Classified Criminal Appeals Bulletin 2002 Part 2

Transcription

CCAB 2002
Sentence (Quantum) – Arms & Ammunition
Sentence (Quantum)
Arms & Ammunition
CA 254/2001
Stuart-Moore
VP
Stock JA
LugarMawson J
(2.8.2002)
*Peter
Chapman
#John Griffiths
SC &
Ernest Koo
YEUNG
Kwai-kuen
Appeal against sentence/Relevance of post-sentence factors/ Solitary
confinement/Role of Court of Appeal/Role of executive/Remission of
sentence/Article 14 ICCPR does not affect appeal and review
process/Totality and the calculation of starting points
針對判刑的上訴 - 判刑後出現的因素的相關性 - 隔離囚禁 - 上訴法
院的職能 - 行政機關的職能 - 減刑 - 《公民權利和政治權利國際公
約》第十四條不影響上訴及覆核程序 - 整體刑期以及量刑起點的計
算
The Applicant pleaded guilty in the District Court to two charges. The
first charged that, contrary to s 17(2) of the Firearms and Ammunition
Ordinance, Cap 238, he was in possession of an imitation firearm at the time of
committing an arrestable offence, namely, criminal damage to a vehicle which
belonged to a lady named Jocelyn Tan. The second charged criminal damage,
contrary to s 60(1) of the Crimes Ordinance, Cap 200.
The judge sentenced the Applicant to a term of two years’ imprisonment
in respect of the first charge, one year in respect of the second, and ordered the
two sentences to run consecutively, making a total of 3 years’ imprisonment.
On appeal, the court was invited to reduce the sentence on the ground
that, since the imposition of sentence and whilst in prison, the Applicant had
suffered assaults and injuries which led to his hospitalisation, and that the
protective custody in which he had since been held rendered the circumstances
of his incarceration more harsh than the sentencing judge contemplated. The
Applicant was in the Protection Unit of Shek Pik Prison. His earliest release
date, assuming full remission for industry and good conduct, was 24 June 2003.
Held :
(1)
The Hong Kong prisoner was entitled to seek from the executive release
on a date earlier than the sentence would normally permit, by reason of
circumstances arising during incarceration. There was no basis, as suggested,
for assuming that an appeal to the executive in any particular case would not be
appropriately addressed: R v Charles Nall-Cain [1998] 2 Cr App R (S) 145,
considered;
(2)
The essential function of the Court of Appeal, upon an application which
pertained to sentence, was to determine whether the Appellant should be
sentenced differently for the offence for which he was dealt by the court below:
(s 83I(3), Criminal Procedure Ordinance, Cap 221), and the court would not
interfere unless it was of the opinion that the sentence was manifestly excessive
or wrong in principle. The court’s function was generally to look at the factors
which prevailed at the date of sentence, and not to act as an administrative
review, or a supervisory tribunal to take into account factors since sentence.
The circumstances in which effect could be given to post-sentence events were
limited: R v Sze Tak-hung [1991] 1 HKLR 109, 112;
(3)
Sentence was an art, not a mechanical application of rules or policy to
the exclusion of the facts and justice of individual cases. It followed that there
would be cases where a court would be moved to take action in an appellant’s
favour by reason of post-sentence events because a failure to do so, by that
court and at that stage, would defeat the ends of justice and the public interest.
This was not such a case. Cases such as this, where a plea was made to the
152
CCAB 2002
harshness of imprisonment conditions, would not normally fall within that
category. There was no question of immediate release, and that was not sought.
There was - subject only to the issue of article 14 of the International Covenant
on Civil and Political Rights (‘ICCPR ’) - no reason why the matter might not
properly be referred to, and considered by, the executive;
(4)
If the court were routinely to interfere in post-sentence events, such as
the present, save where policy, as in the case of informants, clearly dictated or
where delay in acting would be antithetical to the very clear justice of the matter
and to the public interest, there would be no end to the matter; no end to new
circumstances which the court would be called upon to give effect; and no end
to the encouragement of appeals based upon post-sentence events, actual or
suggested. The court would then not truly be engaged in review of sentencing,
but in post-sentence supervision, an exercise which was not the court’s
province, but which was the province of those into whose hands the legislature
had entrusted such matters and which, in appropriate circumstances, was
properly the subject of the exercise of the executive’s prerogative of mercy. If
the court was to examine post-sentence disabilities suffered by a prisoner, in
order to assess whether those disabilities rendered the term of imprisonment
more harsh than might have been contemplated by the sentencing judge, it was
to be asked why, in logic, the court should not also routinely examine his
progress in prison, to determine whether he had by reason of his imprisonment
seen the error of his ways, and demonstrated that he would not offend again: R v
Waddingham (1983) 5 Cr App R (S) 66;
(5)
The fundamental function of the appellate court was to determine
whether the exercise of the judge’s sentencing discretion and powers had been
appropriate and, in performing that function, it looked primarily to the offence
itself and the circumstances which presented themselves to the judge at the time
of sentence. In so far as appellate courts had been prepared to give effect to
events since the date of sentence, they had done so because policy, and the
exigencies of particular cases, had so dictated in limited circumstances. In other
words, the circumstances in which the court had been prepared to act upon postsentence factors did not represent a contraction from some original approach in
which the Court of Appeal examined all matters up to the date of appeal,
including the way in which the prisoner had come to terms with his
incarceration. Rather, these circumstances represented an expansion of an
appellate function which, in its essence, was a function of review. Were it
otherwise, the suggestion that the court was bound to give weight to all postsentence developments would result in the oddity and the injustice that any
difficulties encountered by a prisoner within the 28 days allowed for an appeal,
would be examined by the court, whereas solitary confinement or illness, or
whatever other problem, arising on the twenty-ninth, would not;
(6)
As regards the submission based upon article 14(5) of the ICCPR, which
provided for the right of review by a higher tribunal of an accused’s conviction
and sentence, that article cemented an accused’s right to have his sentence
reviewed by a higher tribunal. Article 14 did not change the function of the first
instance sentencing court, nor the function of the Court of Appeal in reviewing
sentence. To sentence an offender to a term of imprisonment was to set the
term of imprisonment in respect of an offence, beyond which term an offender
might not lawfully be detained for that offence. By contrast, events occurring
after the setting of the term were, generally, divorced from the offence, the
circumstances in which the offence was committed, and factors peculiar to the
offender which rendered the commission of the offence less culpable than in
another offender. Questions of regulating the prisoner’s life in custody were
more appropriately the province of those whose job and experience was to
supervise, and to compare, and to adjudge progress, rather than to fix tariffs for
offences. It was for that reason, amongst others, that the first instance court
itself would generally not have regard to anticipated post-sentence conditions in
153
CCAB 2002
prison or to prison conditions or adaptation difficulties in prison encountered
whist awaiting trial or sentence. The Court of Appeal itself did not decline to
reduce the sentence merely because the Applicant prayed in aid an event since
sentence, but because that matter was not one which a sentencer would normally
take into account, and because the Applicant’s own circumstances were not
such as to warrant a departure from that general approach;
(7)
In the exercise of its powers of remission of part of a sentence because of
post-sentence events, the executive was not engaged in the sentencing or appeal
process. The executive did something different. It decided whether, despite the
determination of the criminal charge and despite the fixing of the tariff by the
courts, there were circumstances which warranted the exercise of the
executive’s mercy by reason of events subsequent to sentence. That was not
part of a sentencing exercise;
(8)
Article 14 of the ICCPR did not alter the role of the Court of Appeal.
Nor did it deprive the executive from examining post-sentence conditions of
imprisonment in order to determine whether they warranted the exercise of the
executive’s power to order release on a date earlier than might otherwise be
required by law; nor did it oblige the Court of Appeal to take into account
events after sentence in the court below. It remained open to the Applicant to
bring his position to the attention of the executive authorities.
Result -
Application for leave to appeal against sentence allowed, but appeal
dismissed.
Assault/Wounding
MA 183/2002
LugarMawson J
(27.3.2002)
*Wong Sze-lai
#Newman
Wong
CHAN
Hung-yau
Assault on police/Possession of small quantity of midazolam/ Sentencing
considerations
襲擊警務人員 - 管有小量咪達唑侖 - 判刑須考慮的事宜
The Appellant was convicted after trial of an offence of assaulting a
police officer in the execution of his duty. He pleaded guilty to a second
offence of possession of a dangerous drug, namely, a packet containing 230
milligrams of a powder containing 13 milligrams of midazolam.
The facts showed that when the Appellant was stopped and searched in
the street, drugs were found on his person. When he was being arrested, he
pushed the police officer, who fell to the ground.
The DATC report indicated that the Appellant was not suitable for
DATC as he had been sent there four times previously.
The magistrate sentenced the Appellant to 6 months’ imprisonment on
the assault charge, and to 4 months’ imprisonment on the drugs charge, the
sentences to run consecutively.
On appeal, it was submitted that the sentences, both individually and
collectively, were manifestly excessive, given the very small weight of drugs
and the minor circumstances of the assault upon the police officer. It was also
said that the magistrate had failed to give a sufficient discount under the totality
principle.
154
CCAB 2002
Sentence (Quantum) – Assault/Wounding
Held :
(1)
Assaults on police officers were serious offences and should attract
custodial sentences, save in exceptional circumstances. They should also attract
sentences that were consecutive to those passed for any other offence of which
the accused was convicted;
(2)
This assault was one of the least serious of its kind. It amounted to little
more than resisting the police officer in the execution of his duty;
(3)
The narcotic weight in the midazolam possessed by the Appellant was
very low – 13 milligrams. It had been held that possession of up to 500
milligrams of midazolam attracted a sentence of no higher than 6 months’
imprisonment. Notwithstanding the Appellant’s background, which included
7 drug-related matters, the sentence was excessive.
Result -
Appeal allowed. Sentences of 2 months (assault) and 3 months
(drugs) substituted, to run consecutively.
香港特別行政區訴李漢能
黃健榮
李偉秋
周瑞娟
HKSAR v
LEE Hon-nang
WONG Kin-wing
LEE Wai-chau
CHAU Sui-kuen
*張維新
Cheung
Wai-Sun
#張錦榮
Cheung
Kam-wing
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 1 年第1 2 2 9 號
高等法院原訟法庭法官王見秋
耹訊日期：二零零二年四月十七日
宣判日期：二零零二年五月七日
COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A C Y
APPEAL NO. 1229 OF 2001
Wo n g D J
Date of Hearing: 17 April 2002
Date of Judgment: 7 May 2002
襲擊警務人員 - 上訴人漠視法紀 - 須判處阻嚇性刑罰
四名上訴人經審訊後被裁定以下罪名：第一上訴人聲稱是三
合會社團成員罪罪名成立；第二上訴人和第三上訴人襲警罪罪名成
立，而第四上訴人阻差辦公罪罪名成立。第一訴人被判即時入獄15
個月，第二、三上訴人則每人被判即時入獄12個月，第四上訴人只
被 款。
案情顯示一名警長與其他警務人員在一間的士高進行查
牌。他們進入一間房間，房內有15男7女。第一上訴人向這名警
長以粗言喊叫，第二上訴人則走到警長面前用手指著他，並且用
粗言對他說話。房內的人開始起哄，站了起來，不斷講粗口及叫
喊打他。第三上訴人突然站高於其他人，向警長吐了一口水，
警長即時閃避。於是第三上訴人被拘捕，罪名是襲警。當警長拘
捕第一上訴人時，第四上訴人站在第一上訴人面前，阻擋警長將
155
CCAB 2002
第一上訴人逮捕並以手推警長的胸部。第二上訴人突然走出來，
打了警長的胸口一拳。
上訴時
裁決：
(1)
這是一件非常非常嚴重的案件，上訴人膽大妄為、目無
法紀、恐嚇、侮辱和襲擊正在執行職務的警務人員，公開向法律
挑戰，一定要判以較長的阻嚇性刑期；
(2)
第一上訴人所判的 15 個月刑期非常適當，一日也不過
長。第二、三上訴人顯然不是引起事端的罪魁禍首，刑期和第一
上訴人應該有較大的分別，第二上訴人已服了6個月的刑期，他
可即時釋放。三名上訴人的刑責以第三上訴人為最低，他在被監
禁 28 天後獲准擔保出外等候上訴，他已得到教訓。他可以即時
獲釋。
結果：第一上訴人，上訴被駁回。
第二及三上訴人，上訴得直。刑期改為即時獲釋。
[English digest
of MA 1229
/2001, above]
Wong DJ
(7.5.2002)
*Cheung Waisun
#Cheung
Kam-wing
(1) LEE
Hon-nang
(2) WONG
Kin-wing
(3) LEE
Wai-chau
(4) CHAU
Sui-kuen
Assault on police officer/Appellants showed no regard for law and
discipline/Deterrent sentence required
The four Appellants were convicted after trial of various offences: A1 of
claiming to be a member of a triad society for which he was sentenced to 15
months’ imprisonment; A2 and A3 of assaulting of a police officer for which
they were each sentenced to 12 months’ imprisonment; and A4 of obstructing a
police officer in the execution of his duty for which he received a fine. A1, A2
and A3 appealed against their sentences.
The facts showed that a sergeant and other police officers conducted a
licence check at a disco. They entered a room and found 15 males and 7
females inside. A1 used abusive language at the sergeant, and A2 walked up to
the sergeant, pointed at him and uttered abusive language. The people in the
room started to cause a commotion. They stood up, kept using abusive
language and clamoured to hit the sergeant. A3 suddenly stood high above all
the others and spat once at the sergeant who was able to dodge away. A3 was
therefore arrested for assaulting a police officer. When the sergeant was
arresting A1, A4 obstructed the sergeant and pushed his chest and prevented A1
from being taken away. A2 then came forward and punched on the sergeant’s
chest.
On appeal
Held :
(1)
This was a case of the utmost gravity. The Appellants had been acting
recklessly and had shown no regard for law and discipline by threatening,
insulting and assaulting police officers in the execution of their duty. It was an
open act of defiance against the law. A substantially higher sentence was called
for as a deterrent;
(2)
The sentence imposed on A1 was most appropriate and was not a day too
long. A2 and A3 were obviously not the culprits who started the incident and
therefore their sentences should be considerably different from that of A1.
156
CCAB 2002
Since A2 had already served 6 months in custody, his sentence would be
reduced to allow of his immediate release. The degree of culpability of A3 was
the lowest of all. As he had spent 28 days in prison before he was released on
bail pending appeal, he had learned a lesson. His sentence would also be
reduced to allow of his immediate release.
Result -
A1, appeal dismissed.
A2 and A3, appeals allowed.
immediate release.
Sentences varied to allow of
香港特別行政區訴朱漢智
HKSAR v CHU Hon-chi
高等法院原訟法庭 - 高院裁判法院上訴2 00 2年第 55 7號
*梁卓然
David
Leung
#鄺偉全
Paul
K wo n g
高等法院原訟法庭暫委法官杜麗冰
耹訊日期：二零零二年八月一日
宣判日期：二零零二年八月一日
To h D J
Date of Hearing: 1 August 2002
Date of Judgment: 1 August 2002
阻礙公職人員執行其職務 - 必須判刑以保護公職人員，使其免受襲
擊 – 9 個星期的量刑起點屬恰當
上訴人承認兩項控罪，第一項控罪是普通襲擊罪，違反普通
法及侵害人身罪條例第 40 條 ﹔ 第二項控罪是阻礙依法執行公務的公
職人員執行公務，違反簡易程序治罪條例第23條。在判刑時，裁判
官說 ﹕
本席考慮過整體案情，認為事件是嚴重的。公職人員正
當地執行職務，應該受到尊重及保護，否則他們無法執
行職務，更遑論單獨執行職務。如果法庭不正視問題，
公眾利益會大受損害。
裁判官才採用了9個星期作為量刑的起點。因為上訴人是第一
時間認罪，所以裁判官給予他 1/ 3 刑期扣減。最終裁判官判上訴人
就每項控罪入獄6 個星期，同期執行。
案情透露上訴人當時坐在其私家車裏，而私家車則停泊於一
個合法車位，但未有繳付泊車費用。一位交通督導員便請上訴人繳
付費用。數分鐘後，該名督導員返回上述車位，發現上訴人依然未
繳付泊車費用，於是這位督導員警告上訴人，如果他再不繳付泊車
費用，便會收到定額罰款通知書。隨後上訴人下車突然用手襲擊督
導員的手，引致他手持的整本定額罰款通知書掉到地上。上訴人然
後拾起該本通知書，將它放在私家車的擋風玻璃前，並用身體阻礙
這位督導員，使他不能取回通知書。
上訴時
157
CCAB 2002
裁決：
(1)
上訴人作出一個無理由的行為而導致督導員的手出現腫脹，
但問題不在於傷勢的嚴重性，而是法庭要保護公職人員在執行職務
時，不能受到任何的襲擊；
(2)
裁判官採取 9 個星期的判刑起點並無出錯，亦不是明顯過重。
結果︰上訴被駁回。
[English digest
of MA
557/2002,
above]
Toh DJ
(1.8.2002)
CHU
Hon-chi
Obstructing public officer performing his duty/Sentence required to
protect public officers from assault/Starting point of 9 weeks appropriate
The Appellant pleaded guilty to an offence of common assault, contrary
to common law and punishable under s 40 of the Offences Against the Person
Ordinance, Cap 212, and to another offence of obstructing a public officer
lawfully engaged in the performance of his public duty, contrary to s 23 of the
Summary Offences Ordinance, Cap 228. In sentencing, the magistrate said:
Having considered the facts of the case, I consider the incident a
serious one. Public officers during their execution of duties
should be respected and protected, otherwise they would not be
able to execute their duties…. The interests of the public would
be badly affected if the court does not look at this matter
seriously.
*David Leung
#Paul Kwong
The magistrate adopted a starting point of 9 weeks and reduced the
sentence by one-third to reflect the guilty pleas of the Appellant. The Appellant
was therefore sentenced to six weeks’ imprisonment on each charge, to be
served concurrently.
The facts showed that the Appellant was sitting in his private car parked
in a legitimate parking space, but the parking fees had not been paid. The traffic
warden asked the Appellant to pay the fees. Minutes later the warden returned
to the parking space and still the Appellant had not paid the parking fees. He
warned the Appellant that if he failed to do so, he would issue a fixed penalty
ticket to him. The Appellant then alighted from his vehicle and suddenly hit the
warden’s hand causing the fixed penalty ticket booklet to drop to the ground.
The Appellant picked it up, put it on the windscreen of his car and used his
body to obstruct the warden from retrieving the booklet.
On appeal
Held :
(1)
The Appellant committed an unreasonable act and the warden’s hand
was swollen as a result. The major issue was not the seriousness of the injury
but the need for the court to protect public officers from assault of any kind
while they were in the execution of their duties;
(2)
The starting point of 9 weeks was not considered to be manifestly
excessive.
Result – Appeal dismissed.
158
CCAB 2002
MA 959/2002
LEUNG
Sau-kuen
Tong J
Assault on CSD officer/Deterrent sentence required/Solitary confinement
no justification for reduction in sentence
襲擊懲教署人員 - 須判以阻嚇性刑罰 - 隔離囚禁並非支持減刑的充
分理由
(23.10.2002)
The Appellant pleaded guilty to an offence of common assault.
*Cheung
Wai-sun
The facts showed that the Appellant was a detainee in Lai Chi Kok
Remand Centre. After a request for the arrangement of his food in a meal box
was rejected by a Correctional Services Department officer, he struck the
container causing it to fall and splashed hot tea onto the officer’s chest.
#I/P
Having been told that the Appellant had a previous conviction involving
violence, the magistrate, having taken three months’ imprisonment as his
starting point, gave a discount of one-third and imposed a term of two months.
On appeal, it was submitted that the sentence was too severe. It was said
that the throwing of tea at officers was quite frequent and such conduct was
dealt with internally. He felt aggrieved as well because he had been placed in
solitary confinement, deprived of his right to attend normal activities and was
unable to communicate with other inmates.
Held :
(1)
If such incidents as the throwing of tea at officers in the remand centre
were common, it fortified the impression that the present sentence of two
months was far too low and that a deterrent sentence was needed to curb such
unacceptable behaviour;
(2)
It was a matter for the Commissioner whether the Appellant should be
remanded in isolation, and the disciplinary treatment did not justify a reduction
in the already lenient sentence of two months.
Result - Appeal dismissed.
Bribery/Corruption/ICAC
MA 732/2001
Beeson J
WONG
Wai-ki
Accepting and offering an advantage/Offences closely linked in time and
nature/Concurrent sentences appropriate
接受和提供利益 - 兩項罪行在時間和性質上均關係密切 - 刑期同期
執行是恰當的
(10.1.2002)
*Stanley Chan
#Hanif
Mughal
The Appellant was convicted after trial of one charge of being a
government officer accepting an advantage and one charge of offering an
advantage, contrary to s 3 and s 9(2)(a), respectively, of the Prevention of
Bribery Ordinance, Cap 201. He was sentenced on the 1st charge to 6 months’
imprisonment, and on the 2nd charge to 12 months’ imprisonment. Four months
of the sentence on the 1st charge were made concurrent and 2 months were made
consecutive to the sentence on the 2nd charge, making a total of 14 months’
imprisonment.
[For facts of case see Magistracy Appeal/Against Conviction: Ed]
159
CCAB 2002
Sentence (Quantum) – Bribery/Corruption/ICAC
On appeal, it was submitted that the two offences were closely linked in
time and nature and, as each offence arose from the same circumstances, wholly
concurrent sentences should be imposed. It was further contended that the
offences were at the lower end of scale of moral culpability and there was an
absence of active solicitation for the sums received by the Appellant.
Held :
(1)
In R v Luk Wai-lun MA 188/1988, it was held that, on a plea of guilty, 6
months concurrent for each of two s 9 offences was not excessive; in R v Cheng
Chi-sang MA 1373/1996, a sentence of 7 months’ imprisonment on two charges
under s 3 which were to run consecutively was considered on the high side; and
in HKSAR v Chan Chong-chi MA 1233/1999, it was held that the sentence for
three offences under s 9(a)(2) and under s 12(1) should be suspended for 12
months;
(2)
Having considered the facts of the case and other cases of a similar
nature, these two offences could be regarded as having arisen out of the same
factual matrix such as would justify concurrent sentences.
Result -
Appeal allowed. Concurrent sentences of 12 months’ imprisonment
substituted.
香港特別行政區訴許國龍
HKSAR v HUI Kwok-lung
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 1 年第8 5 1 號
*鄭凱聰
Raymond
Cheng
#上訴人自
辯
I/P
耹訊日期：二零零一年十月十九日
宣判日期：二零零一年十月十九日
COURT OF FIRST INSTANCE OF THE HIGH COURT MAGISTRACY
Toh DJ
Date of Hearing: 19 October 2001
Date of Judgment: 19 October 2001
明知而誤導廉署人員 - 須判處阻嚇性刑罰 - 1 2 個月的量刑起點並非
明顯過重
上訴人承認一項誤導廉署人員罪。在判刑時，上訴人正在
服刑 14 年。裁判法官在量刑時認為，這宗案件的判刑起點最高
應為 1 年，給予上訴人 1/3 的扣減後，減至 8 個月監禁，其中 5 個
月與其現行的刑期分期執行。
案情撮要顯示，上訴人在案發時面對一項販運危險藥物
罪，在 2000 年 7 月 26 日，他要求會見廉正公署人員。在 8 月 21
日，廉正公署人員接見上訴人時，上訴人提供料指證一名叫阿
Joe的同黨可能向高級偵緝督察提供利益，又指稱阿Joe可能串謀
該高級督察誣捏他販運毒品。廉正公署於是開始調查，包括稍後
又再接見上訴人及錄取其他證人的口供。
在 2001 年 3 月 31 日，上訴人在法庭上承認該項販運危險藥
物的罪名，被判14年監禁。在4月23日，當廉正公署人員會見上
160
CCAB 2002
訴人時，上訴人承認該指控為虛假，他亦承認因害怕會被重判，
才提出虛假的指控。
裁決：
(1) 上訴人蓄意編作一個虛構的故事，這並非出於一時情急而
作的虛假指控，而是經過思索有計劃地進行。這並非是一兩天的
事宜，而是持續了達 10 個月的指控。他指控的人亦非虛構人
物，而是一名警務人員，這是一項非常嚴重的指控，這會令被指
控的人承受很大的壓力和煩惱，所以裁判法官認為判一具有阻嚇
性的刑 是必要的。判法官作出12個月為量刑起點的判決雖屬
重刑，但並非過重。
結果：上訴被駁回。
[English digest
of MA
851/2001,
above]
Toh DJ
(19.10.2001)
*Raymond
Cheng
#I/P
HUI
Kwok-lung
Knowingly misleading ICAC officer/Deterrent sentence required/Starting
point of 12 months not manifestly excessive
The Appellant pleaded guilty to an offence of knowingly misleading an
officer of the ICAC. At the time of the offence, the Appellant was already
serving a sentence of 14 years for an offence of trafficking in dangerous drugs.
The magistrate took a starting point of 12 months, gave a one third discount for
the Appellant’s guilty plea and sentenced him to 5 months’ imprisonment of
which 8 months were to be served consecutively to his existing sentence.
The facts showed that at the time of the offence, the Appellant was
facing a charge of trafficking in dangerous drugs. Upon his request for an
interview with ICAC officers on 26 July 2000, he was interviewed on 21
August 2000. He supplied information in support of his allegation that one of
his associates, ‘Ah Joe’, might have offered an advantage to a detective senior
inspector, and they might have conspired with each other in setting him up for
an offence of trafficking in dangerous drugs. ICAC then interviewed the
Appellant again and took statements from other witnesses.
On 31 March 2001, he pleaded guilty to the charge of trafficking in
dangerous drugs and was sentenced to 14 years’ imprisonment. On 23 April
2001, when the Appellant was interviewed by ICAC officers, he admitted that
the accusations were false and he did so for fear of receiving a heavy sentence.
On appeal
Held :
The Appellant had wilfully invented a story. The false accusations were
not made out of impetuousness but were premeditated. These were not
accusations that could be dealt with in a day or two but were allegations that
lasted for as long as 10 months. The person accused was not a fictitious
character but a police officer. This was an extremely serious accusation which
would have put the accused person under tremendous pressure and anxiety. The
magistrate found that a deterrent sentence was needed. Although the 12-month
starting point taken by the magistrate was on the high side, it was not manifestly
excessive.
161
CCAB 2002
MA
1261/2001
Gall J
LAI
Chin-pang
Accepting advantage as agent/Deterrent sentence required/ Community
Service Order not appropriate/Statistics as to prevalence relevant to
sentence
作為代理人而接受利益 - 須判處阻嚇性刑罰 - 社會服務令並不恰當
- 關於罪行普遍性的統計對於判刑是相關的
(21.3.2001)
*Bianca
Cheng
#Rosaline
Wong
The Appellant was convicted after trial of two offences of accepting an
advantage as an agent, contrary to s 9(1)(a) and s 12 of the Prevention of
Bribery Ordinance, Cap 201 (‘the Ordinance ’ ). He was sentenced to 9 months’
imprisonment for each offence, with 6 months of the term on the second offence
to run concurrently to that on the first charge, making a total of 12 months’
imprisonment.
The facts were that the Appellant was employed by Cathay Pacific
Airways as a flight attendant. As part of his terms of employment he was
entitled to nominate a person who would purchase discounted tickets from
Cathay Pacific Airways. That person was prohibited from paying to the
Appellant and the Appellant was prohibited from receiving from that person any
money in respect of those concessionary fares. The Appellant nominated a Miss
Tse to receive the benefit. Over a period of time Miss Tse purchased at the
discount rate a total of four tickets with a market value of $30,000. She paid to
the Appellant in respect of those tickets the sum of $15,000 on each of two
occasions, making a total payment to him of $30,000. Those sums were the
subject of the two charges laid against the Appellant.
On appeal, it was said that the magistrate failed to consider or have
sufficient regard to the background of the Appellant and the circumstances of
his commission of the offences and thereby did not select other sentencing
options open to him. It was further contended that the sentences were
manifestly excessive and, thirdly, that it was wrong to make the sentences partly
consecutive.
As the Appellant submitted that the Appellant fell within the criteria set
out in R v Brown (1981) 3 Cr App R (5) 294, and was eligible for a community
service order, Gall J sent for a community service order suitability report.
Held :
(1)
These charges were brought pursuant to the Ordinance and were clearly
of a corrupt nature. In Secretary for Justice v Kwan Chi-cheong & Others, AR
1/1999, Stuart-Moore VP said:
The Prevention of Bribery Ordinance provides the sanctions
necessary to deal with breaches of this kind. The Ordinance was
intended to be draconian in its effect. Bribery, whether in its
acceptance or by the offering of an advantage, is an evil which
can strike at the heart of commercial and public life if it is left
unchecked. A punishment that fails to deter will produce all the
wrong signals just as sentences that act as a deterrent will
reinforce this community’s efforts to rid itself of corruption.
For these reasons, even the first offender charged with an offence
of corruption under the Ordinance, unless it is merely a technical
breach, must usually expect a deterrent sentence. This will
almost invariably involve a sentence of immediate imprisonment.
Taking Lawton L.J.’s four classic principles of sentencing, [See R
v Sargeant, (1970) 60 Cr. App. R. 74 at 77], these are retribution,
deterrence, prevention and rehabilitation. It may well be that in
162
CCAB 2002
many cases, the balancing act which the sentencer must perform
will be a difficult one. All factors need to be taken into account
but, depending on the circumstances, it may be that greater
significance has to be given to one factor rather than another. In
cases of corruption, where an advantage is offered or accepted it
is difficult to envisage a situation where public interest does not
require deterrence to predominate. The personal circumstances
of the offender will carry less weight. This, it seems to this Court,
should apply whether the corruption is in the public sector or in
the private sector. It may be that in some cases of public sector
corruption the offences will be more serious but that is a matter
that can be reflected in the length of sentence rather than the
mode of sentence.
It was quite clear that the court was of the view that except in exceptional
circumstances an immediate custodial sentence was called for;
(2)
Even though each of the factors set out in R v Brown applied to the
Appellant, in Secretary for Justice v Lin Min-ying & Another, AR7/2001,
Stuart-Moore VP had said:
It is apparent that the judge had carefully analysed the matters to
be weighted towards sentence and the Respondents’ general
suitability for community service was merely one aspect to be
considered. There was, so far as we can discern, really no matter
of any significance, whether for or against the Respondents,
which appears to have escaped the judge’s attention in his
approach to sentence.
Adopting that view, the magistrate had before him all the background detail
necessary for him to decide the appropriate method of punishment.
Notwithstanding the Appellant fitted each of the factors set out for the
imposition of a community service order, the magistrate took into account the
view the authorities took in respect of first offenders not in the public sector
who were otherwise upright citizens but who committed corruption offences.
He was satisfied from his analysis that an immediate custodial sentence was
appropriate and he was correct in that view;
(3)
It was apparent from the statistics provided by the prosecution and the
material elicited from Cathay Pacific Airways that this type of conduct was rare
and that over the last few years there had been only three prosecutions. This
information was not made available to the magistrate who seemed to have been
led to believe the offence was prevalent. Therefore, whilst the element of
general deterrence referred to Kwan Chi-cheong (above) remained, there was no
need for deterrence in respect of the Appellant.
Result -
Appeal allowed. Concurrent sentences of 4 months’ imprisonment
substituted.
163
CCAB 2002
MA
1334/2001
Toh DJ
CHEUNG
Sing-hoi
Attempting to mislead ICAC officer by providing false information/Making
of false report for personal revenge/ Gravity of offence requires deterrent
penalty/Gravamen of offence
企圖提供虛假資料以誤導廉署人員 - 為個人報復而虛報 - 罪行
嚴重以致須判處阻嚇性刑罰 - 罪行重點
(8.3.2002)
*Polly Wan
#Giles Surman
The Appellant pleaded guilty to an offence of attempting to mislead an
officer by giving false information, contrary to s 13B(b) of the Independent
Commission Against Corruption Ordinance, Cap 204, and s 159G of the Crimes
Ordinance, Cap 200.
The facts showed that the Appellant made a false report to the ICAC
against two of his superiors at work, that they had solicited money from him for
approving his application to take his leave. He made the report on 30 October
2000, and repeated the false allegation in a written statement on 7 November
2000.
As a result, his two superiors were asked to attend the offices of the
ICAC where they were interviewed. It did not take long for the ICAC to clear
up the matter and decide that the report was false, the Appellant made a full
confession upon his arrest.
The Appellant was a 43-year-old married man with a daughter. He was
of previous good character.
The magistrate sentenced the Appellant to 3 months’ imprisonment. As
the maximum for the offence was 12 months, he took 6 months as his starting
point, and reduced the sentence on account of the plea of guilty and the clear
record.
On appeal, it was submitted that the sentence was manifestly excessive,
and that the magistrate should have explored other sentencing options as this
was the Appellant’s first offence.
Held :
(1)
The facts of the case were quite repugnant. The two superiors involved
must have undergone a traumatic experience. Such allegations were easy to
make, but often hard to disprove. The Appellant acted out of a desire for
personal revenge, as his superiors had criticised his work;
(2)
The Appellant’s actions had wasted the time of the ICAC’s having to
listen to, and then investigate the allegation. The magistrate was right to decide
that a deterrent sentence was called for;
(3)
The discount given of 50% was extremely generous;
(4)
Whilst it was true that a court would hesitate before sending someone
with a clear record to prison for most offences, this was the type of offence
where a clear message had to be sent out to those who were thinking of making
false allegations that they could not get away with them. This offence was
serious and there should be no doubt in the minds of people that when false
allegations were made, either to the police or the ICAC, that deterrent sentences,
normally sentences of imprisonment, would be justified. The sentence was
appropriate, and there were no grounds for suspending it.
164
CCAB 2002
MA
1049/2001
Wong DJ
(16.4.2002)
*Simon Tso
#Cheng Huan
SC & C S Fu
FENG
Chun-han
Corrupt transaction with agent/Reasonable expectation as to particular
sentence not a mitigating factor/Offence not technical/Imprisonment the
norm/Need for general deterrence/ Corruption a contagious
disease/Disparity in sentence between co-accused not of itself a good
ground of appeal/Situation of aged parent not a strong humanitarian
consideration
與代理人進行貪污交易 - 合理期望獲判某一刑罰並非減刑因素 - 並
非技術性罪行 - 通常判處監禁 - 需具一般阻嚇作用 - 貪污屬傳染病
- 與同案被控人有判刑上的差異並非良好上訴理由 - 年邁雙親的境
況並非有力的人道考慮因素
The Appellant, D1 at trial, pleaded guilty to three offences of corrupt
transactions with an agent, contrary to s 9(2)(b) of the Prevention of Bribery
Ordinance, Cap 201. He was sentenced to 4 months’ imprisonment.
The Appellant’s co-accused, D2, pleaded guilty to four such offences.
He was sentenced to a Community Service Order (‘CSO ’ ). It was only after
that sentence had been imposed that the Appellant pleaded guilty to three of the
four charges he faced. However, after a review by the prosecution, the
magistrate set aside the CSO and replaced it with a sentence of 3 months’
imprisonment.
The facts showed that the Appellant and D2 were employees of a
German company called Toepfer International Asia PTE Ltd. D2 held a more
senior post than did the Appellant, who was in charge of a fund for the purpose
of entertainment and other purposes in connection with the business.
On the three occasions particularized in the charges, D2 asked the
Appellant for loans totalling some $55,000. This was money from the
entertainment fund under the control of the Appellant. The money was lent
by the Appellant to D2 without the permission of the company whose head
office was in Germany, and, hence, the offences were committed. The
essential element of the offences was lack of consent or approval from the
employer.
On appeal, it was submitted that (a) this was an exceptional case, (b)
these were technical offences, and (c) the Appellant, having been informed that
D2 had been sentenced to a CSO, entertained a legitimate expectation that he
would be treated in the same manner - that expectation was dashed when the
magistrate, on review, substituted a prison sentence for the CSO originally
imposed on D2.
The Appellant further prayed in aid the condition of his aged mother in
the Mainland, and complained of a disparity in sentencing as between him and
D2.
Held :
(1)
Reasonable expectation was not listed in the textbooks or the cases as a
mitigating factor. Each case depended on its own particular circumstances;
(2)
There were no exceptional circumstances in this case and the offences
were not technical. The offence creating section clearly contemplated the
consent or approval of the employer or in the case of civil servants the Chief
Executive or any head of department who had authority to give consent or
approval; that was the gravamen of the offence. No consent approval had been
given from the head office in Germany, and had there been such no offence
would have been committed. The offence creating section clearly had that in
mind, and the offences were real, substantial and prohibited, and not technical.
165
CCAB 2002
There could not be any exceptional circumstances as the loan had not been
repaid after more than a year, and not a word had been mentioned by the
Appellant to D2 that he should repay it. There was sufficient evidence to infer
that the loan was a favour to his superior to improve the relationship between a
subordinate and his superior. This was a clear case of corruption and bribery;
(3)
The authorities showed that a prison sentence was the norm rather than
the exception for offences under the Prevention of Bribery Ordinance, Cap 201.
Corruption, whether in the public service or in the private sector, was a cancer
which could destroy the society. It was a contagious disease which struck at the
heart of the community. A sentence of immediate imprisonment was inevitable,
except in the most exceptional cases;
(4)
In Secretary for Justice v Kwan Chi-cheong and Others CAAR 1/99, the
Court said:
The Prevention of Bribery Ordinance provides the sanctions
necessary to deal with breaches of this kind. The Ordinance was
intended to be draconian in its effect. Bribery, whether in its
acceptance or by the offering of an advantage, is an evil which
can strike at the heart of commercial and public life if it is left
unchecked. A punishment that fails to deter will produce all the
wrong signals just as sentences which act as a deterrent will
reinforce this community’s efforts to rid itself of corruption. For
these reasons, even the first offender charged with an offence of
corruption under the Ordinance, unless it is merely a technical
breach, must usually expect a deterrent sentence. This will
almost invariably involve a sentence of immediate imprisonment.
In cases of corruption, where an advantage is offered or
accepted, it is difficult to envisage a situation where public
interest does not require deterrence to predominate. The
personal circumstances of the offender will carry less weight.
(5)
That the Appellant had an aged mother in the Mainland, aged 80, who
was not in good health, did not operate as a strong humanitarian consideration
to justify a reduction of sentence;
(6)
On disparity, it was true that the Appellant had received 4 months’
imprisonment, whereas D2 was sentenced to 3 months’ imprisonment after the
CSO was set aside. That was explicable as D2 pleaded guilty at the very first
opportunity while the Appellant chose to wait and see before he pleaded guilty.
It was a well-established legal principle that disparity in sentences was not in
itself a good ground of appeal. The test was whether the sentence was wrong in
principle, and this sentence was not;
(7)
It had to be borne in mind that this type of offence called for a sentence
of general deterrence to deter people from committing these offences as people
or employees who were in charge or control of large sums of money could
easily abuse their positions. At the end of the day any loss suffered by
companies would eventually be passed on to consumers; the public bore the
consequences.
Result - Application dismissed.
166
CCAB 2002
CA 194/2002
Stuart-Moore
ACJHC
Mayo VP
Stock JA
(1.8.2002)
*Kevin Zervos
#Ching Y
Wong SC &
Barbara Cheng
WAN
Cham-leung
Prevention of Bribery Ordinance/Accepting advantage as an agent/Court
not required to take view of facts most favourable to accused/Knowing
acceptance of advantage not a technical offence/Legislation intended to be
draconian/Non-deterrent sentence would send wrong signals
《防止賄賂條例》- 作為代理人接受利益 - 法庭無須考慮對被告最
有利的事實 - 明知而接受利益並非技術性罪行 - 法例原意是嚴刑峻
法 - 無阻嚇作用的刑罰會予人錯誤訊息
The Applicant was convicted of an offence which alleged that, as an
agent of the Bank of East Asia Ltd, he accepted an amount of $500,000 as an
inducement to or a reward for or otherwise on account of, showing or having
shown favour to Gain Source in relation to his principal’s affairs on business,
namely, the granting and/or review of credit facilities to Gain Source, contrary
to s 9(a)(b) and s 12(1) of the Prevention of Bribery Ordinance, Cap 201. He
was sentenced to 9 months’ imprisonment.
