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

CRIMINAL APPEALS BULLETIN 刑事上訴案判例簡訊

July Edition/2004 2004年7月號

General Editor 總編輯

I Grenville Cross, SC 江樂士 資深大律師

Associate Editors 副編輯

D G Saw, SC 邵德煒 資深大律師

Patrick W S Cheung 張維新

Assistant Editors 助理編輯

Denise F S Chan 陳鳳珊

Lily S L Wong 王詩麗

Vinci W S Lam 林穎茜

This Bulletin summarises recent judgments which the editors consider of significance. 本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。 ( * Denotes Government Counsel ( *代表政府律師 # Denotes Appellant’s/Applicant’s/Respondent’s Counsel) #代表上訴人/申請人/答辯人的律師)

2

c.c. SJ 副本送： 律政司司長 DDPPs 各副刑事檢控專員 e mail LOs 電郵送： 各律政專員 D of AD 律政司政務專員 DSG 副法律政策專員 Secretary, Law Reform Commission 法律改革委員會秘書 Editor/Hong Kong Law Reports & Digest 《香港法律匯報與摘錄》編輯 DLA 法律援助署署長 Bar Association (Attn : Administrative Secretary) 香港大律師公會行政秘書 Law Society (Attn : Secretary General) 香港律師會秘書長 Editor/Hong Kong Cases Hong Kong Cases 編輯 Faculty of Law, HKU (Attn : Dean of Faculty) 香港大學法律學院院長 Librarian (Law), City University 香港城市大學高級助理圖書館館長(法律組) PHQ/HKPF (Attn : ACP/Crime) 香港警務處警察總部警務處助理處長(刑事) ICAC (Attn : Head/Ops) 廉政公署執行處首長 PTS/HKPF (Attn : FTO(Exam)) 香港警務處警察訓練學校警察訓練主任(考試) Administrator/Duty Lawyer Service 當值律師服務總幹事 C & E Training Development Group (Attn : Staff Officer) 香港海關訓練發展課參事 C & E Prosecution Group (Attn : Superintendent) 香港海關檢控課監督 LegCo Secretariat (Legal Service Division) 立法會秘書處法律事務部 D of Imm (Attn : AD(EL)) 入境事務處助理處長(執法及聯絡) Judiciary (PM/JISS Project) 司法機構資訊系統策略計劃策略經理 Librarian/D of J 律政司圖書館館長 Director of Advanced Legal Education 法律專業進修總監 Hung On-to Memorial Library (HK Collection)/HKU 香港大學孔安道紀念圖書館（特藏部） Departmental Prosecution Sections 各部門的檢控組

3

INDEX 目錄

A. p. 4 - p. 7

第4至7頁

Hong Kong Court of Final Appeal 香港終審法院

B. p. 8 - p. 13 第8至13頁

Criminal Appeals/Against Conviction 刑事上訴案件 /針對定罪

C. p. 14 - p. 22 第14至22頁

Criminal Appeals/Against Sentence 刑事上訴案件 /針對刑罰

D. p. 23 - p. 25 第23至25頁

Magistracy Appeals/Against Conviction 裁判法院上訴案件 /針對定罪

E. p. 26 - p. 27 第26至27頁

Magistracy Appeals/Against Sentence 裁判法院上訴案件 /針對刑罰

4

Appeal No.

(Date of Case Significance Judgment) Title A. HONG KONG COURT OF FINAL APPEAL 香港終審法院

FACC 1/2004 Bokhary Chan & Ribeiro PJJ Sir Derek Cons & Sir Ivor Richardson NPJJ (20.7.2004) *Cheung Wai-sun & Joseph Wong #Wong Po-wing

YU Fai-tat

Sentencing/Obscene Articles Tribunal/Discount for guilty plea/ Further discount for admission of obscenity inappropriate/ Court erred in increasing sentence on appeal without hearing from appellant 量刑 – 淫褻物品審裁處 – 認罪獲得減刑 – 承認物品淫褻而獲額外減刑並不恰當 – 法庭沒有聆聽上訴人申述便在上訴中加刑是錯誤的 The Obscene Articles Tribunal had an exclusive jurisdiction to determine whether any article was obscene or indecent: s 29(1)(a), Control of Obscene and Indecent Articles Ordinance, Cap 390 (the Ordinance). Subsection (2) provided:

Subject to subsection (3), where in any civil or criminal proceedings before a court or magistrate a question arises … as to any of the matters mentioned in subsection (1), that court or magistrate shall refer that question to a Tribunal; …’

and subsection (3):-

Where in any civil or criminal proceedings before a court or magistrate a person admits … that an article is obscene or indecent or that any matter publicly displayed is indecent the court or magistrate may accept that admission and so find against that person, and subsections (1) and (2) shall not apply.

