand for a divorce. There were clearly marital problems and the Applicant was provoked into killing the deceased when she demanded a divorce; (4) The violence used was excessive. A hammer was used and there were four fractures to her skull. Even if provoked, the violence used by the Applicant was a relevant factor in sentencing; (5) Although there was sympathy for the children who had written to the court asking for leniency and to express their forgiveness of the Applicant’s deed, it was necessary to consider all the circumstances. A sentence of 8 years’ imprisonment was not manifestly excessive. Result - Application dismissed.

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Immigration CA 385/2007 Yeung & Yuen JJA Beeson J (21.4.2008) *Sin Pui-ha #Norton Pang

YEUNG Lap

Handling stolen Buddhist pine trees/Prevalence of offence by illegal immigrants/Use of sampan unfit for navigation/Vessel intercepted after chase/Effect of aggravating features on sentence 處 理 贓 物處 理 贓 物處 理 贓 物處 理 贓 物 ( 羅 漢 松羅 漢 松羅 漢 松羅 漢 松 ) – 非 法 入 境 者犯此罪行甚為普遍非 法 入 境 者犯此罪行甚為普遍非 法 入 境 者犯此罪行甚為普遍非 法 入 境 者犯此罪行甚為普遍 – 使用不適宜使用不適宜使用不適宜使用不適宜

航行的舢舨航行的舢舨航行的舢舨航行的舢舨 – 船隻經警方追捕後被截停船隻經警方追捕後被截停船隻經警方追捕後被截停船隻經警方追捕後被截停 – 加重刑罰因素對判刑的加重刑罰因素對判刑的加重刑罰因素對判刑的加重刑罰因素對判刑的

影響影響影響影響 The Applicant pleaded guilty to one offence of handling stolen goods (charge 1), one offence of assisting the passage within Hong Kong of an unauthorized entrant (charge 2), and one offence of failing to stop the sampan despite making of an International Code Signal (charge 3). The facts showed that on 12 January 2007, police speedboats chased a suspicious motorised sampan two nautical miles off the east coast of Tai Long Tsai in Sai Kung. Despite the flashing of blue lights, the discharge of pyrotechnic flares and the sounding of horns, the sampan did not stop and was only intercepted after a chase near the boundary of Hong Kong waters. On board the sampan, which was unfit for navigation, the police found two illegal immigrants, the coxswain, the Applicant and the passenger, Wong Chung. There were also 26 recently uprooted Buddhist pine trees. The Applicant claimed to have been employed to come to Hong Kong to deliver the Buddhist pine trees for a reward of RMB1,000. The judge adopted a starting point of 3 years for charge 1 and reduced it to 2 years for the guilty plea. Having been satisfied that the offence of handling stolen Buddhist pine trees was prevalent and that it was an organized crime, the judge enhanced the sentence by 8 months (about 33%) to 32 months’ imprisonment. The judge adopted a starting point of 5 years for charge 2 and reduced it by one-third to 40 months, with 20 months to run consecutively to the sentence on charge 1. The judge adopted a starting point of 3 months for charge 3 and reduced it to 2 months. He ordered the 2-month sentence on charge 3 to run concurrently to those on charges 1 and 2. The total sentence was 52 months’ imprisonment. On appeal Held : (1) Illegal exploitation of endangered trees in Hong Kong, whether incense trees or Buddhist pine trees, was a very serious offence as it caused irreparable damage to the environment and threatened the natural survival of those species; (2) Despite the repeated emphasis of the seriousness of illegal exploitation of endangered trees in Hong Kong, very often by illegal immigrants from the Mainland, the offence remained prevalent. The sentence imposed by the court was not sufficient to deter and a higher starting point might be necessary to send out a clear and firm message to deter Mainland people from illegally entering Hong Kong for the purpose of cutting endangered trees for profit. The more important issue was whether the total sentence imposed on the Applicant was manifestly excessive;