The Applicant was the Business Manager of the Trade Finance
Department employed by the Bank of East Asia, and had responsibility for a
number of corporate accounts, one of which was that of a company called Gain
Source Industrial Limited. One of his functions was to prepare credit
memoranda upon review of customers’ credit facilities. Gain Source enjoyed a
credit facility which, by 1998, was in the sum of $11 million. That facility was
reviewed annually but, in mid-1999, there was a special review of Gain
Source’s facility, and the Applicant recommended each of the changes for
which Gain Source had applied. On or about 3 June 1999, the Applicant was
given a cheque by Gain Source in the sum of $500,000, and it was the
acceptance by him of that payment which lay at the heart of the charge of which
he was convicted.
The cheque of $500,000 was given to the Applicant by Lam Hing-hong
of Gain Source who, as PW1, gave evidence at the trial under an immunity from
prosecution. It was paid as a loan, and the Applicant gave to Lam Hing-hong a
post-dated cheque drawn on his account, although in due course that cheque was
not honoured. It was common ground that the Applicant did not have
permission from the Bank to accept the loan, and to do so was contrary to the
Bank’s Code of Conduct. It was the prosecution’s case that the cheque was
given to the Applicant as an inducement for him to show favour.
The judge rejected a defence submission that the Applicant’s offence
was technical. He said:
This offence is by no means the most serious of its kind on the facts
but it is not exceptional.
You knew that PW1 wanted additional credit facilities from your
employers at the Bank of East Asia (BEA). You wanted, for
reasons which you have not made clear, to borrow money off him.
You had tried twice but failed to persuade him to lend you money.
What you did was to take advantage of his wish for enhanced
facilities, 3 months after the last annual review, by asking him
again to lend you money; and, I have no doubt, in exchange for the
loan, you agreed to promote his application and to enhance it by
adding the request for upgrading. There must have been such an
arrangement between you.
The judge then took the view that, nonetheless, this was an offence at the
lower end of the scale because there was in existence a check and balance
system in the Bank; that the facilities which were granted were in the event
167
CCAB 2002
properly granted; that the loan was repaid; and there was no fraud perpetuated
upon the Bank. He said:
On the other hand, BEA had [a] strict code of practice which you
chose to breach. You were trusted to act in [an] entirely proper
and professional manner as regards the Bank’s affairs but you let
your employers down. All such financial institutions rely on their
staff to act honestly with regard to their business. You have failed
to live up to that trust. This was not a mere technical breach of the
law against corrupt transactions even though it was not the worst
case.
The Applicant was a person of previous good character, a highly
educated man.
On appeal
Held :
(1)
There was not in general, as was submitted, a requirement for the judge
to take the view of the facts that was most favourable to the accused: HKSAR v
Yee Yiu-sam Cr App 530/2001. In any event, as the judge had pointed out, the
Applicant had gained the interest-free use of $500,000 for three months or so,
even if it was in the hands of another. It was the common sense conclusion that
there was at the least a financial benefit derived, even if it was in the hands of
another;
(2)
As regards the suggestion that the offence was technical, this placed
reliance upon that said in Secretary for Justice v Kwan Chi-cheong and Others
AR 1/1999:
even the first offender charged with an offence of corruption
under the Ordinance, unless it is merely a technical breach, must
usually expect a deterrent sentence. This will almost invariably
involve a sentence of immediate imprisonment.
The instant offence was not an offence the commission of which could properly
be described as technical. The Applicant knowingly accepted an advantage
which he knew he should not be accepting;
(3)
As said in Kwan Chi-cheong, the Ordinance was intended in its effect to
be draconian and a punishment that failed to deter would produce all the wrong
signals. Although the Applicant contended that no one was worse off because
there was no loss to the Bank, the integrity of banks was worse off. The trust
reposed in bankers was damaged by every such corrupt act whether it was large
scale or small. It was the need to ensure total honesty and cleanliness in the
conduct of banking and public affairs that called for the firm approach by the
courts. The sentence imposed was neither manifestly excessive nor wrong in
principle.
168
CCAB 2002
Sentence (Quantum) – Burglary
Burglary
CA 268/2001
Stuart-Moore
VP
Suffiad J
(21.12.2001)
*Anthea Pang
#Corinne
Remedios
MANALAD
Tiongson
Patricia
Burglary
and
overstaying/Appropriate
starting
point
for
overstaying/Breach of trust/Consecutive sentences required
入屋犯法罪及逾期逗留 - 逾期逗留的恰當量刑起點 - 破壞誠信 - 刑
期須分期執行
The Applicant pleaded guilty to one charge of burglary and one charge
of breach of condition of stay, namely, overstaying. The judge took a starting
point of 3 years for the burglary charge, and 9 months for the overstaying
charge. He reduced the sentences by one third to reflect the Applicant’s guilty
pleas and sentenced him to 2 years’ imprisonment for burglary and 6 months for
overstaying, both terms to be served consecutively.
The facts showed that the Applicant was only permitted to stay in
Hong Kong on an employment visa between 1991 and 16 September 1998.
Since early 1999, the Applicant had been working part time at a florist shop
owned by the victim. In early 2001, the victim lost the keys to his home at that
florist shop. On 30 March 2001, the victim returned home and found that his
watches, finger rings and gold coins were missing from his home.
Subsequently, the victim, suspecting that the theft might have been related to
the Applicant, inspected the Applicant’s handbag and found the keys to his
home. A report was made to the police.
During police enquiries, the Applicant admitted to having taken the
keys of the victim from the florist 3 months earlier and that, with those keys, she
had entered his home and had stolen the items recovered by the police.
On appeal, it was submitted, inter alia, that the judge was wrong to
have adopted a starting point of 9 months for the overstaying charge, and that he
failed to take account of the totality principle in ordering the two terms to be
served consecutively. It was contended that it was not a typical kind of burglary
which called for the normal type of sentence in that there was no actual
breaking-in so as to gain entry into the victim’s home. It was further argued
that this case could be treated in similar fashion to stealing from an employer.
Held :
(1)
There was no tariff laid down for overstaying offences and the range
was wide from a fine (at level 5) to a term of imprisonment of up to 2 years. In
eight of the cases referred to, the sentences for the overstaying ranged from 28
days to 3 months. In R v Tseung Sau-tao MA 955/1992, R v Bhattarai MA
606/1996, and R v Iqbal Zahid MA 560/1996, sentences of 6 months’
imprisonment were imposed;
(2)
The taking up of employment during the period of overstay was to be
considered an aggravating factor. The length of the overstay and whether
employment was taken up during the period of overstay were relevant to
sentence;
(3)
The judge in adopting a starting point of 9 months had not been
referred to any previous decisions of the appellate court. The starting point
appeared to have been randomly selected without reference to any authorities.
Having considered the length of sentences imposed from all cases referred to,
the proper starting point should be 4 1/2 months. Giving the full one third
discount for the Applicant’s guilty plea, he should be sentenced to 3 months for
the overstaying charge;
169
CCAB 2002
(4)
The method by which the Applicant gained entry underlined two
important factors. Firstly, it was a breach of trust by the Applicant in stealing
the keys of the victim from the florist shop. Secondly, the theft of the keys and
the actual burglary itself, being some 3 months apart, indicated very clearly that
the offence had been pre-planned for a substantial period of time before it was
committed;
(5)
The difference between stealing from an employer and the present case
was that when the Applicant entered the victim’s home to steal, she was in all
respects a trespasser no different from a normal burglar. In a normal case of
stealing from one’s employer, the element of being a trespasser did not come
into it;
(6)
Save that the sentence imposed for the overstaying charge should be
set aside and reduced to 3 months, the rest of the order of the judge would
remain unchanged. The total sentence passed on the Applicant in respect of
both charges would be one of 2 years and 3 months’ imprisonment.
Result - Appeal allowed. 2 years and 3 months’ imprisonment substituted.
Obiter - The case of HKSAR v Chow Chak-man [1999] 3 HKLRD 37 had been
included in the Applicant’s skeleton submission as well as the list of
authorities. The correctness of that decision of the Court of Appeal
appeared to have been called into question by the later Court of
Appeal judgment in HKSAR v Wong Yiu-kuen Cr App 463/2000.
Chow Chak-man could be of no assistance. Besides, it was noted that
the value of the stolen items, said to be half a million dollars, was not
put before the sentencing judge. The value of the stolen goods in such
a case as this one was usually relevant to sentence and should always
be put before the sentencing court.
CA 146/2002
Stock &
Yeung JJA
(25.9.2002)
*Paul Madigan
#Robert
Andrews
TANG
Wing-cheung
Domestic premises burglary/Persistent offender/Enhancement of 50% on
account of criminal record wrong in principle
進入住宅單位犯入屋犯法罪 - 積犯 - 因犯罪紀錄加刑 5 0 % 屬原則上
錯誤
The Applicant pleaded guilty to an offence of burglary in domestic
premises.
The facts showed that the Applicant entered a public housing unit in
Shatin and took the victim’s handbag. The Applicant was arrested shortly after
the offence and some of the stolen items were found on his person. He admitted
the offence and took the police to recover the rest of the stolen items.
The Applicant had twelve previous convictions spread over twenty
years, many of which were for similar offences. The present offence occurred
about a week after his discharge from prison.
Having taken a starting point of 3 years’ imprisonment as this was a
burglary of domestic premises, the judge enhanced the starting point to 4½
years’ imprisonment as the Applicant was a repeat offender, relying on HKSAR
v Chan Pui-chi [1999] 2 HKLRD 830.
On appeal
170
CCAB 2002
Held :
(1)
It had repeatedly been said that persistent offenders who showed no
interest in attempts to rehabilitate them would face longer sentences, and that
the starting point would need to be increased to reflect this aggravating feature;
(2)
Although the Applicant was a persistent offender and the judge was right
to call him ‘a danger and threat to society’, the case was not a very bad one of
its type. No force was used and the victim was not threatened in any way. It
was an entirely opportunistic offence;
(3)
An increase of 50% was excessive. Such an enhancement on account of
the previous convictions of the Applicant was wrong in principle;
(4)
Having regard to the facts of the case and the background of the
Applicant, including his previous convictions, a suitable starting point was 3
years and 6 months’ imprisonment. From that, the Applicant was entitled to a
one-third discount for his guilty plea.
Result - Appeal allowed. Sentence of 2 years and 4 months’ imprisonment
substituted.
C&E
MA
1110/2001
Beeson J
CHEUNG
Kin-chung
Attempt to export unmanifested cargo/Guilty plea/Case not at higher end
of scale of smuggling/Deterrent sentence required/ Six months starting
point appropriate
企圖輸出未列艙單貨物 - 被告人認罪 - 案件不屬比較嚴重的走私案
- 須判處阻嚇性刑罰 - 6 個月的量刑起點是恰當的
(20.12.2001)
*Raymond
Cheng
#Michael Poll
The Appellant pleaded guilty to one charge of attempting to export
unmanifested cargo, contrary to s 18(1)(b) of the Import and Export Ordinance,
Cap 60 and s 159G of the Crimes Ordinance, Cap 200. In sentencing, the
magistrate adopted a starting point of 9 months, gave a one-third discount for
the Appellant’s guilty plea and sentenced him to 6 months’ imprisonment.
The facts which the Appellant admitted showed that he was caught at
the Sha Tau Kok Control Point when he attempted to drive across the border in
a private motor vehicle, in which, concealed in the hollow parts of the 4-door
sills, were 19 digital video camera recorders. He intended to sell them to shops
in the Mainland. The retail values of these items were $190,000.
On appeal, it was submitted that the magistrate erred in taking 9
months as the starting point for sentence. Reliance was placed upon: R v Ma
Man-ho and Another MA 89/92, R v So Lo-ma MA 1178/92, R v Ng Wai-hong
MA 797/92, and R v Ng Choi-yau (1993) 1 HKCLR 90.
Held :
Although this case was serious and a deterrent sentence was required,
it was not at the higher end of the scale in terms of smuggling culpability. The
maximum penalty was 2 years’ imprisonment. The amount of goods was
substantial, but not in the highest bracket. There was no deliberate fashioning
of a secret compartment, and there was no evidence that the Appellant was
171
CCAB 2002
Sentence (Quantum) – C & E
working for a syndicate. A deterrent effect could have been achieved by a
sentence where the starting point was at a lower level than 9 months. A starting
point of 6 months would have been adequate. Giving the Appellant full credit
for his plea of guilty, he would be sentenced to 4 months’ imprisonment.
Result - Appeal allowed. Four months’ imprisonment substituted.
MA
1002/2001
Toh DJ
(7.1.2002)
*Alain Kwok
#Giles Surman
CHAN
Wai-fun
Offering for sale infringing copyright works/Immediate custodial sentence
the norm/Owners and employees must expect deterrent sentences
要約出售侵犯版權複製品 - 通常判處即時監禁 - 擁有人及僱員定被
判處阻嚇性刑罰應屬意料中事
The Appellant pleaded guilty to an offence of offering for sale infringing
copies of copyright works for the purpose of trade or business without the
licence of the copyright owner, in contravention of s 118(1)(e)(ii) of the
Copyright Ordinance, Cap 528.
The facts showed that a customs officer saw the Appellant inside a shop
where the infringing copies were displayed on racks fixed on the wall. There
were three men inside the shop choosing discs. When one customs officer, who
posed as a customer, picked up a disc from a display rack and walked towards
the counter, the Appellant had yelled out ‘Choose more discs. Cheaper for
you’. The Appellant was arrested and on her person was found a key which
opened the door of the shop. The Appellant was in possession of 1,600
infringing copies.
Having taken a starting point of 12 months’ imprisonment, the
magistrate reduced the sentence to one of 6 months’ imprisonment because of
the guilty plea, the clear record and the personal circumstances of the Appellant.
On appeal, it was submitted that the starting point of 12 months was too
high, and that insufficient weight was given to the age of the Appellant and her
relatively clear record.
Held :
(1)
In S J v Choi Sai-lok and Another [1999] 4 HKC 334, it was indicated
that an immediate custodial sentence should normally be imposed for offences
of this type unless the circumstances were exceptional. The point was also
made that the length of sentence should be determined by the number of
infringing copies involved, the length of time in which the defendant had been
engaged in the trade, and factors personal to him, such as a guilty plea. In that
case, the Court of Appeal considered that the starting point of 12 months was
appropriate for the Appellant who was found in possession of 719 infringing
copies;
(2)
In cases of this kind, it was clear that deterrent sentences were necessary
because of the continued increase in this type of offence. A clear message had
to be sent to those who willingly participated in illegal trade of this nature that
they could only expect a deterrent sentence whether they were employees or
owners. This illegal trade would only be effectively stopped if these proprietors
and owners could not find people to manage or sell these infringing copies for
them.
172
CCAB 2002
MA
1132/2001
Suffiad J
LAM
Haw-moon
Dealing with dutiable commodities/Effect of clear record/ Appropriate to
impose deterrence sentence in personam/ Circumstances justified
suspended sentence
處理應課稅品 - 無犯罪紀錄的效力 - 判處針對人的阻嚇性刑罰是恰
當的 - 鑑於案情有理據判處緩刑
(27.12.2001)
*Yam Ho
#Shuan Kelly
The Appellant pleaded guilty to a charge of dealing with goods to which
the Dutiable Commodities Ordinance applied. The particulars of the offence
alleged that the Appellant, on 7 August 2001, dealt with 20 litres of motor spirit,
otherwise than in accordance with the provisions of paragraphs (a) or (b) of s
17(1) of the Dutiable Commodities Ordinance, Cap 109.
The facts showed that the Appellant was observed by a customs officer
siphoning fuel from a jerry can into the fuel tank of a light goods vehicle by
means of a rubber hose. The jerry can contained a total quantity of 20 litres of
motor spirit classified as ‘light oil’ within the meaning of Cap 109. The value
of the ‘light oil’ was $214 and the potential duty was $121.2. Under caution,
the Appellant admitted the offence and it was not challenged that the ‘light oil’
would have yielded him a profit of $30.
In sentencing, the magistrate adopted a starting point of 9 weeks’
imprisonment and reduced it by one third to reflect the Appellant’s guilty plea.
He further reduced that sentence by 2 weeks for the mitigation. The Appellant
was thus sentenced to 4 weeks’ imprisonment. The magistrate said that a
deterrent sentence was called for. Although the magistrate did not indicate
whether it was to be a deterrent sentence in personam or in rem, he did refer to
HKSAR v Mui Shun-king, Ricky MA 1006/99 in which Gall J said that:
…that the circumstances relating to the selling of illegal diesel oil
and diesel oil from which the marker has been removed should be
dealt with on the same basis as has been the approach by the
courts in respect of breach of copyright. There has been a
substantial increase in these offences. The offences affected not
only the trade but the public at large, both by the deterioration of
the air quality it causes and the danger it poses, together with the
considerable loss of revenues.
On appeal
Held :
(1)
In Mui Shun-king, the defendant was a repeat offender, and Gall J said
‘…the magistrate’s approach, being one in which he has warned those person
previously appearing in his court, was perfectly proper’. It was therefore clear
that the deterrent sentence imposed was a deterrent sentence in personam. That
was not the case here, the Appellant was a first offender;
(2)
The magistrate, in citing those words in Mui Shun-king, indicated that he
read those words as intending a deterrent sentence to deter the foot soldiers in
this illegal trade. It therefore appeared that the magistrate was intending a
deterrent sentence in rem. However, as a general rule, although it was not
wrong in principle to pass a deterrent sentence in personam on a first offender, a
deterrent sentence in rem on a first offender was wrong in principle: HKSAR v
Hiroyuki Takeda [1998] 1 HKLRD 931;
(3)
Given all the circumstances of the case, including the value of the 20
litres of motor spirit of $214, the potential duty of $121.2, the potential profit of
$30, the co-operation with the police, the plea of guilty, the clear record and the
lack of any other aggravating factors apart from the prevalence of such offences,
173
CCAB 2002
that justice would be served by suspending the sentence of four weeks’
imprisonment for a period of 12 months.
MA
1183/2001
Beeson J
(18.1.2002)
*Poon Oi-lin
#Lawrence
Lok SC & C K
Wong
YEUNG
Bik-shan
Result -
Appeal allowed. Suspended sentence of 12 months substituted.
Obiter -
Offences of this nature were on the rise and were generally accepted
to be more prevalent, especially in the New Territories. Future
offenders in respect of such offences could not expect to receive the
same kind of leniency. The maximum fine of $1m provided for by
statute was an indication that offences of this nature were viewed as
very serious. Offenders might well be looking at immediate
custodial sentences.
Attempt to export unmanifested cargo/Isolated incident/ Impact of sentence
on offender’s political and business plans not relevant/Not appropriate to
adjust sentence to enable offender to take advantage of spent conviction
scheme
企圖輸出未列艙單貨物 - 孤立事件 - 判刑對犯案者的政治及業務計
劃所產生的影響並非相關因素 - 調整刑期讓犯案者受惠於解除罪名
計劃是不恰當的
The Appellant pleaded guilty to an offence of attempting to export
unmanifested cargo, contrary to s 18(1)(b) of the Import and Export Ordinance,
Cap 60, and s 159G of the Crimes Ordinance, Cap 200.
The admitted facts established that the Appellant drove a private car
across the Man Kam To Border Control Point with a passenger on board. He
did not make a Customs declaration, nor did he produce an export manifest.
When his vehicle was searched, 183 kg of dried shark fin, with an estimated
value of $73,200, was found in the boot. The Appellant admitted he intended to
take the goods to his restaurant in Shenzhen for commercial consumption.
The magistrate said this was a serious offence, as reflected by the
maximum penalty of 2 years’ imprisonment and a fine of $500,000. He
nevertheless accepted this was an isolated incident and fined the Appellant
$25,000.
An application was made to the magistrate to review the sentence.
Although the Appellant accepted the sentence was fair, the review was brought
with a view to obtaining a sentence which would enable the Appellant to benefit
from s 2(1) of the Rehabilitation of Offenders Ordinance, Cap 297. The
magistrate refused the application.
[Section 2(1), Cap 297, provides that a conviction becomes ‘spent’
after three years has elapsed if the fine imposed does not exceed
$10,000 and if there has been no-reoffending: Ed]
On appeal, the Appellant conceded that the sentence was neither wrong
in principle nor manifestly inadequate. The court, however, was urged to take
account of additional mitigation, and to be merciful. It was said that the
Appellant might have some expectation of an appointment to the Municipal
Government of Ji Yan She, and that he was involved with a Mainland company
that was about to be listed on the Hong Kong Stock Exchange. Each of those
circumstances would require him to disclose his criminal record. He sought a
reduced fine.
174
CCAB 2002
Held :
(1)
It was difficult to understand how a reduced fine would help the
Appellant in his political and corporate ventures, as the conviction would still
have to be disclosed regardless of the level of fine;
(2)
There was no justification for bringing an appeal when the penalty was
admitted to be slight, fair and not excessive;
(3)
The matters put forward relating to the possible government appointment
and the possible listing of the company were not matters to be taken into
account by the court;
(4)
In imposing the low fine he did, the magistrate had already exercised
mercy.
Obiter - The magistrate was quite correct to refuse to alter or tailor the
sentence to enable the Appellant to take advantage of s 2 (1), Cap 297.
香港特別行政區訴馮錦鴻
HKSAR v FUNG Kam-hung
*曾若珩
Evelyn
Tsang
#楊若全
Y C Yeung
高等法院原訟法庭暫委法官張慧玲
耹訊日期：二零零一年十一月三十日及二零零一年十二月二十日
宣判日期：二零零一年十二月二十日
COURT OF FIRST INSTANCE OF THE HIGH
Barnes DJ
Date of Hearing:
30 November
20 December
Date of Judgment:
20 December
COURT M A G I S T R A C Y
2001 and
2001
2001
管有侵犯版權複製品 - 上訴人是一名沒有犯罪紀錄的少年罪犯 - 讓
上訴人自新是主要的判刑考慮 - 教導所令是恰當的
上訴人被控一項在沒有版權擁有人的特許下，為交易或業務
的目的，而管有該版權作品的侵犯版權複製品，以期作出侵犯版權
的行為罪名，違反香港法例第 528 章《版權條例》第 118(1)(d) 及
119(1)條。上訴人認罪後被判入教導所。涉案的光碟總共64隻是音
樂光碟，而9 8 張是視像光碟。
裁判官在判刑前考慮了感化官報告書、勞教中心及教導所的
報告書。感化官建議上訴人接受感化，懲教署署長鑑於上訴人的健
康問題，指他不適宜進入勞教中心，但適合進入教導所。裁判官考
慮了上述的報告並指出上訴人是初次犯事，在犯案時只有18歲。他
認為判上訴人入教導所是合適的。
上訴時，上訴人代表大律師指出若上訴人是成年人的話，可
能判刑的起點是12個月監禁，在給予三份之一減刑之後，判監應為
8個月。若上訴人不是因身體有問題，很可能被判入勞教中心而不
175
CCAB 2002
是入教導所，現在上訴人需在教導所受羈留的時間太長，對他不公
平。 H KS A R v Wo n g Ch u n - ch eo n g [ 2 0 0 0 ] 3 HK L RD 8 4 0 為參照之
案例。上訴人代表大律師認為社會服務令是一個合宜的判刑。
裁決：
(1)
就本案而言，很明顯有關的罰行是可處以監禁，而上訴人的
年齡亦是介乎 1 4 至2 1 歲之間，有關的案件並不是一件為了社會的利
益而應該以懲罰性或阻嚇性的刑罰來取締讓犯事者自新的做法。採
納讓犯事者(即上訴人)自新的做法是乎合社會的利益。法院須考慮
上訴人的品性、過往的行為、犯罪的情況，然後決定上訴人在教導
所接受一段時間的教導；
(2)
基於本案的案情、上訴人的背景，尤其是上訴人在以往4年
與黑社會有緊密的聯繫，判上訴人入教導所是完全符合原則的；
(3)
雖然上訴人會感到他年輕，因身體有問題不能被判入勞教中
心，而覺得受到不公平對待。但以讓上訴人有自新的機會此大前提
來看，教導所在本案中是適合的做法。判上訴人社會服務令絕對是
一個不恰當的選擇。
結果：上訴被駁回，維持原判。
[English digest
of MA 1069 of
2001 above]
Barnes DJ
(20.12.2001)
*Evelyn Tsang
#Y C Yeung
FUNG
Kam-hung
Possession of infringing copies/Appellant a young offender of clear
record/Reformation a dominant sentencing consideration/ Training centre
order appropriate
The Appellant was charged with an offence of possession for the
purpose of trade or business of infringing copies of copyright works, with a
view to committing any act infringing copyright, without the licence of the
copyright owner, contrary to s 118(1)(d) and s 119(1) of the Copyright
Ordinance, Cap 528. There were 64 music compact discs and 98 video compact
discs involved. He pleaded guilty to the charge and was sentenced to detention
in a training centre.
Pre-sentence reports indicated that the Appellant, in view of his
medical condition, was unsuitable to be detained in a detention centre but
suitable for detention in a training centre. The Probation Officer’s report
recommended a period of probation and supervision. The magistrate, having
considered these reports, pointed out that the Appellant was of clear record and
was only 18 years old when the offence was committed. He considered that a
training centre order was appropriate.
On appeal, it was submitted, inter alia, that had the Appellant been an
adult, the starting point of sentence might have been 12 months’ imprisonment,
and he would then have been sentenced to 8 months’ imprisonment upon his
plea of guilty to the charge. Besides, if the Appellant had not been medically
unfit, it was very likely that he would be sentenced to a detention centre instead
of a training centre. The period of detention in a training centre was too long,
and it was unfair to the Appellant. Reference was made to HKSAR v Wong
Chun-cheong [2000] 3 HKLRD 840. It was also contended that a community
service order was an appropriate sentence.
176
CCAB 2002
Held
:
(1)
It was clear that the offence was one punishable by imprisonment.
Since the Appellant was aged between 14 and 21, to impose a retributive or
deterrent sentence on him instead of giving him a chance to reform was not in
the interests of the community. To let the offender turn over a new leaf was in
the interests of the community. The court had to take into consideration the
Appellant’s character and previous conduct and the circumstances under which
he committed the offence before it could determine whether a period of training
centre would be beneficial to his reform;
(2)
Based on the facts of this case and the Appellant’s background,
particularly his deep involvement in triad subculture in the past 4 years, to
sentence the Appellant to detention in a training centre was entirely correct in
principle;
(3)
The Appellant would have thought that he had been unfairly treated as
he could not be sent to a detention centre owing to his medical condition.
However, the Appellant should be given a chance to reform. To detain him in a
training centre was an appropriate thing to do. To impose a community service
order on him was definitely an unsuitable sentencing option.
Result
- Appeal dismissed.
香港特別行政區訴張子祥
HKSAR v CHEUNG Tsz-cheung
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 2 年第4 2 號
*鄭紀航
Anthony
Cheang
#孔慶碩
Andy Hung
耹訊日期：二零零二年三月七日
宣判日期：二零零二年三月七日
To h D J
Date of Hearing: 7 March 2002
Date of Judgment: 7 March 2002
管有盜版視像光碟 - 有關罪行發生時間相距甚短 - 對第一項罪行採
用較高量刑起點是錯誤的
上訴人 24 歲，承認兩項在沒有版權擁有人的特許下，為任
何交易或業務的目的，或在任何交易或業務過程中而管有該版權作
品的侵犯版權複製品，以期作出侵犯版權的作為之控罪，違反香港
法例第528章版權條例第 118(1)(d)及119(1)條。上訴人就第一項控
罪入獄10個月，第二項控罪入獄12 個月，第二項控罪的5 個月與第
一項控罪的1 0 個月，分期執行，即共入獄1 5 個月。
首項控罪發生在5 月19 日。當中121 隻視像光碟及 70 隻音樂
光碟為盜版： K C C C 3 3 8 9 /2 0 0 1 。次項控罪發生在 6 月 7 日，即 1 9 日
後。當中 97 隻視像光碟及 156 隻音樂光碟為盜版： KCCC
3 3 9 0 /2 0 0 1 。
177
CCAB 2002
上訴人在2001 年8 月就同樣控罪被判160 小時社會服務令。
在干犯上述兩項控罪時，上訴人並非初犯。
裁判官在量刑時指出，他採納一個較高的量刑起點是因為上
訴人在短短3 個星期內，干犯同樣性質的控罪。
上訴人代表律師投訴裁判官在判刑時沒有分別說明
3 3 8 9 /2 0 0 1 一案是在 3 3 9 0 /2 0 0 1 一案之前發生，所以他採納一個比
較高的量刑起點用於3 3 8 9 /2 0 0 1 一案是錯的。
裁決：
(1)
上訴人以往已經干犯同樣性質的控罪，同時在本案5月及6
月亦干犯同樣性質的罪行，所以裁判官說上訴人的行徑是對執法者
及法律輕視的表現是正確的，也是本案比普通盜版案件嚴重的因
素﹔
(2)
裁判官在 K C C C 3 3 8 9 /2 0 0 1 一案採納一個比較高的量刑起
點，因這兩單案件在短短3星期內發生，此說的確有錯。縱使是這
樣，裁判官最終在首項控罪中採納15個月的量刑起點，是沒有出錯
的。因為上訴人在3389/2001一案之前已干犯同類型案件。就次項
控罪，裁判法官採納18個月的量刑起點，雖然量刑起點是高，但不
是明顯過高或過重。裁判官的量刑是適當的。
結果：上訴被駁回，維持原判。
[English digest
of MA 42 of
2002 above]
Toh DJ
(5.3.2002)
*Anthony
Cheang
CHEUNG
Tsz-cheung
Possession of pirated VCDs/Proximity of offences/Wrong to adopt a higher
starting point for first offence
The Appellant, aged 24, pleaded guilty to two offences of possession of
infringing copies of copyright works with a view to committing any act
infringing the copyright without the licence of the copyright owner, contrary to
ss 118(1)(d) and 119(1) of the Copyright Ordinance, Cap 528. He was
sentenced to 10 months’ imprisonment on the first charge and 12 months’
imprisonment on the second charge, 5 months of which were to run
consecutively to the sentence imposed on the first charge, making a total of
15 months’ imprisonment.
#Andy Hung
The first offence happened on 19 May 2001, with 121 VCDs and 70
MCDs found to be pirated copies: KCCC 3389/2001. The second offence
happened 19 days later on 7 June with 97 VCDs and 156 MCDs found to be
pirated copies: KCCC 3390/2001.
The Appellant had been sentenced to perform 160 hours of community
service for a similar charge in August 2001. He was not a first time offender
when the present two offences were committed.
In sentencing, the magistrate explained that a higher starting point was
adopted because the Appellant had committed two offences of the same nature
within a short period of 3 weeks.
On appeal, it was submitted that the magistrate failed to mention that the
offence in 3389/2001 was committed prior to that in 3390/2001. He therefore
erred in saying that a higher starting point should be adopted in 3389/2001.
178
CCAB 2002
Held :
(1)
The Appellant had committed a similar offence previously, and
committed the present offences in May and in June. The magistrate was correct
to say that the act of the Appellant had demonstrated his flouting of the law and
of the law enforcement officers. It was more serious than other cases involving
pirated discs in general;
(2)
It was wrong for the magistrate to have adopted a higher starting point in
3389/2001 on the basis that the two offences occurred within a short period of 3
weeks. Notwithstanding this, the starting point of 15 months for the first
offence was not wrong. The Appellant had committed a similar offence prior to
3389/2001. Although a starting point of 18 months for the second offence was
on the high side, it was not manifestly too high or excessive. The sentences
imposed were appropriate.
Result
MA 261/2002
McMahon DJ
(28.6.2002)
*Simon Kwan
#Peter Ip
WU
Pak-cheung
- Appeal dismissed.
Mitigation/Effect of evidentiary agreement shortening length of trial/Time
and expense of preparing a copyright prosecution/ Sentencing considerations
for offence of possession of infringing copyright works
求情理由 - 同意各項證據而令審訊時間縮短的效力 - 檢控侵犯版權
罪行的準備工作所需時間及開支 - 就管有侵犯版權複製品罪行判刑
所須考慮的事宜
The Appellant was convicted after trial of an offence of possession of
1,400 CDs and VCDs, being infringing copyright works, contrary to s 118(1)(d)
and s 119(1) of the Copyright Ordinance, Cap 528.
The evidence showed that the Appellant was caught in the act of
assisting his co-defendant in transporting 1,400 infringing discs on a trolley
from a room where another large quantity of discs were subsequently found.
The co-defendant, who absconded before trial, had possession of the keys to the
room and was the individual actually pushing the trolley. The Appellant was
found walking beside him carrying remnants of the cardboard in which the
infringing discs had earlier been packed.
The Appellant was imprisoned for 18 months.
On appeal, it was submitted that the sentence was too severe. In
particular, it was said, first, that, although the Appellant did not plead guilty, he
agreed the entirety of the prosecution case and gave and called no evidence.
The trial, including submissions, took approximately one hour. Therefore,
notwithstanding the not guilty plea, it was said that since the Appellant had
taken up so little court time there should have been some mitigation of sentence.
The second ground of appeal was that the sentence of 18 months’ imprisonment
was manifestly excessive in light of Secretary for Justice v Choi Sai-lok [1999]
4 HKC 334. In that case two offenders were seen carrying a carton which
contained infringing discs. The first offender was found to have been
transporting 700 discs. The other offender carried slightly fewer discs but
possessed keys to a room where some 21,000 discs were found. The first
offender, like the Appellant, was charged only with possession of the discs he
was transporting. The second offender, as he possessed the keys to the room
where the very large number of discs were found, was charged with possession
of those discs as well. Both individuals, and particularly the first offender,
performed substantially the same role as did the Appellant in the present case.
In Choi Sai-lok Keith JA said that the appropriate sentence for the first offender
was 12 months’ imprisonment and, for the second offender, the one charged
179
CCAB 2002
with possession of the larger number of discs, it was 18 months’ imprisonment.
Keith JA said:
The roles played by storemen, packers, delivery men and
salesmen may be different, but we do not see much difference
between them in terms of criminal culpability. What will justify
differences in sentences between them will be, for example, the
number of infringing copies involved, the length of time in which
they had engaged in the trade and factors personal to them such
as pleas of guilty.
Held :
(1)
In R v Vy Van-kien and Pham Van-hoa [1991] 1 HKLR 422, 427,
Penlington JA said that questions as to whether the saving of time and public
expense represented a mitigating factor was essentially something for the
sentencing magistrate to determine, and that was right. It might well be that a
considerable shortening of the length of the trial on account of the offender
agreeing much of the prosecution case could be a proper basis for mitigating his
sentence when convicted;
(2)
As Penlington JA made plain in Vy Van-kien and Pham Van-hoa, the
mitigation for this reason was essentially a matter for the court. That was
because the cooperation of an offender at trial depended on a wide range of
factors.
It might be that the prosecution evidence was effectively
unchallengeable, such as often occurred in cases involving primarily banking
documentation, or it might be, as in the present case, that an offender presented
his case by way of an explanation contained either in his evidence or in a
cautioned statement made by him to the police, or both, so that there was no
challenge to the prosecution evidence. Another factor might be, as in this case,
the degree to which the shortening of the trial really represented any substantial
saving of time and resources so far as the overall preparation of the case for trial
was concerned. It might be that considerable time and expense had gone into
the preparation of the case well before trial; that was often the position with a
prosecution case such as the present, involving copyright offences;
(3)
It was therefore very much a matter for the sentencer’s discretion as to
whether to allow any mitigating weight to the
evidentiary agreements entered
into by an offender during trial, and that was a discretion not lightly to be
interfered with. Given the nature of the case the magistrate was entitled not to
give the Appellant any discount in sentence because of the shortening of the
trial due to the Appellant’s evidential agreements;
(4)
The role played by the Appellant was no greater than that of the
offenders in Choi Sai-lok. Although there were no guidelines for sentences for
such offences, consistency in sentencing was desirable;
(5)
The only distinguishing feature in this case, given the role of the
Appellant and his relatively minor criminal record for offences of this sort, was
the number of discs he was found to possess. That number fell well short of the
21,000 or so possessed by the second offender in Choi Sai-lok, which was
thought to warrant a starting point of sentence of 18 months’ imprisonment.
The culpability of the Appellant fell somewhere between the two offenders in
Choi’s case, because of the number of discs he possessed, and the sentence of
the magistrate should have reflected that, in the absence of any reasons for the
magistrate to have done otherwise;
(6)
In HKSAR v Wong Yiu-ming MA 1247/2000, it was held that for a
quantity of 1,600 infringing discs the starting point of sentence of 18 months’
180
CCAB 2002
imprisonment adopted by the magistrate was too high on the authority of Choi
Sai-lok, and the starting point was reduced to 15 months’ imprisonment.
Result -
CA 228/2002
Stuart-Moore
&
Mayo VPP
Yeung JA
(1) CHAN
Sum-fuk
(2) TSOI
Ming-wah
Appeal allowed. Sentence of 15 months’ imprisonment substituted
for that of 18 months.
Copyright infringement/Serious offence deserving of no mercy/ Harsh
sentences required to protect reputation of Hong Kong
侵犯版權 - 嚴重罪行不容輕恕 - 為保香港聲譽必須判處重刑
On 19-20 October 2001, Customs officers kept observation on Block 1,
Hong Kong Garden, Tsing Lung Tau, Tsuen Wan (‘the building’) for copyright
infringement offences.
(3.10.2002)
*Peter
Chapman
#Francis
Burkett
Tang Chun-ming (D1) entered the building at 10:45 p.m. on 19 October
2001 with a plastic bag containing a trolley. He went up to the 15th Floor of the
building. At about 4:15 a.m. on 20 October 2001, D1 walked out of the
building, carrying two plastic bags. He was intercepted and arrested. The two
plastic bags were found to contain 1,000 compact discs for computer programs
and 272 were infringing copies.
Customs officers, led by D1, raided Flat E on the 15th Floor of the
building (‘the flat’). A1 opened the door and A2 was found sitting on the side
of a bed in the sitting room. The Applicants were husband and wife.
There were two rooms in the flat. In one of the rooms, a set of
computers, connected to a printer, a compact disc duplicator with writers, a
compact disc duplicator with ROM drive and 5 compact disc writers were
found. Beside the printer, there was a pile of compact disc covers. On a table,
there was a pile of infringing compact discs.
In the other room, carton boxes of infringing compact discs with covers
were found. They were each put in a white paper envelope.
Of the 12,839 compact discs found inside the flat, 1,757 pieces were
infringing copies. There were also 5,900 blank compact discs.
The only furniture in the flat included a mattress on the floor, a TV set
and a fridge. There was no chair. A1 had keys to the flat. The Applicants’
luggage was also found inside the flat.
A1 came to Hong Kong as a visitor on 10 September 2001 and was
permitted to stay until 9 October 2001. A2 came on 25 November 1998 and
was permitted to stay until 22 December 1998. As visitors, the Applicants were
prohibited from taking any employment or establishing or joining in any
business.
D1 and the Applicants were jointly charged with offences 1 and 2, of
possession of infringing copies of copyright works for the purpose of trade or
business, with charge 3, of possession of an article, knowing or believing it to
be used or intended to be used to make infringing copies for sale or hire or trade
or business, and with charge 6, of making infringing copies of copyright works
for sale or hire. They were convicted of the charges after trial.
A1 and A2 separately faced the respective charges 4 and 5, of breach of
condition of stay, to which they both pleaded guilty.
Charge 1 related to the 272 infringing copies found in the possession of
D1 at the time of his arrest. Charge 2 related to the 1,757 infringing copies
181
CCAB 2002
found inside the flat. Charge 3 related to the equipment for manufacturing the
infringing copies and charge 6 alleged that D1 and the Applicants together made
the infringing copies, the subject matters of charges 1 and 2.
In respect of charges 1, 2, 3 and 6, D1 and the Applicants were each
sentenced to the respective terms of 1 year, 1 year, 2 years 6 months and 2 years
6 months’ imprisonment.
A1 was sentenced to 2 months’ imprisonment in respect of charge 4 and
A2 was sentenced to 4 months’ imprisonment in respect of charge 5.
On appeal
Held :
(1)
Although the Applicants might well have been mere workers, and not
bosses, the illicit business of copyright infringement could not exist without the
assistance of mere workers such as the Applicants;
(2)
Copyright infringement was a serious offence in Hong Kong and
whoever perpetrated such offences could expect no mercy from the court. It
was only with harsh sentences that perhaps people would be deterred and the
reputation of Hong Kong protected;
(3)
The number of infringing copies was not small and but for the
intervention by the Customs officers, there was no doubt that the business
would have continued with the existence of the equipment and the presence of
blank compact discs;
(4)
The Applicants were each convicted of 5 charges. Apart from the
copyright infringement offences, there was the further charge of breach of
condition of stay;
(5)
Looking at the facts of the case and the backgrounds of the Applicants,
the total sentence of 2 years and 6 months’ imprisonment was neither wrong in
principle nor manifestly excessive. There was no valid basis to interfere with
such sentence.