This meant that where a person was charged with an offence which involved this question the ensuing trial, if the person pleaded not guilty, would necessarily comprise proceedings in two separate courts. This would not however happen if the person pleaded guilty, unless for some reason the court or magistrate declined to accept the admission implicit in the plea. The Appellant pleaded guilty in the magistracy to an offence of possession of obscene articles for the purpose of publication, contrary to s 21(1)(b) of the Ordinance. He was represented under the Duty Lawyer Scheme. He admitted the Summary of Facts

5

which was read out and which indicated that the articles in question were obscene, albeit they were later accepted as being toward the lower end of the obscenity scale. The Appellant had been arrested when hawking 1,262 DVDs and 2,736 VCDs from a shop in Wanchai Road. In passing sentence the magistrate adopted a starting point of 15 months, reduced that to 10 months for his guilty plea, and then gave ‘a further 2-month reduction because he admitted the obscenity of the discs, without requiring their examination and determination by the Obscene Articles Tribunal’. A fine of $20,000 was also imposed. The Appellant appealed to the High Court. The real complaint was that the fine had been imposed without proper enquiry as to the means of the Appellant. No point was taken by either side or by the judge as to the 2-month discount for the admission of obscenity. The judge reserved her decision. By the judgment handed down 10 days later the judge rejected any suggestion that the combined imprisonment and fine was manifestly excessive or that insufficient enquiry had been made as to the Appellant’s means; she was satisfied that the starting point adopted by the magistrate had been appropriate, but then added:

However the magistrate was incorrect in reducing the sentence by another two months because the Appellant had admitted the obscenity of discs. That matter is taken account of by the one-third discount for the plea of guilty.

The judge therefore allowed the appeal and increased the sentence by 2 months, leaving the fine as it stood. The appeal raised two questions for the consideration of the Court:

(1) Was the further discount given by the magistrate appropriate?

(2) Should the judge have given the Appellant an opportunity to address her on the question before she made her decision to increase the sentence?

Held : (1) As to the first question, several factors had influenced courts to the policy of discounting sentences by reason of a plea of guilty. The most influential in general were the saving of judicial time and dispensing with the need for the attendance and examination of witnesses. Those factors might vary greatly between individual cases, both in quantity and quality. A complex fraud might take far longer to try than a simple possession of drugs; the victim of a

6

theft was unlikely to suffer the trauma that a rape victim might undergo in having to give evidence in open court. Nevertheless a standard one-third discount was customary nowadays. It was by no means an absolute figure, and courts would vary it for good reason. Examples of reasons were full and early restitution of large sums of stolen money: HKSAR v Leung Shuk-man [2002] 3 HKC 424, and the giving of evidence by an accomplice: HKSAR v Chan Sau-hing Cr App 211/2001. There were also the ‘supergrass’ cases; (2) The suggestion that cases which would otherwise require referral merited further discount could not be accepted. Although the need to refer a disputed case might well delay the eventual conclusion, the actual overall judicial time spent in hearing and reviewing the evidence would be the same; (3) Furthermore, where there was a guilty plea the referral provisions did not come into play at all. Subsection 3 was not to be read as imposing any further requirement on the magistrate. So long as he or she observed the normal safeguard of being satisfied that the defendant understood what he was doing the magistrate should proceed immediately to deal with the case. If, however, it should appear then that the defendant did in fact contest the issue of obscenity or indecency the magistrate must refer to the Tribunal. But should the Tribunal’s decision go against the defendant, he could not normally on his return to the magistracy expect the full discount, for his plea had dispensed with only part of the trial; (4) The answer to the first question was therefore ‘no’. The practice of giving further discounts in these circumstances should be discontinued. As to this the judge was right; (5) As to the second question, the judge was wrong. One of the most fundamental principles of natural justice was that no man should be condemned unheard, that he should be given the opportunity to have his say. A simple reminder in the Notice of Appeal of the power of the judge to increase sentence under s 119 of the Magistrates Ordinance, Cap 227, in disposing of the appeal, was not a sufficient substitute for an actual opportunity to address the many different considerations that might be pertinent to an increase of sentence: Chau Ching-kay v HKSAR (2002) 5 HKCFAR 540, distinguished; (6) Although it was submitted that even if the Appellant had been given the proper opportunity to address the court the result would nevertheless have been inevitable, this could not be accepted. Had the judge been satisfied that there did exist a practice of further discount, she would not have been expected to

7

strike out the practice, as it were, retrospectively, but to lay down instead guidance to magistrates in future. Or the judge might have been persuaded that nevertheless, on overall consideration, the final sentence was not in fact manifestly inadequate and ought not to be disturbed. Result - Appeal allowed. Original sentence restored.

8

B. CRIMINAL APPEALS/ AGAINST CONVICTION 刑事上訴案件 /針對定罪 CA 89/2003 Stuart-Moore VP Stock & Yeung JJA (7.7.2004) *Kevin Zervos SC Lynda Shine & Priscilia Lam #Jonathan Caplan SC Andrew Macrae SC & Maggie Wong

CHEUNG Ting-bong

Immunity from prosecution/Need to bring criminals to justice/ Not for court to direct prosecution policy/Basis for exclusion of evidence of immunised witness/No infringement of Bill of Rights Ordinance 免予起訴書 – 有需要將罪犯繩之於法 – 並非由法庭在檢控政策方面給予指示 – 獲免起訴證人的證供被豁除的理據 – 沒有抵觸《香港人權法案條例》 The Applicant was convicted in the District Court of an offence of conspiracy to offer an advantage to a public servant, contrary to s 4(1)(c) of the Prevention of Bribery Ordinance, Cap 201. The public servant to whom the bribe was said to have been paid was Chan Kau-tai (Chan), a Chief Building Services Engineer with the Building Services Section of the Housing Department. The allegation was that the Applicant, a director and general manager of a company called Tridant Engineering Company Limited (Tridant) managed to secure a contract for the supply of electrical equipment for a project at Upper Wong Tai Sin, although Tridant's tender for the supply of the electrical equipment was not the lowest, and that he conspired with the lowest bidder, a Mr S S Lai (Lai) the proprietor of Yew Sang Hong Limited (YSH), who wanted to withdraw from the process, to pay Chan the sum of $1.5 million and that sum was paid to Chan. Lai was arrested on 4 August 2001, and released on bail. On 11 August, his lawyers offered on his behalf that he should make a non-prejudicial statement, in other words a statement made on condition that it not be used against him. This offer was accepted. Lai provided the ICAC with various statements. On 22 January 2003, Lai was provided with an immunity from prosecution. On 12 February 2003, Lai testified against the Applicant at his trial. In the course of that testimony, and as a consequence of cross-examination, the prosecution supplied Lai with a further immunity. The difference between the two immunities was that in addition to evidence in connection with the offences charged in the District Court case or offences connected therewith, the second immunity covered as well testimony given in the proceedings against Chan in the High Court and any offences connected

