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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

May Edition/2006

2006年5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)

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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

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INDEX 目錄

A. p. 4 - p. 5

第4至5頁

Hong Kong Court of Final Appeal/Appeal Committee 香港終審法院 /上訴委員會

B. p. 6 - p. 17 第6至17頁

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

C. p. 18 - p. 25 第18至25頁

Magistracy Appeals/Against Conviction 刑事上訴案件 /針對刑罰

D. p. 26 - p. 28 第26至28頁

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

E. p. 29 第29頁

Costs in Criminal Cases 刑事案件的訟費

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Appeal No.

(Date of Case Significance Judgment) Title A. HONG KONG COURT OF FINAL APPEAL/ APPEAL COMMITTEE 香港終審法院/上訴委員會 FAMC 9/2006 Bokhary Chan & Ribeiro PJJ (25.4.2006) *Eddie Sean & Richard Ma #S K Khattak

TANG Chi-lun

Persistently making telephone calls/Not necessary to establish direct call/Ingredients of offence under s 20(c), Cap 228/ Whether 134 telephone calls showed persistence 不斷致電 – 無需證明是直接致電 – 第 228 章第20(c ) 條所訂罪行的原素 – 撥電 134 次是否屬不斷致電 The Applicant was convicted of an offence of persistently making telephone calls without reasonable cause for the purpose of causing annoyance, inconvenience or needless anxiety to any other person, contrary to s 20(c) of the Summary Offences Ordinance, Cap 228. The Applicant, a clerk in the Highways Department, had formed a dislike for Ms Cheung Tak-mei under whom he had once worked. He decided to cause her annoyance by repeatedly misusing a telephone system set up by the Immigration Department as part of its exercise of replacing ID Cards with new Smart ID Cards. To do this, he dialled a phone number, giving access to an interactive voice response system for making appointments for replacing ID Cards. He entered false ID Card numbers and then entered Ms Cheung’s telephone number as the number to which a fax confirmation should be sent. Ms Cheung would therefore receive such fax signals on her telephone. When the calls were diverted to a fax machine, it was revealed that they were purported notifications of appointments for replacing ID Cards. The Applicant did this partly to lessen the workload of his girlfriend, who was employed in the ID Card replacement exercise, so that she would have more free time to chat with him on the phone. In doing so, on some occasions, he would make phone calls without relaying a fax signal to Ms Cheung. But where the signal was sent to Ms Cheung, he plainly also intended to annoy or inconvenience her by his acts. The Applicant submitted, first, that the offence was not made out since he had only called the Immigration Department computer which had then itself caused a fax signal to be sent to Ms Cheung’s phone, and that only ‘directly ’ calling Ms Cheung

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could constitute ‘making ’ a phone call. Second, it was said that proof of an offence under s 20(c) required proof of the matters set out in s 20(a), namely, that the call must be grossly offensive or of an indecent, obscene or menacing character. Third, it was contended that the element of ‘persistently ’ was not made out, as the word connoted some degree of continuance or repetition: Dale v Smith [1967] 1 WLR 700; Re Arctic Engineering Ltd [1986] 1 WLR 686; R v Tuck [1994] Crim LR 375. Held : (1) The first submission was misconceived as the Applicant plainly ‘made ’ the call which involved dialling the relevant number and using the interactive system. He did so for the purpose of causing Ms Cheung annoyance. Those elements were clearly established; (2) The second submission was not, as a matter of construction, reasonably arguable. The elements of s 20(c) involved persistently making telephone calls without reasonable cause for the purposes set out in s 20(b). Section 20(a) was plainly separate and not relevant; (3) As regards the third submission, the charge concerned the period between 5 May 2004 and 5 August 2004 when records showed 134 telephone calls from the Applicant’s telephones resulting in 2,300 false bookings. Since there was concern as to whether an offence based on some of the earlier calls might be time-barred, the charge was amended to relate only to calls made on dates in July and August 2004, resulting in 18 false bookings which were plainly not time-barred. The facts related to such calls were admitted. The magistrate was fully entitled to find that the Applicant had ‘persistently ’ made the relevant calls and the contrary was not reasonably arguable; (4) It was hard to think of a clearer case for liability under s 20(c). Result - Application dismissed.

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B. CRIMINAL APPEALS/ AGAINST SENTENCE 刑事上訴案件 /針對刑罰 CA 486/2005 Ma CJHC Stock JA (28.4.2006) *Tam Sze-lok #C Coghlan

LAM Chun-fai

Manslaughter/Accused acquitted of murder on basis of provocation/Homicide in a domestic context/Trial judge in best position to acquire true feel of the case/Difficulty in sentencing in domestic violence cases/Offence all too often/Nine years’ imprisonment not manifestly excessive 誤殺 – 被告基於受激怒的理由被裁定謀殺罪不成立 – 涉及家庭的殺人罪行 – 原審法官處於能真正感受案件的最佳位置 – 對家庭暴力案件判刑是困難的 – 這類罪行實在太普遍 – 9年監禁並非明顯過重 After trial, the Applicant was convicted of manslaughter and sentenced to 9 years’ imprisonment. The Applicant was charged with murder, but his offer to plead guilty to manslaughter was rejected by the prosecution. When the matter proceeded to trial, the Applicant was acquitted of murder but convicted of manslaughter on the basis of provocation. At the date of the killing, the Applicant lived with the victim, Madam Choi, in Tsing Yi, and with their two children, a boy aged 6 years and a girl aged 5 years. He was then aged 36, had no prior convictions and was employed as a driver by an engineering company. He had met Madam Choi in 1996 when she worked in a nightclub and they married in 1998. The marriage was unsuccessful and, in 2004, they divorced, although they continued to live in the same premises. Although it was said that the divorce was an arrangement whereby the wife could claim Comprehensive Social Security Assistance, it seemed that Madam Choi viewed the divorce as real in fact as well as in law. Although the Applicant’s view of matters was unclear on the evidence, it was clear that, for some time prior to the killing, Madam Choi engaged upon an intimate relationship with a much younger man called Ah Ming. The Applicant was much irked by this. On the fatal night, the Applicant and Madam Choi had been out together but when he returned home she said she would be staying out. The Applicant telephoned Madam Choi to ask her to return to the flat as there was difficulty with one of the children. When she returned, a dispute arose between the two, and although Madam Choi wanted to leave he stopped her from doing so. The boy testified that Madam Choi sat down, and the Applicant struck her, grabbed her by the neck and said ‘I’ll strangle you to death ’.

