At the Courts

案情實錄
At the Courts
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In Sin Kam-wah and Another v HKSAR ([2005] 2
HKLRD 375), a senior superintendent of police
appealed against his three convictions for misconduct
in public office. The prosecution case was that he
accepted free sexual services from his co-accused,
the wife of a police officer with a beneficial interest
in four hostess clubs. The trial judge rejected the
defence that it was the right of the accused to consort
with prostitutes in his spare time, and concluded that
the favours were accepted by him in relation to his
office and constituted a clear case of ’keeping sweet
corruption.‘ In dismissing the appeal, the Court of
Final Appeal decided that the offence of misconduct
in public office was established if the wilful
misconduct in question had a relevant relationship
with the public office of an accused. Misconduct
otherwise than in the performance of public duties
might have such a relationship with the public office
as to bring that office into disrepute, in circumstances
where the misconduct was both culpable and serious
and not trivial. There was no doubt that the
misconduct had the necessary relationship with the
public office of the accused and that it was culpable
and serious because it involved the acceptance of
free sexual services with the knowledge that they
were provided by prostitutes over whom his coaccused exercised control, direction or influence, that
being a serious criminal offence.
! • AT THE COURTS
APPEALS
In HKSAR v Lo Chuen-sang (DCCC 1312 of 2004), a pimp
pleaded guilty to six offences of criminal damage and one
of resisting arrest. On six occasions over a 15-month period,
he threw bricks from high-rise buildings in Mongkok, causing
injuries to pedestrians and damage to property. Having
rejected Lo‘s claim that he was depressed and under stress,
the judge condemned his ‘reckless’ acts and imprisoned him
for 2 1/2 years.
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18 In HKSAR v Ng Chun-tak (DCCC 932 of 2004), a district
councillor pleaded guilty to four fraud-related offences. He
submitted false claims for over $100,000 for his assistant‘s
pay over three years, and incited a woman to pose as his
assistant to claim monthly reimbursement of $7,000 from
Kwun Tong District Council. Having described Ng‘s fraud
as systematic and condemned his greed, the judge
imprisoned him for 18 months.
!"#$%& ([2005] 1 HKLRD 825)
! • AT THE COURTS
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In Tsang Wai-ping v HKSAR ([2005] 1 HKLRD 825), an
accused successfully appealed against the refusal of the
trial judge to award him costs after his acquittal by a jury
of possession of arms and ammunition without a licence,
and taking a conveyance without authority. The judge
held he had enjoyed the benefit of a technical ruling,
which might have occasioned his acquittal. That was
because there was some evidence of flight in the form
of an attempt to escape that caused suspicion, but which
the judge, in the event, excluded as inadmissible. The
Court of Final Appeal concluded that an accused should
not be deprived of costs on the ground that his acquittal
was a technicality if that would violate the presumption
of innocence. But there could be situations where an
acquitted accused might be deprived of costs on that
ground, as where a consent to prosecution had
inadvertently been overlooked and the presumption of
innocence was not violated. Depending on the
circumstances, to say that an accused who had been
acquitted had brought suspicion upon himself might or
might not involve calling into question his acquittal.
Usually it would not. There was no finding that the
accused had probably attempted to flee and thereby
brought suspicion upon himself, so he ought not to be
deprived of his costs.
In Lin Ping-keung v HKSAR ([2005] 1 HKLRD 654), the
accused was convicted of trafficking in dangerous
drugs. The prosecution alleged that when customs
officers searched an apartment he shared with two
friends, two knapsacks were found on a sofa in the
living room inside which were large quantities of
narcotics. The accused denied knowledge of the
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In HKSAR v Michael Lui Man-ho (KCCC 12944 of 2004), an
ex-Formula Three racing car driver denied having unlawful
sexual intercourse with a girl aged under 16, and indecent
conduct towards another under-age girl. It was alleged the
offences occurred at a brothel-type cyber cafe in Jordan.
After holding that the identification was weak and the
witness statements contradictory, the magistrate acquitted
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former resident. When the judge summed up the
case, he made a factual error and posed questions to
the jury which prompted queries from jurors which
were not satisfactorily addressed. In allowing the
appeal, the Court of Final Appeal concluded there had
been a departure from accepted norms which had
caused a substantial and grave injustice to the accused.