MA 947/2002
McMahon DJ
(17.12.2002)
*Polly Wan
#Giles Surman
LE
Van Tho
Dutiable
commodities/Prevalence
of offence/Persistent
offender/
Commission of further offence on bail/Aggravating factors/Concurrent and
consecutive sentences/Totality
應課稅品 - 罪行的普遍程度 - 慣犯 - 保釋期間再犯罪 - 加重刑罰的
因素 - 刑期同期與分期執行 - 整體刑期
The Appellant pleaded guilty to two offences of dealing with dutiable
cigarettes (charges 1 and 3), and one offence of possession of dutiable cigarettes
(charge 2), contrary to s 17(1) of the Dutiable Commodities Ordinance, Cap
109.
Charge 1 involved 7,000 cigarettes, charge 2 involved 5,600 cigarettes,
and charge 3 involved 4,200 cigarettes. The offences occurred on, respectively,
31 July 2002, 1 August 2002 and 13 August 2002. Charges 2 and 3 were
committed while the Appellant was on police bail and court bail. He was
sentenced, after 9 months had been taken as the starting point, to 6 months’
imprisonment for each offence. Two months of the sentences for charges 2 and
3 were ordered to run consecutively to each other, and the eight months which
182
CCAB 2002
resulted were ordered to run consecutively to the sentence on charge 1,
producing a totality of 14 months’ imprisonment.
In his calculation of sentence, the magistrate observed that such offences
were common, and the Appellant’s persistence in committing this type of
offence demonstrated a disregard of the law and justified a higher starting point
for sentence than was usual. He also treated as an aggravating feature the fact
that the Appellant committed the second offence the day after his arrest for the
first, and that he committed the third offence within two weeks of the first
offence.
On appeal
Held :
(1)
The magistrate was entitled to act upon his own knowledge of the
prevalence of the offence. He was perhaps in one of the best positions to assess
the level of prevalence of an offence within his geographical jurisdiction.
Attorney General v Jim Chong-shing [1990] 1 HKLR 131;
(2)
As far as the Appellant’s persistence in this category of offence was
concerned, the magistrate was entitled to find that the Appellant’s twelve
previous convictions constituted an aggravating factor: HKSAR v Chan Pui-chi
[1999] 3 HKC 848;
(3)
That the Appellant committed the second and third offences whilst on
bail was justifiably treated as an aggravating factor: HKSAR v Yuen Gang-shing
Cr App 303/97;
(4)
Given the number and the significance of the aggravating factors, the
magistrate’s starting point of 9 months’ imprisonment was not excessive on
charges 2 and 3. Charge 1, however, was not committed while the Appellant
was on bail, and a starting point of 8 months would have sufficed to reflect the
persistent offending and the prevalence of the offence. That would be reduced
to 5 months and 10 days after the guilty plea;
(5)
The same aspect of the Appellant’s offending was counted against him to
its full effect both in the imposition of an enhanced sentence in respect of
charges 2 and 3 and in ordering those sentences to run consecutively to the
sentence on charge 1. Some allowance should have been made in considering
totality for the fact that the Appellant’s commission of offences on bail had
already increased the level of sentences imposed for charges 2 and 3. There
should have been some concurrence between the three sentences and therefore a
lower totality of sentence. A totality of 10 months’ imprisonment would have
adequately reflected the overall culpability of the Appellant, without negating
the effect on sentence of the aggravating factors.
Result -
Appeal allowed. Sentence of 10 months’ imprisonment substituted.
183
CCAB 2002
Sentence (Quantum) – Computer Crime
Computer Crime
MA 450/2002
V Bokhary J
(24.6.2002)
*Chan Sukling
#Philip Wong
CHOY
Yau-pun
Obtaining access to a computer with dishonest intent/ Community Service
Order inappropriate where deterrence required/Criteria for imposition of
community service
有不誠實意圖而取用電腦 - 凡須判處阻嚇性刑罰者則不宜判處社會
服務令 - 判處社會服務令的準則
The Appellant pleaded guilty to an offence of obtaining access to a
computer with dishonest intent to cause loss to another, contrary to s 161(1)(d)
of the Crimes Ordinance, Cap 200. Having considered pre-sentence reports, the
magistrate ordered that the Appellant, who had two previous convictions in
1997 for theft, be detained in a detention centre.
The facts showed that the owner of a computer sent it to the Appellant’s
company for servicing. After it was returned, she received a bill from her
internet service provider for a sum which she knew she could not have incurred.
A check was conducted and it was found out that for the period involved her
internet account was used through the telephone line of the company where the
Appellant worked. After arrest, the Appellant retrieved from the customer’s
computer the relevant internet information and installed that information in his
own computer and during that time used the customer’s internet account for
himself. That use incurred a debt of $286.81.
The probation officer recommended a Community Service Order
(‘CSO’). The Commissioner of Correctional Services advised that the
Appellant was suitable for detention in a detention centre, and a place was
available for him. The pre-sentence Assessment Panel Officer opined that a
period of disciplinary training would be beneficial to the Appellant.
On appeal
Held :
(1)
In deciding whether a CSO was appropriate, two broad questions arose:
one pertaining to the circumstances of the offender and the other pertaining to
the circumstances of the offence or offences;
(2)
As to the circumstances of the offender, six factors were identified in R v
Brown (1981) 3 Cr App R (S) 294, 295, and it was the combination of all six of
those factors which caused the Court of Appeal (Criminal Division) to regard
that case as tailor-made for a CSO. As Mayo VP said when delivering the
Court of Appeal’s judgment in HKSAR v Wong Yiu-kuen [2001] 1 HKC 486 at p
491H: ‘All the factors must be satisfied’. That was not to say that a CSO could
never be made unless precisely those factors were present. For example, it
could be the case that a young man could not rely on having a wife and child or
a job being available to him, but could rely just as strongly on his youth and a
university place being available to him;
(3)
Even where a CSO would be appropriate to the circumstances of the
offender, there remained the question of whether such an order would be
appropriate to the circumstances of the offence. For example, only in most
exceptional circumstances would a CSO or any other non-custodial sentence be
appropriate for an offence involving an element of corruption (HKSAR v Wong
Yui-kuen (supra) at pp 491I-492A) or any offence against s 161 of the Crimes
Ordinance, Cap. 200 (HKSAR v Tam Hei-lun [2000] 3 HKC 475);
184
CCAB 2002
Sentence (Quantum) – Computer Crime
(4)
Where, as in the present case, the function of the proper sentence
included deterring not only conduct contrary to s 161 in the ordinary way but
also deterring betrayal of trust, it was even more difficult than usual to regard a
CSO as appropriate.
Conspiracy to Defraud
CA 336/2001
Stuart-Moore
VP
LugarMawson J
(22.2.2002)
*Polly Wan
#Sabrina See
(1) HUANG
Yu-huan
(2) IU
Guo-meng
Street deception/Tricksters preying on credulity of the middle-aged and
elderly/Prevalence of offence/Enhancement of sentence under Organised
and Serious Crimes Ordinance
街頭行騙 - 騙徒利用中老年人士的輕信騙取利益 - 罪行甚為普遍根據《有組織及嚴重罪行條例》提高刑罰
The Applicants pleaded guilty to a charge of conspiracy to defraud,
contrary to common law and s159C (6) of the Crimes Ordinance, Cap 200.
The Applicants came from the Mainland. They practised ‘street
deception’. By a charade, which involved themselves and a man still at large,
they set out to deceive the intended victim, a woman aged 57, of her savings by
pretending that scrap electronic components, which they had picked up in the
street, were valuable and would be sold at a substantial profit. Police were
alerted and the Applicants were arrested before money changed hands. Had the
fraud succeeded, the victim stood to lose between $50,000 to $100,000.
The maximum sentence for an offence of conspiracy to defraud was 14
years’ imprisonment. In sentencing, the judge adopted a starting point of 3
years’ imprisonment. As both had pleaded guilty and had no known previous
convictions, they were given a one-third reduction.
The prosecution applied for an enhancement of sentence under s 27(11)
of the Organised and Serious Crimes Ordinance, Cap 455, (‘OSCO ’ ) and
invited the judge to consider statements and a table prepared by the Operations
Section of the Crime Prevention Bureau. These gave statistics for, and an
analysis of, ‘street deception’ cases in the whole of Hong Kong. They showed
that in 1999, there were 455 reported ‘street deception’ cases, with a total of
$26.24 million stolen from the victims. Of those 455 reported cases, only 24
were successfully detected. In 2000, there were 617 reported cases, of which
only 57 were successfully detected. The total amount stolen in those 617 cases
was just less than $42.5 million. In the first six months of 2001 there were 251
cases reported, of which only 27 were detected. The total amount stolen in
those six months was $15.3 million.
Of the 617 cases reported in 2000, 110 involved deceptions related to
bogus electronic components, with a total of $11.6 million stolen from the
victims. Of the 251 cases reported in the first six months of 2001, 40 involved
deceptions involving electronic components, resulting in a loss of just less than
$4.7 million to the victims.
In 2000, of the 107 persons arrested, 98 were from the Mainland. In the
first six months of 2001, of the 61 persons arrested, 58 were Mainlanders.
185
CCAB 2002
Sentence (Quantum) – Conspiracy to Defraud
Looked at comparatively, between 1999 and 2000, there was an increase
in all types of crime of 0.62%. However, in the same period, the number of
‘street deception’ cases increased by 35.6%.
Having considered this evidence, the judge observed that this type of
offence was extremely prevalent in Hong Kong and that its victims lost a great
deal of money. He considered HKSAR v Ma Suet-chun & Others [2001] 4 HKC
337, where it was suggested that for future ‘street deception’ offences an
enhancement of sentence of 50% would be appropriate. He enhanced the
sentence of 2 years by 25%, resulting in both Applicants being sentenced to
serve 2½ years’ imprisonment.
The judge considered that as the offence pre-dated the decision in Ma
Suet-chun, he could not enhance their sentences by as much as 50%. In Ma
Suet-chun, the court imposed a 25% enhancement on a 2 years’ starting point
sentence, had considered that the appellants in that case would have felt a
justifiable sense of grievance if their sentences were enhanced by as much as
50% without prior warning from the court.
On appeal, the complaint was that the 3 years’ starting point was too
high and it should have been no more than 2 years. The correctness of the
enhancement of 25% was not challenged.
Held :
(1)
There was no tariff sentence for offences of this type. The gravamen of
the offence was the fraud itself, not the likely motive of the victim that the
tricksters appealed to: HKSAR v Cheung Kwan-ching & Another Cr App
220/2001 explained;
(2)
All offences of this type employed the same modus operandi: two or
three tricksters acted in concert, preyed on the credulity of unsophisticated
middle-aged or elderly people in the hope of relieving them of substantial sums
of money. The offence of necessity, had to be both premeditated and well
planned. They were cynical and heartless crimes. If the fraud succeeded, the
consequences for the victim could be exceptionally distressing. They stood to
lose the whole or a substantial part of their life savings, and that would lead
them to penury;
(3)
This type of offences was exceptionally prevalent. Such offences
appeared to be committed mainly by Mainlanders. Although the starting point
was higher than that taken in Ma Suet-chun and Cheung Kwan-ching, it was not
wrong in itself. Nor was the resulting sentence of 2½ years’ imprisonment,
after a reduction for plea, and after an OSCO enhancement, wrong in principle
or manifestly excessive;
(4)
The Applicants were fortunate that their offence pre-dated Ma Suet-chun
for, had it not, there would have been no interference with an enhancement of
50% on the starting point sentence.
Result - Applications dismissed.
186
CCAB 2002
CA 246/2001
Stuart-Moore
VP Stock JA
LugarMawson J
(9.7.2002)
*Alex Lee
#J Acton-Bond
YAO
William
Conspiracy to defraud/Creation of false documents to deceive banks into
lending money/Impact on credit system/Potential risk to banks
串謀詐騙 - 製備虛假文件欺騙銀行作出貸款 - 對信貸制度的影響對銀行界可能構成風險
The Applicant was convicted after trial of two charges of conspiracy to
defraud and two further charges of conspiring to deal with property knowing or
believing it to represent the proceeds of an indictable offence. He was
sentenced to a total of 3½ years’ imprisonment.
The first charge alleged that the Applicant, contrary to common law and
s 159C(6) of the Crimes Ordinance, Cap 200, between 1 August 1996 and 31
January 1997, conspired with Chen Li-wen, Fan Yuk-shu and others unknown
to defraud the Hong Kong branch of Banque Worms by dishonestly:
(a)
causing Guangnan (Holdings) Limited (‘the Company’) to
apply and to utilize credit facilities from the Bank in the
form of a Letter of Credit numbered I9611064;
(b)
submitting or causing to be submitted false documents to
the Bank purportedly evidencing genuine underlying
commercial transactions between the Company and Po
Shing Industrial Company;
(c)
causing the Bank to grant the Company utilization of
facilities under the said Letter of Credit; and
(d)
causing the Bank to release a sum of $6,625,625.00 Hong
Kong currency to Po Shing Industrial Company under the
said Letter of Credit.
The third charge was in identical terms, save that a branch of a German
bank was the victim on this occasion, the sum released to Po Shing Industrial
Company (‘Po Shing’) under a letter of credit LC08239472 was $6,943,864.00
and the alleged dates of the conspiracy were stated to have been between 1
August 1996 and 28 February 1997.
The second and fourth charges related to the laundering of the full sums,
before they were discounted and released to Po Shing, obtained under the letters
of credit in charges 1 and 3 respectively.
The evidence indicated that the Applicant was the owner of Po Shing
and its only authorised signatory on the bank account. The Applicant had
reactivated this company after a considerable period of inactivity. Having done
so, Po Shing and Asian Honour International Limited (‘Asian Honour’), a
subsidiary company of Guangnan (Holdings) Limited (‘Guangnan’), purported
to carry out two commercial transactions. These were bogus and were entirely
for the purpose of fraudulently obtaining two letters of credit (charges 1 and 3).
Most of the proceeds of the two letters of credit subsequently reverted back to
Asian Honour from the Po Shing bank account, having first gone through the
accounts of certain other intermediaries (charges 2 and 4). The Applicant
retained about $34,760 of the proceeds as a reward for his involvement.
When sentencing, the judge said:
I agree that (D1 and D2) were not the main players in these
conspiracies, but both men played an important role in these
offences, particularly in their dealing with and handling of the
money obtained from these LCs. Without them these conspiracies
could never have been implemented. I agree that eventually these
banks were paid back the money by Guangnan ….. Huge sums of
money were involved. In D1’s case the two offences in Charge 1
and 3 exceeds $13 million ….. I am also aware that the profits or
187
CCAB 2002
benefit each of these men derived was minimal, a very small
amount of money, despite the huge sums of money dishonestly
obtained from the bank.
On appeal, it was submitted that the sentence was manifestly
excessive. It was said that the judge failed to take into account
sufficiently these facts: (a) that the Applicant was not a prime mover in
or a substantial beneficiary from the conspiracies and that the sums of
money obtained under the two letters of credit were in due course repaid
to the banks; (b) that of the $13 million paid by the banks under the
arrangements for the letters of credit, all but $3 million or $4 million
were circulated back to Guangnan who had applied for the letters of
credit, which showed that the offences ‘involved substantially less than
the $13 million’ the judge had stated in sentencing; and (c) that the
offences contained no aggravating features such as an intention to cause
a particular individual personal loss.
Held :
(1)
The nature of the criminal conduct of the Applicant was such that the
judge was entitled to adopt the course he did. The Applicant had been a willing
party to the creation and use of false documents to deceive banks into lending
money which they would otherwise not have done. Sizeable sums were put at
risk. In R v Chan Kam-chuen [1995] 2 HKCLR 257, 261, Mortimer JA, on not
dissimilar facts, said of such conduct:
On any view, even though the gain to the applicant was small,
these offences are very serious. The system of documentary
credits is the means whereby international trade has been
conducted for hundreds of years. The system depends entirely
upon trust. Money is paid out, not upon an examination of the
goods, but upon the documents themselves. It is fundamental to
the system that the documents should be truthful and accurate. If
false documents are circulated, some of which are in effect title to
the goods themselves, the whole system falls apart. That is why
courts always regard offences of this nature as very serious.
(2)
It was plain that the two most important and relevant sentencing
considerations in cases of this type, involving the circulation of false documents
for the purposes of raising letters of credit were, firstly, the impact that this
conduct was likely to have on a system which necessarily made provision for
credit to be given based upon the apparent integrity of documents and, secondly,
the size of the potential risk to which the banks providing the credit based on
those documents had been exposed;
(3)
This case was concerned with two bogus commercial transactions which
the Applicant knew had been fraudulently designed to obtain the two letters of
credit. In the result, the victim banks found themselves at risk in very large
sums of money. In HKSAR v Cheung King [2001] 3 HKLRD 68, the sum
involved was US$891,000.00 on one letter of credit. This concerned an
applicant who was described as ‘small fry’. Her role was to prepare false
documents for the letter of credit application. The applicant had derived no
financial benefit from the transaction and the bank had been repaid in full. The
Court of Appeal said on that occasion that a four-and-a-half-year starting point
was appropriate.
Result -
Application dismissed.
Obiter -
The test on appeal was whether the sentence complained of was
‘manifestly excessive’, not whether it was ‘too long’.
188
CCAB 2002
Sentence (Quantum) – Dangerous Drugs
Dangerous Drugs
CA 366/2000
CA 487/2000
Stuart-Moore
& Mayo VPP
Stock JA
(18.1.2002)
*Darryl Saw
SC & Sin Puiha
#EL
McGuinniety
(1) WONG
Suet-hau,
Ice
(2) CHAN
Sau-pang
Trafficking in ice/Effect of absence of financial gain on sentence/Approach
to mitigation that part of trafficker’s drug for self-consumption/Whether
social trafficking less serious than commercial trafficking
販運冰 - 沒有經濟收益對判刑的影響 - 對於販毒者以部分危險藥物
供自用作為求情理由的判刑取向 - 相對於商業性質的販毒，社交性
質的販毒是否嚴重性較低
A1 pleaded guilty to a count of trafficking in a crystalline solid
containing just over 68 grammes of methamphetamine hydrochloride (‘ice’).
Having taken a starting point of 10 years, the judge gave a discount of one-third
to 6 years and 9 months, and then gave a further discount of 20 months for
mitigation unrelated to the issues on appeal. When the leave of the single judge
was given, Stock JA said:
The question arises whether the court below assessed, albeit
roughly, whether the bulk was for her own consumption, as
appears to be asserted, or for sale, whether it should have done so
and whether this makes a difference to sentence.
A2 pleaded guilty to a charge of trafficking in a crystalline solid
containing just over 14 grammes of ice. He was sentenced to 4 years and 8
months’ imprisonment.
The appeals of A1 and A2 were consolidated as they were each
principally concerned with the issue of whether, if accepted, mitigation that the
trafficker had part of the drugs included in the trafficking charge for selfconsumption should reduce the sentence from the level which would have been
imposed where all the drugs in a trafficker’s possession were for the purposes of
trafficking.
A second issue, which arose only in relation to the appeal of A2, was
whether ‘social trafficking’, where one person gave or intended to give some of
his drugs to someone else in a non-commercial transaction, should be regarded
for the purpose of sentence as less serious than commercial trafficking. In
England, the weight of authority favoured sentencing drug dealers, where no
financial motive was disclosed, to lesser sentences than those who did so for
financial gain: R v Robertson [2000] 1 Cr App R (S) 514, R v Byrne [1996] 2 Cr
App R (S) 34. Both cases concerned the supply of ecstasy, a drug that was,
perhaps more than most others, prone to be shared amongst friends at social
gatherings.
Held :
(1)
Where, after a plea of guilty to trafficking in dangerous drugs, it was
suggested in mitigation that a significant proportion of the drugs was intended
for the consumption of the defendant and not for trafficking, and where it was
apparent from the circumstances as a whole that the contention, if true, might
well make a difference to sentence, the sentencing court should address the
issue;
(2)
Having regard to the dangers of the abuse of this avenue of mitigation,
the judge should look with the greatest care at all the surrounding circumstances
in order to decide whether or not to accept the contention;
(3)
In determining whether to accept the contention, the normal rules for
determining the factual basis for sentence applied. The factors to be considered
would include:
189
CCAB 2002
(a)
the quantity of drugs and, if known, their value;
(b)
the general circumstances, including how the drugs were
wrapped, and how many wraps or packets were found;
(c)
where the drugs had been discovered, whether at a residential
address owned or rented in the trafficker’s own name or in
someone else’s name, or whether they were being carried in a
public place;
(d)
the presence of paraphernalia associated with the drugs,
including, on the one hand, items used for packaging,
weighing and diluting drugs and, on the other, items which
were used for the consumption of drugs;
(e)
whether the defendant was an addict or was otherwise
accepted to have been an habitual user of the drug in
question;
(f)
the explanation given by the defendant following arrest;
(g)
the defendant’s general means and his ability to pay for his
drugs otherwise than by trafficking in them; and
(h)
the defendant’s criminal record, if any, in relation to previous
drug offences.
Usually a court would be able to determine the issue from these factors without
a Newton hearing;
(4)
Where it was accepted that a significant proportion of the drugs were for
the defendant’s own consumption, it was unnecessary, save in the most
exceptional case where the division was readily quantifiable, for the sentencing
judge to specify the relative amounts or proportions, except perhaps in the very
broadest of terms. In such circumstances the court should so adjust sentence as
to reflect the fact that not all the drugs were for trafficking. However, in doing
so, the judge should keep well in mind:
(i)
the fact that possession of dangerous drugs itself carried a
term of imprisonment; and
(ii)
the requirment to enhance sentence for simple possession
of drugs to reflect, where appropriate, the ‘latent risk’
factor (see: HKSAR v Mok Cho-tik [2001] 1 HKC 261)
which took into account the risk that some of the drugs
intended for self-consumption might nevertheless find
their way into the hands of others.
An application of considerations (i) and (ii) might well offset much of the
practical value of the mitigation, particularly with certain dangerous drugs
which were commonly used amongst friends at social functions, including ice
(HKSAR v Lam Wai-ip Cr App 214/1997) and ecstacy (HKSAR v Lee Tak-kwan
[1998] 2 HKC 371 at 376);
(5)
Where the mitigation had necessitated the holding of a Newton enquiry
after which the mitigation was rejected, the court would be entitled to reduce, by
an amount appropriate to the circumstances, the discount normally given
following a plea of guilty (R v Lee Chiu-pang [1995] 2 HKC 523 at 526);
(6)
Sentencers should remember as to ‘trafficking’ itself, that its gravity was
not mitigated in those cases where the trafficker was trafficking in order to fund
drugs intended to feed his own addiction (R v Lau Tak-ming and Anor [1990] 2
HKLR 370 at 385);
190
CCAB 2002
(7)
It was not advisable to have a blanket policy that in cases where no
financial gain was disclosed as the motive for trafficking in dangerous drugs, a
reduction in sentence should almost inevitably follow. It was the very fact of
supply or, in the case of couriers and storekeepers, making possible the supply
to others, which in trafficking, whether for commercial gain or not, needed to be
dealt with vigorously. Making fine distinctions between different forms of
trafficking and the motives behind them would undermine the core policy of
providing consistent levels of sentencing for traffickers based on the weight of
the narcotics being trafficked;
(8)
It had to be borne in mind that the evil behind all aspects of trafficking in
drugs, which the court had a duty to deter, was ultimately the supply of
dangerous drugs to the public, whether or not this was done for financial gain.
The major concern of the law - abiding community in Hong Kong, aware of the
immense harm and suffering caused by drugs and by those who were engaged in
trafficking them, was principally directed at the availability of drugs which
traffickers made possible by their activities rather than the profits which
traffickers were able to make from what they had done. The courts had a duty
to keep those concerns uppermost in mind when deciding the appropriate level
of sentence for drug traffickers, whether or not they had profited by their
activity;
(9)
While some of the ‘social’ or ‘non-commercial’ trafficking cases which
involved small quantities of drugs could properly be regarded as falling into the
lower end of the sentencing scale applicable to the dangerous drug in question,
this factor in itself should not provide a general basis for imposing a lighter
sentence than would otherwise have been imposed for commercial trafficking.
The ‘friend’ who started off or perpetuated another’s abuse of drugs was as
dangerous to the community as the commercial supplier of small quantities who
would generally traffic in drugs with those already addicted.
Result - Appeals dismissed.
191
CCAB 2002
CA 280/2001
Stuart-Moore
VP
Stock JA
(11.1.2002)
*Paul Madigan
#I/P
WONG
Cheuk-lam
Trafficking in ice/Erroneous discount for entrapment/Drug dealer cannot
pray in aid plight of daughter
販運冰 - 錯誤對陷入圈套的罪犯給予減刑 - 毒販不能就女兒所處困
境作出請求
The Appellant pleaded guilty to two offences of trafficking in
methamphetamine hydrochloride, or ‘ice’. In the first, the quantity involved
was 26.42 grammes, and, in the second, it was 27.34 grammes.
At the date of sentence, the Appellant was aged 28 years, had previous
convictions for possession of dangerous drugs and for criminal damage, and had
a daughter aged about 4 years who was being cared for by the aged mother-inlaw.
The facts showed that at the instigation of the ICAC an informant
contacted the Appellant for drugs. As a result, drugs were delivered to the
informant, and her co-defendant made arrangements for the delivery of drugs
(Count 1). Two days later the informant contacted the Appellant and again
asked for drugs and the same procedure was followed: the co-defendant
arranged the delivery. After arrest, the Appellant admitted her complicity in the
supply of drugs.
The judge took a starting point of 9 years’ imprisonment for the two
offences, and sentenced the Appellant to a term of 4 years on each charge, the
sentences to run concurrently. Credit was given for the guilty pleas, although
the judge did not state what that was as a percentage. The judge also gave
discount for what she described as the element of entrapment.
On appeal, it was submitted that the sentence was too long. Reliance
was also placed upon the plight of the daughter.
Held :
(1)
The discount for entrapment was not warranted. This was a case of a
regular dealer in drugs. There was no question of this offender being
encouraged to commit an offence which she would not otherwise have
committed. Only the knowledge that the buyer was an informer would have
halted her intention to pursue this particular deal. The Appellant was fortunate
to have received a discount in excess of 50%;
(2)
As the Appellant engaged on a deliberate course of conduct and
employed others to assist her in trafficking drugs she could not pray in aid the
need to look after her daughter.
192
CCAB 2002
CA 73/2001
Mayo VP
Stock JA
Yeung J
(4.1.2002)
*Anthony
Cheang
#I/P
SHUM
Koon-lam
Doing an act preparatory to manufacture of dangerous drug/Customary
range of sentence/Offence analogous to manufacturing/Suffering as fugitive
and personal hardship not mitigating factors
作出準備製造危險藥物的作為 - 慣常的判刑幅度 - 所犯罪行與製造
危險藥物相類似 - 逃亡時的辛酸和個人困苦並不構成減刑因素
On 5 December 1997, the Applicant was convicted, in absentia, for he
absconded on the day the judge started his summing up, of one count of
trafficking in a dangerous drug (Count 4), one count of doing an act preparatory
to manufacturing a dangerous drug (Count 5), and two counts of offering to
traffic in a dangerous drug (Counts 3 and 6).
Upon his apprehension over 3 years later, on 31 January 2001, the
Applicant was sentenced to terms of imprisonment of 5 years on Counts 3 and
6, of 1 year on Count 4, and 14 years on Count 5. All sentences were ordered to
run concurrently.
On appeal against conviction, the Applicant’s conviction on Count 4 was
quashed as unsafe and unsatisfactory.
In sentencing the Applicant as he did, the judge said:
I am aware that the only dangerous drug the evidence shows that
you handled was the 0.64 grammes of ‘ice’ comprised in the
trafficking count. Nevertheless, the evidence shows that you were
well acquainted with the method of pressing the packing heroin, and
you know what activities are required to adulterate heroin and
where to obtain them.
You also know how to design, and in fact had constructed, a
sophisticated hydraulic press. That was a press of the type that I,
and all judges in Hong Kong, know is used to compress heroin
mixture into hard blocks. I have no doubt that had not the whistle
been blown on your activities by the police, you would have laid
your hands on a very considerable quantity of heroin in order to
process it.
The thoroughness and determination with which you went about this
enterprise indicates that you weren’t playing at it, but that you were
acting for real.
On appeal against the sentence of 14 years imposed on Count 5, the
Applicant complained that he had been entrapped by police, and there was no
way he could have manufactured any quantity of dangerous drug. He also said
he had been a fugitive for over 3 years and his life as such was harsh and pitiful.
He sought a reduction so that he could be released earlier to take care of his
wife and a young daughter.
Held :
(1)
The judge was entitled to take the view of the case he did. Doing an act
preparatory to manufacturing a dangerous drug was a most serious offence and
called for a very substantial term of imprisonment;
(2)
The authorities indicated that a term of imprisonment which ranged from
15 to 25 years was common for an offence of manufacturing a dangerous drug
and that doing an act preparatory to manufacturing a dangerous drug should
attract a similar sentence: AG v Woo Kwai-fong and Others [1989] 1 HKLR
282, R v Tang Kam-kwong Cr App 183/96, R v Cheung Wai-kwong [1997] 3
HKC 496, HKSAR v Tang Siu-man Cr App 360/96, HKSAR v Wong To Cr App
508/2000;
193
CCAB 2002
(3)
Although entrapment might be a mitigating factor, the culpability of the
Applicant was such that a sentence of 14 years could not be said to be
manifestly excessive or wrong in principle;
(4)
The Applicant had only himself to blame if he suffered as a fugitive. His
personal difficulty and the hardship to his family were not mitigating factors for
offences of this nature.
CA 242/2001
Stock JA
Suffiad J
(1) WONG
Ka-wai
(2) CHUNG
Ka-wai
Trafficking in dangerous drugs/Offender aged 16 years cannot rely on
‘extreme youth’/Maturity of youthful offender/Drug traffickers must expect
little quarter from the courts
販運危險藥物 - 1 6 歲的罪犯不能倚賴 ‘ 極度年輕 ’ 因素 - 少年罪犯
的成熟程度 - 販毒者不能指望法庭寬鬆處理
(4.1.2002)
*Man Tak-ho
#Suen Kamkee (1)
I/P(A2)
The Applicants pleaded guilty before a magistrate to trafficking in
dangerous drugs, and were committed to the High Court for sentence. The
charges to which they pleaded were:
Charge 1:
as against A1 only, that on 6 November 2000 outside
1st Floor, No 39, Tai Nam Street, Mongkok, he
trafficked in 167.51 grammes of a mixture containing
141.27 grammes of heroin hydrochloride.
Charge 2:
as against A1 and A2, that on 6 November 2000,
outside the same premises, they trafficked in 838.28
grammes of a mixture containing 394.70 grammes of
heroin hydrochloride.
Charge 3:
as against A2 alone, that on 6 November 2000 outside
the ground floor of 123-129 Woosung Street,
Yaumatei, trafficked in 28.08 grammes of a mixture
containing 21.05 grammes of heroin hydrochloride.
The retail value of the drugs was $467,479.
At the time of the offences A1 was aged 16 years and 2 months; and A2
was aged 18½ years. Neither had previous convictions.
Sentences of A1
Having noted the young age of the accused and their clear records, and
having commented that for offences of this nature those factors carried no
mitigating weight, the judge took in relation to the first charge a starting point of
10 years’ imprisonment, reduced that by one third to reflect the plea of guilty;
and reduced it by a further 8 months to reflect the fact that A1 had led the police
to the arrest of A2. He thus gave a discount of 40%, and imposed a sentence of
6 years’ imprisonment.
On the second charge, the judge took a starting point of 15 years’
imprisonment; reduced that by one third because of the plea of guilty, to 10
years; and then deducted 8 months ‘for the information volunteered by D1’; and
passed a sentence of 9 years and 4 months’ imprisonment.
The judge ordered that 2 years of the sentence imposed on the first
charge should run consecutively to the term imposed on the second charge in
relation to A1, making a total of 11 years and 4 months’ imprisonment.
194
CCAB 2002
Sentences of A2
On charge 2, the judge imposed a term of 10 years’ imprisonment, which
was a one third reduction from the starting point of 15 years. For charge 3 he
took a starting point of 6 years’ imprisonment and imposed a term of 4 years.
He ordered 1 year of the term imposed on charge 3 to run consecutively to the
term imposed for charge 2, making a total sentence for A2 of 11 years.
On appeal
Held :
(1)
By reason of being aged 16 years A1 was not to be classified as within
the bracket of extreme youth. Age did not stand alone regardless of the true
maturity of the individual applicant and regardless of his other offending. Over
an extended period A1 took a very active role not just in delivering drugs, but in
breaking them up, and mixing them, measuring them and packaging them, and
collecting money. A1 also recruited A2;
(2)
In HKSAR v Law Ka-kit and Others Cr App 97/2001, in relation to youth
and robberies with firearms, it was said:
Difficult though it is to sentence youths of this age to prison and
indeed to long terms of imprisonment, there are several
considerations which dictate that in cases of such gravity, even in
the case of these of the age of the younger offenders in this case, the
courts must steel themselves, unless there are particularly powerful
and peculiar contrary reasons attaching to the circumstances of the
offender and his involvement in the offence, to the imposition of
substantial prison terms. The public interest requires that an
unequivocal message be delivered to youngsters, and to those who
would engage them for the purpose of crime, that they must expect
little quarter from the courts when it comes to the commission of
such serious offences …
That same approach applied to the court’s approach to the offences to which the
Applicants pleaded guilty;
(3)
As it seemed that the judge considered the overall starting point for the
two offences committed by A1 to be 18 years, the discount of 37% he had been
given was not quite adequate as he had provided useful information to the
police, and A2 was apprehended before delivery of the drugs;
(4)
The drugs involved in charges 2 and 3 against A2 were all part and
parcel of the same operation, and the total quantity involved was 415 grammes
of heroin. For the two charges an overall starting point of 15 years was
warranted and the judge ought so to have arranged the sentences so that the
total, giving credit for the plea of guilty, did not exceed 10 years’ imprisonment.
Result - Appeals allowed. Sentence of imprisonment of 10 years and 9 months
substituted for A1. Sentence of 10 years’ imprisonment substituted
for A2.
195
CCAB 2002
CA 101/2001
CA 144/2001
Stuart-Moore
& Mayo VPP
Stock JA
(9.1.2002)
*D G Saw SC
& Sin Pui-ha
#Graeme
Mackay
(1) LEUNG
Kwai-ping
(2) LIU
Wai-chun
Trafficking in dangerous drugs/Starting point dictated primarily by
quantity/Relevance of role/Sentencing of couriers
販運危運藥物 - 量刑起點主要視乎危險藥物的數量而定 - 所擔
當的角色是否相關因素 - 判處帶家的刑罰
There were appeals by leave of the single judge, in two separate cases.
As the same issue was involved in each, the appeals were consolidated.
CA 101 of 2001
When arrested and searched, A1 was found to have 80 packets
containing a total of 63.05 grammes of a mixture containing 17.09 grammes of
heroin hydrochloride. He pleaded guilty to trafficking. He told police he was
delivering the drugs for another and was to be paid $5,000. The judge took a
starting point of 6 years’ imprisonment and reduced that to 4 years after the
guilty plea. A1 was aged 27 years, and had several previous convictions,
including two for possession of dangerous drugs.
CA 144 of 2001
When arrested and searched, A2 was found to have four resealable
packets of heroin in brick form, and one packet of heroin in powder form. The
five packets contained a total of 124.44 grammes of a mixture containing 39.08
grammes of heroin. She pleaded guilty to trafficking. She told police she
carried the drugs for someone else who was to reward her with several hundred
dollars. A2 was aged 51 years and had several previous theft convictions. The
judge accepted that she was a courier, but added that even ‘for a person in that
category, the Lau Tak-ming tariffs apply and that case says that for people who
traffic in quantities of heroin between 10 and 50 grammes they should receive
prison sentences of between five and eight years’. He said that the correct
starting point for the quantity of drugs in which she was dealing was 6½ years’
imprisonment, and he reduced that to 4 years and 2 months because of the guilty
plea and the co-operation with police.
In both cases leave to appeal was granted by the single judge on the basis
that sentencing judges had guided themselves solely by the quantity of drugs
trafficked and, in particular, had ignored the role of the Appellants, and should
have given credit for the fact that they were couriers rather than actual dealers,
wholesalers or importers. His concern was that quantity played far too
dominant a role in the fixing of starting point, to the exclusion, so he feared, of
the role played by the trafficker; whereas, so ran the contrary approach, an
identified quantity merely determined a broad range within which the sentence
might fall, and that the role of the offender ought to be a significant factor in
determining where within that range the sentence must fall. It was suggested
that it was the latter approach which the Court of Appeal in Lau Tak-ming
[1990] 2 HKLR 370 intended, and it was the single judge’s concern or
assumption that role was now ignored, and that quantity was everything, that
moved him to grant leave.
Held :
(1)
When Lau Tak-ming set its bands, it had in mind that the starting point
within a band would primarily be dictated by quantity within that band. The
appropriate sentence would in the first instance be approached according to
weight. Once that level was, within the bands, determined according to weight,
then there would, where appropriate, be an adjustment for aggravating factors in
the one band and mitigating factors on the other: HKSAR v Manalo [2001] 1
HKLRD 557;
196
CCAB 2002
(2)
There was no basis for assuming that the fact of being a courier should
be considered a mitigating feature. In R v Leung Kim-wah Cr App 442/92, the
Court of Appeal endorsed the view that couriers could not expect to receive a
reduction in sentence simply because they were couriers;
(3)
The courier was the category of trafficker who came before the court
probably more frequently than any other, and was an essential part of the whole
nefarious and devastatingly harmful business that was illicit drug trafficking;
and there was no basis upon which to assume that, when the court in Lau Takming set its bands and its tariffs, it intended anything other than that the courier
would face a sentence based upon the weight of the drugs he or she was
carrying, subject to such mitigating, or aggravating, factors that prevailed in a
particular case. Others, taking a more major role, such as the wholesaler, or the
importer, or the manufacturer, would expect an aggravation of sentence; if
necessary beyond the limit of a particular band where weight alone would carry
sentence to the top end of the band. That was how role was distinguished, and a
fear that there was no room to reflect role was not well-founded. It was not
right to suggest that if quantity determined the starting point, role became
irrelevant. It was simply that the role of courier justified no discount. Nor was
there any warrant for apprehending that in either of these appeals the sentencing
judge was not aware of the role played by the Appellants. Each judge made
express reference to their roles.
CA 570/2001
Stock JA
LugarMawson J
(21.3.2002)
*Peter
Chapman &
June Cheung
#I/P
NG
Chi-ming
Trafficking in dangerous drugs/Total weight of heroin in excess of 6
kilos/Offer
to
testify
against
co-accused/Co-accused
pleading
guilty/Appropriateness of consecutive sentences
販運危險藥物 - 海洛英總重量超過6公斤 - 自願指證同案被控人同案被控人認罪 - 分期執行刑期屬恰當
The Applicant pleaded guilty to two counts of trafficking in a dangerous
drug. These were the first count on the indictment which related to 5,745.67
grammes of heroin, and the third count, which related to 275.16 grammes of
heroin.
Sentence was adjourned as the Applicant had indicated his willingness to
give evidence against his co-accused, a Chung Shun-keung. In the event,
Chung subsequently pleaded guilty to the third count.
The judge sentenced the Applicant to 13 years and 4 months’
imprisonment on the first count, and to 7 years’ imprisonment on the third
count. She ordered that both sentences be served concurrently with each other.
However, she ordered that the total sentence be served consecutively to a
sentence of 3 years’ imprisonment that the Applicant was already serving. That
sentence had been imposed on him on 16 May 2000 in the District Court for
offences of blackmail and claiming to be a member of a triad society.
In sentencing, the judge said she took an overall starting point of 26
years’ imprisonment for both offences. She reduced that by one-third to reflect
the Applicant’s early pleas and by a further 4 years to reflect his offer to testify
against his co-accused.
On appeal, it was said that the sentences were ‘too heavy’. The
Applicant also said that it was his ‘impression’ that the sentences the judge
imposed on him would run at least partly consecutively to those imposed on him
in the District Court. He also contended that, given his offer to testify against
the co-accused, he expected a discount of 50%.