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Madam Choi became motionless, and after the Applicant’s brother was sent for the Applicant said Madam Choi had fainted as a result of his ‘clutching her ’. When police arrived Madam Choi was dead, and her neck was swollen, her face green and there was blood at the corner of her mouth. The Applicant told police that after a quarrel over custody of the children Madam Choi became crazy and wanted to strike him and that he became very angry and grabbed her neck but that he did not know if she was dead. The Applicant killed Madam Choi by manual strangulation. According to the pathologist, there were few asphyxial signs which suggested that a vigorous or long struggle was unlikely. She probably died, he said, of pressure on the neck due to manual strangulation within a fairly short period of time. There was a fracture of a thyroid cartilage indicating that considerable pressure had been placed on that area. There was no alcohol in the body, the significance of which evidence was that in his testimony the Applicant suggested that Madam Choi had consumed some alcohol. In his testimony, the Applicant said there had been an argument over custody of the children, and that when Ah Ming rang up he abused him. Madam Choi became angry, and told the Applicant that Ah Ming was ‘much better than me in all aspects and used foul language ’. Then Madam Choi taunted him for having to go for public assistance and made a threat that Ah Ming would come to the flat with somebody and he (the Applicant) would be doomed. He said that then he used his left hand to cover Madam Choi’s mouth and how the hand then moved to clutch the neck. Madam Choi then admitted the affair, and when she said Ah Ming was coming to the flat with someone he was very angry and wished to stop her speaking. Apart from the provocation arising on the evening itself, the Applicant relied also upon suggested cumulative provocation. On one occasion he had found her in bed with Ah Ming, and on another his children told him that on a trip to the Mainland she slept with Ah Ming. In sentencing, the judge said it appeared that the jury had ‘accepted the defendant’s claim that he was provoked by the behaviour of the deceased, by the events of that particular date and the cumulative events of the days before and that was the reason he launched the attack’. She took into account the offer to plead guilty to manslaughter at an early stage. Then the judge said:

I note, however, that the defendant appears to have engineered this argument by telephoning his wife to return home and thereafter refusing to let her leave. As I said, although he claims the argument was ostensibly about the custody of children, it appears

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that the argument was really about the young man who was accused of being the woman’s lover.

This is a serious offence and sadly one that is all too common, where a martial dispute is dealt with by way of violence. Whatever sympathy one has for the defendant and the children of the relationship, it is also important to note that the deceased died unnecessarily as a result of the defendant’s action. He compounded the offence by failing to seek medical help at a time when he was able to do so. He also answered telephone calls in which he lied about where the deceased was after inquires were made. I take into account the defendant’s clear record and I notice his remorse. I accept that he wished to plead to manslaughter at an early stage. I sentence him to 9 years’ imprisonment.

On appeal, it was submitted that the sentence was manifestly excessive for four reasons. First, the judge had over-emphasised the Applicant’s conduct in turning away the ambulanceman, as there seemed to have been some assumption by the judge that had this not occurred Madam Choi might have been saved. In fact, the ambulance people attended to Madam Choi not long after and the suggestion of earlier resuscitation was unrealistic. Secondly, it was said inadequate credit was given for the offer of a plea of guilty to manslaughter. Thirdly, the judge was incorrect in her assessment that the argument was engineered by the Applicant. Fourthly, it was said that the sentence was out of line with the type of sentences revealed by the authorities for manslaughter in a domestic context. Held : (1) Any comparison with sentences passed in other cases within this category required very careful study of the factors at play in the cases used for comparison. Where a case had been contested, the sentencing judge would necessarily be in a much better position than an appellate tribunal to acquire the true feel of the case; (2) The judge sentenced on the footing that not only was the Applicant provoked on the night in question but also by cumulative events preceding that night. She seemed to have accepted in his favour that he was taunted by her as to his shortcomings and failings as a husband. She noted his stable work record and his previous good character. Immediately after the attack he telephoned his brother and the authorities were called. Although this might have made for a significantly lower sentence, some of his evidence was obviously disingenuous and treated as

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such by the judge; in particular his suggestion that the strangulation was a by-product of trying to keep her quiet and placing his hand on her mouth. The evidence showed quite clearly that he applied considerable force to the thyroid cartilage. It was not disputed that the Applicant deliberately prevented her from leaving the flat by bolting the door, and this suggested he was intent on seeing the argument through. This fact distinguished the case from those in which an argument flared suddenly, and where both parties were - or at least the victim of the fatal attack was – intent upon the argument. In so far as it was said that too much emphasis had been placed upon his failure to seek medical help, the point was not so much whether she could then have been saved but more a question of his attitude. True, he called his brother, but he did not call the police himself nor did he seek assistance and it was his brother who suggested calling the police. Quite what his motive was in turning away the ambulanceman was not entirely possible to say, although he explained his fear that he would be caught. It was also to be noted that telephone calls were made in which he lied about where the deceased was. These were unattractive features of the Applicant’s conduct and took the sentence imposed above the range of many other domestic manslaughter cases: R v Wong Kwai-chuen Cr App 605/1994, R v Szeto Ken Cr App 87/1996; (3) Cases of this kind were very difficult. More often than not, the culpable person was a person entirely devoid of criminal background, and more often than not the circumstances in which the killings took place were complex and required an understanding of deeply personal emotional stresses that developed over time. There was, on the other hand, an inevitable degree of sympathy for someone like the Applicant who found himself out of depth in an irretrievable marital situation. The sentencing judge expressed that sympathy, but was entirely correct to state that this type of domestic violence was all too common and to record the fact that a life had been taken and that children had been deprived of their mother. The judge had the benefit of acquiring in the course of the trial a true feel for the circumstances leading up to the attack and for the nature of the attack itself. Whilst there was room for saying the sentence was on the high side of the scale, it was not manifestly excessive. Result - Leave to appeal granted, but appeal dismissed.