9

therewith. It followed that what was not covered by these immunities was evidence of any criminal activity by the witness other than that charged in the three sets of proceedings particularized in the immunities and criminal conduct connected with that criminal activity. The prosecutor at trial described it as an immunity ‘which in fact covers the whole of the corruption.’ On appeal, it was submitted, inter alia, that the immunity ought never to have been granted in this case. It was argued that the usual course when accomplice testimony was to be used was to require the accomplice to plead guilty and to testify thereafter, leaving it to the sentencing judge to reward the accomplice according to the assistance which it was decided he had properly rendered. That, unlike the immunity process, was said to be transparent. It was further submitted that the calling of Lai as a witness was, by reason of the fact that he was giving evidence under immunity, an infringement of articles 10 and 11(2)(e) of the Bill of Rights Ordinance, which made provision for equality before the courts and in relation to witnesses; the contention being that the use of an ‘immunised’ witness unlawfully disturbed the equality guaranteed by those articles in that it caused an inequality of arms, since the prosecution could induce a witness to give evidence under an immunity, an option not realistically available to the defence. Held : (1) There might, in exceptional circumstances, be a right to review the exercise of the powers of the Secretary for Justice and the Director of Public Prosecutions: R v Tsui Lai-ying and Others [1987] HKLR 857. A judge always had a discretion to exclude evidence which would adversely affect the fairness of the trial. Any suggestion that the grant of an immunity of itself inevitably ran contrary to the imperative of a fair trial was not logical. The complaint that immunities were granted too frequently might or might not be true; but even if true could not affect the case-specific issue that a trial court, and an appellate court, must in each instance ask, which was whether the instant trial had been rendered unfair by the use of the testimony of an accomplice who had been granted an immunity; (2) Just as it was recognized that the grant of an immunity to an accomplice was of itself a distasteful exercise and that it carried recognized dangers, so there was another side to that coin, which was the need to bring criminals to justice where the use of an immunity was openly engaged and where it provided a key, perhaps the only, source of doing so: HKSAR v Leung Kai-chung [2002] 1 HKLRD 771, Chan Wai-keung v R [1995] 2 Cr App R 194;

10

(3) It was not for the courts to direct prosecution policy, either generally or in a particular case, although a change in policy might result from a decision that the application of a policy had been incompatible with a fair trial in a particular case. The courts did not exercise a disciplinary function. Their function was to ensure the proper application of such procedures as the law, with the benefit of long experience, had designed to ensure a fair trial and to devise, where necessary, such mechanisms as were available and lawful to meet whatever problems in a specific case arose so as to ensure that they did not stand in the way of a fair trial; (4) There was nothing, as a generalization, unlawful about the use of accomplice evidence given under an immunity. If relevant, such evidence was admissible. Whether, as a matter of discretion, there stood in the way of its admission some consideration or another was always a matter for the case and the context: R v Tsui Lai-ying and Others [1987] HKLR 857 at 874, HKSAR v Lee Ming-tee [2001] 1 HKLRD 599 at 614, Secretary for Justice v Lam Tat-ming and Another (2000) 3 HKCFAR 168 at 178; (5) No ground of substance for the exclusion of the testimony of Lai had been made out. There was no suggestion, either at trial or on appeal, that the grant of the immunity to Lai was tainted by improper conduct on the part of the investigating or prosecuting authorities, or that any material fact related to that grant was hidden from those acting for the Applicant. There was no request made for further particulars of the circumstances attending that grant. There was no application to stay the proceedings. There was not even an application made before or at the time that the testimony was to be adduced, that it should be excluded; (6) There was nothing unconscionable in the use of Lai as a witness against the Applicant. Although it was argued that the DPP’s stated policy that immunities should not as a rule be granted to those who were more culpable than the accused against whom the accomplice evidence was to be used was breached in this case, since it was self-evident that Lai was more culpable than the Applicant, his corruption being on a wider scale, that was to view but one compartment of the whole. Lai was the accomplice used to expose, as a witness, the corruption of the entire scheme at the centre of which was Chan, a civil servant occupying a post ripe for those who would be corrupt. It was clearly in the public interest that he be brought to justice. By its very nature corruption was difficult to uncover and prove without evidence from accomplices and where an accomplice was used against the central figure, and a civil servant to boot, the fact that the accomplice was then used in separate trials against satellites was perfectly sensible;