197
CCAB 2002
Held :
(1)
The total weight of the heroin in which the Applicant trafficked was just
in excess of 6 kilogrammes, and that far exceeded the upper tariff band of 600
grammes indicated in R v Lau Tak-ming & Others [1990] 2 HKLR 370, as
attracting a sentence of 20 years’ imprisonment, after trial. It was well
established that when offenders were sentenced for trafficking in a dangerous
drug which had a narcotic content in excess of 600 grammes the judge had to
impose his sentence after a consideration of the particular facts of each case:
HKSAR v Yau Po-hung Cr App 245/98, and HKSAR v Chiu Ho-chung [2001] 1
HKLRD 697. Given the great weight of the narcotic content of the heroin
involved in this case, the starting point of 26 years’ imprisonment adopted by
the judge was not open to criticism;
(2)
The Applicant’s offer to give evidence against his co-accused remained
an executory promise, which he was not called upon to perform. That, however,
was due to reasons beyond his control. The possibility that he would testify
against his co-accused was one of the reasons which caused that man to plead
guilty. Given the limited degree and quality of his assistance to the authorities,
the Applicant received a very generous discount of a further 4 years’
imprisonment in addition to the full one-third discount given to reflect his pleas
of guilty;
(3)
The judge was perfectly correct to order that the Applicant’s sentences
run consecutively to the term of 3 years’ imprisonment he was already serving.
These sentences were passed in respect of serious offences which were wholly
unconnected with the offences for which he fell to be sentenced in his case.
These offences occurred in 1991, but were only tried in 2000. The Applicant
committed the present offences whilst he was at large for his offences of
blackmail and claiming to be a member of a triad society.
CA 334/2001
Stuart-Moore
ACJHC
Seagroatt J
(9.4.2002)
*Cheung Waisun &
Polly Wan
#Ching Y
Wong, SC &
Barbara Cheng
FONG
Kai-yin,
Marco
Trafficking in heroin/Grave offence of its type/Age and clear record not
mitigation/Sentencing of courier
販運海洛英 - 屬同類罪行中的嚴重罪行 - 年齡及無犯罪紀錄並非求
情理由 - 判處帶家的刑罰
On 3 December 1996, the Applicant pleaded guilty to two charges of
trafficking in heroin hydrochloride. The combined mixtures which contained
the heroin had a narcotic weight of just under 972 grammes, valued
approximately at $1,400,000. The Applicant received an overall sentence of 14
years’ imprisonment against which, on 6 September 2001, for the first time,
which was by then over 4 years late, he sought leave to appeal out of time. He
gave as his reason for the extreme delay in making the application that he had
received no legal advice and that, while serving his sentence, he came to feel
aggrieved when he began to realise that there were others who had trafficked in
similar quantities of heroin and had received lighter penalties.
On the Applicant’s behalf, it was said that the judge erred in not having
sufficiently considered or at all that the Applicant:
(a)
was a man of hitherto clear record;
(b)
was 21 years of age at the time of the offence;
(c)
was tempted to be a courier by the person who had rented
premises in North Point; and
198
CCAB 2002
(d)
had made no profit from the trafficking in dangerous drugs
apart from the payment to him as a courier.
Held :
(1)
Every aspect of the grounds of appeal revealed a total misconception of
the sentencing principles to be applied in cases concerned with trafficking in
dangerous drugs. The Applicant’s age (see: HKSAR v Manalo [2001] 1
HKLRD 557) and clear record (see: HKSAR v Poowongsa Worachet & Another
Cr App 218/2001) could have had no impact of any significance on the
appropriate starting point to be adopted, and that had effectively been the
position since R v Lau Tak-ming and Others [1990] 2 HKLR 370, 386;
(2)
The Applicant was not a mere courier, as submitted. But even if he had
been, he was deserving of no special treatment outside the normal guideline
tariff. That he had made no profit, as submitted, which did not, in any event,
seem likely, was neither here nor there;
(3)
The Applicant was being sentenced for a particularly grave offence of
trafficking in heroin, and the sentence he received was the very least he could
reasonably have expected.
Result - Application refused.
CA 477/2001
Stuart-Moore
ACJHC
Seagroatt J
(11.4.2002)
*Sin Pui-ha
#I/P
BIN
MOHAMMED
YUSUP Anuar
Trafficking
in ‘ice’/Massive
quantity/Mathematical
progression
inappropriate in application of guidelines
販運‘冰’- 數量龐大 - 應用量刑指引時採用數學上的刑罰遞進
等級並不恰當
The Applicant pleaded guilty to trafficking in 2.45 kilos of a crystalline
solid containing 2.36 kilos of methamphetamine hydrochloride or ‘ice’. He had
been arrested at Hong Kong Airport when about to board a flight to Kota
Kinabulu. He was a Malaysian by nationality and had arrived in Hong Kong
four days earlier. The drug was concealed in five ziplock bags, strapped around
his body. The retail value in Hong Kong of the drug was $857,500. He said
that a friend, whose full name he did not know, came to his hotel and strapped
the drug on him, asking him to take it to Malaysia.
In arriving at a sentence of 16 years’ imprisonment, the judge took a
starting point of 24 years, which was the starting point referred to by the
Applicant’s counsel when he drew attention to HKSAR v Vhemy Axel Supardi
[2000] HKLRD 291. The judge also had in mind the guidelines in Attorney
General Ching Kwok-hung [1991] 2 HKLR 125 – there, for over 600 grammes,
a sentence of 18 years and upwards was indicated.
On appeal
Held :
(1)
Although the Applicant was trafficking in about four times the amount of
600 grammes mentioned in Ching Kwok-hung (above), there were dangers in a
mathematical progression and, as the Court of Appeal had indicated in Supardi
(above), 24 years was a proper starting point;
(2)
In Supardi (above), the Applicant trafficked in 2.087 kilos or just over 3
times the 600 grammes guideline. The 16-year term imposed by the judge on
the Applicant took into account the guilty plea, which was the only mitigating
factor. There was no ground to interfere with the sentence;
199
CCAB 2002
CA 441/2001
Stuart-Moore
ACJHC
Seagroatt J
(11.4.2002)
*Sin Pui-ha
#Giles Surman
Amnuaychoke
NOPPORN
Sentences for dissimilar drugs/Large quantity of heroin and small quantity
of midazolam/Enhancement of starting point for heroin offence not
appropriate
販運不同毒品的刑罰 - 大量海洛英及小量咪達唑侖 - 提高販運
海洛英罪行的量刑起點並不恰當
The Applicant pleaded guilty to a charge which alleged that he had
trafficked on 5 April 2000 in a mixture containing 15.19 grammes of heroin
hydrochloride and 200 tablets containing approximately 3.8 grammes of
midazolam maleate. He was sentenced to 4 years’ imprisonment against which
he sought, out of time, to appeal.
The judge took a starting point of 5½ years’ imprisonment as an
appropriate starting point for the heroin offence. He then said:
You were also found in possession of 200 tablets of midazolam
maleate. In my view, the appropriate sentence for that, in
addition to the 5½ years, would be one of 6 months’
imprisonment.
So the appropriate sentence in my view would be 6 years’
imprisonment. I propose to give you full credit for your guilty
plea and the sentence will therefore be reduced to one of 4 years’
imprisonment.
On appeal, it was submitted that the additional period of 6 months for the
midazolam maleate, which was added to the starting point for the heroin,
offended the principle, as it was put, that the ‘sentences imposed in respect of
two different types of dangerous drugs ought, following HKSAR v Yip Pik-kwai
[1999] 3 HKLRD 42, to have been made concurrent with one another’.
Held :
The question, on the authorities, was whether the amount of midazolam
maleate being trafficked should have materially altered the sentence imposed
for trafficking in this amount of heroin. The narcotic content of the midazolam
was just under 4 grammes. Had this been a further quantity of the much more
harmful drug, heroin, as opposed to midazolam, this would not have made more
than a marginal difference, if indeed any difference at all, to the starting point
the judge had correctly taken for the heroin in question. For that reason no
further term of imprisonment, by way of enhancement of the starting point taken
for the heroin, should have been incurred. The judge had erred in principle:
HKSAR v Wong Kam-wo [2001] 2 HKC 647, HKSAR v Yip Pik-kwai [1999] 3
HKLRD 42, applied.
Result - Appeal allowed. Sentence of 3 years and 8 months’ imprisonment
substituted.
200
CCAB 2002
AR 15/2001
Stuart-Moore
& Mayo VPP
Seagroatt J
(19.4.2002)
*D G Saw SC
& Michael
Wong
#Laurence
Poots
SJ
v
KO
Fei-tat
Trafficking in dangerous drugs/Young offender/Training centre rarely
appropriate/Good character of little assistance/ Deterrent sentences
required
販運危險藥物 - 青少年犯 - 甚少情況適宜判入教導所 - 良好品格無
助於減刑 - 須判處阻嚇性刑罰
The Respondent (D2 at trial, and aged 18 years) was charged with three
co-defendants. They were D1, aged 20, D3, aged 20, and D4, aged 21. D1
pleaded guilty to nine counts of trafficking in dangerous drugs and one count of
conspiracy to traffic in dangerous drugs. He was imprisoned for 5 years. D3
pleaded guilty to one count of trafficking in cannabis and to one count of
possession of cannabis for which he was ordered to undergo 100 hours of
community service. D4, who pleaded guilty to three counts of trafficking in
dangerous drugs involving 2.33 grammes of ‘ecstasy’ and 0.29 gramme of ‘ice’,
received a sentence of 2 years’ imprisonment.
The offences committed by the Respondent were connected to
trafficking in dangerous drugs, and were committed between 28 August 2000
and 6 October 2000, at which time he was nearly 17 years old. His date of birth
was 13 October 1983.
The case against the Respondent and his co-defendants arose from an
undercover operation in which a female police officer, a WPC, posed as a
customer at the ‘One Night Stand Disco’ in Gloucester Road, Wanchai, in order
to observe dangerous drugs activities. Between July and October 2000, various
of the defendants approached her to sell dangerous drugs, namely, ecstasy, ice
and cannabis. The operation culminated in the arrest of the Respondent and his
co-defendants on 6 October 2000.
The four offences related to the Respondent (counts 7-10) were jointly
committed with D1 who also pleaded guilty to them. The total amount of
methamphetamine hydrochloride or ice actually trafficked in these counts was
39.58 grammes and the Respondent (and D1) had agreed to a further supply of a
further ounce (or approximately 28 grammes), making a total of just under 70
grammes of ice . The total amount of cannabis supplied was 27.61 grammes.
It was admitted at the time of sentencing that the police monthly survey
of the street level of methamphetamine hydrochloride showed that the value of
the ice actually trafficked by the Respondent in August and September 2000 (in
counts 7 and 8) would have amounted to approximately $22,300.
Although the judge, who had earlier obtained reports about the
Respondent, acknowledged the very serious nature of the offence of trafficking
in dangerous drugs, he went on to say:
The offences that you pleaded to would normally have carried an
immediate custodial sentence, but because of your age, your clear
record, and the fact that you were only involved in four
transactions out of the 10 charges, I am prepared to give you a
chance to learn a trade and came out of detention a better
person. So, in respect of the four offences to which you pleaded
guilty, you are sent to be detained in a training centre. The usual
period of detention in a training centre is about a year to 18
months depending on your conduct in the training centre …
On review, it was submitted that the judge had effectively paid mere lipservice to the need for deterrence in dealing with offences of this type because
of their seriousness to society, particularly its younger members. It was said
that the judge gave undue weight to the Respondent’s previously clear record
and his age.
201
CCAB 2002
Held :
(1)
The normal tariff for trafficking in 10 to 70 grammes of ice should range
from 7 to 10 years’ imprisonment: Attorney General v Ching Kwok-hung [1991]
2 HKLR 125. The Respondent’s criminality would normally have merited a
sentence, after trial, at the upper end of that bracket bearing in mind that each of
the offences was a discrete and separate offence calling with totality in mind,
for the imposition of sentences which were to an extent consecutive. This was
repeated trafficking in ice, over a period of some weeks by the Respondent who,
although comparatively young for a wholesale trafficker in ice, was obviously
well versed in this activity and had the ability to obtain it in comparatively
sizeable quantities at short notice;
(2)
As regards the Respondent’s age and clear record, it was said, in R v Lau
Tak-ming & Others [1990] 2 HKLR 370, 386, with reference to trafficking in
heroin, but with equal force when applied to trafficking in ice:
It must be borne in mind that these are offences of the utmost
gravity which may well result in mitigating factors which, for less
serious offences could lead to a discount, having little weight. By
this we mean age and disability - though extreme youth may call
for special consideration. Drug dealers are notorious for
attempting to elicit sympathy from the courts for their middlemen
by the use of the blind, the maimed, the halt, the young and the
aged in the carrying out of their nefarious trade;
(3)
With present sentencing policy in mind, regardless of his previous clear
record, the Respondent’s timely pleas of guilty would have entitled him to have
received a one-third discount in the event of a prison sentence being imposed
upon him. Conversely, it could be that if he had a previous history of
trafficking this would, for the purposes of sentence, have aggravated the
offence. However, the one-third discount in such circumstances as these was
generally to be regarded as the high watermark of the discount. The
Respondent could not plead that he had a positive good character in the sense
that, for example, he had given his services freely to the community in some
useful and constructive way which might have enabled him to claim any further
discount. The Respondent’s conduct revealed that his conduct was not confined
to a one-off offence;
(4)
As was said in Attorney General v Suen Yuen-ming [1989] 2 HKLR 403,
save in ‘very rare cases ’ a training centre order for trafficking in substantial
quantities of dangerous drugs should not be imposed. The judge had
overlooked the well-established principle of imposing deterrent sentences in
Hong Kong for this type of case. Here there were no exceptional circumstances.
Substantial quantities of ice were being trafficked by an active, persistent and
willing participant in the trade who was driven by greed to act in the way he did.
Result -
SJ’s review allowed.
substituted.
202
Sentences of 4½ years’ imprisonment
CCAB 2002
CA 508/2001
Stuart-Moore
VP
Stock JA
LugarMawson J
(15.5.2002)
*Ho May-yu
#I/P
FOK
Lin-hing
Trafficking in dangerous drugs/Family circumstances not relevant as
mitigation/Good character of little avail
販運危險藥物 - 家庭狀況並非相關的求情因素 - 具有良好品格亦作
用不大
The Applicant, aged 37 years, a nightclub waitress and a mother of a 12year-old daughter, pleaded guilty to two counts of trafficking in dangerous
drugs. The first count related to 2.62 grammes of cannabis and 23.65 grammes
of a crystalline solid containing 23.14 grammes of ‘ice ’ . The second count
related to 45.45 grammes of cannabis and 174.85 grammes of ice having a
narcotic content of 173.62 grammes.
The Applicant was sentenced to 5 years and 4 months’ imprisonment on
the first count and 8 years’ imprisonment on the second; 5 years of that sentence
was allowed to run concurrently with the sentence on the first count, producing
a total sentence of 8 years and 4 months.
The judge applied the guidelines in AG v Ching Kwok-hung [1991] 2
HKCLR 125, and adopted a starting point of 8 years for the first count and 12
years for the second. He gave the Applicant a one-third discount to reflect her
guilty pleas and said he could find no other mitigating factors. The Applicant
had one previous conviction in 1982, when she was 18, for fighting in a public
place, and had been bound over.
On appeal, the Applicant prayed in aid the distress caused to her
daughter by her situation, and her virtually clear criminal record.
Held :
(1)
The distress of the child should have been anticipated by the Applicant
before she committed her offences and deterred her from doing so;
(2)
Where substantial quantities of drugs were involved, very little credit
could be given for previous good character: HKSAR v Lau Kin Cr App 147/98,
Ng Tat-shing & Another v R [1977 - 1979] HKC 71;
(3)
Whatever credit could have been given to the Applicant to reflect her
slightly tarnished previous good character was subsumed in the one-third
discount;
(4)
The sentences for trafficking in ice were in accordance with the
guidelines.
203
CCAB 2002
CA 193/2002
Woo JA
LugarMawson J
(2.5.2002)
*Ho May-yu
#Giles Surman
WOO
Chung-hing
Trafficking in dangerous drugs/Consecutive sentences appropriate for
separate offences on different days/Commission of offence on bail an
aggravating factor
販運危險藥物 - 對在不同日子所犯的個別罪行判處分期執行的刑期
是恰當的 - 保釋期間犯罪為加重刑罰的因素
The Applicant pleaded guilty to two offences of trafficking in dangerous
drugs with a narcotic content, respectively, of 8.25 grammes and 7.2 grammes
of heroin hydrochloride.
He was sentenced to consecutive terms of
imprisonment of, respectively, 2 years and 2 years and 8 months, producing a
total of 4 years and 8 months’ imprisonment. A one-third discount was given in
respect of each sentence to reflect the guilty pleas.
The first offence was committed on 17 August 2001, and the second,
while the Applicant was on bail for the first offence, on 8 September 2001. The
judge when sentencing observed that ‘people who commit offences on bail must
expect the second offence to be consecutive’ .
On appeal, it was submitted that the sentence was manifestly excessive,
and that the judge erred by suggesting that the total weight of the narcotic
content of the heroin covered by both charges should be considered together,
commenting that when added together ‘it puts you in the right place on the next
band up in the guideline’ . It was also said that the judge erred in appearing to
rely on the fact that the Applicant committed the second offence whilst on bail
for the first in ordering the sentences to run consecutively, when he had already
relied on that fact to increase the sentence on the second charge.
Held :
(1)
Following the guidelines in R v Lau Tak-ming & Others [1990] 2 HKLR
370, the weight of the narcotic content in both charges placed the Applicant at
risk of receiving an after-trial sentence of up to 5 years’ imprisonment for each;
each offence fell, for sentencing purposes, into the first of the suggested
sentencing tariff bands of up to 10 grammes of narcotic;
(2)
As two separate and distinct trafficking offences had been committed on
different days, consecutive sentences were called for as a matter of sentencing
principle;
(3)
That the Applicant had committed the second offence whilst on bail for
the first was a factor that went to aggravation of sentence;
(4)
The individual length of each of the sentences was not manifestly
excessive, nor was the total length of time to be served in prison for them. The
Applicant had only himself to blame for the fact that he would be in prison for a
period of time more commensurate with the second of the Lau Tak-ming tariff
bands. There was no escape from the fact that when the narcotic contents of
both charges were added together, it showed that on two occasions in less than a
month he had trafficked in heroin which had a total narcotic content of 15.45
grammes.
204
CCAB 2002
MA 201/2002
McMahon DJ
(23.5.2002)
*Liu Yuenming
#I/P
LAU
Tak-kam
Possession of drugs in prison/Deterrent sentences required/ Whether place
of drugs in prison an aggravating factor/ Length of prison term where
quantity small/Sentence to be consecutive to pre-existing sentence
監獄內管有危險藥物 - 須判處阻嚇性刑罰 - 監獄內收藏危險藥物的
地方是否加重刑罰的因素 - 對於少量危險藥物須判處的刑期 - 判刑
須與先前的刑期分期執行
While serving a prison term at Lai Chi Kok, drugs were found secreted
in the clothing and on the person of the Appellant. At the time, he was in the
hospital segregation ward.
In consequence, the Appellant, who had a bad criminal record, was
sentenced to 18 months’ imprisonment concurrent for each of two offences of
unlawful possession of heroin. In each offence, the amount involved was about
0.2 grammes. These sentences were ordered to run consecutively to the preexisting sentence.
On appeal
Held :
(1)
The taking of drugs into a prison and possession of them were serious
matters which warranted deterrent sentences: R v Chu Ki [1965] HKLR 600.
That was accepted by the court in Attorney General v Au Kwok-chai [1996] 3
HKC 192, 194:
The courts have always regarded the smuggling of drugs into
prison as a serious offence. Indeed the magistrate appears to
have taken that view. We agree. It was pointed out by Mr
Cross QC, who appears today for the Attorney, that this was a
distinct offence and was of a kind which particularly calls for a
deterrent sentence. Deterrent sentences are imposed not to
deter the offender but also to deter others who might be like
minded. This is of particular importance when dealing with
offences of this nature as they are calculated and committed
with full knowledge of the seriousness of what is being done.
In that case, the court was dealing with a packet of drugs which consisted of a
mixture of 0.42 grammes containing 0.06 grammes of heroin, and was satisfied
that a proper sentence after a plea of guilty was 12 months’ imprisonment. The
sentences generally imposed for the bringing of quantities of drugs into prison
of the present sort had been in the vicinity of 12 months’ imprisonment:
HKSAR v So Muk-chi MA 3/99;
(2)
In this case the two packets of heroin smuggled into prison by the
Appellant were cleverly hidden in his clothing and on his person, and that was
always so in offences of this nature. Although the magistrate regarded it as an
aggravating factor that the Appellant had smuggled these drugs into a
segregated part of the prison, a hospital ward, it was to be doubted if that was
indeed such a factor. It did not, in any event, warrant an increase of 50% in
sentence. Given the quantity of narcotic involved, the total sentence of 18
months’ imprisonment was too high. Concurrent sentences of 12 months’
imprisonment for each offence were appropriate;
(3)
It was a proper principle of sentencing that there was generally good
reason to order that sentences of imprisonment for offences committed by
prisoners should be served consecutively: R v Idris Ali [1998] 2 Cr App R 123;
(4)
It was important that prison discipline be maintained. It would be wrong
for prisoners to assume that because they were already serving a term of
205
CCAB 2002
imprisonment, they had a better chance of having sentences for subsequent
offences made concurrent to their existing sentences.
Result - Appeal allowed. Sentences of 12 months’ imprisonment on each
offence substituted, to be served concurrently, but consecutively to the
pre-existing term.
MA 295/2002
Gall J
LAU
Chi-chung
Trafficking ketamine in a discotheque/Duty of courts to deter supply of
dangerous drugs to the public/Community Service Order not appropriate
在的士高販運氯胺酮 - 法庭有責任阻嚇罪犯向公眾供應危險藥物社會服務令並不恰當
(27.6.2002)
*Chan Manwai
#C Grounds
The Appellant pleaded guilty to two offences of trafficking in a
dangerous drug. The first alleged unlawful trafficking in 0.73 grammes of a
powder containing 0.04 grammes of ketamine, at the LA Disco. The second
alleged that, at the same discotheque, he unlawfully trafficked in 1.17 grammes
of a powder containing 0.74 grammes of ketamine.
The magistrate, having given discounts for plea, sentenced the Appellant
to 4 months’ imprisonment on each charge, with 2 months of the second charge
to run consecutively to the sentence on the first charge, making a total of 6
On appeal, it was said that the sentence was manifestly excessive, and
that the judge did not properly consider the mitigating and surrounding
circumstances of the appropriateness of a non-custodial sentence. It was
submitted that as the Appellant, aged 28 years, had an excellent work record,
was of clear record, had pleaded guilty and shown remorse, was not a drug
addict and was previously a responsible young man who saved his earnings and
supported his parents, a community service order was a viable sentencing
option. In HKSAR v Chow Chak-man & Another [1999] 3 HKLRD 37, the
Hong Kong Court of Appeal had followed the English Court of Appeal’s
decision in R v Brown (1981) 3 Cr App R(S) 294, where it was said that the
offender best suited to a community service order should:
(1)
be either a first offender, or one with a light criminal record;
(2)
come from a stable home background, perhaps with a family;
(3)
have a good work record - orders were not designed to
encourage the lazy, or to show the idle the errors of their
ways;
(4)
be in employment, or have a realistic prospect of such;
(5)
have shown genuine remorse;
(6)
present no more than a slight risk of re-offending.
The Appellant prayed in aid that said in HKSAR v Lam Kin-hung MA
11/2002:
It seems to me to be beyond question that a community service
order can effectively serve the dual purpose of punishment and
retribution. It is also effective not least because if an offender fails
to observe the strict requirements imposed upon him by those
directing his labours he is liable at any time during the term of the
order to be ‘resentenced’ for the offence. That, or so it seems to
one, is a powerful incentive for the offender to comply fully with
the order and an equally powerfully disincentive to offend again.
206
CCAB 2002
The Appellant submitted that the court had to look at not only the
circumstances of the offence but the circumstances of the offender, and that a
properly considered sentence balanced both of those factors to arrive at a
sentence which not only properly reflected society’s disapproval of the type of
offence which was being sentenced but also the needs, requirements and
circumstances of the offender. That, so it was said, had not happened in this
case.
Held :
(1)
The offence upon analysis was found to be a simple sale and purchase of
drugs in a venue where such offences were proliferating among a group of
persons whose consumption of such drugs as a class of society was growing.
The magistrate was right to dismiss the alternative of community service;
(2)
The Appellant on his own admission acquired the drugs by purchase to
resell them to an undercover police officer. Even if he did not make a profit he
fell within the second category of trafficker identified in HKSAR v Wong Suethau & Another [2002] 1 HKLRD 69, namely, who carried or stored a supply of
drugs to give to his friends or acquaintances as and when the occasion should
arise, and who posed exactly the same threat to society as people who peddled
for gain in drugs. As Stuart-Moore VP said:
It has to be borne in mind that the evil behind all aspects of
trafficking in drugs, which the courts have a duty to deter, is
ultimately the supply of dangerous drugs to the public, whether or
not this is done for financial gain. Looked at in another way, we
believe that the major concern of the law-abiding community in
Hong Kong, aware of the immense harm and suffering caused by
drugs and by those who are engaged in trafficking them, is
principally directed at the availability of drugs which traffickers
make possible by their activities rather than the profits which
traffickers are able to make from what they have done. By way of
example, the parents whose son or daughters starts to abuse drugs,
are unlikely to have any particular interest in the trafficker’s
motive for supplying those drugs; it is the fact that their offspring
has been supplied with the drugs which will, justifiably, be the
object of their concern and it will be no consolation to such
parents to be told that the supply came from a ‘friend’ who had no
financial motive when handing over the drugs.
The magistrate properly disregarded the mitigation that the supply of drugs was
for an amorous intent and that the supply was without a profit being made by
the Appellant;
(3)
The magistrate had fully in mind the background and circumstances of
the Appellant and had not omitted to consider any factor which was before him.
207
CCAB 2002
香港特別行政區訴翁世豪
HKSAR v YUNG Sai-ho
*廖遠明
Liu Yuenming
#孫錦熹
Suen Kamhee
耹訊日期：二零零一年十二月廿一日
宣判日期：二零零二年一月廿八日
Toh DJ
Date of Hearing: 21 December 2001
Date of Judgment: 28 February 2002
販運危險藥物 - 屢次在的士高販運危險藥物 - 冰與氯胺酮混合劑對 “ 雞尾 ” 混合劑濫用者構成危險 - 罪行的嚴重性
上訴人承認 4 項販運危險藥物罪，包括甲基苯丙胺 (‘冰 ’ ) 及
氯胺酮 (‘K 仔 ’ ) 的危險藥物。有關控罪指控上訴人在 4 個不同的日
期，在一間的士高內向一名底警員售賣少量毒品。上訴人在這的
士高內是一名活躍的販賣者。他共販賣了 1 ,7 7 5 粒包含 2 8 0 .3 3 克的
冰、 1 8 5 .7 3 克的氯胺酮及 3 .2 3 克的胺酊。他有兩次刑事紀錄。這次
是他第一次犯上與毒品有關的罪行，亦是第一次被判入獄。
裁判法官考慮過毒品對社會的禍害後，適當地認為他須判
一個有阻嚇性作用的刑期，他亦考慮到上訴人在的士高內販賣毒
品，他的銷售對象是年青人，故這種行為會對社會做成一個很嚴
重的問題。
裁判法官考慮到一般人都認為K仔的毒性較冰毒為輕，所
以有關K仔的刑期亦會相對較底，而且包括在冰毒的刑期內。因
此，裁判法官援引律政司訴程國雄[1991]2 HKLR 125一案對冰
毒的判刑指引作出量刑的考慮，按照程國雄一案的指引，販運冰
毒至12克，判刑起點應為3至7年。
裁判法官就每項控罪以兩年作為判刑起點，扣減1/3作為
認罪的寬減，因此，上訴人就每項控罪被判入獄16個月。而裁
判法官再考慮到總刑期的原則，他將首項16個月的刑期與其他
刑期中的5個月分期執行，餘下同期執行，總刑期為31個月。
裁判官也接納了陳醫生的結論( 即當毒品是混合物時「雞
尾」)，它們對濫用者的害處會增加很多，而效果也會加倍。認
為：
Ketamine appears to be less
ice but simlar to if not more
MDMA. However, there is a
ketamine might become more
MDMA …
上訴時
208
dangerous
dangerous
possibility
dangerous
than
than
that
than
CCAB 2002
裁決：
(1)
陳醫生總括的結論，K仔比冰的危險性較為少，但它比較
接近或多過「忘我」。現時是沒有足夠證據顯示K仔的危險性較
接近冰。在HKSAR v Luk Ho-fat, HCCC 209 of 2001 一案中
的說法(即是當毒品是混合物時「雞尾」)，它們對濫用者的害處
會增加很多，而效果也相應地加倍了﹔
(2)
裁判官正確地指出上訴人在短短兩星期內分別4次做出這
種邪惡的行為，而法庭是有責任嚴厲打擊這種行為以保障社會利
益。裁判官適當地採納一個較高的量刑起點來反映出不單止是毒
品的重量，及同時反映出上訴人在這案中的嚴重角色；
(3)
本案的量刑起點應為18個月，但因為上訴人認罪，可獲
得扣減。每一條控罪被判入獄12個月。經考慮過總刑期的原則
後，首項12個月的刑期與第二、三及四項控罪的刑期中的4個月
分期執行。故此，總刑期改為24個月。
結果︰上訴得直。刑期改為24個月監禁。
判刑旁論：
[English
Digest of MA
837/2001,
above]
Toh DJ
(21.12.2001)
*Liu Yuenming
#Suen Kamhee
YUNG
Sai-ho
上訴法庭應考慮作出販運及藏有K仔的判刑指引。
Trafficking
in
dangerous
drugs/Repeated
trafficking
in
a
discotheque/Mixture of ice and ketamine/Danger to abusers of cocktail
mixture/Gravity of offence
The Appellant was convicted on his own pleas of four charges of
trafficking in dangerous drugs, including methamphetamine hydrochloride
(‘ice’ ) and ketamine. The offences occurred on four separate days at a
discotheque when the Appellant approached an undercover police officer and
sold him small quantities of dangerous drugs. The Appellant was an active
trafficker at the discotheque. He trafficked in a total of 1,775 tablets containing
280.33 grammes of ice, 185.73 grammes of ketamine, and 3.23 grammes of
diazepam. He had two previous convictions. This was the first time the
Appellant had committed drug-related offences, and also the first time he had
been imprisoned.
Having taken into account the damage done to society by dangerous
drugs, the magistrate decided that a deterrent sentence had to be imposed. He
also considered the serious threat posed by someone who trafficked drugs in a
discotheque where young people were his target customers.
The magistrate took into consideration that as it was generally accepted
that ketamine was less serious than ice, a lower sentence would be imposed for
ketamine and the sentence would be included in the sentence for ice. He
therefore applied the sentencing guideline for ice in Attorney General v Ching
Kwok-hung [1991] 2 HKLR 125, to reach his sentence. According to that
guideline, for trafficking a quantity of ice of up to 12 grammes the starting point
should be 3 to 7 years’ imprisonment.
The magistrate took 2 years as the starting point for each charge and
gave a one-third discount for his plea of guilty. He was accordingly sentenced
to imprisonment for 16 months on each charge. Having taken account of
totality, the magistrate ordered the first sentence of 16 months to run
consecutively with 5 months of each of the other sentences but concurrently
with the remaining term making a total sentence of 31 months’ imprisonment.
209
CCAB 2002
The magistrate accepted the conclusion of Dr Chan that when a
dangerous drug was a mixture ‘cocktail’ , the harm done to those who abused it
would be increased significantly, and the effect on them would be doubled. Dr
Chan opined:
Ketamine appears to be less dangerous than ice but similar to, if
not more dangerous than MDMA. However, there is a possibility
that ketamine might become more dangerous than MDMA ..…
On appeal
Held :
(1)
Dr Chan’s conclusion was essentially that ketamine was less dangerous
than ice, but was nearly as dangerous as, if not more dangerous than, ecstasy.
There was no scientific evidence to show ketamine was nearly as dangerous as
ice. However, as indicated in HKSAR v Luk Ho-fat HCCC 209/2001, when the
drug was a mixture ‘cocktail’ , much more harm would be done to those who
abused it and the effect so produced was doubled accordingly;
(2)
The magistrate was right to point out that the interest of society required
the court to fiercely combat such evil acts as the Appellant committed on four
separate occasions in two weeks. A higher starting point was rightly adopted to
reflect not only the weight of dangerous drugs involved but also the gravity of
the role played by the Appellant;
(3)
The starting point for each charge should have been 18 months’
imprisonment, reduced to 12 months for the guilty pleas. Having applied
totality, the 12 months’ imprisonment imposed on the first charge would run
consecutively to 4 months on each of the second, third and fourth charges,
producing a totality of 24 months.
CA 495/2001
Stuart-Moore
VP
Stock JA
(12.7.2002)
*Paul Madigan
#Richard
Donald
WONG
Ping-kay
Result
- Appeal allowed. Sentence of 24 months’ imprisonment substituted.
Obiter
- It might be time for the Court of Appeal to consider giving
guidelines for trafficking in and possessing ketamine.
Manufacturing heroin hydrochloride/Scale of operation/ Comparatively
small manufacturing role
製造海洛英鹽酸鹽 - 經營規模 - 製毒者的角色相對輕微
The Applicant pleaded guilty to a count of manufacturing heroin
hydrochloride, at his flat in Causeway Bay. He was sentenced to 12 years’
imprisonment.
Police went on 13 December 2000 to a flat in Causeway Bay. The flat
was partitioned into six rooms (A to F) which were occupied by different
tenants. The officers were let into the flat by the tenant of Room B. When the
officers knocked on the door of Room D, the Applicant answered the door.
When the police disclosed their identity, the Applicant immediately closed the
door. However, about 10 seconds later, he opened the door again. He looked
nervous. The officers requested to search the room. They found a number of
packets containing midazolam and a total of 38.46 grammes of a mixture
containing 14.88 grammes of heroin hydrochloride contained in plastic bags and
plastic straw packets. Additionally, police found approximately 111 grammes
of caffeine and a blender cup with a blade, a brush and some betting slips all of
which, on forensic examination, bore traces of heroin. There were also a large
number of plastic straws and plastic bags in the flat. A tenancy agreement and a
210
CCAB 2002
receipt confirmed that the Applicant had rented the flat since 10 October 2000 at
a monthly rental of $3,000.
The Applicant when interviewed admitted that he diluted heroin by
mixing it with caffeine by using the blender. He then packaged the diluted
heroin into plastic straws. He said that he prepared heroin (and midazolam) for
sale to drug addicts in the Chai Wan District. He had purchased one ounce of
undiluted heroin for $3,800. After mixing it with caffeine, he could produce
120 straw packets of diluted heroin. The retail value of the heroin was
estimated at just over $10,000.
In sentencing, the judge observed that the Applicant had eighteen
previous convictions, ten of which were drug-related including three offences of
trafficking in dangerous drugs. She then reviewed the sentencing authorities
when deciding upon an appropriate sentence to impose, and said:
What the defendant has done here was to dilute the heroin with
caffeine which is one of the usual ways of manufacturing
dangerous drugs. …… I do bear in mind the quantity of
dangerous drug found was indeed very small and this is clearly
not the scale of large-scale manufacturing.
According to the confession of the defendant he purchased the
heroin and diluted the same himself so as to sell to drug addicts
in the Chai Wan district. Having considered the authorities I
have referred to, the circumstances of the offence, the scale of the
operation and the background of the defendant I am of the view
that a starting point of 18 years is appropriate here. Apart from
the defendant’s plea I do not see any other mitigating factor. I
will give the defendant the usual one-third discount.
On appeal, it was submitted that a sentence of twelve years after a plea
of guilty on these facts was manifestly excessive and that a lower starting point
would have been appropriate to reflect the relatively small scale of the
Applicant’s operation.
Held :
(1)
In R v Cheung Wai-kwong and Anor [1997] 3 HKC 496, 501, P Chan J
said:
It is clear that for the offence of manufacturing of dangerous
drugs, the quantity of drugs found is of course relevant but this
is not the only factor to be taken into consideration. In deciding
the proper sentence for such offence, the court should also
consider the scale of the operation, the capacity of the
equipment, whether the manufacturing station had been
producing or is likely to produce substantial quantities of
dangerous drugs and the role played by the accused.
These observations remained as relevant now as they were then, but it was
important to observe the context in which they were spoken. In that case, the
applicants, following trial, each received a sentence of twenty-one years for
manufacturing heroin. These sentences were upheld. The applicants had been
found in a flat which contained a large amount of paraphernalia, including an
iron mould and a hydraulic jack which had been noticed through the letter box
when police first came to flat. Believing it to be unoccupied, they waited
outside the flat for two hours. It was after this that a further look into the flat
revealed that the items previously in view had been moved. It then took police
10 to 12 minutes to break down the door which had been jammed shut with a
wooden bar. During the time police had been outside the flat, the applicants had
211
CCAB 2002
plainly been disposing of dangerous drugs by flushing them away in the toilet.
By the time police were able to gain access to the flat, no measurable quantity
of dangerous drugs was to be found. A hose, which was still running when
police managed to break their way in, was inserted in the toilet bowl. Police
also found in the flat a large amount of paraphernalia associated with
manufacturing heroin. Heroin was found on the applicants’ clothing and also on
their bodies prompting the comment from P Chan J that it was on them ‘literally
from hair to toenails.’ At p 501, he went on to say:
It is however clear beyond doubt that judging from the large
amount of paraphernalia found inside the premises, it was a
significant manufacturing station with a large scale of
operation. It would be naive to assume that people involved in
this operation would take the trouble of making only small
quantities from time to time. These two applicants had been in
the premises for at least a couple of hours and were no doubt
trying to destroy as much evidence as they could while the
police were breaking into the premises ……. The conclusion is
irresistible.
(2)
The position in the present case was very different. Whilst the
Applicant’s role as a heroin addict who manufactured and supplied heroin to
others remained serious, his role as a manufacturer was on a far lower scale than
the major manufacturing operation involved in Cheung Wai-kwong and Anor.
The scale of manufacturing could be judged by the relatively small quantity of
heroin in the Applicant’s possession at the time of his arrest. If he had been
convicted, following a trial, of trafficking in 14.88 grammes of heroin
hydrochloride, he would have expected to have received, following the
guidelines in R v Lau Tak-ming & Anor [1990] 2 HKLR 370, a sentence of
about five and a half to six years’ imprisonment;
(3)
The element of manufacturing, whilst undoubtedly an aggravating
feature, did not elevate an offence, on facts such as these, in what amounted to a
comparatively small role for a manufacturer, to one which was deserving of the
kind of sentence to be expected by those engaged in a rather more sophisticated
operation, where an eighteen-year starting point might well be justified;
(4)
In all the circumstances of the case, including the Applicant’s criminal
record, a starting point in the region of ten years’ imprisonment would have
been appropriate. Giving full credit for the plea, the resulting sentence would
be six years and eight months.
Result - Appeal allowed. Sentence of 6½ years’ imprisonment substituted for
that of 12 years’ imprisonment.
CA 477/2001
Stuart-Moore
ACJHC
Seagroatt J
(11.4.2002)
*Sin Pui-ha
#I/P
YUSUP
ABM
Trafficking in ‘ice ’ /Large quantity/Application of guideline/ Danger of
mathematical progression
販運 ‘ 冰 ’ - 大量 - 應用量刑指引 - 按數學上刑罰遞進的準則判刑
會有危險
The Applicant pleaded guilty to an offence of trafficking in 2.45
kilogrammes of a crystalline solid containing 2.36 kilogrammes of
methamphetamine hydrochloride, or ‘ice ’ .
The facts showed that the Applicant, a Malaysian who had been in Hong
Kong for a few days, was arrested at Hong Kong airport as he was about to
board a flight for Kota Kinabalu. The drug was concealed in five ziplock bags,
strapped around his body. The retail value of the drugs was $857,000. He said
212
CCAB 2002
that a friend, whose full name he did not know, came to his hotel and strapped
the drug to him, asking him to take it to Malaysia.
The judge took a starting point of 24 years’ imprisonment, and reduced
that by one-third to 16 years to reflect the guilty plea.