A judge was under a duty to summarise to the jury
the issues and the evidence that related to them clearly,
accurately and fairly, and if he chose to make adverse
comments the facts on which those comments were
based must be correctly stated. The combined effect
of the judge‘s mistake of fact, his adverse comments
in the form of rhetorical questions and his failure to
have these questions clarified in his further direction
unfairly cast doubt on the accused‘s case.
! • AT THE COURTS
the accused.
The Court of Appeal
In HKSAR v Zhang Zhigang (CACC 4 of 2005), the
accused appealed against a sentence of 8 years‘
In HKSAR v Maramba Diamente (DCCC 604 of 2005), a Filipina
maid pleaded guilty to stealing watches and jewellery worth
$1.1 million from her employer, a socialite and novelist. She
exchanged the stolen goods for cash at pawnshops. Having
described the offence as ‘one of the worst cases of theft
committed by a domestic helper against her boss’, the judge
sentenced the accused to 14 months‘ imprisonment.
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imprisonment imposed after he pleaded guilty to an
offence of robbery. He and a confederate entered a
public light bus early in the morning, and used a knife,
a false pistol and a fake bomb to threaten the driver
and the fourteen passengers. The victims were ordered
to surrender their valuables and one was severely
beaten about the head. Before fleeing, the robber
told the victims they would become ‘roasted pigs‘ if
they looked up, and that the driver should drive off as
there was a bomb. In dismissing the appeal, the Court
commented that the starting point for sentence of 12
years‘ imprisonment adopted at trial was not manifestly
excessive in light of the aggravating factors, which
included the planning, the violence and the weapons.
The judge had properly condemned the offence as
akin to ‘an act of modern day highway robbery.’
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In HKSAR v Chan Ka-man ([2005] 1 HKC 162), the
accused was convicted of offences of rape, attempted
rape and two indecent assaults. Towards the end of
his summing-up, the judge said that ‘serving on a jury
is very much like a board of directors of a company
having a meeting. In other words, there is a lot of give
and take.’ In the event, the jury convicted the accused
on three of the counts by majorities of 5-2, and on the
remaining count by 6-1. In allowing the appeal against
conviction and ordering a retrial, the Court deprecated
the use of loose language of a kind that might indeed
apply to the boardroom function, but which was an
unwarranted and unsafe departure from the standard
direction. It was a cardinal principle that no juror should
change his or her mind merely for the sake of conformity
or out of submission to pressure by other jurors. In the
end no juror should vote against his or her conscientious
view based on the evidence. This was an elementary
and central bulwark of the jury system. Given the
encouragement to approach matters as a board of
In HKSAR v Cherrie Ying Choi-yee (KCCC 14445 of 2004), a
Taiwanese actress was charged with unlawful possession of
0.35 gm of cocaine. The prosecution alleged that she was
seen disposing of a suspicious white packet after her car was
stopped at a roadblock. The accused was acquitted after the
magistrate found the police evidence to be inconsistent.
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directors with give and take, it was impossible to be
satisfied that the bare majorities by which three of the
verdicts were reached represented the product of
conscientious decisions in respect of which each
individual juror was faithful to his or her oath.
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In HKSAR v Fung Chi-man and Another (CACC 264 of
2004), the accused appealed against sentences of
2 years and 2 months‘ imprisonment, imposed after
they each pleaded guilty to an offence of theft by
pickpocketing. They approached a young woman
on the street in Mongkok, and after one accused
removed a cellphone from her rucksack he passed it
to the other. Each accused had numerous convictions
for theft, and the judge took a starting point for
sentence of 21/2 years‘ imprisonment, which was
reduced by one-third to 20 months to acknowledge
the guilty pleas. These sentences were then enhanced
by 30% because of the prevalence of the offence. In
dismissing the appeals, the Court commented that the
accused worked as a team and were persistent thieves
who committed the offence in a crowded street late
at night. Taken together, these factors provided ample
justification for an enhanced starting point.