CA 332/2005

HEMANT Gurung

Wounding with intent/Victim attacked by gang with knives/ Little permanent injury/Need for deterrence/Ill-health of close

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Ma CJHC Stock JA (21.4.2006) *Tam Sze-lok #Phillip Ross

relative not generally a mitigating factor 有意圖而傷人 – 受害人被一夥人用刀襲擊 – 輕微的永久傷害 – 需具阻嚇作用 – 近親身體欠佳一般不是減刑因素 The Applicant pleaded guilty to an offence of wounding with intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212, and was sentenced to 4 years’ imprisonment, after the judge had adopted a starting point of 6 years. The facts showed that when the victim, a Nepalese man, went to a discotheque on Lockhart Road with some friends, he was surrounded, as he danced, by a number of persons, including the Applicant. The Applicant used a knife with a 16-inch blade to chop him twice on the head. As the victim retreated, another person chopped him on the elbow. When the victim looked up at the Applicant, he raised his hand to chop him again. After that, the victim was chopped by another person at the left armpit. The victim sustained serious injures and was admitted to hospital in a coma. He sustained multiple chop wounds over the head, left chest wall, left scapular region and left elbow. The blows were struck with such force that the skull and elbow were fractured. The cut to the elbow required nerve repair. There appeared to be some degree of permanent disability, but not much. On appeal, it was submitted that the starting point of 6 years was too high, so making the sentence of 4 years manifestly excessive. Reliance was also placed on the death of the Applicant’s father as a mitigating factor. As a consequence of the Applicant’s imprisonment, his father became so upset that he took to heavy drinking. He was hospitalised for two weeks, then discharged so he could return to Nepal to be cared for by the Applicant’s brothers, soon after his return, the father died. Prior to his imprisonment, the Applicant had lived with his parents together with his wife and children. Held : (1) There were no guidelines for sentence owing to the wide range of circumstances in which it could be committed. The court was therefore required to look at the relevant facts of each case. In HKSAR v Tse Hok-lam [2005] 3 HKLRD I8, it was said that the range of sentence for this offence was 3 to 12 years, (albeit that the maximum sentence was life imprisonment). The fact of permanent injury or disability to the victim was a relevant factor, but its absence hardly constituted any factor of mitigation nor could it be a factor in reducing an otherwise appropriate sentence;

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(2) In this case, the attack was brutal and premeditated. Knives with 16-inch blades were used to chop the victim. The victim was attacked by a gang. The judge was right to mention that there was a deterrent element in sentencing for this offence: Archbold Hong Kong 2005 at para 20-221; (3) In certain special circumstances, the court could take into account the ill-health of a relative and the impact of this on the accused: AG v Ling Kar-fai (No 2) [1997] 2 HKC 651. However, generally, in cases where the ill-health of a close relative was sought to be relied upon as mitigation the courts had, rightly, not allowed this factor to be taken into account. Those who were concerned about the welfare of their parents or family should avoid getting involved in this sort of offence in the first place: R v Wong Wai-lun Cr App 12/1996. Result - Application dismissed.

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*單偉琛

Eddie Sean

#彭耀鴻

Robert Pang

香港特別行政區訴陳祝珊 HKSAR v CHEN Zhu-shan

高等法院上訴法庭 – 高院刑事上訴2005年第392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

高等法院上訴法庭法官鄧國楨

耹訊日期：二零零六年四月廿一日

判案書日期：二零零六年五月四日

COURT OF APPEAL OF THE HIGH COURT CRIMINAL APPEAL NO. 392 OF 2005 Cheung Yeung & Tang J JA Date o f Hear ing : 21 Apr i l 2006 Da te o f Judgment : 4 May 2006

行使和管有偽鈔罪 - 以罪行普遍為理由，根據《有組織及嚴重罪行條例》加重刑罰 - 單以發現偽鈔的數目和被檢控人數大增為由而裁定涉案的罪行普遍

並不正確申請人被控兩項行使偽鈔及一項管有偽鈔罪，違反香港法例第 200 章《刑事罪行條例》第99(1) (a )條和第100(1)條。經審訊後，申請人被裁定全部罪名成立，刑期分別為入獄 3 年、 4 年 4 個月和 4 年 9 個月。除第一項控罪的刑期中的 3 個月外，其餘刑期全部同期執行，即總刑期為5年。 2004年11月25日，申請人將一張500元真紙幣和一張 500 元偽鈔透過自動櫃員機存入其　豐銀行戶口。 2004年12月15日，申請人用一張500元偽鈔購

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買雜誌。申請人的不法行為被識破後，試圖逃跑，

但結果被警員在途人協助下截獲。其後警員在申請

人租住的旅館房內的一個行李喼中，發現 126 張500元偽鈔。法官指出案件涉及面值共63 ,000元的偽鈔。她認為每項控罪的適當量刑基準為 3 年，而總量刑基準為3年6個月。法官應控方的申請，以罪行普遍為理由，根據《有組織及嚴重罪行條例》將第2及第3項控罪的 3 年量刑基準，分別加刑45%和60%至4年4個月和4年9個月。支持有關罪行普遍的證據源自控方向法庭提供的資料，該些資料顯示自 1999 年至 2005 年首 7 個月發現 500 元偽鈔的數目和被檢控涉及 500 元偽鈔罪行的人數大增。該些資料詳列如下：