On appeal
Held :
(1)
The judge was mindful of Attorney General v Ching Kwok-hung [1991]
2 HKLR 125, the key tariff case, which indicated, for over 600 grammes of ice,
a sentence of 18 years and upwards. The Applicant trafficked in over four times
that amount and, bearing in mind the dangers of a mathematical progression, 24
years was a proper starting point;
(2)
In HKSAR v Supardi [2000] HKLRD 291, to which the judge had been
referred, the Applicant trafficked in 2.087 kilogrammes, or just over three times
the 600 grammes guideline, and a starting point of 24 years was taken as in this
case;
(3)
The 16-year-term imposed on the Applicant took into account the plea of
guilty, which was the only mitigating factor.
CA 179/2001
Stuart-Moore
VP
Stock JA
Suffiad J
(18.7.2002)
*DG Saw SC
& Paul
Madigan
#John Haynes
(1)
Cheung
Kam-wing (2)
(1) KWANG
Sau-fan
(2) LEUNG
Chi-wai
Trafficking in dangerous drug/Substantial quantity of herbal
cannabis/Aggravation of sentence on the ground of importation not
justified/Previous trafficking convictions aggravate sentence
販運危險藥物 - 相當數量的大麻草 - 因進口而加刑的理由不充分因以前曾犯販運危險藥物罪而加刑
The Appellants were convicted after trial in the District Court of an
offence of trafficking in dangerous drugs. The charge alleged that on 28 August
2000 they unlawfully trafficked in 9.663 kilos of herbal cannabis. A1 was
sentenced to 3 years and 4 months’ imprisonment and A2 to 4 years’
imprisonment.
The evidence showed that on 25 August 2000 Customs Officers
intercepted a speedpost parcel at the International Mail centre. The parcel had
originated in Shenzhen. It was screened and believed to contain cannabis. It
was addressed to Chung Nam Trading Company at Rooms 1201-1203,
Chinachem Johnston Plaza, Wanchai. That address was in fact that of Capital
International Business Centre, which was a company providing a postal and
storage service. Chung Nam was one of that company’s clients. It was
arranged by the Customs authorities that the parcel would be delivered, and that
officers would be placed at the offices to await its collection. However, no one
turned up that day. The parcel was examined, and it contained 10 slabs of
herbal cannabis, packed expertly in packets of supposed ‘Pet Litter’.
On 28 August, the company received a telephone call and the caller said
that he would collect the parcel that day, so the parcel was taken back to the
premises, and Customs Officers again awaited its collection.
A1 arrived at those premises in the late afternoon, went to the counter,
and asked for the parcel. The parcel was tendered to her, and she was arrested
at those premises. She said that she was collecting the parcel for someone
called Ray, and that she did not know what was in it. She agreed then to
213
CCAB 2002
cooperate with the officers to locate him in a controlled delivery operation. She
was given a tape recorder, and went in a taxi with Customs Officers whilst
numerous telephone calls were made between herself and the man Ray. In the
course of the conversations, Ray expressed considerable anxiety about prompt
delivery of the package, and gave her directions from time to time as to where
to go. He was driving a motor vehicle, and he passed the taxi and stopped. The
Customs Officers who had followed approached him and arrested him. He was
A2.
The judge said that given the quantity of drugs and taking into account
that the cannabis was herbal rather than resin or oil, he would take a starting
point in the case of each Appellant of 3 years and 6 months’ imprisonment.
Then he added:
The fact that the dangerous drugs [were] transported across the
Hong Kong/Mainland frontier by use of government postal services
is, in my view, an aggravating circumstance which merits an
additional 6 months’ imprisonment.
So the judge sentenced A2 to 4 years’ imprisonment but, given A1’s
cooperation with the Customs Officers in organising a controlled delivery, he
reduced her sentence to one of 3 years and 4 months’ imprisonment.
Neither Appellant was of previous good character. A1, who was aged 29
years at the date of the offence, had previous convictions for possession of
dangerous drugs, and for trafficking in dangerous drugs, and, in particular, in
1995, she was sentenced to six years’ imprisonment for trafficking. A2, also 29,
had convictions for various offences, including a conviction for trafficking in
dangerous drugs in 1995, for which he was sentenced to six years’
imprisonment. The judge said that the Appellants could not pray in aid previous
good character, but he did not aggravate the sentence by reason of the fact that
they had records for trafficking in dangerous drugs.
The Appellants submitted that the judge was wrong to treat the use of the
postal service as an aggravating feature and wrong to use as an aggravating
feature that the drugs were imported across from the Mainland, because the
Appellants, so it was said, were not charged with trafficking by importation, nor
was it a necessary implication from the facts found by the judge that they were
the importers.
Held :
(1)
The issue which troubled the judge was that of importation, rather than
the method of importation. The evidence was that the drugs came into Hong
Kong on 25 August, three days before they were picked up by A1 for delivery
to A2. Whilst a sentencing court should not ignore the factual matrix of a case,
it was nonetheless not alleged in this case that either Appellant was involved in
the importation of the drugs. The precise connection which either A1 or A2 had
with the company Chung Nam Trading was not known and, more particularly, it
was not known, and there was no finding by the judge, that A1 was herself
responsible for, or involved with, the act of importation. The same point might
be made for A2. It might be, for example, that someone else was the importer,
and that A1 and A2 were acting under instructions to collect a parcel for onward
distribution, although A2 was taking a most active and concerned role in
ensuring that the parcel was delivered to his intended destination. The
aggravation of sentence on the grounds of importation as against these two
Appellants was not justified or explained by the judge on the evidence, and it
was appropriate therefore to scrutinize the sentences imposed with the question
whether those sentences were manifestly excessive, ignoring the importation
factor;
214
CCAB 2002
(2)
A2 accepted, on the authority of R v Tuen Shui-ming [1995] 2 HKC 798,
that the tariff for trafficking in a quantity of 9,000 grammes of cannabis resin
would be four years’ imprisonment. It was said that from that starting point,
there should have been a reduction of one year. However, the relevant passage
in Tuen Shui-ming had to be read as a whole:
It is clear from the evidence before us that the concentrations refer
to in Chan Sze-man are no longer correct. We are satisfied that the
sentencing court must now bear in mind that cannabis resin has an
average concentration of THC about four times higher than the
average found in herbal cannabis and that cannabis oil has an
average also about four times higher than the average in cannabis
resin. Taking this into account the sentencing judge must adjust the
tariff, which applies to cannabis resin when sentencing for
trafficking in either herbal cannabis or cannabis oil.
Any
adjustment should, as we have already indicated, be within a range
dictated by the starting point indicated in the tariff. Persons with
herbal cannabis could except perhaps in cases where very large
amounts are involved, properly be given a discount of up to a year
from the sentence that would have been imposed had they had a
similar amount of cannabis resin.
There was no directive there that the reduction must be a one year reduction, no
more no less; and the reference to very large quantities was noted. Nine kilos
was a large quantity indeed, though it was recognised that some of the cases
which had come before the courts had involved quantities which had been
larger. In the full circumstances of this case, the judge could not be said to have
erred in principle, or to have acted with manifest error, in deducting six months
rather than, say, nine months or one year;
(3)
It was established that whilst offenders were not to be sentenced for
previous offences, repetition of trafficking offences might well call for
aggravation of sentence to reflect the aggravating features of persistence, the
failure of the previous sentences to deter, and the court’s duty to protect the
public: HKSAR v Chan Pui-chi [1993] 3 HKC 848. On 7 May 1999, A1 was
released from a six-year prison term for trafficking in dangerous drugs, and here
she was, 15 months later, trafficking in nine kilos of cannabis. A2 was released
in April 1999 from a six-year term for trafficking in drugs, and here he was, 16
months later, enthusiastically and urgently directing A1 where to go to help him
deliver drugs to customers. He had another trafficking conviction in 1993, as
well as other offences;
(4)
The judge approached the matter on the basis that since neither was of
good character, they did not deserve credit which would have been their due had
they not previously offended. However, this was a case in which sentence
should have been aggravated by the history of two defendants who had in the
recent past been engaged in serious trafficking of drugs, and had cocked a snook
at the system after their release, and were at it again. The starting point of four
years which the judge took in each case, albeit for other reasons, was, in the
circumstances, not too long.
215
CCAB 2002
CA 191/2002
Stuart-Moore
ACJHC
Stock JA
(15.8.2002)
*Alex Lee
#Giles Surman
YU
Wang-tim
Trafficking in dangerous drugs/More than one offence/Need to look at total
quantity of drugs/Reduction in discount for plea after absconding/Effect of
criminal record on starting point
販運危險藥物 - 超過一項控罪 - 須視乎毒品的總數量 - 棄保潛逃後
認罪會削減有關的減刑幅度 - 刑事紀錄對量刑起點的影響
On 12 June 1993, the Applicant was searched in Shamshuipo, Kowloon,
by police, who found on him a plastic bag with 42 plastic bags of a mixture
containing salts of esters of morphine with a narcotic content of 8.64 grammes.
Under caution, the Applicant said the drugs were for his own consumption.
After police took him to his residence more drugs were found in plastic
bags, as well as a blender. He again said that the drugs were for his own
consumption. The narcotic content of the drugs was 10.01 grammes.
The Applicant pleaded guilty to two offences of trafficking in heroin.
The first related to the 8.64 grammes found on him in the street. The second
related to the 10.01 grammes found at his flat. The judge took starting points
for sentence of 5 years’ imprisonment on each offence, and reduced each to
reflect the pleas to 3 years and 4 months. He ordered that one year and four
months on the second charge would run consecutively to the sentence on the
first, producing a total sentence of five years’ imprisonment.
On appeal
Held :
(1)
It was not wrong to order part of the second sentence to run
consecutively to the first. The totality of the drugs had to be met with a
punishment appropriate to the totality and, if faced with two charges properly
brought, it was correct to order partially consecutive sentences to reflect the
correct total quantity of drugs and that was what had to be done. There was no
injustice or illogicality in that approach;
(2)
If the judge considered that the pleas of guilty merited a one-third
discount for each offence, it followed that a one-third discount was warranted
from an overall starting point for the two. That would, on the basis of the
resulting 5-year sentence, mean that the overall starting point adopted by the
judge, assuming he approached the matter in that way, was seven years and six
months, which was manifestly excessive for a total narcotic content of 18
grammes. Alternatively, the judge had not given a one-third reduction for the
plea when considering totality, but had not said why. In the further alternative,
the judge had not addressed the appropriate sentence for the total quantity of the
drugs;
(3)
The individual starting point for each offence was correct, but what the
judge should have done when looking at totality was to look at the total quantity
of the drugs. That would have provided him with an overall starting point of 6
years’ imprisonment for a total quantity of 18.65 grammes. If a one-third
discount were appropriate, that would have resulted in an overall sentence of 4
years’ imprisonment;
(4)
The judge did not refer to the fact that the Applicant was sentenced some
9 years after the offence, and that was because he had absconded while on bail.
As he did not surrender himself and was subsequently arrested, that was a
matter which would ‘normally have a bearing on the discount given to a
defendant who pleads guilty, as it is plain he has not pleaded guilty at the first
opportunity ’ : HKSAR v Yip Keung Cr App 324/2000;
216
CCAB 2002
(5)
The judge made no reference to the Applicant’s record of similar
convictions. He was aged 53 years, and his previous convictions dated back
some time, and included convictions for possession of dangerous drugs. The
judge might in such circumstances have been justified in taking a slightly higher
starting point for the individual offences;
(6)
The whole approach adopted by the judge was wrong in principle. The
starting points were correct, but the one-third discount was too generous. The
original starting points would be taken and reduced, in respect of each offence,
to 4 years’ imprisonment. The overall result should reflect an overall starting
point of 6 years’ imprisonment, and an appropriate reduction from that; but not
a full one-third reduction, given the circumstances of the Applicant’s
absconding and his consequential late plea.
Result - Appeal allowed. Sentences of 4 years’ imprisonment substituted for
each offence. Nine months of the sentence on charge 2 to run
consecutively to the sentence on charge 1. Total sentence to be served
one of 4 years and 9 months’ imprisonment.
MA 657/2002
Toh DJ
(2.8.2002)
*Paul Madigan
#F C
Whitehouse
CHAN
Tak-shing
Possession of Part I poison/Immediate custodial sentence appropriate/Low
risk of dependency
管有第 I 部毒藥 - 判處即時監禁屬恰當 - 倚賴藥物的可能性不高
The Appellant pleaded guilty to an offence of possession of a Part I
poison, contrary to s 23(1), s 33(1) and s 34 of the Pharmacy and Poisons
Ordinance, Cap. 138. After six months’ imprisonment was taken as the starting
point, he was sentenced to four months’ imprisonment.
The facts showed that when the Appellant was searched by police, four
tablets were found in his pocket. He admitted they were dangerous drugs which
he had bought from an unknown male inside Southorn playground in Wanchai.
The analysis by the Government Chemist indicated that the substance was
Zopiclone, a Part I poison.
Prior to sentence, the magistrate called for a report to see if the Appellant
was drug dependant. He was not. He had eight previous convictions, mostly
for theft and one for possession of Part I poison, for which, in 2001, he was
imprisoned for one month.
On appeal, it was submitted that Zopiclone was a depressant, basically
for the treatment of insomnia. There was a very low risk of dependency.
Held :
(1)
Although the amount of drugs was not of paramount importance when a
judge decided on sentence, it was a factor for consideration. This kind of
offence called for an immediate custodial sentence but, given the low risk of
dependency, the amount of only four tablets, and the information now available
about Zopiclone, the starting point of six months’ imprisonment was manifestly
excessive;
(2)
The starting point should have been 3 months’ imprisonment, with a
one-third discount for the guilty plea.
Result - Appeal allowed. Sentence of two months’ imprisonment substituted.
217
CCAB 2002
CA 239/2002
Stuart Moore
VP
Gall J
(5.11.2002)
ISKANDAR
Trafficking in ice/Serious exercise in drug trafficking/Severe sentencing
policy adopted to international trafficking
販運冰 - 嚴重的販毒活動 - 對國際販毒活動採取嚴厲的判刑政策
The Applicant pleaded guilty to an offence of trafficking in a crystalline
solid containing over 3.8 kilogrammes of methamphetamine hydrochloride
(‘ice’). Having taken a starting point of 25 years’ imprisonment, the judge
imposed a sentence of 16 years to reflect the guilty pleas and the mitigation.
*Paul Madigan
#I/P
The Applicant, an Indonesian, arrived in Hong Kong on 3 September
2001 with D2 and another man, both Indonesians, on a flight from Jakarta.
They checked into a hotel in Tsim Sha Tsui. The next day a man with a suitcase
went to their room carrying a suitcase, which he left there. Two hours later, the
Applicant and the other two Indonesians left the hotel with their luggage and
went by taxi to the airport. At the Immigration clearance desk, the Applicant
and D2 were intercepted and found to have plastic bags of ice strapped to their
bodies. The Applicant admitted that he and D2 had received the ice from the
man who had visited their hotel, and that they had repacked the drugs into
similar bags and helped each other to tape them to their bodies. They intended
to export the drugs from Hong Kong to Indonesia.
On appeal
Held :
The sentence was wholly appropriate. This was a serious exercise in
drug trafficking and was the sole reason the Applicant was in Hong Kong.
Those who engaged in international trafficking of this kind had to be aware that
Hong Kong adopted a severe sentencing policy in such cases. There had been a
consistent message to such an effect for a long time. There was no reason to
depart in this case from the usual tariff.
香港特別行政區訴陳柏耀
HKSAR v CHAN Pak-yiu
*曾若珩
Evelyn
Tsang
#李倩冰
Alice Lee
高等法院原訟法庭暫委法官杜溎峰
耹訊日期：二零零二年九月四日
宣判日期：二零零二年九月四日
To D J
Date of Hearing: 4 September 2002
Date of Judgment: 4 September 2002
管有小量危險藥物 - 判刑時應以罪犯的康復為依歸
上訴人承認一項管有危險藥物罪，即一片含銷甲西泮的藥片
(控罪一)及承認一項販運危險藥物罪。就管有危險藥物罪，上訴人
被判入戒毒所，而就販運危險藥物罪，他被判監禁8個月緩刑3年及
罰款1 0 ,0 0 0 元。
218
CCAB 2002
其後裁判官發覺販運危險藥物罪是例外罪行不能以緩刑
判罰。故此就第二項控罪，他判上訴人入住戒毒所。而第一項控
罪，他判上訴人8個月監禁緩刑3年。上訴人就第一項判刑提出
上訴。
裁決：
(1)
就管有危險藥物罪而言，毒品的多少不一定與刑期成正
比，亦不是判刑的唯一考慮因素。法庭應以被告人的康復為依
歸；
(2)
裁判官應先考慮即時監禁8個月的刑期是否恰當。但以單
一片精神藥物而言，即時監禁8個月，是明顯過重。恰當的刑罰
應是判上訴人入住戒毒所。
結果︰上訴得直。改判戒毒所令。
[English digest
of
MA
658/2002,
above]
To DJ
(4.9.2002)
CHAN
Pak-yiu
Possession of small quantity of dangerous drugs/Rehabilitation of offender
a principal concern in sentence
The Appellant pleaded guilty to an offence of possession of a
dangerous drug, namely, one tablet containing nimetazepam, (charge 1) and
another offence of trafficking in a dangerous drug (charge 2). On charge 1, the
Appellant was sentenced to detention in the Drug Addiction Treatment Centre,
and, on charge 2, to 8 months’ imprisonment suspended for 3 years and a fine
of $3,000.
*Evelyn Tsang
#Alice Lee
The magistrate subsequently realised that a suspended sentence could
not have been imposed on charge 2 as it was an excepted offence. He then
imposed a DATC order for charge 2, and a sentence of 8 months’ imprisonment
suspended for 3 years for charge 1. The Appellant appealed against the
sentence imposed on charge 1.
Held :
(1)
Regarding the offence of possession of a dangerous drug, the quantity
of drugs involved did not need to be directly proportional to the length of
sentence, nor should it be the only factor in sentencing. The court should
concern itself primarily with the rehabilitation of the offender;
(2)
The magistrate should have considered whether an eight-month
immediate custodial sentence was appropriate. Given that only one single tablet
of psychotropic drug was involved, the imposition of an eight-month immediate
custodial sentence was manifestly excessive. A Drug Addiction Treatment
Centre Order was appropriate.
Result - Appeal allowed. DATC order substituted.
219
CCAB 2002
Sentence (Quantum) – False Instruments
False Instruments
CA 136/2001
Stuart-Moore
VP LugarMawson J
(14.3.2002)
*Paul Madigan
#H M Mughal
CHEUNG
Ka-woo,
Johnny
Credit card fraud/Potential for loss the paramount consideration/Deterrent
sentence required
信用卡詐騙 - 潛在損失為首要考慮因素 - 須判處阻嚇性刑罰
The Appellant pleaded guilty to three charges of using a false
instrument, contrary to s 73 of the Crimes Ordinance, Cap 200, and one charge
of obtaining property by deception, contrary to s 17(1) of the Theft Ordinance,
Cap 210. He was sentenced to concurrent terms of imprisonment of 2 years on
each charge.
The single judge granted leave to appeal on the grounds that it was
‘arguable that an overall starting point of three years’ imprisonment was
manifestly excessive for a credit card fraud involving less than $9,000 in which
the (Appellant) was not alleged to have been a member of a larger syndicate ’ .
The offences occurred on 27 May 2000. They related to the fraudulent
use of two counterfeit credit cards. It was alleged that the Appellant obtained
cosmetics worth $8,541 at a department store in Quarry Bay, using what
purported to be a genuine Master card and a genuine Visa card to pay (Charges
1 to 3). After this, he went to a second department store and attempted to
purchase goods (Charge 4) valued at over $3,000 using the same Visa card that
he had tendered earlier at the first shop. The staff suspected that the card was
counterfeit and security personnel were alerted. When the Appellant attempted
to make his escape, he was arrested. When interviewed by police, he said that
he had acquired the credit cards when he picked up someone’s wallet at the exit
of a MTR station.
The Appellant submitted that the sentence of 2 years’ imprisonment was
manifestly excessive, as was the starting point of 3 years.
Held :
(1)
The only case in which guidelines for sentence in cases related to the use of
false or counterfeit credit cards had been given was R v Chan Sui-to [1996] 1
HKCLR 128, and in which it was said:
The sum of money is of course only one of the factors to be taken
into account. It is not even the most significant factor.
(2)
As regards potential losses involved in cases of this kind, it was said, in
HKSAR v Ng Swee-thian & Ors [2000] 1 HKLRD 772, that the amount proved
to have been lost by the fraudulent use of credit cards ‘pales into insignificance
when consideration is given to the potential for losses in the future ... It is this
potential for losses which is the most important consideration ’ ;
(3)
It was well known in this jurisdiction that severe sentences were given to
those who committed offences of this kind as a deterrent to others who were
like-minded. The integrity of the credit card system was highly important these
days and the confidence which people were entitled to place on this aspect of
modern commercial life was necessarily undermined by others who attempted
to beat the system by fraudulent methods: HKSAR v Yau Wai-chun Cr App
417/2000.
220
CCAB 2002
CA 516/2001
Stuart-Moore
VP
Stock JA
LugarMawson J
(23.4.2002)
*Paul Madigan
#I/P
SHUM
Chung-wai
Credit card fraud/Sentencing considerations/Potential for future loss/Need
to protect integrity of credit card system/ Family circumstances to be
disregarded where serious offences were concerned
信用卡詐騙 - 判刑須考慮的事宜 - 可能會造成將來損失 - 有必要維
護完善的信用卡制度 - 涉及嚴重罪行時不應考慮家庭狀況
The Appellant, a man of 21 years, pleaded guilty to 25 charges in the
District Court; 17 of theft, contrary to s 9 of the Theft Ordinance, Cap 210; 2 of
possession of an identity card relating to another, contrary to s 7A(1A) of the
Registration of Persons Ordinance, Cap 177; 4 of forgery, contrary to s 71 of the
Crimes Ordinance, Cap 200; and 1 of possession of equipment for making a
false instrument, contrary to s 76(1) of the Crimes Ordinance, Cap. 200. He
was sentenced to a total of 4 years’ imprisonment. With leave of the single
judge, he appealed against sentence.
On 27 December 2000, the Appellant was seen by plain clothes police
officers to be acting suspiciously in the lobby of a building in North Point. He
removed three letters from the letterboxes in the lobby (charge 1). He was
apprehended and searched, and found to be in possession of another person’s
identity card (charge 2), together with a large bunch of keys, one of which
opened one of the mailboxes in the lobby.
The Appellant led the officers to his home in Quarry Bay. In his
bedroom were found eight stolen credit cards (charges 3 to 10); four false credit
cards (false instruments) which had been electronically altered to contain false
information on their magnetic strips (charges 11 to 14); one credit card with a
blank (unrecorded) magnetic strip (charge 15); a computer and other electronic
equipment capable of altering information on credit cards (charge 16); three
further stolen items of mail (charges 17 to 19); and another identity card relating
to another person (charge 20). Also found were notebooks containing a large
number of dates, names of people and numbers that appeared to be credit card
numbers.
Following the search at Quarry Bay, the Appellant led the police to a
room in Tin Hau Temple Road, which he said he had rented for a few days in
October 2000. There he pointed out a hidden compartment in the ceiling, and
the police found five more stolen credit cards (charges 21 to 25).
Later, the Appellant made inculpatory admissions in a video recorded
interview. He described how he had stolen credit cards from letterboxes and
under the tuition of another had learned how to alter the data on their magnetic
strips.
The stolen credit cards were from a variety of credit card companies.
The forged ones all purported to be VISA cards, but issued by various banks.
The psychologist’s report revealed that the Appellant was intellectually
normal, although he lacked proper social skills and failed to appreciate the
seriousness of his offences. The probation report revealed a history of social
difficulties in his early teens, when he had mixed with ‘bad elements ’, and
experimented with drugs. It showed a decline into a wasteful lifestyle, overseen
by an indulgent divorced father. The Appellant claimed to have suffered trauma
when his parents’ divorced. He left school in November 1997, with no
qualifications, and since then he had never held a job and had been reliant on his
father for his support.
The Appellant had two previous convictions; one was for a similar
offence. The facts of that offence were that on 11 October 2000 he attempted to
buy a notebook computer, worth $29,120, with a forged American Express card.
221
CCAB 2002
As he was unable to produce his identity card, he was asked to return later in the
day. In the meantime the salesman had checked with American Express and
found that the card was a forgery. When the Appellant returned he was
arrested. On 24 May 2001, at North Kowloon Magistrates’ Court, he was
sentenced to 8 months’ imprisonment for this offence. On 28 November 1995,
in the District Court, he was placed on probation for 18 months for an offence
of wounding with intent to do grievous bodily harm committed when he was a
teenager.
The judge took a starting point of 6 years in respect of each of the
forgery charges (charges 11-14) and the two possession of equipment for
making a false instrument charges, (charges 15 & 16) and reduced it to 4 years
to be served concurrently for the pleas of guilty. He considered that he was
unable to give any further reduction in the light of the Appellant’s criminal
record. The judge did not differentiate between the charges relating to the theft
of mail (charges 1 & 17-19), the theft of other credit cards (charges 3-10 & 2125), and the possession of another’s identity card (charges 2 & 20), referring to
them all as ‘theft ’. He took a starting point of 3 years for each and reduced it to
2 years to reflect the guilty pleas, to be served concurrently. Following the
totality principle, he ordered all sentences to run concurrently, making a total of
4 years. He ordered the Appellant’s sentences to run consecutively to the
sentence he was already serving.
The Appellant submitted that his sentences were manifestly excessive
and that the judge gave him an insufficient discount to reflect his guilty pleas
and his cooperation with the police. He also pleaded for leniency on the ground
that his father had liver cancer and it fell to him to look after his 16-year-old
younger brother.
Held :
(1)
In R v Chan Sui-to & Anor [1996] HKCLR 128, several factors that a
sentencer should take into account in offences of credit card fraud were listed:
(1)
The size of the operation; for example, whether it
involved large sums of money, whether it concerned a
large number of persons or forged credit cards;
(2)
The planning that had gone into perpetrating the fraud,
whether it was elaborate or simple, whether technical
skills were used, and to what extent;
(3)
Whether there was an international dimension;
(4)
Whether the accused played a major role; for example,
running a syndicate, engaging in actual manufacture,
organizing the use of forged cards; or whether he was a
mere ‘cog in the wheel ’ as a courier or a custodian or
keeper; and
(5)
Whether there was a plea of guilty.
(2)
Many of the factors from Chan Sui-to (above) were present in this case;
four forged cards were involved; the Appellant’s operation was a planned one of
some sophistication; he had thirteen stolen cards in his possession; he was
actively engaged in the actual manufacture of forged cards and had not only the
equipment and technical skills to manufacture them, but also details of other
persons’ credit card accounts. He was far more than a ‘cog in the wheel ’ of
another’s enterprise; the enterprise appeared to have been entirely his own.
Although there was no international dimension to his offences, there was clearly
the potential for that. The judge acknowledged his guilty plea with a one-third
222
CCAB 2002
discount from the starting-point sentence. He was given a full and adequate
discount for his guilty pleas and cooperation with the authorities;
(3)
As the Appellant faced no charges of using the cards in attempting to
obtain property by deception, there were no amounts to provide guidance in the
determination of the proper level of sentence. However, there could be little
doubt that the seriousness of the Appellant’s offences lay in the potential for
losses in the future had they not been discovered. HKSAR v Ng Swee Thiam &
Ors [2000] 1 HKLRD 772, HKSAR v Heung Ka-wo Johnny Cr App 136 of
2001. In Chan Sui-to it was said:
… the sum of money involved is of course only one of the
factors to be taken into account. It is not even the most
significant factor.
And in Ng Swee Thiam it was said:
… The question of the amount of losses which may be proved
may pale into insignificance when consideration is given to
losses in the future … It is this potential for losses which is the
most important consideration.
(4)
The Appellant was in possession of four forged credit cards, which he
had forged, as well as thirteen stolen credit cards and one blank card, together
with information about other persons’ credit cards, which he had obtained from
the stolen items of mail. He also had equipment that could tamper with the data
on the stolen cards. Provided that he could get his hands on genuine cards to
corrupt (an activity he was apparently engaged in when the police caught him)
he could with that equipment forge any number of credit cards. Given all that,
the potential for future loss appeared to have been very great indeed;
(5)
The need to protect the integrity of the credit card system in a
sophisticated economy, such as Hong Kong’s, was an extremely relevant factor
in this case. Given the prevalence of forged credit cards in this society,
computer equipment, such as that involved in this case, was the modern day
equivalent of the forger’s printing press and the blank card the modern day
equivalent of bank note paper and security inks. It had to be borne in mind that,
unlike a forged banknote, which could only buy goods or services up to its
apparent face value, a forged credit card could purchase goods or services up to
the victim’s credit limit with the issuing bank. Further, a forged credit card
could be used to make many purchases. The sentences of 4 years’
imprisonment, after plea, for the four offences involving the forgery of the
credit cards and the two offences of possession of equipment for making false
credit cards, were not manifestly excessive;
(6)
The offences of theft of other peoples’ credit cards and mail, and the two
identity card offences, might be considered to be comparatively less serious
than the forgery and possession of equipment offences. There could be no
doubt that without the cards and the information in the stolen mail the Appellant
could not have forged further cards. There was no tariff for theft and 2 years for
each of the theft offences was not manifestly excessive. Had they stood alone,
the identity card offences would have attracted sentences in the region of 15-18
months’ imprisonment. They, however, did not stand alone, and when the
Appellant’s overall culpability was taken into consideration those sentences
were not manifestly excessive;
(7)
It had been said many times that family circumstances should be
disregarded, particularly when sentences for serious offence were concerned.
As Cons VP said in R v Shipra [1985] 2 HKLR 493, 494:
223
CCAB 2002
… a man must appreciate before he commits a crime, that his
family will suffer if he is caught and convicted.
And Silke VP said in R v Chin Hon-yuen Cr App 393/1988:
… family circumstances are matters which a wise man would
take into consideration before he commits an offence not after.
Homicide
CA 367/2001
Stock JA
LugarMawson J
(13.6.2002)
*Peter
Chapman
#Michael Poll
YIP
Chi-sum
Attempted
murder/No
sentencing
guidelines/Earlier
authorities
reviewed/Stress and provocation/Offence out of character/Swift and
genuine remorse/Offender taking law into his own hands/Substantial
sentence of imprisonment inevitable
企圖謀殺 - 無判刑指引 - 檢討較早期的案例 - 壓力及激怒 - 所犯罪
行違反常性 - 迅速表示真正悔意 - 犯罪者執行私刑 - 判處較長的監
禁刑期是無可避免的
The Applicant pleaded guilty to an offence of attempted murder.
The admitted facts showed that the victim, Lai Wai-shing, owned three
taxis, one of which was driven by the Applicant. Lai lent the Applicant money
on which he charged interest at an annual rate of about 240%. At the time of
the offence the outstanding debt was about $45,000.
On 16 September 2000, at about 4:10 am, Lai and the Applicant were
sitting in the Applicant’s taxi outside Block 17, Richland Gardens, Kowloon
Bay, discussing repayment of the debt, when the Applicant suddenly started to
hit Lai’s head with a spanner. Lai left the taxi but slipped, fell and then fled, but
he was pursued by the Applicant who continued to hit him over the head with
the spanner. Lai ran on for about twenty feet before collapsing into
unconsciousness. Lai later estimated that the attack had lasted for about three
minutes. An ambulance came and took him to hospital. He had multiple scalp
lacerations with no underlying fracture, haematoma or focal neurological signs.
His injuries were sutured, and he was discharged from hospital on 22 September
2000. He made a good recovery.
Lai gave the police the Applicant’s mobile telephone number. The
police telephoned the Applicant, who agreed to attend Ngau Tau Kok Police
Station. When questioned under caution he said ‘He is a loanshark. He was
pressing me hard to return the money therefore I wanted to hit him to death ’ .
Officers found a 30-cm long knife in the tool box of the Applicant’s taxi
and, when asked about it, the Applicant said ‘The knife is owned by me. I took it
from my home, I planned to kill Lai Wai-shing with it. However, on second
thoughts I prepared to hit him with a spanner, so that others would think it was
done by a head bash gang. I came here to surrender, I am not afraid to admit
it. I wanted to kill him ’ .
Later that same day, the Applicant said that he had hit Lai over the head
seven to eight times with the spanner because ‘He asked me to give him $8,000
and I couldn’t give him. He declared to harm my family members if I failed to
224
CCAB 2002
Sentence (Quantum) – Homicide
give him so I attacked him ’ . He said that he had planned the attack the
previous day, and had armed himself with the knife and the spanner in the small
hours of 16 September when he had arranged to meet Lai to discuss the debt.
He claimed that, during those discussions, Lai had said that if the Applicant
could not repay ‘the interest is a hand and a leg ’ . He said that whilst he had
been attacking Lai, a taxi drove past; he had been very frightened and therefore
left the scene in his taxi to discard bloodstained clothing and the spanner on a
hillside, and had then taken the call from the police which invited him to attend
the police station.
The judge treated the Applicant as a man with a clear record. Although
she accepted that prior to the attack the Applicant was ‘probably in a state of
mental and emotional turmoil’, she viewed the attack not as impulsive, but as
premeditated and planned. She noted that while the injuries were not in the
event serious, he had intended to use a knife of substantial proportions with a
10-inch blade, and only changed the weapon of attack to a spanner in the hope
of lessening the chance of detection. Having read cases which involved
planning and premeditation, she said that sentences appeared to range between
20 and 25 years’ imprisonment, and took a starting point of 20 years’
imprisonment. Having taken into account the Applicant’s guilty plea, his good
character, and the fact that ‘he was under some pressure at the time of this
offence’, she sentenced the Applicant to a term of 13 years’ imprisonment.
On appeal
Held :
(1)
The question was whether, looking at all the circumstances of this
particular case, the starting point taken by the sentencing judge and the resulting
sentence after plea was or was not manifestly excessive. This required a global
view and feel, rather than a dissection of one aspect of the judge’s comments or
another;
(2)
The offence of attempted murder was one for which no sentencing
guidelines existed. That was no surprise, because the circumstances of the
offence varied considerably from case to case. For this reason, too, the citation
of earlier cases which established no principle or guideline were frequently of
limited use in an appeal against sentence. Yet, in this case they could not be
ignored entirely because of the judge’s use of the twenty years’ starting point by
reference to cases in which premeditation was a feature, and because the cases
suggested that the sentence imposed in the present case was more appropriate to
circumstances of a more ominous and aggravating type. These were:
(a)
R v Ng Kin-ming Cr App 275/94: a sentence of 20 years’
imprisonment after trial was imposed by the Court of Appeal
in a case where the defendant had sent a parcel bomb to a
hotel, and the packet containing shrapnel, tacks, and nails
exploded causing severe injuries, including very bad burns to
a victim’s hands, face and body;
(b)
HKSAR v Dinh Van-duong Cr App 632/96: the Court of
Appeal upheld the sentence of 20 years’ imprisonment after
trial in a case of an attack by two men upon the victim; the two
men, armed with knives, repeatedly stabbed the victim in the
chest. The one applicant who was appealing against sentence,
had a bad criminal record, including offences of violence;
(c)
R v Chong Chiu-wo Cr App 390/88: an horrific case in which
an employee of a bank attacked his boss and also a female
fellow employee. He used a knife and pistol, and he repeatedly
struck the boss on the head, felt his neck pulse, hit him again,
225
CCAB 2002
and then cut his throat. The lady was struck on the head with
a bag, and then with a fire extinguisher, and then her throat
too was cut. A sentence after trial of 25 years was upheld;
(d)
R v Lau Sun-wah and Others Cr App 288/85: a case of a triad
attack on a man whose business the triads wanted to close.
Two men went to attack him, which they did with beef knives
and they inflicted severe injuries: deep cuts to the left shoulder
which caused the bone fracture, a chop wound to a forearm,
which went into the muscle, and a number of other serious
wounds. The applicants were convicted after trial of attempted
murder. The sentence imposed, which might well be thought to
be light indeed, was, in each case, one of 14 years’
imprisonment which was a sentence with which the Court of
Appeal did not interfere;
(e)
R v Chau Pui-wan Cr App 623/96: a sentence of 10 years’
imprisonment imposed after trial was upheld by the Court of
Appeal. The applicant was a lady who had set fire to her
business partner by the use of a fire accelerant, and had seized
hold of him whilst he was burning to see that he did not
escape. She and the victim had been business partners and
emotionally involved with each other, and she would appear to
have been under stress as a result of loss of funds which she
had invested in the business, and was being harassed by
creditors, and she said that the victim had not repaid her what
was due.
(3)
This was a difficult case in which to judge the appropriate sentence. On
the one hand, the nature of the offence was, by definition, very serious. The
Applicant admitted that he had intended to kill. Furthermore, one could not
gainsay the fact that the Applicant had formed the notion to kill before the day
in question, and had armed himself in advance, even though he asserted that the
intention only finally crystallized into the act upon further provocation.
Furthermore, and although the report showed that there were no fractures to the
skull and no haematoma, the knife was a vicious one, and the spanner a
substantial weapon, and the photographs of the victim showed vividly how the
Applicant must have rained blows all over the victim’s skull. So, whatever the
background and the provocation and the stress, these were features not lightly to
be treated;
(4)
On the other hand, this case did not quite have the remote and
indiscriminate attributes of the more serious of the cited cases. The Applicant
was a hardworking family man who was clearly under considerable stress, stress
caused in the first instance by his own folly in gambling and running into debt
but, on uncontradicted facts, there was also considerable stress deliberately
created, and provocation offered, by the complainant. Since there was a degree
of planning to what happened, it was not provocation which would have
amounted to a defence to a charge of murder had the victim died, but stress and
fear were real factors. It was suggested, also, that the stress was aggravated by
lack of sleep in the days preceding the attack. Unlike the triad or the contract
killer, this Applicant was acting out of character, and not in concert with others
to kill. Furthermore, there was evidence that he had cause to fear that the
threats levelled against him were seriously intended. One had to take
considerable care before according to stress and fear too much weight lest it be
thought that this in any way justified what was done, yet, in this case, its
significance was that they explained why this Applicant acted out of character.
That he ought, despite the provocation and stress, not to have acted as he did,
and taken the law into his own hands, spoke for itself, and was why he faced, on
any view, a substantial term of imprisonment. The injuries which he inflicted
were, in the event, not nearly as serious as in some other cases of attempted
226
CCAB 2002
murder, although it might well be that the Applicant would have continued with
the attack had he not been frightened off by an approaching taxi. Furthermore,
the facts did not speak for themselves, which was to say that by the nature of the
attack one might not necessarily have assumed that this was an attempted
murder. The complainant himself had not asserted such an intention. What
made the intention to kill apparent – and there was an alternative count of
wounding with intent – was the Applicant’s own conduct in going to the police
and telling them that he had hoped for the victim’s death; and, of course, his
own plea of guilty to the count of attempted murder. It was accepted that the
Applicant displayed swift and genuine remorse;
(5)
The sentence imposed by the judge was manifestly excessive. An
appropriate starting point was one of 16 years’ imprisonment and, given the
various mitigating factors, a sentence of 10 years’ imprisonment was the
sentence which ought to have been imposed.
Result - Appeal allowed. Sentence of 10 years’ imprisonment substituted.
CA 514/2001
Stuart-Moore
& Mayo VPP
Jackson J
(19.6.2002)
*DG Saw SC
& Alice Chan
#C Draycott
(1)
C Remedios
(2)
(1) TSUI
Kam-wa,
Danny
(2) HO
Chi-hang
Manslaughter by provocation/Starting point for sentence not required of
judge/Discount for offer to plead guilty
被激怒而誤殺 - 法官無須定出量刑起點 - 願意認罪獲減刑
The Applicants were convicted after trial of manslaughter rather than
murder, on the basis of provocation. The judge took a starting point for
sentence of 12 years’ imprisonment, and imposed sentences of 8 years upon
each Applicant.
When passing sentence the judge summarised the evidence which was
before the jury in this way:
The brief facts as they appear from the evidence show that a
group of people were socialising at a karaoke bar. The 1st
accused, who claimed to the police and was later referred to by
others as being badly affected by alcohol, threw a dice cup at a
girl with whom he was playing, or with whom he was about to
play, a dice game. There appears to have been no reason for this
action except for his possible annoyance that she was not familiar
with his game of choice.