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5,000 In HKSAR v Wong Wan-heung and Others ([2005]
2 HKLRD 749), the accused appealed against
convictions for the offence of conspiracy to steal. The
prosecution alleged they plotted to steal a threatened
species of Buddhist pine tree, prized for its ‘fung shui’
qualities. The accused were found on a motorised
sampan off Waglan Island, and nine Buddhist pines
! • AT THE COURTS
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In HKSAR v A S Watson Group (HK) Ltd (ESS 8704 of 2004),
the accused was convicted of providing food not of the
nature, substance or quality demanded by consumers. The
facts showed that after a Senior Counsel purchased a jar of
breakfast cereal at Great Food Hall in Pacific Place, he found
575 live beetles inside it next morning as he was about to
eat breakfast. The magistrate said the company had failed
to prove the jar lid had been properly sealed, and imposed
a fine of $5,000.
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were discovered on board. In concluding that there
was strong circumstantial evidence that the Buddhist
pines were stolen inside Hong Kong waters, the judge
found that each accused had made ‘mainly exculpatory’
statements which were in conflict with the accounts
given by the others. She then rejected the various
accounts of the accused, having compared the different
versions. In allowing the appeals, the Court decided
there had been a material irregularity as the judge was
not permitted to use the statements made by one
defendant to the police against another defendant to
undermine the latter‘s case. A retrial was ordered.
In HKSAR v Siu Mo-nor (CACC 409 of 2004), the accused
appealed against her conviction for possession of
infringing copies of copyright works, of which offence
her boyfriend, who did not appeal, was also convicted.
The case for the prosecution was that she lived with
her boyfriend at a flat in Shamshuipo, where a
cardboard box which contained 500 discs was
discovered. The accused had no legal or beneficial
interest in the premises where she was a ‘live-in-guest’,
and the boyfriend was the tenant. In allowing the
appeal, the Court decided that the judge had not
separated the inference of living in the premises from
the inference of custody and control of the discs. The
element of custody and control could not be inferred
from a person‘s cohabitation with a guilty party, even
when that person also had knowledge of the guilty
party‘s criminal activities. It could not be said that on
the proven facts the only reasonable inference was that
the accused had custody and control of the discs.
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22 In HKSAR v Hung Chan-wa ([2005] 3 HKLRD 291),
the accused appealed against his conviction for
unlawfully trafficking in a dangerous drug. The
prosecution case was that when he was stopped and
searched by police in Kowloon, his shoulder bag
contained a plastic bag which contained 500 gms of
a mixture containing 410 gms of heroin hydrochloride.
In HKSAR v Lin Guoai and Others (DCCC 672 of 2005), three
mainlanders pleaded guilty to conspiracy to defraud. The
facts showed that the three accused operated a street scam in
which they used two live snakes to trick their victim into buying
fake anti-venom for $400. The judge imprisoned the accused
for terms which ranged from 2 years to 22 months.
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them of the presumption in the Dangerous Drugs
Ordinance that if a person was proved to have had a
dangerous drug in his possession, he should ‘until the
contrary is proved, be presumed to have known the
nature of such drug.’ In allowing the appeal, the Court
decided that the presumption created no more than
an evidential burden, and the words ‘until the contrary
is proved’ were to be read as ‘unless sufficient evidence
is given to the contrary.’ The transfer of a persuasive
burden onto the accused infringed the constitutionallyprotected presumption of innocence, and was neither
justifiable nor proportionate. A retrial was ordered.
newspaper vendor pleaded guilty to cruelty to an animal. He
beat a cat to death with a broom, then claimed he thought it
was a rat as he could not see properly. Having told the accused
that ‘if your eyesight was so poor, you would not have been
able to hit it at all’, the magistrate imposed a fine of $2,000.
TRIALS
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In HKSAR v Nancy Kissel (HCCC 113 of 2004), the wife
of a Merrill Lynch investment banker was charged with
his murder. The prosecution alleged that after the
accused began an affair with a television repairman while
on holiday in Vermont, her husband became suspicious
and hired private detectives to track her movements.