11

(7) The point taken under the Bill of Rights Ordinance was artificial in two senses. It was artificial as it did not, for practical purposes, arise in this case. It was also artificial as it placed an artificial gloss on articles 10 and 11(2)(e), and their intent; (8) Article 10 and article 11(2)(e) were each but one aspect of the right to a fair trial. The equality of which article 10 spoke, and ‘the same conditions’ to which article 11(2)(e) referred, were not inconsistent with such differentiations as necessarily and reasonably arose in natural consequence of the intrinsically different functions of the parties and for which there was a legitimate purpose. The articles were to be read in the context of the criminal trial processes for which they were designed. That was a context which must recognise that the roles performed by, and the burdens upon, each party to criminal proceedings were different. The articles must be taken to recognise differences inherent to those roles of each party, and there was nothing in the decisions of the Human Rights Committee of the United Nations or in the judgments of international courts, that suggested that of themselves the use of immunities as a vehicle for enabling accomplice evidence to be given was inimical to a fair trial or otherwise in breach of the rights that secured due process of law for those accused of crime; it was no doubt recognised that such a tool was intrinsic to the role of law enforcement. Whether the right to proper and fair process was or was not undermined would depend in such cases on the circumstances of the immunity, whether all material facts had been disclosed and whether, in the round, its use had deprived the accused of a fair trial. So much was evident from X v United Kingdom (1976) 7 DR 115, a decision of the Human Rights Commission that arose out of the immunities granted to accomplices in the robberies which were the subject matter of R v Turner and others (1975) 61 Cr App R 67; (9) Article 11(2)(e) was a reproduction of article 14(3)(e) of the International Covenant on Civil and Political Rights, (which Covenant was given constitutional domestic effect by article 39 of the Basic Law), and was an article intended for implementation by a host of countries each with its own legal system and was an article ‘designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution’. (General Comment of the Human Rights Committee 13/21.) There was no suggestion in this case that the Applicant was deprived of any power to call whatever testimony he wished, or that there was placed in his way any impediment to the realization of such a wish. The issue did not arise in this case. Result - Appeal dismissed.

12

CA 350/2002 Woo VP Yeung JA Lunn J (14.6.2004) *Hayson Tse #Dickson Li (A1) & Philip Wong (A2 & A3)

(1) HO Hon-chung Danel

(2) LAM Kwok-wah Eric

(3) YUEN Wai-kin

Permanent stay of proceedings/Inherent jurisdiction to prevent abuse/Effect of the authorities. 永久擱置法律程序 – 固有司法管轄權以防止不當使用法律程序 – 案例的效用 The Applicants were convicted of various charges for contravening the Copyright Ordinance, Cap 528. At a re-trial, the Applicants made an application for a permanent stay of the proceedings. This was on the basis that when the Court of Appeal had quashed the original convictions, it would not have ordered a re-trial if certain information had been disclosed to it concerning a principal-agent relationship. This was rejected by the judge. On appeal Held :

(1) The authorities could be summarised as follows: the court had inherent jurisdiction to prevent abuse of its process which in a criminal court included a power to safeguard an accused person from oppression and prejudice: Connelly v DPP [1964] AC 1254; such power was to ensure that there should be a fair trial according to law, involving fairness to both the defendant and the prosecution: R v Derby Crown Court, ex p Brooks (1985) 80 Cr App R 164; a refusal to exercise the power would make it impossible to give the accused a fair trial or the misuse of process would offend the court’s sense of justice and propriety: R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] AC 42, as applied in R v Croydon Justices, ex p Dean (1994) 98 Cr App 76, and Chu Piu-wing v AG [1984] HKLR 411; where the behaviour of the authority had been so improper as to be an affront to justice: R v MacDonald and Others [1998] Crim LR 808; the abuse would cause a degradation of the lawful administration of justice: R v Mullen [1999] 2 Cr App R 143; there was something so gravely wrong as to make it unconscionable that a trial should go forward, such as some fundamental disregard for basic human rights or some gross neglect of the elementary principles of fairness: R v Martin, Alan [1998] 2 WLR 1; despite the fact that the fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system: R v Latif and Shahzad [1996] 2 Cr App R 92; (2) The judge had not erred in refusing to stay the proceedings before him permanently.

Andrew Macrae SC

13

Result - Applications dismissed on the ground impugning the refusal of the judge to stay the proceedings. Appeals of A1 and A2 allowed, in part, on other grounds.

14

C. CRIMINAL APPEALS/ AGAINST SENTENCE 刑事上訴案件 /針對刑罰 CA 80/2003 Ma CJHC Stock JA (7.7.04) *P Madigan # Robert Pang

(1) YIP Wai-yin (2) WONG Siu-hang

Trafficking in dangerous drugs/Approach to sentencing for cocktail drugs/Applicability of Ice tariffs to drugs in tablet form/Mistaken belief in nature of drugs as mitigation 販運危險藥物 –“鷄尾”毒品的量刑方法 – “冰”的量刑指引是否適用於片劑的毒品 – 以錯誤相信毒品性質作為求情因素 The Applicants pleaded guilty to the offence of trafficking in dangerous drugs. The facts showed that the Applicants were arrested during a covert operation carried out by police officers in which they were involved in the sale of drugs to those officers. The drugs seized consisted of 10,029 tablets and 14 tablet fragments of a drug cocktail, being a mixture of Ice (methamphetamine) and Ketamine. There were altogether 362.45 grammes of the drug, comprising 126.48 grammes of Ice and 235.97 grammes of Ketamine (approximately 35% Ice and 65% Ketamine). In sentencing, the judge took the view that while ‘enjoyment’ of the drugs might differ as between Ice in its crystalline form and in tablet form, they were to be treated as equally harmful. The judge further concluded that the cocktail of drugs in this case was, if anything, more potent or harmful than its individual constituents. As regards the appropriate starting point for sentence, the judge said:

Ecstasy - the tariffs for Ecstasy is set out in HKSAR v Lee Tak-kwan [1998] HKLR Digest at page 46. I therefore propose to deal with the combination of the drugs in the tablet by adding the period of imprisonment for the amount of ‘Ice’ or methamphetamine to that for the Ketamine at the rate of Ecstasy enhanced to a degree to reflect the harmful combination.