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(3) As regards charge 2, in HKSAR v Yeung Wui and Others [2005] 1 HKC 646, the court said that ‘where an accused was the captain of the vessel or the person in charge or assisting in the operation of the organisation of the venture, the appropriate starting point is 5 years’ imprisonment’. The court added that the 5-year starting point could be increased if any of the five aggravating circumstances existed, including ‘the vessel concerned was unseaworthy by reason of poor maintenance or age, with the risk of endangering the passengers’ . In the present case, the motor sampan was unfit for navigation, and from this it followed that the 5-year starting point adopted for charge 2 was too lenient; (4) It could not be ignored that the Applicant’s sampan was only intercepted after a chase by police speedboats in the course of which the Applicant had ignored the flashing of blue lights, the discharge of pyrotechnic flares and the sounding of horns. Despite such aggravating features, the judge, having imposed a 2-month sentence on charge 3, ordered it to run concurrently; (5) The total sentence of 52 months’ imprisonment could not be said to be manifestly excessive. Result - Applications dismissed.

MA 202/2008 Beeson J (18.7.2008) *Vincent Wong #I/P

KUMAR Sunil

Immigration Ordinance/Using identity card of another/Breach of condition of stay/Levels of sentence 《《《《 入境條例入境條例入境條例入境條例 》》》》 –––– 使用他人身分證使用他人身分證使用他人身分證使用他人身分證 –––– 違反逗留條件違反逗留條件違反逗留條件違反逗留條件 –––– 量刑等級量刑等級量刑等級量刑等級

The Appellant was convicted after trial of an offence of using an identity card related to another person and sentenced to 22 months’ imprisonment (Charge 1). He was convicted on his own plea of one offence of breach of condition of stay, by way of overstaying and sentenced to 7 days’ imprisonment (Charge 2); a further offence of breach of condition of stay related to working in contravention of the prohibition against taking up paid or unpaid employment, resulted in a sentence of 2 months’ imprisonment (Charge 3). The magistrate ordered all sentences to run concurrently, making 22 months’ imprisonment in total. On appeal Held : (1) In setting sentence, the magistrate relied on HKSAR v Li Chang-li [2005] 1 HKLRD 864, which held that a sentence of 15 months’ imprisonment was the proper sentence for an offence of this nature (Charge 1) after a guilty plea. In this case, the Appellant was convicted after trial, and the magistrate imposed 22 months’ imprisonment, which followed the guidelines; (2) The sentences on Charges 2 and 3 were well within the range of proper sentences. Result - Appeal dismissed. [For immigration offences generally and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at pp 610-617: Ed]

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CA 402/2007 Stuart-Moore VP Beeson & Wright JJ (17.9.2008) *J Reading SC & Alvin Chui #I/P

LAM Shui-sai

Immigration/Assisting passage to Hong Kong of unauthorized entrants/Defendant in charge of sampan not equipped for navigation at sea/Starting point of 6 years’ imprisonment appropriate/Reduction of 6 months for saving of court time not appropriate 入境入境入境入境 –––– 協助未獲授權進境者前來香港的旅程協助未獲授權進境者前來香港的旅程協助未獲授權進境者前來香港的旅程協助未獲授權進境者前來香港的旅程 –––– 被告人掌管的舢被告人掌管的舢被告人掌管的舢被告人掌管的舢

舨沒有海上航行裝備舨沒有海上航行裝備舨沒有海上航行裝備舨沒有海上航行裝備 –––– 以以以以 6666 年監禁為量刑起點屬恰當年監禁為量刑起點屬恰當年監禁為量刑起點屬恰當年監禁為量刑起點屬恰當 –––– 因節省法因節省法因節省法因節省法