After the marriage deteriorated, Kissel incapacitated him
one night by spiking his milkshake with a cocktail of
sedatives. She then used a lead statuette to deliver five
fatal blows to her husband‘s head, spattering blood across
their bed and over the television. The accused concealed
the body in a carpet, which was placed in a storeroom
by unsuspecting workmen. Although she claimed her
husband had attacked her with a baseball bat when
she refused him sex, the jury convicted her as charged
in eight hours after a 65-day trial. Kissel was sentenced
to life imprisonment.
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! • AT THE COURTS
In HKSAR v Sei Ming-lim (ESCC 3144 of 2005), an elderly
In HKSAR v Chan Yuk-ping (KCCC 12744 of 2004), a
brothel operator was convicted of the offence of offering
an advantage to a public servant. The accused operated
a flat in Kowloon as a vice establishment, and when
police raided they arrested a keeper and four mainland
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!" 5 In HKSAR v Lau Mun-yi (HCCC 35 of 2005), a chef was convicted
of raping his wife‘s best friend. After the three of them returned
to his home after a drinking session, the accused claimed that
he mistook the friend for his wife, and that she consented in
any event. Having said that Lau‘s defence had added insult to
injury, the judge imposed a sentence of 5 years‘ imprisonment.
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women for suspected vice offences. Several days later,
the police officer in charge of the case received an
anonymous letter which offered him $30,000 a month
if he desisted from further enforcement action against
the flat. After she gave the officer her mobile telephone
number, Chan was traced and prosecuted. Having
said a deterrent sentence was required, the magistrate
imposed a sentence of 12 months‘ imprisonment.
In HKSAR v Muhammad Faryad (HCCC 34 of 2005),
the accused was convicted of raping two British
backpackers at a country park in Tsuen Wan. The
prosecution case was that when the victims were
walking to their youth hostel in the late evening, they
were confronted by Faryad, who had been drinking.
He tailed the women for ten minutes, before grabbing
one of them. When they tried to resist, the accused
seized their camping knife and stabbed one of them in
the shoulder. He pointed the knife at one woman‘s
throat, and forced the other to disrobe. By threatening
the friend, Faryad then raped each woman in turn.
Having said that ‘rape in a park is everyone‘s fear and
every parent‘s worst nightmare‘, the judge sentenced
him to 9 1/2 years‘ imprisonment.
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In HKSAR v Kow Chi-ming (HCCC 9 of 2004), an
ex-convict was convicted of the manslaughter of his
girlfriend‘s 8-month-old baby boy, who died of head
and brain injuries, after a trial for murder. The
evidence showed that the baby had been left in his
care while its mother worked in a Mongkok karaoke
lounge. The accused testified that the baby cried a
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lot and his patience was severely tested. The baby
suffered thirty injuries in the two weeks before his
death. Reports indicated that the accused was
psychopathic with a long history of violence, and
the judge imprisoned him for 10 years as the ‘baby
died as a result of deliberate abuse he suffered at
the hands of Kow.’
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In HKSAR v Lie Jin-ming (HCCC 54 of 2005), a Mainland
tourist who tried to rob a bank by claiming he had a bomb,
to need money to pay for medical treatment, as he feared
he had tuberculosis. After pleading guilty, the accused said
he looked forward to receiving proper care in prison.
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In HKSAR v Anthony Jon Moore (ESCC 920 of 2005),
an American naval pilot was charged with two
offences of assault occasioning actual bodily harm.
The prosecution case was that the accused attacked
a taxi driver after he and a colleague from the USS
Kitty Hawk took a taxi from Lan Kwai Fong to
Admiralty. When police arrived, it was alleged he
punched an officer in the face, breaking his spectacles
and cutting his eye. After the accused raised the
defence of automatism, expert evidence showed that
it was possible his actions were the result of psychosis
triggered by an excessive intake of alcohol or drugs.
The magistrate acquitted Moore as there was a
reasonable doubt as to whether he was responsible
for his behaviour.