1999 2000 2001 2002 2003 2004 2005 1-7月

發現500元偽鈔數目 243張 379張 210張 105張 248張 4,473張 2,755張

被檢控人數 0 3 1 2 2 19 23

500元偽鈔數目 0 221 1 1 4 4,049 290

法官指出在 2004 年本港出現的 500 元偽鈔數量最為顯著，因此申請人所犯的罪行普遍，需要加

刑。申請人就刑期提出上訴，指出搜獲 500 元偽鈔數目大增不一定表示申請人被控的控罪普遍，因此

以申請人的控罪普遍而加刑並非適當。裁決： (1 ) 根據香港法例第 455 章《有組織及嚴重罪行條例》附表 1 及附表 2 , 本案的罪行都是｀指明的罪行＇。而根據第27(11)條，假若法庭信納被告人所犯的｀指明罪行＇普遍，則可以加重被告人的判

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刑﹔ (2 ) 控方指申請人所犯的｀指明罪行＇普遍，全建基在 500 元偽鈔的數目和涉及 500 元偽鈔被檢控人數的資料。但發現偽鈔數目和因該些偽鈔而被檢控

的人數增加，不一定和《有組織及嚴重罪行條例》

附表 1 及附表 2 所列的罪行有關：香港特區訴陳家建和酈英Cr App 474 /2004﹔ (3 ) 發現偽鈔數目和因該些偽鈔而被檢控的人所面對的罪行可能是《刑事罪行條例》第 99(2) 條（將偽鈔交付他人）或第 100(2) 條（保管或控制偽鈔），而這些罪行並非是《有組織及嚴重罪行條

例》附表 1 或附表 2 所列出的｀指明罪行＇。因此單是以發現 500 元偽鈔的數目和涉及該些偽鈔被檢控的人數大增而裁定申請人被控的罪名普遍並不正

確﹔ (4 ) 法庭在香港特區訴董海一等三人 Cr App 268 /2005案指出：

製造偽鈔屬極為嚴重罪行。該等罪行嚴重影響金融巿場運作，可能令巿民大眾對流動貨

幣失去信心。

再者，在目前科技先進的環境，製造偽鈔亦變成較簡單容易。法庭必須發出明確訊息，

表明製造偽鈔者會遭重罰，避免這些不法行

為氾濫。 (5 ) 如涉案偽鈔總值只是數萬港元，法庭採納的量刑基準為 3-4 年：香港特區訴林偉明 Cr App 44 /2004 、香港特區訴陳家建和酈英 Cr App 474 /2004﹔ (6 ) 申請人個人行事，亦沒有嚴重的犯罪記錄，雖然案件涉及偽鈔的總值達60 ,000萬元，但像真度不高。本案亦沒有其他加重罪責因素，法官就每項控

罪所採納的三年基本量刑基準和三年半總量刑基準

都屬適當。

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結果︰第2項和第3項控罪的45%和60%加刑撤銷，

三項控罪每項的判刑都是 3 年監禁，除了第一項控罪判刑中的 6 個月分期執行外，其餘刑期全部同期執行。總刑期由 5 年減至 3 年 6個月。

[English digest of CA 392 of 2005, above] Cheung Yeung & Tang JJA (4.5.2006) *Eddie Sean #Robert Pang

CHEN Zhu-shan

Passing and possession of counterfeit notes/Enhancement of sentence based on prevalence of offence under OSCO/Ruling that offences were prevalent based solely on the increase of counterfeit notes discovered and of number of people prosecuted inappropriate The Applicant was charged with two charges of passing counterfeit notes and one charge of having in his custody counterfeit notes, contrary to, respectively, s 99(1)(a) and s100(1) of the Crimes Ordinance, Cap. 200. The Applicant was found guilty of all offences after trial. The sentences were terms of imprisonment of, respectively, 3 years, 4 years and 4 months, and 4 years and 9 months. Apart from 3 months of the first charge, all sentences were to run concurrently, producing a total sentence of 5 years’ imprisonment. The evidence showed that on 25 November 2004, the Applicant deposited one genuine and one counterfeit note each in the value of $500 into his HSBC bank account via the ATM. On 15 December 2004, the Applicant used a $500 counterfeit note to buy a magazine. His illegal act was detected. He tried to flee but was intercepted by the police through the assistance of a passer-by. The police later discovered 126 pieces of $500 counterfeit note in a suitcase inside the guest house room that the Applicant rented. The total value involved was $63,000. The judge adopted a starting point of 3 years’ imprisonment in respect of each charge and an overall starting point of 3 years and 6 months. In view of the prevalence of the offences, the judge acceded to the prosecution’s application made pursuant to the Organized and Serious Crimes Ordinance to enhance the starting points for Charge 2 and Charge 3 by, respectively, 45% and 60% to 4 years and 4 months and 4 years and 9 months. The supporting evidence of the prevalence of the offences

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came from the information provided by the prosecution to the court. The information showed that from 1999 to the first seven months in 2005, the number of $500 counterfeit notes and the number of persons prosecuted as a result had increased substantially. The information was as follows :

1999 2000 2001 2002 2003 2004 2005 Jan-JulyNumber of $500 counterfeit notes discovered

243 379 210 105 248 4,473 2,755

Persons prosecuted

0 3 1 2 2 19 23

Number of $500 counterfeit notes involved

0 221 1 1 4 4,049 290

The judge considered that the number of $500 counterfeit notes that appeared in Hong Kong in 2004 was significant, the offences were therefore prevalent and sentences should be enhanced. The Applicant appealed against the sentence. He contended that the increase in the number of $500 counterfeit notes did not necessarily mean that the charges he faced were prevalent. The enhancement of sentence based on prevalence was inappropriate. Held : (1) According to Schedules 1 and 2 of the Organized and Serious Crimes Ordinance, Cap. 455, the offences involved in the present case were ‘specified offences’. Pursuant to s 27(11), if the court accepted that the ‘specified offence’, that an accused committed was prevalent, it could enhance the sentence to be imposed on the accused; (2) The prosecution alleged that the ‘specified offences’ committed by the Applicant were prevalent, this was entirely based on the number of $500 counterfeit notes discovered and the number of persons prosecuted therefor. However, the increase in these numbers did not necessarily mean that offences listed in Schedules 1 and 2 of the Organized and Serious Crimes Ordinance were involved : HKSAR v Chan Ka-kin and Lai Ying Cr App 474/2004; (3) The number of counterfeit notes discovered and the number of persons prosecuted therefor could be related to offences contrary to s 99(2) (delivery of counterfeit notes) or s 100(2) (has in custody or under control counterfeit notes) of the Crimes Ordinance. These offences were not ‘specified offences’ as listed