庭時間而減刑庭時間而減刑庭時間而減刑庭時間而減刑 6666 個月屬不恰當個月屬不恰當個月屬不恰當個月屬不恰當

The Applicant was convicted after trial of an offence of assisting the passage to Hong Kong of unauthorized entrants, contrary to s 37D(1)(a) of the Immigration Ordinance, Cap 115. The facts showed that marine police saw a sampan sailing without navigation lights at 10.30 pm and when it refused to stop there was a chase. When the sampan, captained by the Applicant, was eventually stopped, 10 people were found lying on top of one another in three compartments on the boat; 8 Vietnamese women and 2 Mainland men, all of whom were found to be illegal immigrants. The judge concluded that the Applicant was the steersman. Upon Marine Department’s inspection, the sampan was found to measure 7 metres long by 2 metres wide; the hull was in poor condition; it had no firefighting or lifesaving appliances, nor any navigation lights for night navigation. Therefore the sampan could not be considered equipped for navigation at sea. In sentencing, the judge considered R v Lam Kon-man Cr App 329/1990, where it was held that the person in charge of a vessel in which unauthorised entrants were carried should receive 5 years’ imprisonment after trial. That starting point should be increased if there was evidence of concealment of the unauthorised entrants, or if the vessel was unseaworthy and, where both circumstances existed, a starting point as high as 9 years would be appropriate. The judge considered the factually similar case of HKSAR v Tsui Kwong-ming Cr App 247/2004, and, as there, adopted a starting point of 6 years’ imprisonment, which he then reduced to 5 years and 6 months.

On appeal

Held : (1) The Applicant was aged 51 and was a mainland citizen with a clear record in Hong Kong. He had three children by his divorced wife and the children were said to be looked after by their grandmother who herself required regular medical attention. The Applicant was the sole breadwinner and had formerly worked as a construction site worker. None of his personal details amounted to cogent mitigation for this offence; (2) Although the judge gave a reduction of 6 months from the starting point of 6 years to acknowledge that the Applicant had admitted a substantial part of the prosecution case which, in her opinion, had saved court time, such a reduction was wholly unjustified, as any saving of court time would be minimal and in a case of this kind was not appropriate in any event. Result - Application dismissed. [For assisting the passage to Hong Kong of unauthorised entrants generally and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at p 611: Ed]

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MA 714/2008 Beeson J (12.9.2008) *Stewart Hau #I/P

MAHAMADOU Kamissoko

Immigration/Using a false travel document/False representation to immigration officer/Quantum of sentence 入境入境入境入境 –––– 使用虛假旅行證件使用虛假旅行證件使用虛假旅行證件使用虛假旅行證件 –––– 向入境事務主任作出虛假申述向入境事務主任作出虛假申述向入境事務主任作出虛假申述向入境事務主任作出虛假申述 –––– 判判判判

刑的輕重刑的輕重刑的輕重刑的輕重

The Appellant pleaded guilty to an offence of using a false travel document for the purpose of Part II of the Immigration Ordinance, contrary to s 42(2)(b) of the Immigration Ordinance, Cap 115, and to a second offence of making a false representation to an immigration officer, contrary to s 42(1)(a) of the same Ordinance. The admitted facts showed that the Appellant presented his Malian passport, together with an expired Malian passport, each of which bore the same false date of birth (10 May 1974), to the immigration authorities at the China Ferry Terminal on the Appellant’s arrival in Hong Kong, from Macau. The Appellant, a Malian citizen, was granted permission to land as a visitor. When he went through customs, another Malian passport bearing his correct date of birth was found in his possession. He was later arrested. Under caution, the Appellant admitted that he was born on 10 May 1972 and that he had applied for a Malian passport from the Malian authorities, but had not submitted his family register. When he received the travel document he knew that the date of birth was wrong, but still used the passport for arrival clearance, thus falsely representing his date of birth. Travel records showed that the Appellant used a passport with the false birth date to travel to Hong Kong between June 2003 and August 2005, when that travel document expired. Thereafter from October 2005 to the time of arrest, the Appellant used the current false passport. He had entered Hong Kong more than 20 times since 2003. The magistrate, having adopted starting point of 12 months on each charge, sentenced the Appellant to 8 months’ imprisonment for each offence, to be served concurrently. On appeal Held : (1) When sentencing, the magistrate had noted that the Appellant was a businessman with a clear record in Hong Kong, and there was no indication that the false passports had been used for any illegal activities; (2) The magistrate referred to R v Wang Ju-wen [1989] 2 HKLR 26, which indicated 18 months’ imprisonment on a plea of guilty was appropriate for possession and use of a false passport; that case involved a businessman using two false passports on 16 occasions to facilitate his business travel; (3) The starting point of 12 months’ imprisonment appeared to be lower than usual for this type of offence; (4) There were no mitigating features apart from the guilty plea, and the magistrate imposed a sentence that would be regarded as lenient for this type of offence.