The girl did not retaliate and told her boyfriend, Mr Hui, the
deceased, who was elsewhere in the room and had not seen the
incident, that she wanted to leave. She told him about the
incident but Mr Hui did not react or remonstrate with the 1st
accused and treated the matter as a minor one and rather
reluctantly he followed his girlfriend downstairs intending to
leave.
Whilst downstairs he intercepted a telephone call to his girlfriend
from another girl who was still at the karaoke bar. He saw his
girlfriend was crying and, apparently angered by what was said,
or by his girlfriend’s tears, returned upstairs.
He went up immediately to the 1st accused and asked him if he
wanted to cause trouble. He threw some object at the 1st
accused, this hit the 1st accused on the top of the head, causing
bleeding.
Immediately the 1st accused jumped onto a table and punched Mr
Hui. In this attack he was joined a very short while later by the
2nd, 3rd and 4th accused, all of whom attack Mr Hui using fists
and feet. The struggling group moved to the door. By the time
227
CCAB 2002
Mr Hui reached the door he was beginning to collapse; he slid to
the floor appearing, in the words of eye witnesses, to be
‘strengthless’. As he lay face upwards and motionless in the
corridor, the group continued to attack him.
Someone mentioned making a report to the police. At that
juncture these accused left the premises in the company of the 3rd
accused, followed, a few paces behind, by the 4th accused.
Police intercepted the first three accused as they came down the
escalator. Their attention was drawn to the wound on the 1st
accused’s head and other injuries noticeable on the 2nd and 3rd
accused. Mr Hui was taken to hospital but did not regain
consciousness and died two days later. The post-mortem showed
that the cause of death was of a 3 millimetre tear in the left
vertebral artery. Although the deceased had a number of other
injuries, none was major or life threatening.
The Forensic Pathologist considered that either a kick or a punch
could have caused the twisting or rotating movement or a
combination of the two movements which caused the rupture. He
considers that such an injury resulted was, in his experience,
uncommon.
On appeal, it was submitted that the starting point of twelve years’
imprisonment adopted by the judge was manifestly excessive. Reference was
made to the spontaneous nature of the attack and the fact that no weapons were
used by the Applicants. In addition to this it was said that the duration of the
attack was short and that it had been extremely unfortunate that the victim had
sustained a fatal injury in the circumstances.
Held :
(1)
There was no requirement in a case of manslaughter for the judge to
have taken any starting point. The judge was entitled, in view of the infinite
circumstances which were found in cases of this kind, to have arrived at a
proper sentence by just taking into account all the relevant factors which had
been canvassed before her: R v Lee Sau-ping Cr App 189/95;
(2)
That said, the fact remained that the judge did take a starting point from
which she deducted one-third to reflect the pleas of guilty to manslaughter
which were entered (although not accepted) in front of the jury at the close of
the case for the prosecution;
(3)
In all of the circumstances of this case the starting point of twelve years’
imprisonment was manifestly excessive. Although it was a very serious offence
it did not merit a sentence of this length. A sentence of six years eight months’
imprisonment, which took into account the one-third discount, would have been
sufficient.
Result -
Appeals allowed. Sentences of 6 years and 8 months’ imprisonment
substituted.
228
CCAB 2002
Sentence (Quantum) – Immigration
Immigration
CA 268/2001
Stuart-Moore
VP
Suffiad J
(21.12.2001)
*Anthea Pang
#Corinne
Remedios
MANALAD
Tiongson
Patricia
Burglary
and
overstaying/Appropriate
starting
point
for
overstaying/Breach of trust/Consecutive sentences required
入屋犯法罪及逾期逗留 - 逾期逗留的恰當量刑起點 - 破壞誠信 - 刑
期須分期執行
The Applicant pleaded guilty to one charge of burglary and one charge
of breach of condition of stay, namely, overstaying. The judge took a starting
point of 3 years for the burglary charge, and 9 months for the overstaying
charge. He reduced the sentences by one third to reflect the Applicant’s guilty
pleas and sentenced him to 2 years’ imprisonment for burglary and 6 months for
overstaying, both terms to be served consecutively.
The facts showed that the Applicant was only permitted to stay in
Hong Kong on an employment visa between 1991 and 16 September 1998.
Since early 1999, the Applicant had been working part time at a florist shop
owned by the victim. In early 2001, the victim lost the keys to his home at that
florist shop. On 30 March 2001, the victim returned home and found that his
watches, finger rings and gold coins were missing from his home.
Subsequently, the victim, suspecting that the theft might have been related to
the Applicant, inspected the Applicant’s handbag and found the keys to his
home. A report was made to the police.
During police enquiries, the Applicant admitted to having taken the
keys of the victim from the florist 3 months earlier and that, with those keys, she
had entered his home and had stolen the items recovered by the police.
On appeal, it was submitted, inter alia, that the judge was wrong to
have adopted a starting point of 9 months for the overstaying charge, and that he
failed to take account of the totality principle in ordering the two terms to be
served consecutively. It was contended that it was not a typical kind of burglary
which called for the normal type of sentence in that there was no actual
breaking-in so as to gain entry into the victim’s home. It was further argued
that this case could be treated in similar fashion to stealing from an employer.
Held :
(1)
There was no tariff laid down for overstaying offences and the range
was wide from a fine (at level 5) to a term of imprisonment of up to 2 years. In
eight of the cases referred to, the sentences for the overstaying ranged from 28
days to 3 months. In R v Tseung Sau-tao MA 955/1992, R v Bhattarai MA
606/1996, and R v Iqbal Zahid MA 560/1996, sentences of 6 months’
imprisonment were imposed;
(2)
The taking up of employment during the period of overstay was to be
considered an aggravating factor. The length of the overstay and whether
employment was taken up during the period of overstay were relevant to
sentence;
(3)
The judge in adopting a starting point of 9 months had not been
referred to any previous decisions of the appellate court. The starting point
appeared to have been randomly selected without reference to any authorities.
Having considered the length of sentences imposed from all cases referred to,
the proper starting point should be 4 1/2 months. Giving the full one third
discount for the Applicant’s guilty plea, he should be sentenced to 3 months for
the overstaying charge;
229
CCAB 2002
(4)
The method by which the Applicant gained entry underlined two
important factors. Firstly, it was a breach of trust by the Applicant in stealing
the keys of the victim from the florist shop. Secondly, the theft of the keys and
the actual burglary itself, being some 3 months apart, indicated very clearly that
the offence had been pre-planned for a substantial period of time before it was
committed;
(5)
The difference between stealing from an employer and the present case
was that when the Applicant entered the victim’s home to steal, she was in all
respects a trespasser no different from a normal burglar. In a normal case of
stealing from one’s employer, the element of being a trespasser did not come
into it;
(6)
Save that the sentence imposed for the overstaying charge should be
set aside and reduced to 3 months, the rest of the order of the judge would
remain unchanged. The total sentence passed on the Applicant in respect of
both charges would be one of 2 years and 3 months’ imprisonment.
Result - Appeal allowed. 2 years and 3 months’ imprisonment substituted.
Obiter - The case of HKSAR v Chow Chak-man [1999] 3 HKLRD 37 had been
included in the Applicant’s skeleton submission as well as the list of
authorities. The correctness of that decision of the Court of Appeal
appeared to have been called into question by the later Court of
Appeal judgment in HKSAR v Wong Yiu-kuen Cr App 463/2000.
Chow Chak-man could be of no assistance. Besides, it was noted that
the value of the stolen items, said to be half a million dollars, was not
put before the sentencing judge. The value of the stolen goods in such
a case as this one was usually relevant to sentence and should always
be put before the sentencing court.
MA 159/2001
Hartmann J
(18.12.2001)
*Paul Ho
#James
McGowan
NGUYEN
Bui-tuan
Unlawful remaining and breach of deportation order/Separate and distinct
offences/Consecutive sentences appropriate/ Health of spouse/Reduction in
sentence for humanitarian reasons to be sparingly exercised
非法居留及違反遞解離境令 - 個別及不同的罪行 - 刑期分期執行是
恰當的 - 配偶的健康 - 法庭須經慎重考慮後才可基於人道理由予以
減刑
The Appellant was convicted upon his own pleas of guilty of possessing
a forged identity card (1st charge), using that forged identity card (2nd charge),
unlawful remaining (3rd charge), and breaching a deportation order (4th charge).
He was sentenced to 10 months’ imprisonment on both the 1st and 2nd charges,
those sentences to be served concurrently. On the 3rd charge, he was sentenced
to 18 months’ imprisonment which was to be served consecutively to the
sentences imposed on the 1st and 2nd charges. On the 4th charge, he was
sentenced to 10 months’ imprisonment of which 2 months were to run
consecutively to the sentences already imposed, and the remaining 4 months
were to run concurrently, thus making a total of 34 months’ imprisonment.
The facts showed that when he was stopped by a police officer, he
produced a forged identity card. A work permit issued by a Hong Kong
construction company was found on him. He admitted he paid $2,000 for the
identity card and used it to obtain the work permit.
The Appellant had previous convictions of: using a forged identity card
and escaping from a detention centre in 1991; and possessing a forged identity
card and unlawful remaining in 1996. Upon his release from jail in March
1997, he was served with a deportation order effective for life and was returned
230
CCAB 2002
to Vietnam. Later that same year, he was again back in Hong Kong and was
then convicted of unlawful remaining and of breaching his deportation order.
On appeal, it was submitted, firstly, that the magistrate was wrong in
principle to order that the sentences imposed for the 3rd and 4th charges were to
run, in part, consecutively to each other and fully consecutively to the sentences
imposed for the 1st and 2nd charges. Secondly, it was contended that, since the
date of sentencing, humanitarian grounds had arisen which warranted a
reduction in sentence i.e. that the Appellant’s wife in Vietnam suffered a heart
condition which had worsened, and had been admitted to hospital.
Held :
(1)
The sentences imposed on charges 1, 2 and 3 could not be criticised for
being wrong in principle: HKSAR v Chan Man-ho MA 1059/99, R v So Manking and Others [1989] 1 HKLR 142;
(2)
Regarding the 4th offence, it was to be emphasized that a deportation
order was made only after due deliberation at the highest executive level. It was
not made lightly and was not lightly to be ignored. The approach to sentence
adopted in HKSAR v Do Thi-hue MA 873/2001, was correct in principle and
should be applied. Accordingly, a sentence of 15 months after a plea of guilty
would, in the normal course of events, be appropriate for breach of a deportation
order. For repeat offenders, a sentence of up to two years after a plea of guilty
would not be wrong in principle: HKSAR v Luu Dinh-huy MA 690/97. The
Appellant had previously been convicted of breaching a deportation order in
1997, and he chose to return again in the knowledge that he would be breaching
his deportation order for a second time. The magistrate sentenced the Appellant
to 10 months’ imprisonment, which was to be considered a lenient sentence;
(3)
As to whether the sentences on charges 3 and 4 should run concurrently,
it was to be noted that in HKSAR v Nguyen Van-hien MA 947/98, which
followed the line of Duffy J in R v Bui Duc-tho MA 903/95, it was said that:
In my view the offence of unlawful remaining in Hong Kong
without authority is quite plainly a single offence, but if the
offender has come here in direct contravention of a deportation
order then that is another offence and it is quite separate and
distinct, and the learned magistrate was perfectly entitled to view
it as such and impose consecutive terms of imprisonment.
(4)
The magistrate, having sentenced the Appellant to 10 months’
imprisonment for a breach of the deportation order, ordered that only 6 months
of that sentence was to be served consecutively to the sentence imposed for
unlawful remaining, and that was an entirely correct approach in principle. As
the Appellant had previously been convicted for breaching his deportation
order, the magistrate’s approach to sentencing appeared to be a proper exercise
of his discretion;
(5)
The Appellant had used his forged identity card to obtain some sort of
work permit with a local construction company. That clearly was an
aggravating feature which warranted an order that part of the sentence imposed
for the use of the card should be served consecutively to the sentences being
imposed for unlawful remaining and breach of a deportation order. As Chan J
commented in R v Tam Simon MA 489 and 490/96:
…There are clear authorities to the effect that in a case where a
person had a history of multiple offences of a similar nature in
the past, the court is entitled to take a higher starting point. This
is not to say that a defendant is to be punished twice. It is simply
that while the defendant had been punished for the past offences,
231
CCAB 2002
he clearly has not learned any lesson and a greater deterrent
sentence may be necessary to be effective.
The magistrate was entitled to conclude that the Appellant’s overall culpability
did not warrant an order that any portion of the sentences imposed for the 1st
and/or 2nd offences were to be served concurrently with the sentences imposed
for the 3rd and/or 4th offences;
(6)
It was not disputed that, as an act of mercy, the court did have the power
to reduce the Appellant’s sentence for pressing humanitarian reasons which had
arisen after the sentence was passed, but that was only to be exercised sparingly:
R v Kwok Hau-ching MA 389/94;
(7)
The Appellant knew that his wife had an illness of the heart before he
returned to Hong Kong. He was therefore not entirely ignorant of her frailty. It
was true that her condition had subsequently worsened, apparently quite
severely. But there was no evidence that she was in terminal decline and that
the Appellant had to get back to Vietnam if he hoped to see her alive. There
were clearly medical facilities there, and it appeared that the family members
were able to render some assistance to the Appellant’s wife and children.
MA
1240/2001
Whaley DJ
NGUYEN
Van-phu
Possession of forged identity card/Offender unlawfully in Hong
Kong/Production of forged identity card to police officer/Inference that
employment to be sought/Sentencing considerations
管有偽造身分證 - 犯罪者非法留港 - 向警務人員出示偽造身分證推論藉此找尋工作 - 判刑須考慮的事宜
(16.1.2002)
*Paul Madigan
#I/P
The Appellant pleaded guilty to three offences: possession of a forged
identity card on 26 October 2001; possession of a false instrument that same
day; breach of condition of stay, in that he overstayed beyond the time
permitted him to remain in Hong Kong by the Director of Immigration.
The admitted facts disclosed that when two patrolling police officers
intercepted the Appellant and asked him to produce his identity particulars, he
produced for inspection the identity card which was the subject of the first
charge. When questioned by the officer, the Appellant admitted that the identity
card was forged, and that he had bought it from an unknown male for $500.
At the police station the Appellant was searched and found to be in
possession of a false construction safety training certificate, which he admitted
was false and which he had also purchased from another. A friend of the
Appellant later brought his Vietnamese passport to the police station and this
revealed that the Appellant had been given permission to stay in Hong Kong
only up to 7 June 2001, so that he had overstayed by some 4½ months as at 26
October 2001. The government laboratory confirmed that both the identity card
and the construction safety training certificate were forgeries.
On the first charge, the magistrate sentenced the Appellant to 15 months’
imprisonment. On the second and third charges, sentences of 3 months’
imprisonment were imposed. All sentences were ordered to run concurrently.
On appeal
232
CCAB 2002
Held :
(1)
It was well established, in relation to a charge of possession of a forged
identity card, that where the offender’s presence in Hong Kong was illegal at
the time of offence, whether because he was an illegal immigrant or an
overstayer, a sentence of 15 months’ imprisonment upon a plea of guilty was
normally the appropriate sentence to impose if he was in possession of the
forged identity card for the purpose of obtaining employment or otherwise
furthering his remaining in Hong Kong;
(2)
It was an element of aggravation if the offender produced the forged
identity card to a police officer who was conducting an identity check, which
could, if appropriate, be reflected by adding an additional approximate 2
months’ imprisonment to the sentence which otherwise would have been
applicable;
(3)
The Appellant admitted he was illegally in Hong Kong at the time he
committed these offences, and the irresistible inference to be drawn was that he
possessed the forged identity card and the training certificate for the purpose of
obtaining employment, or otherwise furthering his remaining in Hong Kong;
(4)
The sentence of 15 months’ imprisonment on the first charge was
entirely appropriate. The sentences of 3 months’ imprisonment on the second
and third charges were well within the usual range of sentences for such
offences. Concurrent sentences were appropriate;
(5)
The circumstances of the Appellant’s parents in Vietnam did not justify a
reduction of sentence.
CA 264/2001
Stuart-Moore
VP &
LugarMawson J
(22.2.2002)
*DG Saw SC
& Polly Wan
#I/P(A1)
EL
McGuinniety
(A2)
(1) WAN Kacheung
(2) LEE
Cheunglung
People trafficking/Arranging passage within Hong Kong of unauthorised
entrants/Human cargo concealed in container/ Trafficking of humans from
Mainland to USA/Sentencing level
非法運送人口 - 安排未獲授權進境者在香港境內的旅程 - 把人當作
貨物藏匿在貨櫃箱內 - 從大陸非法運送人口到美國 - 量刑等級
The Applicants, D1 and D5 respectively, pleaded guilty with four others
to charges in relation to unauthorised entrants who had been brought into Hong
Kong.
D1 pleaded guilty to having aided and abetted, counselled and procured
D2 to use a forged identity card and in the name of Cheung Yong, contrary to s
7A (1A) of the Registration of Persons Ordinance, Cap 177, and s 89 of the
Criminal Procedure Ordinance, Cap 221. In the second charge, he was alleged
to have used a forged identity card in the name of Cheung Hui, contrary to the
same provisions of Cap 177. He was sentenced to 4 years’ imprisonment
concurrent on each charge.
D5 pleaded guilty to having arranged the passage within Hong Kong of
fifteen unauthorised entrants, contrary to s 37D(1)(a) of the Immigration
Ordinance, Cap 115. He was sentenced to 5½ years’ imprisonment.
On 10 December 2000, a police investigation led to the arrest of twelve
unauthorised entrants who were found inside a forty-foot container after it had
been conveyed to the Kwai Chung Container Terminal No. 8. The container
was scheduled to be loaded onto a ship which was due to leave Hong Kong on
11 December 2000 bound for Long Beach California in the USA.
233
CCAB 2002
Sometime between late November and early December 2000, D5
contacted two taxi drivers in Hong Kong called Kwok Ping-man (Kwok) and
Kwong Koon-yin (D9). D5 asked Kwok to assist in using his taxi to convey
some unlawful entrants for the sum of $1,500. A similar request was made by
D5 to D9, although he was offered $1,800 for each unlawful entrant. D9
contacted D7 and D8 who also agreed to join the venture.
D1 admitted that a friend in the Mainland had asked him for help in
hiring a container and in renting an office and a container-loading site. He was
offered $20,000 for this service. He was also told to use a forged identity card
and, for this purpose, D1 gave photographs of himself and of D2 to his friend so
that forged identity cards in the names of ‘Cheung Yong’ and ‘Cheung Hui’
could be obtained. In due course, forged cards in those names were made.
On 30 November 2000, D2 went into the office of a property agent and
used the forged identity card bearing his photograph together with a photocopy
of the business registration certificate of ‘China Best Cargo Co.’ to complete
the formalities of renting a room in Fu Fai Commercial Building for ‘Shipping
business’ .
On the same day, D1 arranged for a company chop in the name of ‘Tai
Cheung Company’ and name cards, also in that name, to be prepared. The
name of Cheung Yong appeared on the name cards as the manager of ‘Tai
Cheung Co.’ .
On 1 December 2000, D1 instructed D2 to use the forged identity card to
engage the services of a secretarial company which he had selected. D1 paid
D2 $3,000 to carry out this task. Details of incoming calls and messages for Tai
Cheung Co. or for Cheung Yong would then be passed onto ‘Mr Cheung’ at the
telephone number ‘9177 7372’ . The mobile telephone with that number was
later found inside D1’s car after his arrest on 10 December 2000.
On 5 December 2000, D1 telephoned the shipping company to book the
container and the shipping space for the container to be conveyed to the USA.
Subsequently, he asked the shipping company to convey the container to a
container-loading site at Lok Ma Chau on 7 December 2001. He also arranged
a transport company to convey the container from this site to a containerloading site at Kam Sheung Road, Lam Tin, on 7 February 2000, and from Lam
Tin to Kwai Chung Container Terminal No. 8 on 10 December 2000.
On 6 December 2000, D1 used the second forged identity card and a
photocopy of the business registration certificate of ‘China Best Cargo Co.’ to
rent the container-loading site at Kam Sheung Road, Lam Tin, for use between
8 December 2000 and 7 February 2001 for the monthly rental of $16,000.
On 8 December 2000, during the evening, D5 contacted Kwok and the
other taxi drivers. They were due to meet with each other at about 7:30 a.m. on
9 December 2000 outside a restaurant near Sai Kung Pier.
At the appointed time, Kwok and D7-9 arrived with their taxis and met
D5 and another man outside the appointed restaurant. D5, and the other man he
was with, led the party to a car park at Tai Mong Tsui in Sai Sha Road to pick
up a total of fifteen unauthorized entrants. D7’s taxi was eventually stopped by
the police at a roadblock at Lam Kam Road. D7 and the three unlawful entrants
in his taxi were brought back to the police station. Kwok, D8 and D9 used a
different route to convey the remaining twelve unlawful entrants to the
container site at Kam Sheung Road. A friend of D5 met the taxis and received
the unlawful entrants. These activities were covered by charges 7 and 9 to 11
against D5, D7, D8 and D9 respectively.
234
CCAB 2002
On 10 December 2000, during the afternoon, a container tractor bearing
the number GN 5788 was seen at Kam Sheung Road site. This conveyed the
container to the Kwai Chung Container Terminal. A private car which bore the
registration number JN 8506 followed GN 5788 for a while before it altered its
course and headed towards Kowloon. On the same day, the police intercepted
that car at To Kwa Wan and arrested D5 and the three men who were with him.
Inside the Kwai Chung Container Terminal, the container GN 5788 was
searched. This revealed twelve unlawful entrants inside. They were in semiconscious condition. They were given a few minutes to recover before being
arrested. The container was examined and found to have been modified.
Ventilation and escape hatches had been cut into the floor and the front panels.
The container had been equipped with a large quantity of dried food, water,
bedding and other facilities, including bags for waste disposal.
On 10 December 2000, a few minutes after GN 5788 had left the Kam
Sheung Road site, D1 had been seen to close the door at the entrance. He had
then boarded a private car and headed for Kowloon City where he was
subsequently arrested. In his possession was a notebook which contained the
records of the container’s registration number, GN 5788, and a note of the name
Tai Cheung Company. After inquiries, D1 led the police to recover the forged
identity cards from inside a private car which had been registered in his wife’s
name. In a subsequent search of his home, the company chop and name cards
and two copies of the business registration certificate of Tai Cheung Company,
a copy of the business registration certificate of ‘China Best Cargo Company’,
and other items were found. Under caution, D1 admitted having prepared the
forged identity cards and directing D2 to use them for the purposes of renting
the Kam Sheung Road Site. He also confessed that the had booked and
arranged for the container to be sent to the USA for a reward of $20,000. He
denied knowledge that this operation involved human smuggling. He said that
he thought the container was to be used for smuggling cars.
In sentencing D1, the judge considered his previous good character and
the pleas of guilty. He took into account D1’s disputed knowledge that the
cargo involved in the operation consisted of human beings. The judge also took
into account that D1 had been prepared to arrange for forged Hong Kong
identity cards to be made, to enlist the help of one other, and to use the forged
identity cards in the smuggling operation.
Of the role of D5, the judge said:
It was the Fifth Accused who recruited the drivers; who then
summoned them to the rendezvous, who, together with another
male, met them there and instructed them where to drive to meet
their passengers, whom he knew full well to be unauthorized
entrants; who went along to that meeting place; who instructed
the drivers where to take their passengers; who later met up with
Kwok after he had offloaded his passengers; who followed the
container for a distance after it left the Kam Sheung Road site the
following day.
I have been referred to a decision of the Court of Appeal in
respect of the appropriate sentence for transporting unauthorized
entrants within Hong Kong by taxi. It is of limited application in
respect of this Accused. I shall deal with it when turning to the
drivers themselves. The Fifth Accused’s involvement is at a
higher level than and quite different from theirs.
235
CCAB 2002
It is an obvious and necessary inference from the Summary of
Facts that the Fifth Accused was aware of the transportation of
the unauthorized entrants into Hong Kong by sea and that he was
aware of their onward journey in the container. His role was to
take up their transportation on their arrival and to move them on
to the next stop on their journey. It was a vital role.
I regard 9 years as the proper starting point in his instance,
subject to reduction for the plea, his role being somewhat less
than that of the Third Accused. I must ensure that he receives a
meaningful discount from my maximum jurisdiction.
On appeal
Held :
(1)
The judge was perfectly entitled to have adopted the approach he did in
relation to D5 in light of that said in HKSAR v Chan Loi-choi Cr App 166/97:
Offences which involve the carriage of unlawful entrants from
another country into Hong Kong must be distinguished from
cases such as the present one, in which the passage of unlawful
entrants who have already entered Hong Kong is assisted. The
former offences involve, we are satisfied, greater culpability ... In
the present case, the applicant had no part in the bringing of the
unlawful entrants from China into Hong Kong and was not
involved in any carriage by sea. After they had landed he
transported them, on what was an otherwise normal taxi journey,
from one part of the territory to another. His culpability cannot,
we are satisfied, be equated with that of a captain of a vessel
bringing unlawful entrants into the territory. We consider that an
appropriate starting point would be three years.
(2)
D5 was plainly aware of the wider implications of his involvement in the
trafficking of humans from the Mainland to a country overseas. He was
fortunate that the police were unable to discover his activities before the
unlawful entrants remained any longer inside the container and their condition
deteriorated further. In such an event, he might well have faced for more
serious charges;
(3)
D5 had a vital role to play. He was an essential log in the arrangements
which were being made for the passage of 15 unlawful entrants within Hong
Kong. The whole purpose of these manoeuvers was for their onward removal
from Hong Kong to the USA. D5 had agreed a substantial reward to the taxi
drivers for conveying them in Hong Kong and he was well aware of the
proposed ongoing journey of these illegal entrants using the container;
(4)
Judges, when looking at a set of circumstances with a view to passing a
just and proper sentence, were not expected to adopt a blinkered approach.
They were expected to consider all of the circumstances. The judge carried out
this exercise with great care, before he arrived at a soundly based judgment.
The inferences he drew were overwhelming;
(5)
The sentences passed on D1 and D5 were neither manifestly excessive
nor wrong in principle.
Result - Applications dismissed.
236
CCAB 2002
MA
1131/2001
LO
Siu-ching
Possession of forged travel document/Unlawful remaining/ Concurrent
sentences appropriate
管有偽造旅行證件 - 非法留在香港 - 刑期同期執行是恰當的
Beeson J
(10.1.2001)
*Daniel
Ozorio
#Wilson Chan
The Appellant was convicted on her own pleas of two offences. First,
possession of a false travel document, contrary to ss 42(2)(c)(i) and 42(4) of the
Immigration Ordinance, Cap 115. Second, remaining in Hong Kong without
the authority of the Director of Immigration after having landed unlawfully,
contrary to s 38(1)(b), Cap 115.
On the first charge, the Appellant was sentenced to 8 months’
imprisonment. On the second charge, she was sentenced to 15 months’
imprisonment. The sentences were ordered to run consecutively.
The facts indicated that when the Appellant was stopped by a police
officer and asked for proof of identify, she produced a two-way permit in her
name claiming she was the holder of it. The officer suspected it was forged
and arrested her. Under caution, the Appellant said someone had made the
permit for her, but she did not know it was forged. The permit was
confirmed as forged by the Government Chemist. The Appellant later
admitted that in June 2001 she had sneaked into Hong Kong by speedboat
from the Mainland and landed at Shatin. The snakehead took her to Yuen
Long and in July she was given the forged permit. The snakehead arranged
for her to provide sexual services in Yuen Long.
The magistrate took a starting point of 12 months’ imprisonment on the
first charge, and discounted that to 8 months. On the second charge, he
followed R v So Man-king [1989] 1 HKLR 142 and imposed 15 months’
imprisonment. He said there was ‘ample authority’ from the Court of Appeal
that sentences for these offences should run consecutively.
On appeal, it was submitted that the Appellant had not used the false
travel document to obtain some particular benefit and the magistrate ought to
have imposed concurrent sentences. The existence of the ‘ample authority’ to
justify consecutive sentences was challenged.
Held :
(1)
In So Man-king, it was acknowledged that there might be circumstances
in which the use of the identity card would be an aggravating feature, but in the
view of the court on that occasion the authorities drew little, if any, distinction
in ordinary cases. The substantial element affecting sentencing for all three
offences, unlawful remaining, unlawful possession and unlawful use of entry
cards, was the unlawful presence in Hong Kong. Courts were enjoined to take
into account by upward adjustment of the sentence after plea previous unlawful
entries, whether or not they resulted in conviction. Other circumstances which
might aggravate the offences were stated to be the actual use of a forged, or
another person’s identity card in order to obtain some particular benefit;
(2)
In R v Yee Yick-hong MA 351/96, the authorities on sentencing for
possession of a forged identity card and for illegal remaining were considered,
and Leong J concluded that they showed that the usual sentences for these
offences would be 15 months in total, except where there were special
circumstances, and the sentences would normally be concurrent;
(3)
Although the magistrate treated the possession of the forged two-way
permit as being a less serious offence than the presentation of a forged, or
another person’s identity card, there was no evidence that any additional use had
been made of the forged two-way permit, other than to facilitate the illegal
remaining;
237
CCAB 2002
(4)
The two sentences should have been concurrent. The magistrate did not
indicate what was the ‘ample authority’ on which he relied, and the general run
of cases indicated that concurrent sentences were appropriate.
Result - Appeal allowed.
substituted.
MA 74/2002
Jackson J
(20.3.2002)
*Lynda Shine
#Kwong
Kin-ning
LEUNG
Chun-sang
Overall sentence of 15 months’ imprisonment
Employing a person not lawfully employable/Routine suspension of
sentence to stop forthwith/Exceptional circumstances pre-requisite of
suspension
僱用不可合法受僱的人 - 立即停止依慣例判緩刑的做法 - 特殊情況
是緩刑的先決條件
The Appellant, aged 37 years, pleaded guilty to two offences of being
the employer of a person not lawfully employable, contrary to s 17I of the
Immigration Ordinance, Cap 115.
He was sentenced to 4 months’
imprisonment for each offence, those sentences to be served concurrently.
In his reasons for sentence the magistrate said:
The accused pleaded guilty to 2 charges of employing a person
not lawfully employable. In June 2001, he had taken on two
mainland visitors as employees in his car repair business on
Castle Peak Road. Neither employee was an overstayer. They
were seen working on taxis by police officers.
Of the two employees, D1 was sentenced to two months’
imprisonment suspended for two years. D2 was sentenced to two
months’ immediate imprisonment. I sentenced this accused, as
the employer, to four months’ imprisonment.
With regard to employing a person not lawfully employable, the
prosecution produced an authority on sentence, Wong Chung-lee,
AR No. 10 of 1996, though I was informed by the prosecution that
it was not routinely followed and that suspended sentences of
imprisonment were often imposed. It will be seen from the
transcript that my enquiries showed that Wong Chung-lee was
indeed often distinguished from the cases which came before the
courts on a daily basis because they do not involve such large
scale or organised unlawful employment as was present in that
case. Having regard to the fact that the unlawful employment in
the present case was casual and short term and that there was no
admissible evidence of exploitation, I concluded that Wong
Chung-lee could be distinguished in this case as well.
However, it could not be ignored and there was no basis in the
case of any unlawful employment of visitors to Hong Kong for the
suspension of sentences. Indeed Wong Chung-lee and the earlier
case of Wong Mok-din [1994] 2 HKCLR 102, lead to the
conclusion that the sentence of about ten months’ imprisonment
upon a plea of guilty would be appropriate where there are no
aggravating circumstances.
This has subsequently been
confirmed by magistracy appeals, see Tseng Kam-loong HCMA
312 of 1997 for example. In the circumstances, it is evident that
my sentence of four months’ imprisonment was well below the
proper tariff and I had given too generous an allowance for the
lack of aggravating features.
238
CCAB 2002
On appeal, it was submitted that the sentences of imprisonment should
have been suspended, and that the sentences were manifestly excessive.
The Appellant contended that the magistrate’s approach had been quite
wrong in that he appeared not to be looking for exceptional circumstances
which might justify the suspension of the sentences - but for reasons for not
suspending them. It was argued that suspension of sentence was appropriate as
the Appellant had pleaded guilty and had not previously offended. It was said
that it had become customary in the Magistrates Courts, where cases of this
nature were usually dealt with, to impose a suspended prison sentence upon a
plea of guilty for such offences.
Held :
(1)
If prison sentences were routinely suspended without there being
‘exceptional circumstances ’ to justify such suspension, then that was wrong in
principle, and the practice should stop forthwith;
(2)
It went without saying that, if that was the practice, a defendant such as
the Appellant would understandably feel aggrieved if his sentence was not
suspended;
(3)
The sentence of 4 months’ imprisonment imposed upon the Appellant
could not be said to be manifestly excessive for the reasons indicated at trial.
MA 136/2002
V Bokhary J
(3.4.2002)
*Sin Pui-ha
#Wong
Ting-kwong
JERARD
Weerasinghe
Don
KANTHA
Serlal
Aruna
Possession of a false instrument/Purchase of an Indian passport/Isolated
use of false passport by person unconnected with Hong Kong/Consecutive
sentence for overstaying offence
管有虛假文書 - 購買印度護照 - 與香港無關聯的人使用虛假護
照的個別事件 - 逾期居留罪的刑罰分期執行
The Appellant pleaded guilty to two offences. The first offence was one
of possession of a false instrument, namely, an Indian passport, contrary to
s 75(2) of the Crimes Ordinance, Cap 200. The second offence was one of
overstaying, contrary to s 41 of the Immigration Ordinance, Cap 115.
The Appellant, a Sri Lankan in his mid-twenties, arrived in Hong Kong
on 19 March 2001 and was permitted to stay until 19 April 2001. While here he
lost his Sri Lankan passport, and he bought an Indian passport in the name of
Shanmugam Anandan from an unknown man in Tsim Sha Tsui in October
2001, by which time he was already an overstayer. He intended to travel to
Europe on his Indian passport. When he was arrested after a chase at a police
roadblock on 4 January 2002, he had overstayed for about 8½ months.
The magistrate sentenced the Appellant to a total of 13 months’
imprisonment. This was by way of a term of 12 months for the possession of a
false instrument charge and a consecutive term of 1 month for the overstaying
charge.
On appeal
Held :
(1)
In R v Bhagwant Singh-Padda MA 1447/1988, Bewley J, in a case
involving the use of an unlawfully obtained travel document, contrary to s 42 of
239
CCAB 2002
the Immigration Ordinance, Cap 115, said that cases of this type seemed to fall
into four categories:
1. The passport forgery business, which is the most serious form of
the offence.
2. Use of false passports by persons seeking to leave China via
Hong Kong.
3. Repeated use of false passports by businessman travelling in
South East Asia.
4. Isolated use of a false passport by persons unconnected with
Hong Kong or China.
Bewley J said that the fourth category seemed to attract a lesser sentence than
the other three, and a sentence of 18 months’ imprisonment for the s 42 offence
was reduced to 9 months’ imprisonment;
(2)
The Appellant came within the fourth category. Although each case
depended on its own facts, the sentence for the offence of possession of a false
instrument would be reduced from 12 months to 6 months’ imprisonment. The
sentence for overstaying would stand.
Result - Appeal allowed. Sentence of 6 months’ imprisonment substituted for
12 months. Total sentence of 7 months.
CA 327/2001
Stuart-Moore
ACJHC
Seagroatt J
(22.4.2002)
*Cheung
Wai-sun &
Polly Wan
#Wilson Chan
TAM
Kam-mun
Assisting passage to Hong Kong of a conveyance carrying unauthorised
entrants/Sentencing of a crew member/ Previous similar conviction an
aggravating factor justifying enhancement of sentence
協助載有未獲授權進境者的運輸工具前來香港的旅程 - 對一名船員
的判刑 - 因以往的同類罪行被定罪成加重刑罰因素，足以支持加刑
The Applicant pleaded guilty to an offence of assisting the passage to
Hong Kong of a conveyance, namely a motorised sampan, which carried
unauthorised entrants, contrary to s 37D(1)(a) of the Immigration Ordinance,
Cap 115. The judge took a starting point of 7 years’ imprisonment which he
reduced by 20%, instead of the usual one-third, to take into account the
Applicant’s conduct which he considered necessitated a Newton hearing on an
issue which was ultimately decided against the Applicant. That hearing caused
the attendance of 14 prosecution witnesses. In the result, a sentence of 5 years
and 7 months’ imprisonment was imposed on the Applicant.
The facts showed that the sampan in which the Applicant travelled to
Hong Kong with four other illegal immigrants measured 6.7 metres in length. It
had an outboard motor. As an attempt was made to land at Cheung Chau, the
vessel capsized in rough sea shortly before 7 am on 25 February 2001. All the
passengers in the boat were thrown into the water. Two apparently drowned,
although it was a week later before a body was found. The other body was not
found.
The sampan was unsuitable for carrying passengers in the open sea. It
carried no life jackets or fire-fighting equipment and it was a small, open-topped
boat with about ten water compartments apparently designed to keep fish inside.
It was not a vessel intended for the open sea.
After arrest, the Applicant claimed that one of the unlawful entrants on
board had steered the vessel and that his role was to act merely as a lookout on
the way to Hong Kong to warn of the presence of any police vessels. In return
240
CCAB 2002
for this service, he said that he had paid a lower fee for his passage to Hong
Kong than the other passengers.
The Applicant had a previous similar conviction, dated 30 September
1996. He had been convicted after trial on that occasion of being a member of
the crew of a ship which was a speedboat which had entered Hong Kong with
unauthorised entrants on board. He was also convicted on a second charge of
endangering safety at sea where no life jackets or fire-fighting equipment had
been kept on board. In that case the Applicant had steered the sampan into
Hong Kong waters, and when called upon to stop by a police launch he had
steered in such a way as to cause the sampan to collide with the police vessel.
This caused everyone to fall into the water, but all were rescued.
In passing sentence in this case, the judge apparently accepted that the
Applicant had not been responsible for steering the sampan. He said:
You say that one of those illegal immigrants steered the vessel
while you acted as a lookout on the way to warn of the presence
of any Hong Kong Police vessels. The benefit to you was, you
say, that you paid a lower fee for the passage than the others in
return for your acting as lookout.
He later added:
The sampan by its very nature and size is unsuitable for carrying
passengers in the open sea, even for a voyage as short as the
distance between Lingding and Hong Kong waters. You say that
the vessel did have life-preservers on board but that none of the
passengers wore them. However, none were found on board the
vessel and none were found in the sea after the capsize. Nor was
any fire-fighting equipment found. The fact that the sampan was
unsuitable for the voyage which you undertook and was therefore
by that fact unseaworthy, was demonstrated by the fact that it
capsized close to shore, throwing all aboard into the water. That
the vessel was unseaworthy by the very nature of its size and
construction is manifest by the fact that it capsized; the loss of
two lives emphasises that fact. This fact, its unseaworthiness, is
an aggravating feature of the case.
You have also been previously convicted of a similar offence in
1996 when you were sentenced to 5 years and 11 months’
imprisonment. That sentence clearly was not a deterrent for you
because you chose to commit the same offence again.
The sentencing guideline for this type of case is given in Ng Kityuen [1992] 1 HKCLR 170. More recently, Cr App No. 145 of
1995, Pang Wing, is authority for the proposition that 5 years’
imprisonment should be the starting point in the ordinary case of
this type. The case that I have quoted, Ng Kit-yuen, also allows
for the increase of that sentence of 5 years where there are
aggravating features such as the unseaworthy nature of the
vessel.
The fact that you are a repeat offender for this type of offence is
also significant. There is clear authority that in such a case, a
court is entitled to take a higher starting point for sentence ... so
in your case I have 7 years imprisonment as the starting point
made up of 5 years basic starting point with an addition of 1 year
for the unseaworthy nature of the vessel an addition of a further 1
year for the fact that you are a repeat offender.
241
CCAB 2002
On appeal, it was submitted that as the Applicant’s account of being a
‘lookout ’ had apparently been accepted, and as there was no evidence that the
Applicant was in charge of the vessel or that he had taken any active part in the
organisation of the venture, the judge should have taken a basic starting point of
4 years’ imprisonment, rather than 5 years, in accordance with R v Wong Yinlung [1995] 1 HKCLR 151, 153. It was also said that the judge erred by
increasing the starting point by a year on account of the ‘unseaworthiness ’ of
the vessel when the Applicant’s role was limited to that of a ‘lookout ’ . It was
as well submitted that the judge erred in enhancing the Applicant’s sentence by
an additional year because of the previous conviction.