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in Schedules 1 and 2 of the Organized and Serious Crimes Ordinance. Accordingly, it was wrong to rule that the offences that the Applicant committed were prevalent by simply relying on the increase of counterfeit notes discovered and of the number of people prosecuted therefor; (4) In HKSAR v Tung Hoi-yat and 2 others Cr App 268/2005, the court pointed out that :

Manufacturing of counterfeit notes is a very serious offence. Such offence seriously affects the operation of the financial market and may erode public confidence in the currency.

Moreover, it is easier to manufacture counterfeit notes in light of today’s advance technology. In order to prevent the prevalence of such illegal activities, the court must send out a clear message that those who manufacture counterfeit notes will be severely punished.

(5) If the total value involved was several ten thousand dollars, the appropriate starting point would be 3 to 4 years : HKSAR v Lam Wai-ming Cr App 44/2004, HKSAR v Chan Ka-kin and Lai Ying Cr App 474/2004; (6) The Applicant committed the offences alone and had no serious criminal record. Although the total value involved was over $60,000, the degree of resemblance of the notes was not high. There were no aggravating factors. The individual starting point of 3 years and the overall starting point of 3½ years were appropriate. Result - Appeal allowed. The enhancements of, respectively,

45% and 60% in respect of Charges 2 and 3 were set aside. The sentence of each of the three offences would be 3 years’ imprisonment, 6 months of Charge 1 to be served consecutively. Total sentence reduced from 5 years to 3 years and 6 months.

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C. MAGISTRACY APPEALS/ AGAINST CONVICTION 裁判法院上訴案件 /針對定罪 MA 1029/2005 MA 313/2006 Beeson J (28.4.2006) *Cheung Wai-sun & Lam Tak-wing #Philip Dykes SC

PEARCE Matt James

Behaving in disorderly manner with intent to provoke a breach of the peace/Political activist running onto Shatin race-track dressed as a horse/Whether breach of the peace likely to be caused/Race delayed by one minute while defendant removed/Actions amounted to a tiresome nuisance but not a public nuisance/Public nuisance committed when defendant caused crowds to gather and congestion to occur by climbing onto a big TV screen in Central to stage a political protest/Choice of charges a matter within the discretion of the prosecution/Right to demonstrate borne in mind 作出擾亂秩序的行為意圖破壞社會安寧 – 政治活動份子打扮成馬匹跑到沙田馬場賽道上 – 是否相當可能會導致社會安寧破壞 – 因要帶走被告人而令賽事延遲了 1分鐘 – 有關的行為構成煩人的滋擾而非對公衆的妨擾 – 被告人在中環爬上大電視屏幕提出政治抗議造成人群聚集和交通擠塞則屬對公

衆的妨擾 – 控罪的選定在控方的酌情決定權範圍內 – 顧及示威的權利 The Appellant, aged 30, was the leader of a small group of self-appointed political activists called ‘International Action’. He told the Probation Officer it aimed at ‘propagandising social justice, democracy, human rights and betterment of society through non-violent action arousing the attention and concern of the public.’ The non-violent action consisted of the Appellant drawing attention to the cause of the moment by dressing in costume and making a nuisance or a spectacle of himself, in some manner which satisfied his undoubted exhibitionistic streak. He was assisted in these activities by other members of the group, none of whom featured in starring roles. The Appellant was convicted of three offences which were dealt with in two separate cases heard by different magistrates. HCMA 1029/2005 The Appellant was convicted, first, of behaving in a disorderly manner in a public place, Shatin Race Course, with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be caused, contrary to s 17B(2) of the Public

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Order Ordinance, Cap 245. Second, he was convicted, on the same occasion, of causing a nuisance to the public by unlawfully running on the race-track dressed in a mock horse costume just before the start of the televised horse race No. 8 for the Cathay Pacific Hong Kong Cup, contrary to common law. The evidence showed that on 12 December 2004, the Appellant attended a big race meeting at the Shatin Race Course dressed in a horse costume which incorporated a yellow shirt bearing the words ‘demand democracy now’. He amused the crowds in the Public Enclosure by prancing about, apparently to promote public awareness of democracy. Just before the scheduled start of Race 8 at 5:10 pm, the Appellant was assisted to scale the barrier fence onto the track. He ran along the track heading away from the starting gate towards the winning post. He was pursued by security guards, who had tolerated his earlier antics in the Public Enclosure. As he ran, the Appellant waved to the crowd, who were applauding and calling out, although the magistrate surmised some were angry or annoyed. When caught, the Appellant was pushed to the ground without offering any resistance. This incident took about two minutes and though the race was delayed by one minute, it was run without incident. The Appellant’s behaviour was peaceful at all times; and the force used to apprehend him was reasonable. The race-track was a public place. The race meeting was the biggest in the Racing Calendar. The maximum crowd at the race-course was 48,000 and the race was to be televised to more than 13 countries. HCMA 313/2006 The Appellant was convicted of an offence of public nuisance, contrary to common law. It was alleged that on 3 June 2005, he caused a nuisance to the public by unlawfully climbing up a big TV screen dressed as Spiderman at Luk Hoi Tung Building at No. 31 Queen’s Road Central. The Appellant used a ladder to climb to the first floor podium of Luk Hoi Tung Building, a commercial building. A large TV screen erected on the podium was used to show commercial messages to passers-by. At 1245, having climbed up the screen, the Appellant hung a banner 16 ft x 10 ft in front of it, effectively obstructing any messages that might be shown. The message on the banner, in Chinese and English, stated:

Tiananmen Square 4-6-1989

Justice Must Prevail

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Injustice anywhere is a threat to Justice everywhere www.thebiggerpicture.hk

The Appellant stayed on top of the screen, generally drawing attention to himself. Large pedestrian crowds gathered to watch him and police were needed for crowd and traffic control. At 1348, Fire Services came and placed a rescue cushion below the screen, in case the Appellant jumped or fell. It was necessary at that stage to cordon off that part of Queen’s Road and Theatre Lane which ran off it and in consequence vehicular traffic had to be diverted into Pedder Street and away from D’Aguilar Street which met Queen’s Road Central as a T-junction at that spot. Traffic lights were suspended and police officers directed traffic. Traffic congestion lasted for about two hours. Movement was slow, drivers unhappy. Pedestrians had to be directed by a circuitous route from the building through to Theatre Lane, which offered MTR access. Access to and from shops in the building was impeded, some shops closed and staff of the management company shepherded pedestrians along the detour route. Shops in the vicinity experienced reduced lunchtime business or had no business at all.

After a Senior Fire Service Officer was raised to the Appellant’s level via the hydraulic platform of a fire engine brought to the scene, he asked the Appellant to come down. The Appellant refused unless he was fed with dim sum, which was duly provided some 30 minutes later. During that time the Appellant continued his posturing and at intervals affected to read a newspaper. When the serious congestion was pointed out to him, the Appellant apologised but continued eating. He finished the food and left the screen with the officer. The screen eventually had stopped working because the Appellant’s banner caused it to overheat. No permission for access was sought by the Appellant, or granted by the management company of the building or the owner of the screen. The Appellant knew the building and screen were private property and expected that the police and fire services would arrive to bring him down. He knew and expected a crowd to gather. He considered his action justified. On appeal Held : (1) In both appeals, the comments of Sedley LJ in Redmond-Bate v Director of Public Prosecutions [1999] Crim LR 998, were to be borne in mind:

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Free speech includes not only the inoffensive but the irritating, the contentious, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.

HCMA 1029/2005 First summons: (2) The magistrate found the elements of ‘public place ’ and ‘disorderly conduct ’ established by the evidence. He was correct in finding that the Appellant’s conduct became disorderly when transferred to the race-track. The track was closed to anyone not specifically permitted to have access. That was particularly the case when races were being prepared for, or run. Such a measure was necessary for the good administration of the race meeting, particularly for ensuring the safety of jockeys, horses and spectators. Although the Appellant’s behaviour on the track followed much the same pattern as his behaviour in the Public Enclosure, his repetition of such behaviour in proximity to horses and riders made it possible, or likely, that one or more horses would bolt and/or throw their riders. It was also possible that one or more horses would baulk at entering the starting gate. The Public Order Ordinance did not define ‘disorderly conduct ’, and the magistrate noted that this was a matter of fact for him to determine; (3) The Appellant at no time resisted capture and cooperated with the security guards, who themselves used only reasonable force to subdue him. The security guards had specific duties to perform and were trained to deal with situations such as this incident. It seemed improbable that faced with a co-operative, non-resisting, unarmed, pantomime horse after a chase lasting less than 30 seconds, the security guards would resort to violence. It was even less likely they would resort to violence under the gaze of the head of security, 48,000 spectators and police officers dealing with crowd control; (4) As for angry spectators taking violent action against the Appellant, that appeared even more unlikely. Given that the Appellant’s conduct was not directed at provoking, nor intended to provoke the public it would have been wholly unreasonable if any spectator had behaved as the magistrate feared they might. The magistrate had to be satisfied there was a real risk of a future breach of the peace, so any violence or the threat of violence must be a natural consequence of the conduct of the Appellant. The magistrate made no specific finding about this matter; (5) There was no basis for the magistrate’s finding that a breach of the peace was likely to be caused, and the conviction on the first

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summons must be quashed; HCMA 1029/2005 & HCMA 313/2006 Public nuisances (6) In R v Rimmington [2005] 2 WLR 982, the House of Lords held that a public nuisance was committed when a person did an act not warranted by law, or omitted to discharge a legal duty, and the effect of the act or omission was to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone; (7) An essential ingredient of the offence of causing a public nuisance was that it must cause common injury to the public - the community as a whole or a significant section of it. Individual acts which caused injury to several different people could not constitute criminal public nuisance. The mens rea which had to be proved against a defendant to convict him of causing a public nuisance was that he knew or ought to have known, because the means of knowledge were available to him, the consequence of what he did or omitted to do; HCMA 1029/2005 Second summons: (8) The magistrate fixed on the 1-minute delay in the start of Race 8 as the basis for finding ‘common injury ’. In Rimmington such injury was described as follows ‘central to the content of the crime was the suffering of common injury by members of the public by interference with rights enjoyed by them as such ’; (9) Assuming, as the magistrate found, that the delay was caused by the Appellant, there was no evidence to show that the public were aware of the delay; that they experienced any problems with placing bets in consequence; that their enjoyment in watching the race had been interfered with; or that they had any disappointed expectation that the race would begin precisely at the time fixed; (10) The evidence showed that delays of one or two minutes at the start of a race were usual for a variety of reasons, although on this occasion it was the Appellant’s action which caused the delay. As delays were usual, it was highly improbable that the anxiety, concern, discomfort and disappointment which the magistrate considered the likely result of one minute’s delay, would have had time to manifest itself. The position might have been different if the Appellant’s actions had caused false start to the race, or if it had to be cancelled or postponed for a significant period of time. The fact that much administrative inconvenience had been caused