! • AT THE COURTS
welcomed his sentence of 6 years‘ imprisonment. He claimed
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In HKSAR v Yeung Ngor-wah (DCCC 122 of 2005), a
Cathay Pacific passenger was convicted of an offence
of attempting an act likely to endanger an aircraft in
flight. The evidence showed that when the accused
was travelling from Tokyo to Hong Kong on a Boeing
777, he grabbed the cabin door handle at 10,700
metres and rotated it in an attempt to get out. After
two flight attendants intervened, the captain ordered
71
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!"#$%&'()(*+,-. 30,000 In HKSAR v Amoy Food Ltd (STS 4944 of 2004), a soy sauce
maker was convicted of publishing an advertisement which
falsely described food. The facts showed that the firm placed
an advertisement in a newspaper which stated Amoy oyster
sauce and Amoy soy sauce did not contain MSG. After health
checks revealed the products contained high levels of MSG,
the magistrate imposed a fine of $30,000.
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that he be handcuffed. Yeung testified that he was
trying to avoid persecution and feared he would be
taken away and tortured after the plane arrived.
Although psychiatrists concluded that he suffered from
acute transient psychosis, his mental prognosis was
good. After the judge decided that the accused ‘knew
the nature of his act’, he imposed a fine of $20,000
instead of imprisonment as it was a ‘near impossibility’
for Yeung to have opened the door on his own.
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!"#$%&' 2 In HKSAR v Li Chau-wing (DCCC 1281 of 2003), a truck
driver was convicted of dangerous driving causing
death after Hong Kong‘s worst traffic accident. The
evidence showed that when he attempted to overtake
a double-decker bus on the Tuen Mun highway, he
suddenly slammed on the brakes of his vehicle in a
panic and collided with the bus which was carrying
forty commuters. The impact forced the bus through
crash barriers and it plunged 30 metres into a valley,
landing near Ting Kau village. The bus driver and twenty
passengers were killed, and twenty others injured. In
In HKSAR v Yeung Keng-yuk (ESCC 4791 of 2004), a compulsive
book collector was convicted of two offences of abusing library
regulations, in the first such prosecution in Hong Kong. The
evidence showed that on two occasions the accused made false
claims to librarians that he had lost eight books from the Central
Library. Police also recovered 83 books from his home which
he had previously reported lost. Having condemned his ‘act of
dishonesty’, the magistrate fined the accused $1,000 and
sentenced him to 28 days‘ imprisonment, but suspended the
term for 2 years as he was schizophrenic.
72
!"#$%& MAJOR AND INTERESTING CASES
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!"# 2 In HKSAR v Chow Wai-yip (KCCC 1420 of 2005), the accused
pleaded guilty to five offences of theft of cellphones worth
$11,500. Having met ladies through the ICQ chat service, he
arranged lavish seafood dinners for them, and asked to borrow
their phones to make business calls. The accused then fled,
leaving his victims with the bill. The magistrate sentenced
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imposing a sentence of 18 months‘ imprisonment, the
judge said the accused had ‘failed to display any skills
that other road users are entitled to demand of a
professional driver.’
In HKSAR v Lau Ping-cheung (DCCC 1361 of 2004),
a former legislator was charged with attempting to
bribe a prospective candidate at an election. The
prosecution alleged that when the accused sought
election to a functional constituency of the Legislative
Council in 2004, he approached a rival candidate
and offered him help with business contacts in Hong
Kong and the Mainland if he would withdraw and
not split the votes. This was refused, and in the event
the accused received 616 votes, the rival 649 votes,
and the winning candidate 1,130 votes. After the
defence submitted there was no link between Lau‘s
offer to introduce his contacts on the Mainland to
improve his rival‘s business and the election, the
judge agreed that it would be unsafe to convict and
acquitted him.
! • AT THE COURTS
him to 2 months‘ imprisonment.
In HKSAR v Pearce (STS 4073-74 of 2005), an activist who
ran onto Shatin racecourse dressed as a horse was convicted
of disorderly conduct and public nuisance. The horse
costume carried the legend ‘Demand Democracy Now’, and
the incident arose just before the start of the Cathay Pacific
Hong Kong Cup. Having called the offences ‘very serious’,
the magistrate imposed suspended sentences of
imprisonment of 1 month, and confiscated the costume.
73