As a starting point therefore, bearing in mind that the amount of pure drug of methamphetamine was 126.4 grammes, I would take as a starting point, 10 years’ imprisonment. And in respect of the Ketamine, a period of 3 years’ imprisonment, enhanced by a period of one year to reflect the harmful combination, making a starting point of 14 years’ imprisonment.

The judge then reduced the starting point of 14 years by one-

15

third to reflect the pleas of guilty and further reduced that to 9 years on account of both Applicants’ belief that they were merely dealing in Ecstasy rather than a cocktail drug comprising Ice and Ketamine. On appeal, it was submitted, first, that the 9-year sentence was too severe. Second, it was said that the judge was wrong in his approach to sentencing for a cocktail drug in that he simply looked at the individual components of the cocktail, applied the established tariffs referable to each component and then added up the figures to arrive at the starting point. Third, it was contended that the application of the tariff for trafficking in Ice established in AG v Ching Kwok-hung [1991] 2 HKLR 125, was wrong since the Ice found in the mixture in the present case was in tablet, and not crystalline, form; the more appropriate tariff was that in R v Lau Tak-ming [1990] 2 HKLR 370 (for heroin). Finally, it was submitted that the judge failed to give more allowance than he did in respect of the Applicants’ belief that they were dealing not with Ice, but with Ecstasy. Held : A. General approach to sentencing for cocktail drugs (1) In terms of the starting point for sentence, the judge approached the matter by adding together what would be the appropriate individual sentences for the quantities of Ice and Ketamine as if there had been separate charges (being 10 years and 3 years using the established tariffs) and then adding another year on account of the greater potency of the combined product. The judge, in other words, adopted an individual approach in sentencing, looking at each drug and then sentencing on the basis of the individual quantities to arrive at an overall sentence; (2) Various approaches had been adopted or approved by the court in relation to the sentencing of cocktail drugs or where a number of different quantities of drugs was the subject of a charge of trafficking in dangerous drugs:

(a) the ‘individual’ approach of looking at each component of the cocktail or the batch, and then sentencing by adding up the different sentences relevant to each individual drug: e.g. HKSAR v Lai Kwok-hung Cr App 564/02;

(b) the ‘combined’ approach whereby the court looked at the overall quantity of drugs rather than individual parcels. By taking a global view the court could assess, realistically and fairly, the appropriate sentence: HKSAR v Yip Pik-kwai [1999] 3 HKLRD 42, HKSAR v Wong Kam-wo

16

[2001] 2 HKLRD 290;

(c) the methodology of the ‘combined’ approach was first to calculate the applicable sentence for the more or most serious drug, and then adjust the sentence upwards to take into account significant quantities of the other (less serious) drugs: HKSAR v Cheung Kwok-leung Lowence Cr App 539/02. The words ‘the more or most serious drug’ were not a reference to quantities but to seriousness in terms of the potency of the drug. Thus, for example, where significant quantities of Ice and Ketamine were found in a cocktail, the more serious drug was taken to be Ice even if in terms of quantity it might be less than the Ketamine;

(d) the term ‘significant quantities’ in a cocktail was used in order to contrast insignificant amounts, as the court might choose to ignore such small quantities for the purpose of sentencing.

Whichever approach was appropriate would depend on the circumstances of the case, but the combined approach would often be the correct one to enable the judge to sentence fairly, realistically and in a commonsense manner. (3) Although the judge’s approach could not really be faulted, the court would approach the matter differently:

(a) it was appropriate to adopt the combined approach used in Cheung Kwok-leung Lowence;

(b) the more serious drug in the mixture being Ice (there being 126.48 grammes of the substance), the appropriate sentence for this quantity would be taken as 11 years. This was an application of the tariffs established by Ching Kwok-hung where the range of sentences for a quantity of Ice between 70 and 300 grammes was 10-14 years. The judge was over-lenient in taking 10 years as appropriate for a quantity of Ice such as that found in this case;

(c) an upward adjustment had then to be made to take into account the significant presence of Ketamine (235.97 grammes) and, perhaps more importantly, also the fact that the combined drug was more potent or harmful than its individual components. An upward adjustment of 3 years was appropriate;

(d) that made the overall starting point for the combined drug one of 14 years.

B. Applicability of the sentencing tariff for Ice in AG v Ching

17

Kwok-hung for the drugs in tablet form (4) The submission that if the Ice was in tablet, not crystalline, form the element of reuse was not there and it was therefore wrong to apply sentencing guidelines that related only to reusable substances was superficially attractive, but could not be accepted. Even if the court in Ching Kwok-hung thought the feature of reusability important, the courts had since applied these guidelines irrespective of whether the Ice was in crystalline or tablet form: e.g. HKSAR v Poowongsa Worachet Cr App 218/01. The reason for the tariffs set for Ice in Ching Kwok-hung was not reusability. The court there indicated that Ice in many ways was a worse drug than heroin, and more addictive. Even had the Lau Tak-ming tariffs been applicable, it would probably not have made any difference in this case, given the quantity of Ice present in the mixture. C. Mistaken belief in nature of drugs (5) In R v Edward Bilinski (1988) 86 Cr App R 147, it was established that in sentencing for trafficking in dangerous drugs, the court could always take into account the fact that the defendant believed the drugs to be of a less potent type than they actually were. That reasoning had been followed in Hong Kong: HKSAR v Li Chi-hung Cr App 18/02. While this was a factor relevant to sentencing, it was important to stress:

(a) the availability of this factor depended on the court being provided with evidence supporting the belief on the defendant’s part that he was dealing with a different type of drug. Except where this was accepted by the prosecution, it would be rare for a court to be satisfied by a bare assertion made in mitigation alone. The defendant would have to demonstrate his belief on a balance of probabilities, unless this was already clear on the evidence. It was important to bear in mind the specific context in which this factor arose, namely, that the defendant was already admittedly a drug trafficker;

(b) even where the court was satisfied, this would only be a factor that went to a reduction in what otherwise would be the appropriate sentence. The defendant would not be entitled to be sentenced on the basis, using any appropriate tariff, that the drugs were in fact what he believed them to be: HKSAR v Chan Yiu-hong Cr App 592/02, R v Gena Ngiam [2002] 1 Cr App R (S) 150. So where a defendant established to the satisfaction of the court that he thought the drugs were Ecstasy

18

when in fact they were Ice, he would not be entitled to be sentenced as though the drugs had been Ecstasy. He would be sentenced in accordance with the tariff for Ice but given a discount on account of his mistaken (but genuine) belief that the drugs were something else.

(6) The judge was satisfied on the evidence that both Applicants believed they were only dealing with Ecstasy. The discount given to them, however, was only two months. On the facts, a discount of 1 year was more appropriate for their mistaken belief. Result - Appeals allowed. Sentences on each Applicant of 8 years

and 4 months’ imprisonment substituted for those of 9 years.

CA 32/2004 Stock & Yeung JJA (2.7.2004) *Lynda Shine #Dora Chan

CHEUNG Wing-lam

Lending money at excessive rate of interest/Protracted lending to taxi drivers/No threats or violence/Confiscation of money received 以過高利率貸出款項 – 長期貸款予的士司機 – 並無作出恐嚇或使用暴力 – 收取的款項已被沒收 The Applicant was convicted after trial of twenty charges of lending money at an effective rate of interest which exceeded 60%, contrary to s 24(1) of the Money Lenders Ordinance, Cap 163. The time span covered by the charges was from May 2000 to September 2002. During that time the Applicant loaned money to taxi drivers. The effective rates of interest ranged from between 360% per annum to 520%; 547%; 563% and 685%. The Applicant imposed terms on the borrowers in each case that repayments be made on a daily basis of several hundred dollars per day. It was accepted that the amount of interest in fact received by the Applicant in respect of the charges was $35,000, and that the loans totalled $142,000. The Applicant was aged 45 years and a used car dealer. He had prior convictions for possession of triad society documents and possession of drugs, as well as for possession of an offensive weapon in a public place, common assault and driving whilst disqualified. The judge said that whilst the amounts in this case were not large, the Applicant was ready to lend to any taxi driver, and he clearly conducted a money lending business for over two years. He considered a deterrent sentence was warranted. The judge took a starting point of 9 months’ imprisonment

19

on each charge and said that, having regard to the period of the offences, the scale of the operation and the number of charges, and bearing in mind the totality principle, the global term should be one of 2 years and 3 months’ imprisonment. A confiscation order was made in the amount of $133,920, which was the amount the Applicant was shown to have received, with a term of 9 months’ imprisonment imposed in default of payment. On appeal Held : (1) All cases of loan sharking would to one degree or another be different and there were a number of factors that would affect sentence, including the modus operandi of the loan shark, whether threats or violence were used or were implicit, the circumstances of the loans, the relationship between the lender and borrower, the extent and time span of the activity, the interest charged, the size and scale of the operation, the number of persons involved, whether there was a triad connection, and whether there were other persons engaged in the operation or behind it; (2) This case lacked many of the aggravating features to which some cases referred. There were no threats or violence. Where there was such evidence, it was an aggravating feature, but the actual absence of such threats had to be looked at cautiously and realistically for it had to be acknowledged that loan sharking had characteristics which were inherent to the activity itself, and that the loan shark was not in the event of failure to recoup the loans likely to issue a letter before action; (3) Although it was said there had been no commercial gain, that was unrealistic where the lender was lending at rates of interest of up to 685%. However, many of the usual aggravating factors were absent, and the amounts received had been confiscated. A correct totality was a term of 18 months’ imprisonment. Result - Appeal allowed. Individual sentences of 9 months’

imprisonment on each charge to stand, but all sentences to run concurrently save for the 9 months on the 20th charge, which would run consecutively, making a total of 18 months’ imprisonment. Confiscation order to remain.

20

CA 509/2003 Stock & Yeung JJA (30.6.2004) *Lynda Shine #John Haynes

ZHEN Futing

Possession of arms without a licence/Possession of offensive weapons/Gang entering Hong Kong to commit robbery/ Approach to totality 無牌管有槍械 – 管有攻擊性武器 – 糾黨進入香港行劫 – 處理整體刑期的方法 The Applicant was convicted after trial of two offences of possession of arms without a licence, two of possession of offensive weapons, and one of resisting police officers in the due execution of their duties. In her Reasons for Verdict, the judge reviewed the facts:

3. Two police officers (PW1 and PW2) of Team 1, Regional Crime Unit at Kowloon West Headquarters kept observation on the front gate of 359 Ki Lung Street in Sham Shui Po. At 10.55 am, the defendant emerged. He looked around nervously, then walked up the street. The officers followed from a distance. He made a circuit and then returned to the building. The officers had observed something protruding from his trousers band but hidden from sight under his upper garment. They radioed for instructions and were told to intercept him.