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to the Jockey Club did not establish the significant number of persons required to be affected to substantiate common injury; (11) While the magistrate was correct in finding the Appellant’s conduct was disorderly and not warranted by law, he nevertheless erred in finding that his delaying the start of the race amounted to a public nuisance. On the evidence it was not possible to find the necessary common injury caused to the community as a whole, or to a significant portion of it. Although the Appellant was undoubtedly a tiresome nuisance, his behaviour did not constitute a public nuisance, and the conviction on the second summons must be quashed; HCMA 313/2006 (12) Although the Appellant contended that the Appellant should not have been charged with the offence of public nuisance, when s 4(28) of the Summary Offences Ordinance, Cap 428, was ‘tailor-made ’ for the behaviour complained of, and that, on the basis of Rimmington, if a statutory offence existed it should be used, rather than the common law equivalent, unless there was good reason not to do so, the choice of charge and venue for trial was the responsibility of the Secretary for Justice and his designated officers. The prosecution had a wide discretion as to the charge or charges it might lay and in the absence of bad faith, abuse of process or perverse action a court was unable to question the decision. Charges were laid and venues chosen according to prosecution policy and guidelines taking into account the gravity of the offence, the elements that could be proved and other factors such as prevalence, deterrence, community mores, etc. The prosecutorial burden was a heavy one and it was for the Secretary for Justice to decide in what manner it was to be borne. The Appellant did not suggest that the common law offence was chosen, in the manner deprecated in Rimmington, to circumvent mandatory time limits, or limits on penalties; (13) The Appellant was disingenuous in submitting that the magistrate erred by concentrating on whether the Appellant’s demonstration had caused congestion, rather than considering the reasonableness of the public stopping in the street to watch. The crowds gathered as a direct consequence of and in response to the Appellant’s activities. Many pedestrians undoubtedly stopped because the crowds watching the Appellant impeded their progress, or blocked their access to shops, offices or MTR, or because the positioning of the Fire Services cushion obliged them to take a lengthy detour. The longer the Appellant remained aloft, the greater the crowds and congestion and the less reasonable their user of the highway;

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(14) The magistrate concluded that the Appellant’s demonstration, lawful and peaceful as it was, was unduly lengthy, given the well-aired topic he wished to bring to the public attention; the time and place chosen for the demonstration and the further lengthening of the time of disruption by his bizarre insistence on being fed as a condition of his leaving the podium. He found that the Appellant’s message, although important and legitimate, could have been conveyed within a much shorter time-frame than the two hours he was on top of the screen. The Appellant was aware his activities were likely to cause congestion, and it was an integral part of his demonstration that such congestion or disturbance would be caused. By refusing to come down when, after a lengthy period, congestion below was pointed out to him, he had extended the time by demanding dim sum. At a certain point the crowd’s user became unreasonable, as a direct result of the Appellant’s acts. That point was for the magistrate to find; (15) In Rimmington it was held that the mens rea which had to be established against a defendant on a public nuisance charge was that he knew or ought to have known, because the means of knowledge was available to him, the consequences of what he did or omitted to do. The magistrate considered the question of the Appellant’s knowledge and drew the irresistible inference that the Appellant had the requisite mens rea; (16) To establish ‘public nuisance ’ the effect of the act or omission must be shown ‘to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone ’. The magistrate found that many road users and shop owners and customers in the vicinity plus the TV owner were seriously affected by the Appellant’s act ‘to varying significant degrees enough to constitute a substantial number of the public ’. The magistrate could also have found on the evidence that potentially all citizens, residents and visitors in Hong Kong could be regarded as suffering the public nuisance caused by the obstruction of the highway, which in normal circumstances was available for ordinary use by anyone as a pedestrian or driver. Such user was not limited to simple passing and re-passing; (17) In Yeung May-kwan and Others v HKSAR (2005) 8 HKCFAR 137 at 157, Bokhary PJ gave instances of how various uses of the road or footpath might impede other persons using the highway to some extent, and how the law sought to strike a balance between ‘possibly conflicting interests of different users of the highway based on a requirement of reasonableness. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the

25

circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done ’. The court reiterated that where an obstruction resulted from a peaceful demonstration, it was essential that the constitutionally protected right to demonstrate, which was enshrined in Art 27 of the Basic Law, was recognised and given substantial weight; (18) The magistrate had borne in mind the important matter of the Appellant’s right to demonstrate. He found the elements of the offence established. He was apprised of the relevant case law and directed himself accordingly. In particular, he carried out the required balancing act, in which the Appellant’s right to demonstrate had to be balanced against the public right to use the highway, not just to pass and repass, but to use it for what might be described as social and community purposes. The conviction was not wrong. Result - Appeal allowed in HCMA 1029/2005, and convictions

quashed, but appeal dismissed in HCMA 313/2006.

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D. MAGISTRACY APPEALS/ AGAINST SENTENCE 裁判法院上訴案件 /針對刑罰 MA 15/2006 Longley DJ (7.2.2006) *Polly Wan #I/P

GUO Jingxing

Immigration Ordinance/Overstayer in possession of HK identity card taking up employment/Twelve months’ imprisonment lenient as deterrent sentence required/ Humanitarian considerations not relevant as defendant knew of these before arrival in Hong Kong 《入境條例》 – 逾期逗留並管有香港身分證以從事僱傭工作 – 此類罪行須處以阻嚇性刑罰 — 12 個月監禁屬寬大的判刑 – 被告人到港前已知的情況不得作為人道理由成為相關考慮因素 The Appellant pleaded guilty to three offences. First, breach of condition of stay, contrary to s 41 of the Immigration Ordinance, Cap 115, and by virtue of regulation 2(1)(a) of that Ordinance, he was sentenced to 2 months’ imprisonment. Second, using a forged identity card, contrary to s 7A(1) of the Registration of Persons Ordinance, Cap 177, for which he was sentenced to 12 months’ imprisonment. Third, using a false instrument, namely a false Construction Industry Safety Training Certificate, contrary to s 73 of the Crimes Ordinance, Cap 200, for which he received 4 months’ imprisonment. The magistrate adopted starting points of, respectively, 3 months, 18 months and 6 months, and gave the Appellant a discount of one-third. All sentences were made concurrent, producing a total sentence of 12 months. The magistrate had been informed that the Applicant was divorced and was the sole support of his aged mother, who had suffered a stroke in 1999, and two children aged 13 and 8. He had come to Hong Kong to provide funds for his family and in particular the medical expenses for his mother. The facts showed that the Appellant entered Hong Kong on a China two-way permit. In breach of his conditions of stay he had taken up employment with a construction company. He had produced a forged Hong Kong identity card and Construction Safety Training Certificate to his employer. He was arrested while working in road works in Caine Road. He admitted he had bought the false identity card and certificate in Shenzhen. He said he committed the offence as his mother was sick. The Appellant sought leave to appeal out of time as he had received a letter from his daughter informing him that his mother had suffered a stroke and that she was suffering from paralysis of the right limbs and from incontinence and there was nobody to