Held :
(1)
As the prosecution pointed out, the whole weight of earlier authority,
since Wong Yin-lung (above), seemed generally to favour 4 years as a suitable
starting point after trial for a mere crew member of a vessel engaged in assisting
the passage of unauthorised entrants, with five years reserved as the starting
point for the captain or person in charge of a vessel. Whilst the Applicant was
not charged with being a crew member under s 37C, it was plain that as a
‘lookout ’ the Applicant’s position was analogous to that of a crew member.
Furthermore, his offence of assisting the passage of a conveyance carrying
unauthorised entrants under s 37D carried precisely the same penalties;
(2)
Although there was every indication in this case that as all the
passengers, including the Applicant, intended to land and stay in Hong Kong,
the boat, having served its purpose, would probably be abandoned, it was far
from clear who, if anyone, was ‘in charge ’ of the boat on which the Applicant
was a lookout. It seemed therefore that the judge should more properly, in
accordance with prior authority, have selected a four-year starting point rather
than the higher basic starting point of 5 years reserved for those in charge of a
conveyance bringing unlawful entrants into Hong Kong;
(3)
It followed that if the Applicant had not been shown to be the person in
charge, he could not be held responsible for the unseaworthy state of the boat
for which the judge had added a further year to the starting point after
conducting a Newton hearing into its condition. Such an enquiry was not
necessary in the circumstances, and it was not right to penalise the Applicant by
a reduction of the discount he would normally have received for his plea of
guilty;
(4)
The previous conviction was a gravely aggravating factor in the
circumstances, not merely because the earlier sentence of 5 years and 11 months
which the Applicant had served had plainly had no deterrent effect. Coupled to
the sentence for being a crew member entering Hong Kong waters with
unauthorised entrants on board, the Applicant had received a concurrent
sentence of 12 months for the offence of endangering safety at sea, and he could
therefore be taken as someone who was well aware of the dangers of this kind
of operation. In the result, one illegal immigrant had almost certainly been
shown to have drowned and another was missing, presumed drowned;
(5)
This was a serious case of its kind and the judge had not erred in his
approach to the Applicant’s previous history or its effect upon the sentence in
this case. The Applicant had only been released six months earlier from the
prior sentence and both cases involved very considerable dangers which must
have been obvious to him, regardless of his knowledge of the actual condition
of the boat. No one could have known better than the Applicant about the perils
of such a venture as this. He had not only done this before, but he had actually
seen the small boat on his earlier unauthorised venture empty its passengers,
including himself, into the sea;
242
CCAB 2002
(6)
The appropriate starting point, on the facts accepted by the judge, was 4
years’ imprisonment enhanced by 12 months, to take into account the
aggravation of the offence, for sentencing purposes, of the Applicant’s previous
record.
Result -
MA 38/2002
Wong DJ
(4.4.2002)
*Polly Wan
#Bernard
Yuen
HON
Ngau-sin
Appeal allowed. Sentence of 3 years and 4 months’ imprisonment
substituted.
Aiding and abetting remaining in Hong Kong of illegal immigrant/Gravity
of offence/Impact on Hong Kong of illegal immigration/Appropriate signal
as to heavy sentences required
協助和教唆非法入境者留在香港 - 罪行的嚴重性 - 非法入境對香港
所產生的影響 - 對有關判處重刑的適當訊息須予認清
The Appellant pleaded guilty to an offence of aiding and abetting,
counselling and procuring an illegal immigrant to remain in Hong Kong,
without the authority of the Director of Immigration. She was sentenced to 9
The facts showed that the Appellant and the illegal immigrant claimed to
be clanswomen. On 29 November 2001, the Appellant came to Hong Kong as a
visitor and was permitted to stay until 29 December 2001. The Appellant’s
brother rented a flat for the Appellant to stay in Western. On 11 December
2001, the illegal immigrant was due to give birth and the Appellant called the
police. The Appellant and the illegal immigrant were taken to QMH. The
status of the pregnant woman came to light when the Appellant admitted that
she had harboured the illegal immigrant. Enquiries revealed that the illegal
immigrant sneaked into Hong Kong at Sha Tau Kok, and took a taxi to Western
looking for her relatives to help her in the birth of her baby. When interviewed,
the Appellant said she had met the illegal immigrant at Centre Street Market and
invited her to live at the flat, and subsequently became aware she was an illegal
immigrant.
In sentencing, the magistrate opined that it was too much of a
coincidence that the Appellant happened to be her clanswoman. He therefore
imposed the sentence he did.
On appeal
Held :
(1)
Hong Kong was a very small city with very limited resources, and for its
own protection and its own survival, it could not afford to allow a large number
of people to come and stay. Hong Kong was not in a position to look after
others; if that were allowed to happen, a massive number of pregnant women
coming to Hong Kong would be seen;
(2)
Without people helping the illegal immigrants, there would be fewer
people coming to Hong Kong either to seek employment or to give birth. A
serious view had to be taken. No signal was to be sent to those across the
border that heavy sentences would not be imposed on those who disrespected
our law or had no regard for the interest of our society.
243
CCAB 2002
MA 195/2002
GUO
Ting-fei
Wong DJ
Overstaying in Hong Kong/Average range of sentence from 3 to 6 months’
imprisonment/Problems caused to Hong Kong by overstayers
在香港逾期逗留 - 平均判刑幅度為 3 至 6 個月監禁 - 逾期逗留者對香
港造成的問題
(26.3.2002)
The Appellant pleaded guilty to an offence of overstaying in Hong
Kong, contrary to s 41 of the Immigration Ordinance, Cap 115.
*Paul Madigan
#Suen Kamkee
The Appellant came to Hong Kong in March 1995 as an imported
worker, and his contract of employment finished in March 1997. He then
stayed in Hong Kong without the permission of the Director of Immigration. In
imposing the sentence he did, the magistrate took a starting point of 12 months’
imprisonment and reduced it to 8 months on account of his plea of guilty. He
took into account the family circumstances and personal background of the
Appellant.
On appeal
Held :
(1)
The average range of sentences for this type of offence was between 3 to
6 months’ imprisonment;
(2)
There was some merit in the submission of the prosecution that
overstaying or breach of condition of stay had become a serious problem for
Hong Kong and that this type of offence had to be dealt with in a more serious
and realistic manner. People had come to Hong Kong from the Mainland in
large numbers and over the years many had chosen to stay for economic reasons
and were prepared to ignore the law. This had caused problems to Hong Kong
in terms of financial resources, security and many other factors;
(3)
Although the sentence of 8 months’ imprisonment was probably on the
high side, it was not manifestly excessive or wrong in principle.
MA 231/2002
McMahon DJ
(17.5.2002)
*Leung Sunyee
#Wong Powing
ZAIN (a)
AQEEL
AHMAD
Immigration offences/Possession of another’s identity card/ Erroneous
inference that identity card possessed for purposes of obtaining
employment/Sentence in absence of link between possession of identity card
and overstaying/Period of overstaying relevant to sentence
違反入境條例的罪行 - 管有他人身分證 - 錯誤推論謂管有身分證是
為了找工作 - 在管有身分證和逾期逗留兩者之間沒有關係下的判刑
- 逾期逗留的期間與判刑有關係
The Appellant pleaded guilty to an offence of possession of an identity
card relating to another, contrary to s 7A(1A) of the Registration of Persons
Ordinance, Cap 177, and was sentenced to 15 months’ imprisonment; he also
pleaded guilty to an offence of knowingly misleading a police officer, contrary
to s 64(b) of the Police Force Ordinance, Cap 232, and received 2 months’
imprisonment; he finally pleaded guilty to an offence of breach of condition of
stay by overstaying in Hong Kong, contrary to s 41 of the Immigration
Ordinance, Cap 115, and received 3 months’ imprisonment. All sentences were
ordered to run concurrently, making a totality of 15 months’ imprisonment.
The facts showed that the Appellant was a lawful visitor to Hong Kong,
and was allowed to stay until 3 December 2000. He overstayed that period by
some 13 months before his arrest on 7 January 2002. That was the basis of the
third charge. He was arrested during a police raid on premises where he had
244
CCAB 2002
recently rented a room. When arrested, he was searched and the identity card,
the subject of charge 1, was found in his trouser pocket. He claimed to have
found it four days earlier and picked it up.
When interviewed by police, the Appellant gave false personal
particulars, and this formed the basis of the second charge. Those false
particulars did not relate to the charged identity card.
On appeal, the Appellant complained generally that the sentences were
too severe, although his primary complaint was that the sentence of 15 months’
imprisonment imposed upon him for possession of another person’s identity
card (charge 1), was wrongly imposed on the basis that the card was to be used
to further his stay in Hong Kong, when there was no evidence of that.
In passing the sentence of 15 months’ imprisonment in respect of the 1st
charged offence relating to possession of that identity card, the magistrate said:
Relying upon HKSAR v Chan Man-ho (HCMA 105/99), I was of
the view that the appropriate sentence on a plea of guilty to the
1st charge was 15 months’ imprisonment, taking into account
that, because he was an overstayer, his presence in Hong Kong
was illegal at the time of this offence. Taking into account the
circumstance that he was an overstayer, I was sure that he had
the forged identity card for the purpose of obtaining employment
in Hong Kong and/or otherwise furthering his overstaying here.
This inference was irresistible and I rejected the submission that
he had no intention to use the card. Accordingly I imposed a
sentence of 15 months’ imprisonment on the 1st charge.
Held :
(1)
The evidence on which this finding was based was wholly contained in
the brief facts which had been agreed and provided to the magistrate at the time
of sentencing. Those facts simply stated that the charged identity card was
found in the trouser pocket of the Appellant when he was searched and when
questioned about it he told the police that he had found it inside the newly
rented room where he had moved in some four days earlier. In the course of
sentencing the Appellant’s counsel told the magistrate the Appellant picked up
the card and kept it out of curiosity. That was all that was before the magistrate
in this regard;
(2)
It was understandable that the magistrate assumed that a person such as
the Appellant would be in Hong Kong to unlawfully work and that was why he
overstayed and that therefore the identity card was to be used to further that
overstaying. The magistrate was very likely right in his assumptions. But
before an inference could be properly drawn to that effect there must be some
evidence supporting that inference and it must be such as to lead to the
conclusion that such an inference was the only reasonable inference;
(3)
The inference the magistrate drew against the Appellant seemed to be
based more on his own experience of past cases than on any particular evidence
before him. If the magistrate were right in this regard it would mean that any
person such as the Appellant who was an overstayer with an identity card of
another person in his possession should be inferred to have had the particular
identity card for the purpose of obtaining employment or otherwise of furthering
his overstaying. No doubt there was a considerable likelihood of this. But other
reasonable possibilities might also exist. Even if the Appellant’s version of
events was wholly rejected, it was not inconceivable that he used the card for
purposes unconnected to overstaying or seeking employment. The presentation
of an identity card was a frequent requirement of daily life in Hong Kong in
245
CCAB 2002
circumstances where its use might not be connected to overstaying. As was said
in Attorney General v Lam Ping-chun [1989] 1 HKLR 161:
It is of course possible to envisage, as was accepted in Lau
Chung-kwan, cases where the use of a forged or another person’s
identity card is in no way related to the offender’s unlawful
presence in Hong Kong. Those cases naturally are very different
and will need to be treated differently.
(4)
Before such an inference as was drawn by the magistrate could be drawn
there must be evidence before the court connecting a defendant’s possession of
such an identity card with his intended use of it to further his stay here. In the
absence of any such evidence there was no basis for any such inference to be
drawn. In this case there was no such evidence. Judicial notice could not be
taken that persons such as the Appellant used such documents to obtain
employment in Hong Kong. Such an approach could not be substituted for
evidence;
(5)
It followed that the Appellant was sentenced on the wrong basis. In the
absence of any such inference as was drawn, all that could be shown was that
the Appellant was in possession of the identity card. The Appellant then should
have been treated as falling into that category of offender where his possession
of the identity card was unproven to have been related to his overstaying in
Hong Kong;
(6)
In R v Shamim Nawaz [1994] 1 HKCLR 195, Barnett J found that where
there was no link established between the possession of the charged identity
card and the Appellant overstaying in Hong Kong the appropriate sentence was
three months’ imprisonment after a plea of guilty. That was the level of
sentence also imposed by Leong J in R v Ghazanfar Iqbal MA 654/1993. The
sentence of 15 months’ imprisonment in respect of the 1st charged offence
would be substituted with a sentence of 3 months’ imprisonment;
(7)
So far as the sentence of 2 months’ imprisonment imposed in respect of
the 2nd charged offence was concerned, it could not be criticised. The
Appellant embarked on a blatant and direct course of misleading the police
officer by effectively pretending to the police, knowing that he had committed
an offence and was being investigated for it, that he was someone else. That
was a serious course of misconduct capable of causing considerable obstruction
to the police investigation and subsequently to the course of justice. The
sentence of 2 months’ imprisonment imposed was not too severe;
(8)
So far as the sentence of 3 months’ imprisonment imposed for the
Appellant’s unlawful overstaying in Hong Kong was concerned, the period of
the overstay was significant. The Appellant had overstayed beyond the allowed
time by more than a year. He had rented a room for himself and obviously
would have continued to stay in Hong Kong had he not been arrested by the
police. There could be no particular sliding scale or tariff of penalty relating to
the sentencing of overstayers. The circumstances of each case differed. In
general terms the period of the overstaying was the primary factor in sentence.
But other factors might fall to be considered, such as the reason for the
Appellant overstaying or the degree to which the overstayer had cemented his
stay in Hong Kong by, for example, renting premises to stay, obtaining work or
forming other bonds with the community, all of which might suggest an
intention to overstay for a considerable period of time. The sentence of 3
months’ imprisonment could not be said to be too severe in the circumstances of
this case;
(9)
So far as totality of sentences was concerned, the 1st and 2nd charged
offences were wholly separate factually. The 1st charged offence having been
246
CCAB 2002
sentenced on the basis of it being unconnected to the overstaying of the
Appellant, the sentence for that offence should be served consecutively to the
sentences imposed in respect of the other two offences.
Result
- Appeal allowed, on these terms:
(1)
The magistrate’s sentence of 15 months’ imprisonment imposed in
respect of the 1st charged offence set aside and substituted with a
sentence of 3 months’ imprisonment;
(2)
The sentences imposed in respect of the 2nd and 3rd charged
offences be served concurrently with each other but consecutively
to the sentence imposed in respect of the 1st charged offence; a
totality of 6 months’ imprisonment;
(3)
The activated sentence which was not the subject of this appeal
would continue to be served consecutively to the above sentences.
The final totality was 8 months’ imprisonment.
MA 480/2002
V Bokhary J
(20.6.2002)
*Kwok Winglung
#Raymond Yu
TSE
Kwong-wa
Possession of forged identity card/Accused neither an illegal immigrant nor
an overstayer/Offence the same as possession of an identity card relating to
another person
管有偽造身分證 - 被告不是非法入境者亦不是逾期逗留人士 - 罪行
與管有他人的身分證相同
The Appellant pleaded guilty to a charge of possession of a forged
identity card, contrary to s 7A(1) of the Registration of Persons Ordinance, Cap
177. He admitted the facts which emerged from this exchange between him and
the magistrate:
Court:
You were seen by the officer behaving in a manner
which he found suspicious so you were stopped and
asked to produce a Chinese two-way permit but you
continued to behave in a manner which attracted the
officer’s attention. He further searched you and found
that you were in possession of this Hong Kong Identity
card which bore a photograph of you.
Defendant: Not search me but I showed it to him.
Court:
Alright.
Defendant (not interpreted):
Court:
We are not having a discussion here. You were in
possession of this Hong Kong Identity Card which
apparently bore your photograph. This led the officer
to suspect that the Hong Kong Identity Card was
forged. You were questioned about this then you
admitted that you had bought this identity card in the
Mainland. Are these facts correct?
Defendant: Correct.
The magistrate sentenced the Appellant to 6 months’ imprisonment.
On appeal
247
CCAB 2002
Held :
(1)
At the time of his offence, the Appellant was here as a visitor from the
Mainland on a two-way permit. His presence in Hong Kong was legal, he being
neither an illegal immigrant nor an overstayer. Whatever might or might not
have happened afterwards if the Appellant had not been arrested, his offence did
not involve the use of the forged identity card. For sentencing purposes, there
were no circumstances which distinguished this offence of possession of a
forged identity card (which was punishable under s 7A(1)) from an offence of
possession of an identity card relating to another person (which was punishable
under s 7A(1A));
(2)
The Appellant having pleaded guilty, the appropriate sentence was one
of about 3 months’ imprisonment. The sentence of 6 months’ imprisonment
was manifestly excessive.
Result - Appeal allowed. Sentence of 3 months’ imprisonment substituted.
MA 384/2002
V Bokhary J
(21.6.2002)
*Chan Manwai
#Giles Surman
TONG
Kin-man
Illegal immigrant remaining without authority/Prosecution outside ambit
of prosecution policy after acquittal on second charge/Approach to
sentence
非法入境者未獲授權留港 - 在第二項控罪罪名不成立後提出檢控乃
逾越檢控政策所涵蓋的範圍 - 如何處理判刑
The Appellant pleaded guilty to a charge of remaining without authority,
having landed unlawfully, contrary to s 38(1)(b) of the Immigration Ordinance,
Cap 115. He pleaded not guilty to a charge of taking a conveyance without
authority, contrary to s 14(1) of the Theft Ordinance, Cap 210.
The magistrate sentenced him to 1 year’s imprisonment on the charge of
remaining without authority. He was thereafter acquitted after trial of the
charge of taking the conveyance without authority.
On appeal
Held :
(1)
The Appellant was in the same position as the offender in R v Ng Tungfong [1992] 1 HKCLR 114, about whom Silke VP at 119, said:
While he was properly prosecuted, being within the existing
prosecution guidelines having been charged with another
offence, nevertheless, once he was found not guilty of that
second offence, it was open to the magistrate to discount the
normal guidelines sentence given the peculiarities of the case
before him. Without the possession charge the appellant would
not, according to policy, have been prosecuted in the first place.
Once that charge went he was in the unfortunate position of
someone who was being prosecuted for an offence which, in the
normal case, would have led to his unprosecuted repatriation to
China. That a discount would have been proper is emphasized
by that which we are now told is the current prosecution policy
that is: not to prosecute an illegal immigrant simply on the
basis that he had committed a second offence of entering Hong
Kong or remaining in Hong Kong illegally.
248
CCAB 2002
(2)
In his Reasons for Sentence, the magistrate who sentenced the present
Appellant to 1 year’s imprisonment said:
The Defendant was charged with taking a conveyance without
authority (Charge 1) and remaining unlawfully in Hong Kong
(Charge 2).
He admitted Charge 2 and was sentenced by me following the
guidelines in So Man-king but allowing a small reduction
because of his clear record.
He was acquitted after trial of Charge 1.
In retrospect it would have been better practice to have
adjourned sentence to the trial court pending the trial on
Charge 1.
(3)
As the correct practice had not been followed in the present case, the
Appellant’s appeal against sentence would be allowed so as to reduce his
sentence to the extent necessary to effect his immediate release.
Result - Appeal allowed. Sentence varied to permit of immediate release.
MA 225/2002
McMahon DJ
WONG
Cheung-lung
Unlawful remaining and robbery sentencing/Consecutive sentences in the
absence of strong humanitarian reasons or compelling circumstances
非法逗留及搶劫罪的量刑 - 如沒有充分的人道理由或令人信服的情
況刑期便須分期執行
(8.5.2002)
*Chiu Wai-tin
#I/P
The Appellant pleaded guilty to an offence of unlawfully remaining in
Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance, Cap 115. He
The Appellant had previously been convicted of an offence of robbery
on 18 January 2002 in the Court of First Instance. For that he was sentenced to
imprisonment for 4 years and 4 months. When he imposed the sentence of 15
months the magistrate was aware of the pre-existing robbery sentence, and he
ordered the 15 months to run consecutively.
On appeal, it was submitted that the sentence of 15 months’
imprisonment should have been made at least partially concurrent with the
robbery sentence. The Appellant prayed in aid that he was an 18-year-old
orphan and that the occasion of the present case was the first time he came
unlawfully to Hong Kong.
Held :
(1)
In HKSAR v Tong Fuk-sing [1999] 3 HKC 332, the Court of Appeal
held that a sentence for an offence of unlawfully remaining in Hong Kong
would in the usual course be ordered to run consecutively to any sentence
imposed in respect of an offence committed by the unlawful stayer whilst he
was in Hong Kong unless there were strong humanitarian reasons or some other
compelling circumstance to justify an order that the sentences be served either
concurrently or at least partially concurrently;
(2)
The Appellant could demonstrate no compelling circumstances or
strong humanitarian reasons as to why the sentences should be imposed so as to
be served concurrently. The magistrate’s sentence and his order in respect of
that sentence could not be criticised.
249
CCAB 2002
TAGULAO
MARCELITA
A
MA 528/2002
Breach of condition of stay/Substantial overstaying/Clear record of little
significance/Discount for voluntary surrender to authorities
違反逗留條件 - 相當長時間的逾期逗留 - 無犯罪紀錄無關重要 - 自
願向當局投案獲得減刑
V Bokhary J
The Appellant, who was in her late thirties, pleaded guilty to one charge
of breach of condition of stay, contrary to s 41 of the Immigration Ordinance,
Cap 115.
(11.7.2002)
*Leung Sunyee
The Appellant had been granted permission to stay in Hong Kong until 7
December 1993. She was still in Hong Kong on 13 March 2002, when she
surrendered to the Immigration Department for having overstayed. The
Appellant came to Hong Kong in 1988 as a domestic helper. She overstayed by
8 years and 3 months.
#Lee Sin-bing
Having taken 12 months’ imprisonment, the magistrate reduced that to 8
months to recognise the guilty plea.
On appeal, it was said that the magistrate erred in not giving credit for
the clear record, and for the voluntary surrender to the authorities.
Held :
(1)
The Appellant’s clear record counted for little or nothing since she
committed a continuing offence of overstaying for 8 years and 3 months prior to
her surrender;
(2)
The surrender to the Immigration Department was mitigation for which
the Appellant deserved some credit. A discount of two months would achieve
that.
Result -
CA 39/2002
Stuart-Moore
VP
Stock JA
LugarMawson J
(23.7.2002)
*DG Saw SC
& Man Tak-ho
#I/P
HAU
Hoi-tung
Appeal allowed. Sentence of 6 months’ imprisonment substituted.
Immigration
Ordinance/Remaining
in
Hong
Kong
without
authority/Criminal
record/Effect
of
previous
similar
convictions/Progressive increase in sentence
《入境條例》 - 未獲授權而留在香港 - 刑事紀錄 - 曾因同類罪行被
定罪的影響 - 認罪後的遞進刑期
The Applicant, aged 27 years, was convicted of an offence of burglary in
residential premises after trial. He had earlier pleaded guilty to a charge of
remaining in Hong Kong without the authority of the Director of Immigration
after having landed unlawfully in Hong Kong. He was sentenced to 3 years’
imprisonment on the first charge and to a consecutive term of 18 months’
imprisonment on the second charge, making 4½ years in total.
In passing sentence on the second charge, the judge observed that
although 15 months’ imprisonment was an appropriate sentence for a first
offender who pleaded guilty to an immigration charge such as this, the
Applicant had committed the same offence twice previously. Only five weeks
before the occurrence of the present offences the Applicant had been released
from custody after serving his sentence for an offence of the same kind.
On appeal against the sentence imposed for the second charge, it was
submitted that the Applicant should have been more leniently treated.
250
CCAB 2002
Held :
The judge pointed out that 15 months’ imprisonment was an appropriate
sentence for a first offender. A sentence of 18 months’ imprisonment would
have been justified for a plea to a second offence of this kind. For a third
offence, there could have been no legitimate complaint to a sentence of 21
months’ imprisonment after a guilty plea.
Result -
MA 639/2002
Carlson DJ
(13.8.2002)
*Cheung Waisun
#I/P
WA
Lap-kiu
Application dismissed. Two months loss of time ordered, pursuant
to s 83W of the Criminal Procedure Ordinance, Cap 221.
Illegal entry into Hong Kong/Mainland woman giving birth in
custody/Mother and child properly cared for by CSD/Sensible sentencing
policy to be maintained
非法進入香港 - 大陸婦人羈押期間產子 - 母子由懲教署恰當照顧應維持合乎情理的判刑政策
The Appellant, a 23 married woman from the Mainland, and with a
Hong Kong-resident husband, entered Hong Kong unlawfully in the latter stages
of pregnancy with a view to giving birth to her child in Hong Kong.
After apprehension by police, the Appellant was taken to hospital and
then to a detention centre pending repatriation. After complaining of pain, she
was taken to the Prince of Wales Hospital and from there she absconded. A
month later, she was apprehended at another hospital where she had gone for
further medical attention.
On 29 May 2002, the Appellant pleaded guilty to one offence of entering
Hong Kong illegally, and to another offence of escape from unlawful custody.
She was sentenced to 10 months’ imprisonment for the first offence, and to 2
months’ imprisonment for the second offence, the sentences to be served
concurrently.
On appeal, immediate release was sought. The baby had been born.
Held :
(1)
Although the difficulties which faced persons in such circumstances,
where the child’s father lived in Hong Kong and the mother came here hoping
to do the best for her child when it was born, were realised, if a sensible
sentencing policy was to be maintained the sentences contemplated in R v So
Man-king [1989] 1 HKLR 142, needed to be imposed;
(2)
Regard would be had to three letters read out in open court: one from the
family in China, pleading for her release; another from a Legislative Councillor,
recounting some mitigating features; a third from a District Councillor, to like
effect;
(3)
There was no doubt that the baby would be well looked after in the
Correctional Services Department institution where the Appellant was held.
She had proper access and contact with the baby;
(4)
The sentence was neither too severe nor wrong in principle.
251
CCAB 2002
MA 553/2002
Longley DJ
LAM
Fung
Unlawful remaining/Sentencing level/Entering Hong Kong unlawfully and
committing another offence/Consecutive sentences appropriate
非法逗留 - 量刑等級 - 非法進入香港並犯下另一罪行 - 分期執行刑
期屬恰當
(27.8.2002)
*Evelyn Tsang
#I/P
The Appellant pleaded guilty to an offence of remaining in Hong Kong
without the authority of the Director of Immigration after having landed
unlawfully in Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance,
Cap 115. He received 15 months’ imprisonment. The magistrate ordered that
sentence to be served consecutively to a sentence of two years’ imprisonment
which had been imposed upon him in the Court of First Instance for an offence
of burglary.
On appeal, complaint was made of the order that the sentences be served
consecutively.
Held :
(1)
The sentence of 15 months’ imprisonment was the normal sentence for
those who committed an offence contrary to s 38(1)(b) of the Immigration
Ordinance, Cap 115, in circumstances in which they had no previous
convictions for such an offence and pleaded guilty;
(2)
It was well established that in the absence of compelling reasons those
convicted of such an offence could normally expect their sentence to be
imposed consecutively to any sentence which might be imposed for an offence
committed while they were unlawfully in Hong Kong: HKSAR v Kong Yung
[1999] 1 HKC 395;
(3)
That the Appellant committed the burglary because he was hungry, that
he was remorseful and that he wanted to return to China to his family who did
not know he was in Hong Kong, were not compelling circumstances to justify
departure from the normal principle that such a sentence should be imposed
consecutively to any other sentence imposed in respect of an offence committed
in Hong Kong. The Appellant entered Hong Kong unlawfully and committed
an offence.
252
CCAB 2002
香港特別行政區訴陶華美
HKSAR v TO Wa-mei
*李運騰
Alex Lee
#上訴人自
辯
I/P
耹訊日期：二零零二年八月廿八日及九月十八日
宣判日期：二零零二年九月十八日
To D J
Dates of Hearing:
28 August 2002 and
18 September 2002
Date of Judgment:
18 September 2002
非法逗留 - 向當局投案不一定構成減刑理由 - 上訴人全無悔意 - 較
高的量刑起點被認為是恰當的
上訴人承認一項非法入境罪(第一項控罪)及一項向人民入境
事務處事務助理員作出虛假陳述罪( 第二項控罪) 。
案情顯示，上訴人於 1994 年利用一本載有虛假資料的中國
護照到香港工作。後來她返回國內。她的丈夫是香港居民。於案發
前，他們已育有一名女兒。其後，上訴人再懷孕；於是偷渡到香港
生育。於2 0 0 2 年4 月，她向入境事務處投案。
在求情時，她的代表律師指由於國內的生育政策，故此她希
望在香港分娩，以便嬰兒可獲香港居留權。
在判刑時，原審裁判官參閱女皇訴蘇民景 [ 1 9 8 9 ] 1 HK L R
142一案，採用15個月為認罪後的量刑起點，但鑑於她非法來港的
原因，把刑期減至12個月。就第二項控罪，原審裁判官亦以15個月
為認罪後的量刑起點，但鑑於案件已在多年前發生，所以把判刑減
至1 2 個月，而其中的6 個月則與第一項控罪的刑期同期執行。
上訴時
裁決：
(1)
上訴人因國內的生育政策而面對困難是可以理解及值得同情
的。但這並不可以視為偏離在蘇文景一案訂下的指引的理由。她偷
渡來港產子，向入境事務處投案是她計劃的一部分；不然，她便不
能獲得分娩的服務，而她的兒子亦不能獲得香港的居留權。她向當
局投案並不反映她對罪行的悔意，亦沒有減輕她的罪責；
(2)
她來港產子，不但濫用了香港的資源，亦影響香港居民應得
的醫療服務。此外，她以非法途徑為兒子獲取香港居留權，亦影響
到國內循合法途徑來港定居人士的輪候時間。若法庭不但不予恰當
判罰，反而減刑，這必會對其他相同情況候產婦人起鼓勵作用，導
致她們挺而走險，偷渡來港。在考慮到上訴人來港的動機、對香港
及國內的負面影響，恰當的量刑起點應提高為2 4 至 2 7 個月；
(3)
上訴人全無悔意。她偷渡來港產子及自動投案不構成任何特
殊減刑理由。所以在扣除三分之一的認罪減免後，她的恰當判刑為
253
CCAB 2002
16個月。判刑再調低至14個月。上訴人的第二項控罪的判刑維持不
變；其中的6個月刑期亦與首項判刑同期執行。她的總刑期為監禁
2 0 個月。
結果︰上訴得直。1 8 個月的刑期撤消。改判2 0 個月。
[English digest
of MA
626/2002,
above]
To DJ
(18.9.2002)
*Alex Lee
#I/P
TO
Wa-mei
Unlawful remaining/Surrender to authorities not necessarily a mitigating
factor/Absence of remorse/Higher starting point considered appropriate
The Appellant pleaded guilty to an offence of unlawful remaining
(charge 1) and another offence of making a false representation to an
immigration assistant of the Immigration Department in 1994 (charge 2).
The facts showed that the Appellant came to work in Hong Kong in
1994 by using a PRC passport which contained false information. She
subsequently returned to the Mainland. Her husband was a Hong Kong
resident. Prior to this case, they had a daughter. The Appellant later became
pregnant again and sneaked illegally into Hong Kong to give birth. In April
2002, she surrendered to the Immigration Department.
In mitigation, it was submitted that it was due to the birth control
policy on the Mainland that the Appellant preferred to give birth in Hong Kong,
and her baby could therefore obtain a right of abode in Hong Kong.
In sentencing, the magistrate considered R v So Man-king [1989] 1
HKLR 142 and adopted 15 months as the starting point for both offences. In
view of her reason of coming to Hong Kong, the magistrate reduced the
sentence on charge 1 to 12 months’ imprisonment. Regarding the sentence for
charge 2, he considered that the offence was committed years ago and reduced it
to 12 months, 6 months of which to be served concurrently with the sentence of
charge 1.
On appeal
Held :
(1)
The difficulties faced by the Appellant under the Mainland’s birth
control policy were understandable and deserved sympathy, but this should not
be a reason for departing from the guidelines stated in So Man-king. It was her
plan to sneak into Hong Kong illegally to give birth and then to surrender
herself to the Immigration Department. By doing so, she would have access to
the medical services for the birth, and her son would have obtained the right of
abode. Surrendering to the authorities did not imply that she was remorseful
nor did it reduce her criminal liability;
(2)
By coming to Hong Kong to give birth, she had not only abused the
resources of Hong Kong, but also affected the medical services to which Hong
Kong people were entitled. By obtaining a right of abode for her son via an
unlawful means, she had jumped the queue of those who were waiting to come
to Hong Kong through proper procedures. If the court did not impose an
appropriate sentence on her, this would encourage other pregnant women in
similar situations to take the risk and sneak into Hong Kong. Having
considered the Appellant’s motive of coming to Hong Kong and the negative
impact on both Hong Kong and the Mainland, the starting point of sentence
should be raised to between 24 months and 27 months;
254
CCAB 2002
(3)
The Appellant was remorseless. The fact that she sneaked into Hong
Kong illegally to give birth and then surrendered herself to the authority did not
constitute any special reason for sentence reduction. With one-third discount
for the guilty plea, the appropriate term for charge 1 should be 16 months’
imprisonment. The sentence would be further lowered to 14 months’
imprisonment. The sentence of charge 2 would remain unchanged, namely, 12
months’ imprisonment, 6 months of which was to run concurrently with the
sentence of charge 1, making a total of 20 months’ imprisonment.
Result - Appeal allowed. Sentence of 18 months’ imprisonment substituted
with 20 months’ imprisonment.
香港特別行政區訴張順好及鄧兆權
HKSAR v CHEUNG Shun-ho and TANG Siu-kuen
*張維新
Cheung
Wai-sun
#陳鑑全
Petrus Chan
高等法院原訟法庭暫委法官王見秋
耹訊日期：二零零二年九月二十六日
宣判日期：二零零二年十月十一日
Wo n g D J
Dates of Hearing: 26 September 2002
Date of Judgment: 11 October 2002
非法逗留 2 0 年 - 上訴人雖向當局自首但並無悔意 - 除非情況非常特
殊否則判處監禁是必需的
兩名上訴人是夫婦關係。他們分別承認一項在香港非法入境
後未得入境事務處處長授權而在香港逗留控罪和一項使用他人身份
證控罪，第一上訴人亦承認另外一項管有他人身份證的控罪。裁判
官判處每人入獄十個月。
案情顯示兩名上訴人於1982年從內地偷渡來港，於1983
年誕下一名女兒，又在1994 年誕下一對攣生兒子。他們利用朋
友或親戚給他們屬於他人的身份證在香港工作和開設銀行戶口。
他們於2001年11月5日向入境處自首因而遭受檢控。
代表上訴人的大律師提出原審裁判官在平衡法理與人情
的問題上，未有適當的考慮人情因素的比重。
裁決：
(1)
從上訴庭在女皇訴蘇文京 ( 譯音 )R v So Man-king and
Others [1989] 1 HKLR 142一案，可以看到這十多年來香港政
府對非法入境者的政策和取向。法律在這一方面是非常清楚的，
即時監禁是一個既定的原則，只有在非常特殊的情況下才可稍作
調整；
(2)
環顧香港地小人多，資源有限，香港根本沒有能力容納
大批由外地湧入的移民，在就業、教育、醫療、房屋等等方面都
255
CCAB 2002
會產生不能承受的壓力，嚴重影響社會秩序和香港合法居民的利
益。法庭必需以這個背境的大前題下來處理法理人情這個問題；
(3)
過去二十年，上訴人每天都在犯法，公然使用他人的身
份證去瞞騙政府、僱主和其他人士，他門對犯罪完全沒有感到難
過。他們向人民入境事務處自首的目的是要為子女獲得居港權﹔
(4)
就10個月的刑期可見裁判官已經是非常仁慈和寬大，再
沒有判刑酌減的空間。
[English digest
of MA
703/2002,
above]
Wong DJ
(11.10.02)
*Cheung Waisun
#Petrus Chan
(1) CHEUNG
Shun-ho
(2) TANG
Siu-kuen
Unlawful remaining for 20 years/Appellants showed no remorse despite
surrender to authority/Custodial sentence necessary save in very special
circumstances
A1 and A2 were husband and wife. They pleaded guilty respectively
to charges of unlawful remaining and of using an identity card relating to
another person. A1 also pleaded guilty to an additional charge of possession of
an identity card relating to another person. They were each sentenced to
imprisonment of 10 months.
The facts showed that they sneaked into Hong Kong from the
Mainland in 1982. They had a daughter and two twin sons in 1983 and 1994.
By using others’ identity cards, they obtained employment and opened bank
accounts in Hong Kong. They had remained in Hong Kong unlawfully for 20
years. On 5 November 2001, they surrendered to the Immigration Department
and were then prosecuted for the said offences.
On appeal, it was submitted that the magistrate had failed to give
appropriate weight to the humanitarian factor that the Appellants had to take
care of their young children.
Held :
(1)
The policy and approach of the Hong Kong Government towards illegal
immigrants in the past 10 years could be seen in R v So Man-king and Others
[1989] 1 HKLR 142. It was an established principle that an immediate
custodial sentence was required save in very special circumstances in which a
slight adjustment could be made;
(2)
Given the fact that Hong Kong had a large population, but limited
resources, it was incapable of accommodating large numbers of immigrants
who would create unbearable pressure on employment, education, medical care,
and housing. It would adversely affect the public security and the well-being of
the legitimate residents of Hong Kong. The humanitarian issue had to be dealt
with in light of these considerations;
(3)
Over the past 20 years, the Appellants violated the law every day by
flagrantly using identity cards belonging to others to cheat the government, their
employers and other people. They showed no remorse for the offences
committed. The fact that they surrendered to the Immigration Department was
for the purpose of gaining the right of abode for their children;
(4)
The sentence of 10 months’ imprisonment was a very lenient one. There
was no room for further remission.
256
CCAB 2002
Sentence (Quantum) – Obscene and Indecent Articles
Obscene and Indecent Articles
香港特別行政區訴黃文晃
HKSAR v WONG Man-fong
*陳立恩
Winston
Chan
#上訴人自
辯
I/P
耹訊日期：二零零二年八月三十日
宣判日期：二零零二年八月三十日
To D J
發布和管有淫褻物品 - 干犯者管有光碟的數量多少對判刑來說並非
關鍵性 - 判罰的主要考慮因素為起阻嚇之效
上訴人經審訊後被裁定一項發布淫褻物品罪及一項管有淫褻
物品以供發布罪罪名成立，分別違反香港法例第390 章《淫褻及不
雅物品管制條例》第 2 1 ( 1 ) ( a) 條及 2 1 ( 1 ) ( b ) 條。就每項控罪，他被
判監禁1 2 個月，刑期同期執行。
在上訴時，上訴人稱他65歲年事老邁，而以涉案的三百
多隻光碟而言，他認為12個月的判刑是過重的。
裁決：
(1)
法院已在多宗裁判法院上訴案中，指出這類罪行恰當的
判刑起點為監禁 12 個月：見 HKSAR v Poon Ki-Chiu MA
209/1999, HKSAR v Yu Man-lung MA 704/1999 。這類判罰
的主要考慮因素為起阻嚇之效，因此，干犯者管有光碟的數量多
少並非關鍵性；
(2)
上訴人現年65 歲，他過往曾有42次刑事定罪記錄，其中
有兩項與本案相同。他實在不可獲得判刑的減免。雖然他年事老
邁，但12個月監禁亦不算長時間。裁判官採用的量刑起點是正
確的。
257
CCAB 2002
[English digest
of MA
661/2002,
above]
Sentence (Quantum) – Obscene and Indecent Articles
WONG
Man-fong
Publishing and possession of obscene articles/Amount of compact discs
involved not a key factor in sentence/Deterrence a major consideration in
sentence
The Appellant was convicted after trial of an offence of publishing
obscene articles and another offence of possession of obscene articles for the
purpose of publication, contrary to ss 21(1)(a) and 21(1)(b) respectively of the
Control of Obscene and Indecent Articles Ordinance, Cap 390. He was
sentenced to 12 months’ imprisonment for each charge, to be served
concurrently.
To DJ
(30.8.2002)
*Winston
Chan
On appeal, the Appellant, who was aged 65 years, submitted he was of
old age, and the sentence was excessive as the number of compact discs
involved was just above 300.
#I/P
Held :
(1)
The court had held in several magistracy appeals that the appropriate
starting point for offences of this nature should be imprisonment of 12 months:
HKSAR v Poon Ki-chiu MA 209/1999 and HKSAR v Yu Man-lung MA
704/1999. Deterrence was the major consideration for this type of offence.