4. They quickly followed him into the building and intercepted him at the lst floor landing of the staircase. The defendant put up a struggle as he tried to escape. They pinned him to the ground and found a short metal pipe tucked into his trousers. One part of it was cloth-wrapped. PW1 arrested him for possession of an offensive weapon. As the defendant continued to struggle, the officers again forced him to the ground, pinned his arms back and handcuffed him.

5. A search produced from his rear trousers pocket a stun gun in the guise of a mobile phone. They seized this, arrested him and cautioned him. When PW1 asked what he was doing in the building, the defendant said he lived on the 6th floor. The officers waited till their team joined them before they went to the flat on the 6th floor. There they found three males and a female, the defendant's wife. All were clansmen from China visiting Hong Kong on two-way permits.

6. A search of the premises conducted in the defendant's presence produced another similar stun gun in a paper bag sitting on the refrigerator. 5 other similar metal pipes were hidden under the mattress. 2 of these had one end clamped together and cut to a

21

point. In sentencing, the judge said she took a serious view of mainlanders who met up with people in Hong Kong and discussed a plan to smuggle into Hong Kong stun guns and metal pipes which were converted into weapons. She said that as China relaxed the rules for visitors to come to Hong Kong, it was necessary for vigilance to ensure that criminals did not come into Hong Kong on two-way permits with intent to commit offences. The Applicant had, in addition, shown no remorse. In respect of the possession of the stun guns (charges 1 and 4), the judge sentenced the Applicant to a term of 5½ years’ imprisonment, to run concurrently. She imposed a sentence of 2 years’ imprisonment upon charges 2 and 5 (possession of the iron rods) again to run concurrently with each other. For resisting the police officers, a term of one-month imprisonment was imposed, ordered to run consecutively to the rest. The total term of imprisonment was 5 years and 7 months’ imprisonment. On appeal, it was submitted that the sentences imposed were manifestly excessive. It was said that no regard, or insufficient regard, was paid to sentencing guidelines which the Applicant had extracted from HKSAR v Wong Wing-wong Cr App 214/02 and HKSAR v Li Hung-kwan [2003] 1 HKLRD 204. Held : (1) There were no guidelines set down by these cases. This case involved a gang planning a robbery with a series of weapons. Not only was there more than one stun gun, but there were six other offensive weapons, each an iron rod deliberately prepared with cloth handles for use in assault, and two of which had their ends sharpened. The gang had come from across the border in order to commit an offence or offences of this seriousness. The stun guns were in good working order each capable of producing more than 15,000 volts and of generating high voltage pulses continuously in three seconds duration. They were capable of causing pain, muscular contraction, temporary incapacitation or disablement on human victims; (2) The judge at first purportedly sentenced the Applicant to 5½ years’ imprisonment but, realizing that the maximum for possession of offensive weapons did not permit her to do so, she changed those sentences to terms of 2 years’ imprisonment leaving the 5½ years term intact in relation to the stun gun offences. In isolation, the 5½ year sentences imposed in relation to charges 1 and 4, the stun gun offences, were manifestly excessive, but the totality reached for all the offences was correct;

22

(3) Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality. Result - Appeal allowed. Sentences on charges 1 and 4

substituted with terms of 4 years and 9 months’ imprisonment. Other sentences to stand. Sentences adjusted to produce a totality of 5 years and 9 months’ imprisonment, as previously.

[For a discussion of totality, see Sentencing in Hong

Kong, 4th ed., at pp 487 to 493: Ed]

23

D. MAGISTRACY APPEALS/ AGAINST CONVICTION 裁判法院上訴案件 /針對定罪 MA 835/2003 Toh DJ (23.7.2004) *Sin Pui-ha

TAM Lap-fai

Obstruction and assault of police/Elements of obstruction/ Basis for appeal on questions of fact/Magistrate in error in concluding complaint to doctor would have proved innocence 阻撓和襲擊警務人員 – 阻撓的元素 – 以事實問題作為上訴的基礎 – 裁判官錯誤認為曾向醫生提出申訴即可證實無罪 The Appellant was convicted after trial of offences of (1) failure to comply with a traffic sign; (2) obstructing, (3) assaulting, and (4) resisting, a police officer in the due execution of his duty. The prosecution case was that on the day in question, at about 6:25 pm, PW1 and PW2, uniformed police officers, were on duty inside the container truck loading/unloading area in Ferry Street when the Appellant entered in his private car. That area was restricted to the public between 6 am and midnight. PW1 intercepted the Appellant, told him he had committed an offence, and asked to see his driving licence. The Appellant took out his driving licence and threw it out of the window, and challenged PW1 in foul language to book him. PW1 asked the Appellant to pick up the driving licence and after the Appellant had done so, he went up to PW1, grasped his windbreaker and punched him in the face. The Appellant then put his driving licence in the windbreaker of PW1, and again challenged PW1 to book him. PW2 saw the Appellant use both hands to grasp the neck of PW1. PW1 tried to push the Appellant away and PW2 asked him to ‘freeze ’ , or force would be used. The Appellant continued to struggle, and a passing police officer joined in to assist PW1 and PW2. The three officers eventually subdued the Appellant, who was arrested. The Appellant was taken to hospital for medical examination and he said he had pointed out the area of his body where he felt pain to the doctor. The Appellant also said that the stains on the back of his sports jacket were caused when he was being pressed onto the ground. On appeal, complaint was made of the magistrate’s analysis of the evidence. It was also submitted that the magistrate was incorrect when he said that it was ‘impossible that the Appellant was not aware that the doctor was a powerful and independent witness to prove his innocence ’ . It was also contended, as regards the second charge, that the magistrate erred in convicting the Appellant for obstruction because the words ‘wilfully obstructs ’