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look after her save his 13-year-old daughter who had to miss school to do so. On appeal, the Appellant said his mother was still in hospital, but that his daughter had to look after her. He did not suggest the sentences were excessive at the time they were passed. Held : (1) The magistrate adopted a lenient view of the Appellant’s conduct, particularly in relation to the second offence. He only referred to the Appellant having one previous conviction for a similar offence in 1999. In fact the Appellant had been in Hong Kong a year earlier and breached his condition of stay. This was, therefore, the third occasion he had been in Hong Kong and committed offences; (2) In HKSAR v Li Chang-li [2005] 1 HKLRD 865, the Court of Appeal said that the problem of overstayers who were in possession of Hong Kong identity cards and took up employment was so serious that deterrent sentences were called for. It went on to say that where such an identity card was used to obtain employment, the sentence upon plea should, save in exceptional circumstances, be 15 months’ imprisonment; (3) Although the court had power to take into account strong humanitarian grounds for reducing a sentence, the Appellant was aware that his mother had already had one stroke before he entered Hong Kong on this occasion, with a view yet again to breach the laws of Hong Kong. He chose to take the risk that her health might decline. Even if, as he now maintained, his mother had been released home, and had only recently been hospitalised again, that deterioration in her condition could not have been wholly unexpected. Result - Appeal dismissed.

MA 313/2006 Beeson J (28.4.2006) *Cheung Wai-sun & Lam Tak-wing

PEARCE Matt James

Public Nuisance/Substantial inconvenience caused to a large number of people/Suspended sentence of imprisonment 對公衆的妨擾 – 對很多人造成很大不便 – 緩刑 The Appellant was convicted after trial of an offence of public nuisance, contrary to common law. It was alleged that on 3 June 2005, he caused a nuisance to the public by unlawfully climbing up a big TV screen dressed as Spiderman at Luk Hoi Tung Building, No. 31 Queen’s Road, Central.

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#Philip Dykes SC The magistrate took a starting point for sentence of 28 days’ imprisonment, but credit was given for the Appellant’s clear record. The Appellant was sentenced to 21 days’ imprisonment. The maximum penalty for the offence on summary conviction was 2 years’ imprisonment. The magistrate found no reason to suspend the sentence, but granted bail pending appeal. For facts of case, see Magistracy Appeals/Against Conviction. The Magistrate treated the Appellant as a man of clear record and noted his monthly earnings were around $7,000. He considered that the Appellant had caused substantial inconvenience to a large number of people and took the view that a financial penalty was inappropriate, in that it would lead others to ‘think they can pay for executing their belief, even to an unreasonable and excessive extent’. A community service order was considered as an alternative to the short prison term, but the Appellant said he had no time to carry out the programme. On appeal Held : A short term of imprisonment was, in principle, in all the circumstances, a proper sentence. However, justice would be served by suspending that sentence for a period of 18 months. This would recognise what was, in effect, a first offence, but would have a lasting deterrent influence. Result - Appeal allowed. Sentence of imprisonment of 21 days

suspended for 18 months. [As to the circumstances in which it is proper for a court

to suspend a sentence of imprisonment, see Sentencing in Hong Kong, 4th ed., at pp 466-467: Ed]

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E. COSTS IN CRIMINAL CASES 刑事案件的訟費 CA 411/2003 CA 61/2004 Ma CJHC Stuart-Moore VP Stock JA (28.4.2006) *G McCoy SC & G Shiu #C Grossman SC & H M Mughal B Yu SC (amicus curiae)

HUNG Chan-wa ATSUSHI Asano

Court appointing amicus curiae to assist it/Not right to order Respondent to pay costs/Order nisi varied 法庭委任法庭之友提供協助 – 無權下令答辯人支付訟費 – 更改暫准命令 On 26 January 2006, the Court handed down judgment on the issue of prospective overruling, which was an issue consequent on its decision on the constitutionality of ss 47(1) and (2) of the Dangerous Drugs Ordinance, Cap 134. The court had engaged the assistance of an amicus curiae because of the importance of the issue, and, the issue having been determined against the Respondent. The court held:

There will be a costs order nisi that the costs of the amicus curiae and of the appellants be paid by the respondent, to be taxed if not agreed, the appellants’ costs to be taxed in accordance with the Legal Aid Regulations.

The Respondent applied to vary the costs order nisi, submitting that the costs of the amicus curiae should not be borne by it. The Appellants made it clear that they would not make any submissions regarding costs unless an order was sought against them. The Respondent sought no such order but submitted that there be no order as to costs for the prospective overruling hearing. Held : The costs order nisi should be varied. It was not necessary to determine the point of whether the court had jurisdiction to order the costs of an amicus curiae to be paid by the Respondent. Even if such jurisdiction existed, given that it was the court on its own initiative which considered it necessary to appoint an amicus curiae, it would not be right to penalise the Respondent with an order to pay these costs. Result - Application allowed. Order nisi varied to an order that

there be no order as to costs for the prospective overruling hearing.

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