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CCAB 2008 Sentence (Quantum) – Immigration

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Result - Appeal dismissed. [For false passports generally and making false representations to an immigration officer and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at pp 614-615: Ed]

* 張 維 新 及 陳 詠 嫻 Cheung Wai-sun & Agnes Chan #盧 敏 儀 Money Lo

香港特別行政區訴陸華華香港特別行政區訴陸華華香港特別行政區訴陸華華香港特別行政區訴陸華華

H K S A R v L O C K W a h - w a h 高等法院原訟法庭 – 高院裁判法院上訴2008年第401號

高等法院原訟法庭法官張慧玲

宣判日期:二零零八年七月二十五日

COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A CY A P P E A L N O . 4 0 1 O F 2 0 0 8 B a r n e s J D a t e o f J u d g me n t : 2 5 J u l y 2 0 0 8 僱用不可合法僱用的人僱用不可合法僱用的人僱用不可合法僱用的人僱用不可合法僱用的人 –––– 僱主未有查閱新僱員的文件僱主未有查閱新僱員的文件僱主未有查閱新僱員的文件僱主未有查閱新僱員的文件 –––– 入境條入境條入境條入境條

例第例第例第例第 17I17I17I17I 和和和和 17J17J17J17J條條條條 –––– 法例要求僱員持有永久性居民身分證法例要求僱員持有永久性居民身分證法例要求僱員持有永久性居民身分證法例要求僱員持有永久性居民身分證 –––– 身分證身分證身分證身分證

上的上的上的上的 ‘‘‘‘ 三粒星三粒星三粒星三粒星 ’’’’ 與是否永久性居民無關與是否永久性居民無關與是否永久性居民無關與是否永久性居民無關 –––– 上訴人對法律的無知值上訴人對法律的無知值上訴人對法律的無知值上訴人對法律的無知值

得原諒得原諒得原諒得原諒 –––– 罰款已充分反映罪責罰款已充分反映罪責罰款已充分反映罪責罰款已充分反映罪責

上 訴 人 本 被 控 一 項 僱 用 不 可 合 法 僱 用 的 人 罪 , 違 反 香 港 法 例

第115章《入境條例》第17I(1)條。其後控方改控較輕的僱主未有查

閱新僱員的文件罪,違反上述條例第17J(1)及(2)條。上訴人承認該

較輕控罪,被裁判官判處2個月監禁。

根 據 上 訴 人 承 認 的 案 情 , 2007 年 10 月 11 日 , 警 員 截 查 女子聶

素英(‘聶’)時,聶未能提供身分證明文件,並指稱她在一茶餐

廳工作。警員帶同聶前往該茶餐廳,聶出示一 ‘雙程證’,該證件

顯示聶是以訪客身份來港,祇可逗留7天。

警員調查顯示聶在8月20日以偽造身分證前往該茶餐廳應徵洗

碗員一職。上訴人是茶餐廳東主。他會見聶,檢視及影印聶提供的

身分證後,以$280日薪聘用聶。上訴人在聘用她之前並無查閱她的

有效旅行証件。警員以僱用不可被僱用的人的罪名拘捕上訴人,警

誡下上訴人承認控罪。

裁判官即時判刑時說:

…呢啲喺茶餐廳嗰度聘用一啲唔可以喺香港做嘢嘅人嘅情

況就係十分之猖獗

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