#Clive Grossman SC

24

must be read ejusdem generis with the words ‘assaults ’ and ‘resists ’ and therefore that it clearly implied an overt aggressive act designed specifically to prevent or hinder a policeman from carrying out his duty. It was said that the act of the Appellant in throwing the driving licence on the ground and subsequently picking it up and putting it in PW1’s pocket could not be said to amount to wilful obstruction and that the authorities showed that obstruction was a deliberate defiance of the police in an attempt to frustrate their lawful activities. Held : (1) It was clear that the Appellant’s action in deliberately throwing the driving licence on the ground was an act which was deliberately done to make it more difficult for the police officer to carry out his duty. In Chung Chi-cheung v R [1987] HKLR 1221, it was clear that a person was guilty of obstructing a police officer in the execution of his duty if:

he deliberately did an act which though not necessarily ‘aimed at ’ or ‘hostile to’ the police, in fact prevented a constable from carrying out his duty or made it more difficult for him to do so, and if he knew and intended (whether or not that was his predominant intention) that his conduct would have that effect [Lewis v Cox (1985) QB 509 applied].

(2) As Keith J had stated in HKSAR v Hui Kee-fung MA 196/94:

... appeals from decisions of Magistrate on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The judge does not even see the witnesses. It will be rare indeed for a judge to say that the findings of fact made by the Magistrate were so contrary to the weight of the evidence that doubt as to the correctness of the Magistrate’s findings exist. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieved him. But if there are no sustainable grounds of appeal, a belief in one’s innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a court of first instance as so sacrosanct as our system of criminal justice does.

(3) The only matter of concern was the magistrate’s finding that the Appellant ought to have complained to the doctor who

25

would be able to ‘prove his innocence ’ . In committing that error, it appeared that the magistrate had in mind that had the Appellant complained to the doctor that would not only give credence to his evidence but also corroborate his evidence in such a material particular that he would be believed. This error had obviously had an effect on the magistrate’s judgment. Had he not made this error, it could not with certainty be said that he would still have found the Appellant’s evidence incredible. The error would therefore have a deleterious effect on the magistrate’s ultimate conclusion as to the guilt of the Appellant on charges 3 and 4. At the end of the day, there was a lurking doubt, which had to be resolved in favour of the Appellant. Result - Appeal allowed in respect of charges 3 and 4. Appeal

dismissed in respect of charges 1 and 2.

26

E. MAGISTRACY APPEALS/ AGAINST SENTENCE 裁判法院上訴案件 /針對刑罰 MA 135/2004 Gall J (1.4.2004) *Ian McWalters #L Lok SC & Edwin Choy

HSUEH Cheng-kang Peter

Tax evasion/Gravity of fraud on revenue/Community service inappropriate/Suspension of imprisonment on exceptional grounds 逃稅 – 關乎稅收的欺詐行為的嚴重性 – 判處社會服務令並不恰當 – 基於特殊理由判處緩刑 The Appellant pleaded guilty to two offences of being an agent using a false document with intent to deceive, contrary to ss 9 and 12 of the Prevention of Bribery Ordinance, Cap 201, and to one offence of wilfully, with intent to evade tax, making use of a fraud, art or contrivance, contrary to s 82 of the Inland Revenue Ordinance, Cap 112. He was sentenced to 2 months’ imprisonment on each charge, with an overlap which produced a total of 4 months’ imprisonment, and to a fine of $10,000, and to an additional penalty of $65,000. The second of the two offences of being an agent using a false document with intent to deceive was quashed on appeal as it was defective. On appeal against the outstanding sentence of 4 months’ imprisonment, it was submitted, first, that a suitability report should be obtained in respect of a community service order, and that, if such a report was favourable, it should be implemented. Second, it was submitted, in the alternative, that the sentence of imprisonment should be suspended. Held : (1) A community service order should only be passed where there was no established sentencing principle that required that the offender’s conduct required a more serious punishment: HKSAR v Wong Yiu-kuen [2002] 1 HKLRD 712; (2) In R v Ng Wing-keung [1997] HKLRD 142, it was said, in respect of an offence of evasion of income tax by wilful use of fraud, art or contrivance, that a ‘sentence of imprisonment with immediate effect is to be expected in this type of case ’ ; (3) In Attorney General v Ma Lai-wu and Others [1987] HKLR 744, the Court of Appeal held that offences involving the deliberate defrauding of the Inland Revenue should be dealt with seriously, and that the principle was that those who evaded tax would face immediate imprisonment. A custodial sentence was the only alternative the court had; (4) The overall criminality of the two charges was such that the

27

sentences on each could be ordered to run concurrently; (5) In R v Weston [1996] 1 Cr App R (S) 297, the Court of Appeal said that ‘the expression exceptional circumstances was wide enough to include the relevant circumstances of the offence, the offender and the background circumstances ’ . That had widened the previous narrower definition of ‘exceptional circumstances’; (6) This was a singularly exceptional case as far as the personal circumstances of the Appellant were concerned. He was a 70-year-old man who had done good service to the community. There was an extremely low probability that he would re-offend. He had faced for a considerable period of time between the conviction and the appeal the prospect that he might go to prison and have to serve his sentence. That was not appropriate in all the circumstances of this case, and his sentence of 2 months’ imprisonment on each charge would be suspended for 12 months. Result - Appeal allowed. Sentences of 2 months’ imprisonment

to run concurrently, suspended for 12 months. Fine and additional penalty to remain.