Thus, the number of compact discs involved was not the key factor;
(2)
The Appellant, aged 65, had a record of 42 convictions, two of which
were similar to that in the present case. He was not entitled to any discount on
sentence. The 12 months’ imprisonment was not too long considering his age.
The starting point adopted by the magistrate was correct.
OSCO
CA 53/2002
Stuart-Moore
ACJHC
Seagroatt J
(7.8.2002)
*William Tam
#H Y Wong
LEE
Tsung-lin
Credit card fraud/Major operation with international dimension/Deterrent
sentence necessary/Enhancement of sentence under OSCO/Effect of
jurisdictional limit of District Court
信用卡詐騙 - 涉及國際犯罪層面的大規模騙案 - 必須判以阻嚇性刑
罰 - 根據《有組織及嚴重罪行條例》加重刑罰 - 區域法院的司法管
轄權限的影響
The Applicant was part of a Taiwanese gang of fraudsters who came to
Hong Kong in March 2001 to obtain goods and services by using a large
number of forged credit cards. He pleaded guilty to nine counts of making a
false instrument, namely, a forged credit card. He obtained a range of goods
and services thereby. He also pleaded guilty to three other counts: count 28
related to his possession of three false instruments, namely, forged credit cards;
count 29 to fifty-four false instruments, also forged credit cards; count 30,
which concerned his possession of equipment for making forged credit cards,
namely, an encoder, transformer and an adaptor.
The total value of goods and services obtained by the defendants in less
than one day amounted to a little over HK$205,000.
In sentencing, the judge had regard to the factors in R v Chan Sui-to &
Another [1996] 2 HKCLR 128, 131:
258
CCAB 2002
Sentence (Quantum) – OSCO
(1)
the size of the operation, e.g. whether it involves large sums of
money, a number of persons or forged credit cards;
(2)
the planning that went into the perpetration of fraud, whether it
was elaborate or simple, whether technical skills were used and to
what extent;
(3)
whether there was an international dimension;
(4)
whether the accused played a major role, e.g. running a syndicate,
engaging in actual manufacture, organising the use of forged
cards, or whether he was a mere cog in the wheel as a courier or a
custodian or keeper;
(5)
whether there was a plea of guilty.
The Applicant met all the criteria at the higher level. The judge took a starting
point of 3½ years for the offences of using the forged cards, and reduced that by
one-third to 2 years and 4 months, all sentences to run concurrently.
For the possession of the three forged credit cards (count 28), the judge
applied the same formula. For the possession of the 54 forged credit cards
(count 29), he took a starting point of 7½ years, which was reduced to 5 years.
On count 30, possession of equipment, a starting point of 7 years was taken, and
discounted to 4 years and 8 months. The overall sentence was 5 years.
The judge then enhanced the sentences by virtue of s 27(2) of the
Organized and Serious Crimes Ordinance, Cap 455, (‘OSCO’) by 25% to take
into account the gravity, prevalence and effect upon the community of the
offences. The effect of this was that the sentence on count 29 was increased to
On appeal
Held :
(1)
Credit card frauds were prevalent and they struck at the root of
commercial trust and stability. A particular deterrent element in the sentence
was called for;
(2)
The case had a clear international dimension. There was elaborate
planning, a gang was recruited, it was a major operation. Although Chan Sui-to
was helpful for its identification of the factors for consideration, it was
significantly different on its facts. Although the scale of operation in HKSAR v
Ng Swee-thiam [2000] 2 HKLRD 772, was more serious than in Chan Sui-to, in
that case there had been, as there was in this case, no application to enhance
sentence under OSCO;
(3)
The starting point of 7½ years was amply justified on the facts. The
judge applied a discount of one-third bringing the sentence to one of 5 years.
The reduction of 2 years below the 7-year jurisdictional limit of the District
Court was unarguably meaningful. The enhancement under OSCO of 25% was
unobjectionable. The actual sentence of 6 years and 3 months represented a
reduction of 9 months from the jurisdictional limit that was meaningful in this
case. It was also a case within the same category where a reduction of less than
one year could be considered: HKSAR v Li Yan [1998] 4 HKC 12.
259
CCAB 2002
CA 306/2002
Stuart-Moore
VP
Gall J
(5.11.2002)
*Paul Madigan
#I/P
YIP
Kwok-fai
Having counterfeits of protected coins/Enhancement of sentence due to
prevalence under OSCO/No justification for sentence reduction in excess of
one-third in absence of positive good character or assistance to
authorities/Approach to sentence
持有受保護硬幣 - 由於罪行的普遍程度而根據《有組織及嚴重罪行
條例》加刑 - 缺乏顯著的良好品格證明亦沒有協助當局因而沒有理
據可獲多於三分一的減刑 - 量刑方法
The Appellant pleaded guilty to two offences of having custody or
control of counterfeits of protected coins, contrary to s 100(1) of the Crimes
Ordinance, Cap 200. Both charges related to 2,650 counterfeit $10 coins. A coaccused, D2, was acquitted.
The Appellant and D2 were seen entering an industrial unit in Tsuen
Wan. When they left, the Appellant was carrying a cardboard box. They went
by taxi to Chai Wan. The police stopped them in the street and the 2,650
counterfeit coins (charge 1) were found in their possession. Using a set of keys
found in a bag being carried by the Appellant, the police subsequently gained
entry to a unit in Tsuen Wan where the 2,650 counterfeit coins of charge 2 were
found. The Appellant admitted possession of all the counterfeit coins seized.
In passing sentence, the judge adopted a starting point on each charge of
3 years’ imprisonment before reducing that to 20 months on each charge, having
regard to the pleas of guilty, the Appellant’s clear record and the mitigation.
However, the prosecution applied under s 27 of the Organized and Serious
Crimes Ordinance, Cap 455, for an enhancement of sentence and, to that end,
furnished information as to the prevalence of such offences. The judge then
said:
I am satisfied that the offence in question has become prevalent
in recent years and therefore I will allow the application. The
prosecution agree that this is a first time application for this
offence and therefore the court should consider enhancement in
the region of 25% instead of the usual 50%.
The judge then enhanced each of the sentences of twenty months by
25%, bringing each sentence to twenty-five months. He then made an order
which had the effect that ten months of the sentences should run concurrently,
with the remaining fifteen months of charge 2 to be served consecutively.
On appeal, the crucial question was whether, if the whole quantity of
coins in both charges had been found on the Appellant at the same time and
place, he would have received such a long sentence as he did.
Held :
(1)
This was not a true case of an offender committing two separate
offences, such as would have been the case if he had been found in control or
had the custody of the coins in the second charge whilst on bail for a similar
offence. This was a case where the Appellant had simply taken some of the
coins from his store, leaving the remainder behind;
(2)
The judge, having first decided what the appropriate sentence on each
charge should be, had to be particularly careful to keep a global view of
sentence in mind, having regard to the total quantity of coins involved, in the
same way as he would have done had this been a drugs case where some of the
drugs had been found on the trafficker and others had been found in his store at
home. In a case such as this, where there were two related offences, the
sentencer, following that said in HKSAR v Tam Wai-pio [1998] 4 HKC 291,
298, having decided the appropriate starting point for each offence, must take an
260
CCAB 2002
overall view of what the end result in terms of sentence should be. If wholly
concurrent sentences were inappropriate, an upward adjustment was achieved
by means of consecutive sentencing to achieve the proper sentence in totality.
Although the judge appeared to have had these considerations in mind, the
judge’s approach required the sentences to be looked at afresh;
(3)
In normal circumstances a starting point on each individual charge of 2½
years’ imprisonment would have met the justice of this case. A global starting
point of 3 years’ imprisonment for the total number of coins reflected in the
charges would have been appropriate. To achieve that notional sentence, before
considering discounts for pleas of guilty or the application for enhancement, it
would be necessary to order six months of the sentence on the second charge to
be served consecutively;
(4)
There was no justification for a reduction of the magnitude given of 45%
from 3 years on each charge to 20 months. The Appellant had a clear record but
he had provided no evidence of positive good character which might have
justified a greater discount than one-third, such as having carried out unpaid
work in the community. The Appellant had been treated as if he was in a
category of offender who had provided valuable information to the authorities,
which was not the case. He was entitled to no more than one-third;
(5)
An enhancement of 25% was justified: HKSAR v Cheng King-lung Cr
App 67/2002. In future, however, 50% enhancement would be justified for
offences of this kind;
(6)
A 25% enhancement of sentence represented on the facts of this appeal
an increase of five months’ imprisonment, bringing the total to 25 months on
each charge. Having regard to totality, for the whole quantity of coins in both
charges, a sentence of 30 months’ imprisonment was warranted. The judge
might have lost sight of the global picture presented by the facts of this case
when he passed a sentence which had the effect of imposing an additional 15
months’ imprisonment for the 2,650 counterfeit coins in charge 2. That
produced a sentence which was manifestly excessive.
Result - Appeal allowed. Overall sentence reduced by 10 months. On the first
and second charges, the sentences would remain at 25 months. But
the sentence on the second charge would be served consecutively to
the extent of 5 months only, making 30 months in total.
CA 515/2001
Stuart-Moore
VP
Yeung JA
Suffiad J
(20.11.2002)
*Lynda Shine
#Edwin Choy
(1) WONG
Fungming
(2) MAK
Wai-mei
Enhancement of sentence under OSCO/Prevalence of offence/ Offence
must be prevalent at time of sentence
根據《有組織及嚴重罪行條例》加重刑罰 - 罪行的普遍程度 - 判刑
時有關罪行須屬普遍
The Applicants were charged with a conspiracy to defraud, which also
named ten others. They were convicted after trial and sentenced to 5 years’
imprisonment.
On appeal, it was submitted that the sentences had been wrongly
enhanced under s 27(11) of the Organized and Serious Crimes Ordinance, Cap
455, (‘OSCO ’ ) on the basis of prevalence, when in fact there had been a
general decrease in the offences of a similar type.
Held :
(1)
The power to enhance a sentence under s 27(11) was an extraordinary
power. It enabled a judge to pass a more severe sentence for a specified offence
261
CCAB 2002
if one or more of a number of factors itemised in s 27 had been established. The
power given to a judge to add to the sentence he had otherwise considered to be
appropriate, which would often already have incorporated an element for
deterrence, could only have been intended to spell out to others who might
otherwise commit the same type of offence in the future that to do so would
entail a particularly severe penalty. Inevitably, it was a power which ought to
be used sparingly;
(2)
Bearing in mind the harsh nature of the legislation, it was not intended,
in the absence of a clear indication to the contrary, that an enhanced sentence
should be imposed at a time when the particular need to deter others had passed.
It had passed in this case because, on statistical analysis, the criminal conduct in
question had substantially decreased;
(3)
Applications for enhancement were only to be made in circumstances
where the offence in question remained prevalent at the time of sentencing.
Result - Appeals allowed.
Sentences reduced from 5 to 4 years’
imprisonment, to remove the element of enhancement.
POOW
MA
1255/2001
CHAN
Hong
Possession of offensive weapon/Offender out of trouble for 17
years/Desirability of non-custodial sentence
管有攻擊性武器 - 罪犯已17年沒有犯事 - 適宜判處非監禁刑罰
McMahon DJ
(21.12.2001)
The Appellant pleaded guilty to an offence of possession of an offensive
weapon, contrary to s 17 of the Summary Offences Ordinance, Cap 228. He
*Simon Tso
#Albert Poon
The facts showed that the Appellant and his nephew operated a fruit
stall, which was adjacent to another. The nephew was approached by a creditor
of the nephew’s father who demanded payment of a debt owed by the father.
The nephew and the creditor argued. The Appellant then approached the
arguing pair carrying a fruit knife he used at his own stall and told the creditor
to go away or he would chop him. The creditor called a police officer who
arrested the Appellant. No one was injured.
The Appellant was aged 57 years. As a young man he had committed a
series of serious offences. These included offences of manslaughter when he
was 18 years old and aggravated burglary at the age of 24. He further
committed various lesser but still significant offences up to 1984. Since then,
he had apparently reformed himself, built up a business, and incurred no further
convictions over the past 17 years.
On appeal, it was submitted that the immediate custodial sentence was
wrong in principle and that other non-custodial alternatives were properly
available to the magistrate. It was also said that if a custodial sentence was
appropriate, a sentence of 3 months’ imprisonment was manifestly excessive.
Held :
(1)
The offence was spontaneous and in the heat of the moment, and the
weapon used was one lying at hand at the workplace. The weapon was not
262
CCAB 2002
Sentence (Quantum) – POOW
aggressively displayed or pointed at the victim by the Appellant, but was simply
in his hand. The offence was committed not to ‘resolve a dispute’ , as the
magistrate had found, but simply to send away the victim, and the victim’s
associate, who were demanding money;
(2)
More consideration should have been given to the imposition of a noncustodial sentence. That was because of the Appellant’s apparently successful
endeavours to lead a significantly reformed life over the past 17 years. He
deserved a very last chance, given the facts of the case, the mitigation and his
proven ability to control his temper over the past 17 years, before being
sentenced to immediate imprisonment.
Result - Appeal allowed. Sentence suspended for 3 months.
Protected Coins
CA 306/2002
Stuart-Moore
VP
Gall J
(5.11.2002)
*Paul Madigan
#I/P
YIP
Kwok-fai
Having counterfeits of protected coins/Enhancement of sentence due to
prevalence under OSCO/No justification for sentence reduction in excess of
one-third in absence of positive good character or assistance to
authorities/Approach to sentence
持有受保護硬幣 - 由於罪行的普遍程度而根據《有組織及嚴重罪行
條例》加刑 - 缺乏顯著的良好品格證明亦沒有協助當局因而沒有理
據可獲多於三分一的減刑 - 量刑方法
The Appellant pleaded guilty to two offences of having custody or
control of counterfeits of protected coins, contrary to s 100(1) of the Crimes
Ordinance, Cap 200. Both charges related to 2,650 counterfeit $10 coins. A coaccused, D2, was acquitted.
The Appellant and D2 were seen entering an industrial unit in Tsuen
Wan. When they left, the Appellant was carrying a cardboard box. They went
by taxi to Chai Wan. The police stopped them in the street and the 2,650
counterfeit coins (charge 1) were found in their possession. Using a set of keys
found in a bag being carried by the Appellant, the police subsequently gained
entry to a unit in Tsuen Wan where the 2,650 counterfeit coins of charge 2 were
found. The Appellant admitted possession of all the counterfeit coins seized.
In passing sentence, the judge adopted a starting point on each charge of
3 years’ imprisonment before reducing that to 20 months on each charge, having
regard to the pleas of guilty, the Appellant’s clear record and the mitigation.
However, the prosecution applied under s 27 of the Organized and Serious
Crimes Ordinance, Cap 455, for an enhancement of sentence and, to that end,
furnished information as to the prevalence of such offences. The judge then
said:
I am satisfied that the offence in question has become prevalent
in recent years and therefore I will allow the application. The
prosecution agree that this is a first time application for this
offence and therefore the court should consider enhancement in
the region of 25% instead of the usual 50%.
The judge then enhanced each of the sentences of twenty months by
25%, bringing each sentence to twenty-five months. He then made an order
which had the effect that ten months of the sentences should run concurrently,
with the remaining fifteen months of charge 2 to be served consecutively.
263
CCAB 2002
Sentence (Quantum) – Protected Coins
On appeal, the crucial question was whether, if the whole quantity of
coins in both charges had been found on the Appellant at the same time and
place, he would have received such a long sentence as he did.
Held :
(1)
This was not a true case of an offender committing two separate
offences, such as would have been the case if he had been found in control or
had the custody of the coins in the second charge whilst on bail for a similar
offence. This was a case where the Appellant had simply taken some of the
coins from his store, leaving the remainder behind;
(2)
The judge, having first decided what the appropriate sentence on each
charge should be, had to be particularly careful to keep a global view of
sentence in mind, having regard to the total quantity of coins involved, in the
same way as he would have done had this been a drugs case where some of the
drugs had been found on the trafficker and others had been found in his store at
home. In a case such as this, where there were two related offences, the
sentencer, following that said in HKSAR v Tam Wai-pio [1998] 4 HKC 291,
298, having decided the appropriate starting point for each offence, must take an
overall view of what the end result in terms of sentence should be. If wholly
concurrent sentences were inappropriate, an upward adjustment was achieved
by means of consecutive sentencing to achieve the proper sentence in totality.
Although the judge appeared to have had these considerations in mind, the
judge’s approach required the sentences to be looked at afresh;
(3)
In normal circumstances a starting point on each individual charge of 2½
years’ imprisonment would have met the justice of this case. A global starting
point of 3 years’ imprisonment for the total number of coins reflected in the
charges would have been appropriate. To achieve that notional sentence, before
considering discounts for pleas of guilty or the application for enhancement, it
would be necessary to order six months of the sentence on the second charge to
be served consecutively;
(4)
There was no justification for a reduction of the magnitude given of 45%
from 3 years on each charge to 20 months. The Appellant had a clear record but
he had provided no evidence of positive good character which might have
justified a greater discount than one-third, such as having carried out unpaid
work in the community. The Appellant had been treated as if he was in a
category of offender who had provided valuable information to the authorities,
which was not the case. He was entitled to no more than one-third;
(5)
An enhancement of 25% was justified: HKSAR v Cheng King-lung Cr
App 67/2002. In future, however, 50% enhancement would be justified for
offences of this kind;
(6)
A 25% enhancement of sentence represented on the facts of this appeal
an increase of five months’ imprisonment, bringing the total to 25 months on
each charge. Having regard to totality, for the whole quantity of coins in both
charges, a sentence of 30 months’ imprisonment was warranted. The judge
might have lost sight of the global picture presented by the facts of this case
when he passed a sentence which had the effect of imposing an additional 15
months’ imprisonment for the 2,650 counterfeit coins in charge 2. That
produced a sentence which was manifestly excessive.
Result - Appeal allowed. Overall sentence reduced by 10 months. On the first
and second charges, the sentences would remain at 25 months. But
the sentence on the second charge would be served consecutively to
the extent of 5 months only, making 30 months in total.
264
CCAB 2002
Sentence (Quantum) – Public Justice
Public Justice
CA 562/2001
Mayo VP &
LugarMawson J
(13.6.2002)
*Louisa Lai
#Philip Wong
SHUM
Yat-ming
Conspiring to pervert the course of public justice/No guideline
sentence/Providing
false
testimony
to
incriminate
innocent
person/Aggravating factors/Cruel and cynical crime
串謀破壞司法公正 - 無判刑指引 - 提供虛假證供使清白的人入罪加重刑罰的因素 - 殘酷無情的罪行
The Applicant was convicted after trial of an offence of conspiracy to
pervert the course of public justice, and sentenced to 2 years and 6 months’
imprisonment.
The Applicant, aged 33 years, was a bus driver at the time of the offence.
The conspiracy involved framing the victim, a young man who was slightly
mentally retarded, with indecent assault.
The Applicant suggested to D2 and D3 that they should board the bus he
was driving at the time when he knew the victim would be on the upper deck,
and themselves go to the upper deck and fabricate a complaint of indecent
assault. D2 was a girl, aged 16 years, and D3 a youth, aged 14 years. They
were school pupils. The arrangement was that after D2 cried out that she had
been indecently assaulted, the Applicant would stop the bus and investigate the
complaint. D2 would give details of the assault and D3 would say he witnessed
it.
All went according to plan. Police were informed and the victim was
charged with indecent assault. All defendants testified against the victim in the
Tuen Mun Magistrates Court, but he was acquitted.
The motive for the offence appeared to be that the victim’s father had
made a complaint to the police that the Applicant had claimed to be a member
of a triad society.
On appeal, it was submitted that the sentence imposed was much
heavier than that imposed in what was said to be the guideline case of
Attorney General v Yeung Kwong-chi [1989] 1 HKLR 266.
Held :
(1)
The case of Yeung Kwong-chi was not a guideline case, and there was no
suggestion that the sentence imposed would be regarded as such. The
circumstances of cases of this nature varied infinitely;
(2)
This case involved a number of gravely aggravating factors: all three
conspirators were prepared to give false testimony in court; the Applicant was
prepared to conspire with youngsters, setting them a shocking example; the
victim was slightly mentally retarded;
(3)
This was a cruel and cynical crime.
265
CCAB 2002
Sentence (Quantum) – Road Traffic
Road Traffic
MA 114/2002
Wong DJ
MOK
King-yin
Dangerous driving causing death/Aggravating factors of drink and showing
off/Need for higher sentences/Comments on maximum penalty
危險駕駛引致他人死亡 - 酒後駕駛兼向友儕炫耀為加重刑罰的因素
- 必須判處較高刑罰 - 有關最高刑罰的評論
(26.3.2002)
*Paul Madigan
#Ching Y
Wong, SC &
Christopher
Grounds
The Appellant was convicted after trial of a charge of dangerous driving
causing death, contrary to s 36(1) of the Road Traffic Ordinance, Cap 374. He
was sentenced to 18 months’ imprisonment and disqualified from driving for a
period of 3 years. At the outset of the trial, he pleaded guilty to drinking with an
alcohol concentration in his breath above the prescribed limit (charge 2) and
carrying excessive passengers (charge 3). In respect of charge 2, he was
sentenced to imprisonment for 1 month, to be served concurrently with the
sentence of 18 months. In respect of charge 3, he was sentenced to a fine of
$1,000.
The evidence showed that when the Appellant was driving his Mercedes
Benz in the early hours of 5 May 2000, the car went out of control and struck a
bollard and the railings on the central island at the Garden Road end of Lower
Albert Road, killing the deceased who was in the front passenger seat. The
Appellant and a number of his friends who were in the car at the time of the
accident had been drinking alcohol in bars in Happy Valley and Lan Kwai Fong
since the previous evening. Some of the passengers were excited and told the
Appellant to drive faster two to three times. PW1, a passenger with 9 years’
driving experience, estimated the speed of the car to be 70 to 80 kph. PW1
thought the speed was too high and told the Appellant to slow down or stop and
as a result the Appellant applied the brakes and the car went out of control. The
magistrate found that the accident was caused by excessive speed and excessive
alcohol consumed by the Appellant.
On appeal
Held :
(1)
Sentences for the offence of dangerous driving causing death had
hitherto been at a very low level, as most previous decisions in Hong Kong
suggested. This was a lamentable state of affairs;
(2)
Motor cars could be used as lethal weapons, as guns or knives, if they
were not properly used. Anyone who drove dangerously and killed had to
expect to pay a high price. Heavy penalties were necessary where aggravating
features existed. In this case the aggravating features of drinking and showing
off were found to exist by the magistrate;
(3)
Had it not been for the constraint of previous authorities, the sentence of
18 months’ imprisonment would have been upheld. There was no reason why
Hong Kong should not follow England, and raise the maximum sentence to 10
years’ imprisonment. The loss of a human life, when viewed from whatever
angle, was a very serious consequence indeed.
266
CCAB 2002
MA 353/2001
McMahon DJ
(9.5.2002)
*Paul Madigan
#I/P
WONG
Yu-kin
Driving while disqualified and without third party insurance/ Gravity of
offences/Disqualification
and
imprisonment
appropriate/Deterrent
sentences required due to risk to other road users
於取消駕駛資格期間沒有第三者保險而駕駛汽車 - 罪行的嚴重性取消駕駛資格和監禁是恰當的刑罰 - 因對其他道路使用者構成危險
而須判處阻嚇性刑罰
The Appellant was convicted of an offence of driving while disqualified,
contrary to s 12(2)(b) of the Road Traffic (Driving- Offence Points) Ordinance,
Cap 375, and was sentenced to 2 months’ imprisonment, suspended for 18
months, and to a fine of $2,000. He was convicted also of using a vehicle
without third party insurance, contrary to ss 4(1) and 4(2)(a) of the Motor
Vehicle Insurance (Third Party Risks) Ordinance, Cap 272, and was disqualified
from holding or obtaining a driving licence for 12 months and fined $2,000.
On appeal, it was submitted that the sentences were too severe so far as
the period of disqualification was concerned, and so far as the period and term
of the suspended sentence of imprisonment were concerned. There was no
complaint over the fine.
The Appellant said the magistrate failed to take into account the special
circumstances of the offence. These were that on the occasion of the offence his
pregnant girlfriend had been taken ill after dinner at his house, that he had then
attempted to drive her from his home on Lantau Island to a hospital in Kowloon
City for treatment, and was stopped by police at a road-block in the course of
that journey. His father, the only other person in his house with a driving
licence at the time, was not in a position to drive to the hospital as he had to
work the next morning.
Held :
(1)
In R v Lui Wing-hang MA 502/97, in which an offender also sought to
mitigate his sentence for driving whilst disqualified due to a need to take an ill
family member for medical treatment, Yeung J said:
Driving while disqualified and hence without third party insurance,
is a very serious offence as other road users who are injured in any
traffic accident may be left without any compensation. A term of
imprisonment for driving without third party insurance is normally
called for. Whether such term of imprisonment will be suspended or
not is a matter for the trial judge to decide depending in the
circumstances of each case.
(2)
In R v Yim Hon-chong MA 52/2001, Beeson J, in respect of a similar
offence, said:
These were very serious offences. The Appellant knew full well what
he was doing when he was driving while disqualified. He was a
menace to other road users because he was driving without third
party insurance.
(3)
There was no doubt that driving whilst disqualified was a serious
offence, not least because other road users were placed at risk in the sense that
they were no longer protected by the mandatory third party insurance scheme.
That was the evil that sentences imposed in respect of such offences were aimed
at deterring;
(4)
The circumstances advanced by the Appellant were properly taken into
account by the magistrate at the time of sentence. He believed that there were
267
CCAB 2002
other reasonable alternatives available to the Appellant in terms of helping his
fiancee get to hospital, not least being that the Appellant’s father was available
for that purpose.
The magistrate concluded quite properly that the
circumstances advanced in mitigation were not sufficiently special so as to
exclude the mandatory minimum period of disqualification from operation. He
was therefore right to impose the mandatory minimum period of 12 months’
disqualification;
(5)
The suspended sentence imposed and the period of suspension were,
given the risks disqualified drivers imposed on other road users, quite proper;
(6)
Although the Appellant further contended that he would face a loss of
his employment prospects as an environmental technician as the result of the
sentences, that was not a sufficient basis for any further mitigation of sentence.
A period of disqualification from driving would undoubtedly impinge upon the
ability of individuals to perform many occupations in Hong Kong. The
Appellant was not a professional driver, albeit that his licence was no doubt of
some importance to his work.
香港特別行政區訴陳學坤
HKSAR v CHAN Hok-kwan
*高寶翠
Catherine
Ko
#孫錦熹
Suen
Kam-hee
耹訊日期：二零零二年三月十九日
宣判日期：二零零二年三月十九日
Wo n g D J
香港法例第 3 7 4 章第 4 6 ( 1 ) 條所指的不小心騎踏單車 - 條文已指明最
高刑罰 - 裁判官援引《刑事訴訟程序條例》第 1 1 3C 條並不恰當
上訴人被裁定一項在道路上不小心騎踏單車罪罪名成立，判
處罰款1 ,0 0 0 元。
控罪指上訴人在道路上不小心騎踏單車，違反第 374 章
《道路交通條例》第 46(1) 條。當時上訴人在行車方向相反情況
下騎踏單車，因而與一輛客貨車相撞。
第374章46(1)條這樣規定：
任何人在道路上不小心使用或騎踏單車、三輪車或多輪
車，即屬犯罪，可處罰款 $ 5 0 0 。
上訴時
裁決：
(1)
既然第46(1) 條列明最高罰款是500 元，裁判官在無充分
理由下引用《刑事訴訟程序條例》第113C條是不適當。
268
CCAB 2002
結果︰批准上訴。將罰款減為500元。
[第113C指出︰
(2)
凡某條例訂定某罪行的罰款(非規定罰款除外)是以
某款額來表達，該罰款須當作為屬以下列表所載適
用於該款額的級數的罰款–
列表
罰款
$1 至 $2,000
$2,001 至 $5,000
$5,001 至 $10,000
$10,001 至 $25,000
$25,001 至 $50,000
$50,001 至 $100,000
[English digest
of MA
61/2002,
above]
Wong DJ
(19.3.2002)
CHAN
Hok-kwan
適用級數
第1級
第2級
第3級
第4級
第5級
第6級]
Careless cycling under s 46(1), Cap 374/Maximum penalty
specified/Inappropriate for magistrate to invoke s 113C, Criminal
Procedure Ordinance
The Appellant was convicted of an offence of careless cycling,
contrary to s 46(1) of the Road Traffic Ordinance, Cap 374. He was fined
$1,000. It was alleged that the Appellant was riding a bicycle on a road in a
direction opposite to the vehicular traffic direction at the time, which caused a
collision with a van.
*Catherine Ko
Section 46(1) of Cap 374 provided:
#Suen Kamhee
A person who uses or rides a bicycle, tricycle or multi-cycle on a road
carelessly commits an offence and is liable to a fine of $500.
On appeal
Held :
As s 46(1) had provided that the maximum penalty was $500, it was
inappropriate for the magistrate, without sufficient grounds, to invoke s 113C of
the Criminal Procedure Ordinance.
Result - Appeal allowed. Fine reduced to $500.
[S 113C provided:
(2) Where an Ordinance provides for a fine, other than an excluded
fine, for an offence expressed as an amount of money, the fine
shall be deemed to be a fine at the level relevant to the amount
of the fine in the following table Table
Fine
$1 to $2,000
$2,001 to $5,000
$5,001 to $10,000
$10,001 to $25,000
$25,001 to $50,000
$50,001 to $100,000
269
Level Applied
Level 1
Level 2
Level 3
Level 4
Level 5
Level 6]
CCAB 2002
Sentence (Quantum) – Robbery
Robbery
CA 276/2001
Stock JA
LugarMawson J
(6.2.2002)
*Paul Madigan
#H Y Wong
AU KEUNG
Siu-kay
Assaults on lone women late at night/Violence and indecency used on
victims/Campaign of terror/Calculation of sentence/ Consecutive sentences
for separate attacks
襲擊單身夜歸女子 - 對受害人施加暴力和作出猥褻行為 - 接二連三
的恐怖襲擊 - 刑期的計算 - 就個別襲擊判處分期執行的刑期
The Applicant pleaded guilty to counts of (1) indecent assault; (2) assault
with intent to rob; (3) robbery; (4) indecent assault; (5) wounding; (6) robbery.
At the time of the offences, which spanned a period of 9 months between
March and December 2000, the Applicant was aged 24 years, married, and
without previous convictions. The offences all took place in the Lotus Garden
Estate in Ngau Tau Kok, and displayed a systematic course of conduct in which
the Applicant preyed upon young women on their own returning to their homes
at the estate late at night. The Applicant would wait in lifts, or follow the
victims into lifts, and when they left the lift at the floor of their homes he would
follow them out, grab hold of the victim’s neck, usually producing a sharp
weapon, drag them or take them to a nearby staircase and, unless they shouted
out, he would rob them and indecently assault them.
In sentencing the Applicant, the judge said:
I intend to give him the conventional discount for those pleas of
guilty, which have saved a good deal of time and a great deal of
distress. Had he not pleaded guilty to these offences but been
convicted after trial, I would have sent him to prison for a total of
about 15 years in the event, the sentences which I impose are as
follows: in respect of Charge 1, that is of indecent assault, he will
go to prison for 2 years. In respect of Charge 2, that is assault
with intent to rob, he will go to prison for 4 years. In respect of
Charge 3, that is the charge of robbery, he will go to prison for 8
years. In respect of Charge 4, that is the indecent assault, he will
go to prison for 2 years. In respect of Charge 5, that of
wounding, he will go to prison for 18 months. In respect of
Charge 6, that is the second count of robbery, he will go to prison
for a term of 8 years. Each of these sentences will be served
concurrently, with the exception of that for Charge 4, which will
be served consecutive to the other sentences, making 10 years in
all.
On appeal
Held :
(1)
Count 1: indecent assault.
The starting point of three years’
imprisonment was not too high. It might be wondered whether it was
inadequate. The maximum sentence for indecent assault was 10 years’
imprisonment. Here was a young woman assaulted late at night by a stranger
when she was returning to her home and she had been dragged by him to a
staircase. Her breasts were fondled and her head punched. The Applicant
desisted from carrying matters further - whether to a robbery or to further
indecency - only because she shouted. That sentence would stand;
(2)
Count 2: There was nothing excessive about the starting point of six
years. This incident only fell short of an actual robbery by reason of the
shouting of the victim which drove the Applicant away. This was a late night
270
CCAB 2002
attack on a single lady in the vicinity of her home where he grabbed hold of her
by the neck and used a knife;
(3)
Counts 3 and 4: The 12-year starting point on Count 3 was manifestly
excessive, given in particular that the judge had sentenced separately for the
accompanying sexual attack. If the two offences were to be treated separately,
then the sentence for the robbery should, in line with established guidelines,
have taken a starting point of seven years, making a sentence after plea of four
years and eight months’ imprisonment; and a four-and-a-half year starting point,
at least, for the offence of indecent assault, it being a particularly nasty indecent
assault in itself, also accompanied by violence. After plea the sentence for the
indecent assault should have been three years’ imprisonment, and not two years
imposed by the judge, and that sentence would be substituted. It was not right
to say that the two offences arose from the same incident and that therefore the
sentences should be concurrent. Either the indecent assault was a severe
aggravating feature which should have resulted in a much longer sentence for
the robbery or, if not reflected in the robbery, the indecent assault had to be
viewed as a matter warranting consecutive punishment. The totality for the two
offences reflected by Counts 3 and 4 should, after plea, be six years’
imprisonment. The sentence to be substituted in relation to Count 3 would be
one of four years and eight months’ imprisonment. The sentence to be
substituted in relation to Count 4 would be one of three years’ imprisonment.
One year and four months of the term imposed in respect of Count 4 would run
consecutively to the term imposed in relation to Count 3, the remainder to run
concurrently, making a total for those two offences of six years’ imprisonment;
(4)
Count 5: Wounding. The offence of unlawful wounding carried a
maximum term of three years’ imprisonment. Eighteen months’ imprisonment
assumed a starting point of two years and three months. Given the
circumstances in which this wounding was effected, the sentence imposed was
not too long;
(5)
Count 6: Robbery. The starting point of 12 years was manifestly
excessive. It was nonetheless recognised that this was a lift robbery with a
knife, with the aggravating feature that it was late at night on a single woman,
whose ordeal lasted an hour and that there was the element of indecency added.
In the particular circumstances, a starting point above nine years’ imprisonment
would have been difficult to justify. That was the point to be adopted and a
sentence of six years’ imprisonment after plea was more appropriate to that
count;
(6)
The five attacks covered by the indictment were each quite separate and,
as a matter of principle, they deserved consecutive sentences, so the remaining
question was one of totality. Although it was argued that the total sentence of
10 years was manifestly excessive and was ‘particularly harsh on a person with
a previous clear record like the appellant who was going to prison for the first
time,’ this was to ignore the gravity of the course of conduct upon which the
Applicant was engaged. The offences covered five wholly separate occasions
on which the Applicant was engaged in violent crime against single women late
at night on the same estate. This was a deliberate course of conduct in which
the Applicant acted as predator to the terror of his victims, and to the terror of
the estate. He added to the terror of those victims, and of others, by engaging as
well in grossly indecent behaviour. Looked at in that light, a total of 10 years
was not too long. The fact of his previous good character carried scant weight
when viewed in light of the facts which emerged in this case.
Result - Appeal allowed.
(1)
Sentences imposed on Counts 3 and 6 set aside and substituted
with sentences of 4 years and 8 months on Count 3 and of 6
271
CCAB 2002
years on Count 6. On Count 4, the sentence of 2 years for the
indecent assault quashed and substituted with a sentence of 3
years;
(2)
CA 315/2001
Stuart-Moore
VP
Stock &
Cheung JJA
(1.3.2002)
*Cheung
Wai-sun &
Lam Wing-sai
#I/P
LEE
Kin-wai
To effect the totality of 10 years, of the sentence of 3 years’
imprisonment imposed on Count 4, 1 year and 4 months would
run consecutively to, the remainder concurrently with, the
sentence of 4 years and 8 months imposed on Count 3: a total of
6 years for these two offences. The 2-year sentence on Count 1
would run consecutively to that 6-year sentence, taking the total
to 8 years. Of the sentence of 6 years imposed on Count 6, 2
years would run consecutively to the sentences imposed on
Counts 3, 4 and 1, the remainder concurrently, making a total of
10 years. The sentences on Counts 2 and 5 would run
concurrently with the other sentences: this produced a total of
10 years’ imprisonment, as imposed at trial.
Robbery/Vicious attack by young offender to head of 79-year old
woman/Breach of trust/Aggravating features of ‘head-bashing’ street
robbery applicable
搶劫 - 少年罪犯毒打 7 9 歲老婦頭部 - 破壞誠信 - 街邊 ‘ 扑頭 ’ 搶劫案
的加重刑罰因素適用於本案
The Applicant, aged 17 years, was convicted of an offence of robbery
after trial. He was sentenced to 8 years’ imprisonment.
It was the case for the prosecution that the Applicant, who was going out
with the victim’s granddaughter, was disturbed by the victim in the course of
burgling premises at Room 1612, On Hoi House, Cheung On Estate, Tsing Yi.
The victim was a 79-year old occupant of the flat, and she lived there with
members of her family. The Applicant struck her in the left eye with a trophy
stand, and threatened to beat her to death. The victim was forced into her
granddaughter’s room, where she was pressed against the lower bunk. While in
that position she was struck several more blows to the left and right sides of her
head, above and behind the ears, and also to the back of the top of her head.
Her right ear was cut and she lost consciousness. When she came round, the
victim crawled to the corridor and was given assistance by a neighbour.
At hospital, the victim was found to have sustained seven wounds, a
subconjunctival haemorrhage and a scalp haematoma in the occipital region.
There were no fractures and the wounds were sutured. A CT scan of the brain
revealed a ‘traumatic subarachnoid haemorrhage and a fractured right parietal
bone’. Although the victim was reported as making a ‘good recovery’, nine
months later, when she attended the court to give evidence at trial, she still
suffered from the effect of the blows. She was not able to walk properly and
needed a stick and continued to have problems with the vision in her left eye.
The judge in passing sentence said that the Applicant was a person who
had been convicted once before of robbery, when he had been placed on
probation at the age of fourteen. He pointed out also that the Applicant had
deliberately struck blows to the victim’s head, and he went on to say:
The judgment of the Court of Appeal, in The Secretary for Justice v
Ma Ping-wah [2000] 2 HKC 566, makes it clear that of the
aggravating factors to be taken into account in applying the
guidelines of Mo Kwong-sang, the striking of blows to the head with a
weapon is a factor of which account must be taken in determining the
appropriate sentence. In the course of the judgment of the Court of
Appeal, Stuart-Moore VP said this, at 574A:
272
CCAB 2002
‘It seems to us a matter of the most straightforward
commonsense that where a robber deliberately sets about
his victim by striking a blow or, as in this case, blows to
the victim’s head with a weapon, which is capable of
causing brain injury, this will be an aggravating factor.
It is a particularly dangerous act …..
In our judgment, the usual sentence to be imposed for
such robberies, following a contested trial, where it is
established that a deliberate blow to the head with a
weapon capable of causing injury to the brain has been
struck by the robber or the culprit with intent on robbery,
should not be less than 8 years’ imprisonment’.
I am mindful of your age, but I must have regard to the
vicious assault that you delivered to this old lady and the
disregard you had for her welfare or safety, when you
simply fled the scene, leaving her unconscious …..
On appeal
Held :
(1)
This was a dreadful crime committed by the Applicant at a time when he
was involved with the victim’s granddaughter. He abused her trust and his
vicious attack on the 79-year old victim marked him out as someone who
required condign punishment;
(2)
Although this was not a ‘head-bashing’ robbery, in the conventional
sense, where a street robber tried to disable the victim by striking at the victim’s
head before the robbery was carried out, the same aggravating features applied
to a case such as this. There was nothing wrong in the judge’s approach,
bearing in mind that the Applicant was well aware that the victim was elderly
and likely to be frail;
(3)
The sentence of 8 years was wholly appropriate, even for an offender of
the Applicant’s age.
Result - Application dismissed. 3 months loss of time ordered.
CA 491/2001
CA 528/2001
Stuart-Moore
VP & LugarMawson J
(17.4.2002)
*Jackson Poon
#Robert
Andrews
(1) MA HON
WU
Chi-man
(2) SHEK
Tsz-yuk
(3) WONG
Shing
Robbery by Mainlanders/Coming to Hong Kong to commit robbery an
aggravating factor/Offender punished separately for unlawful
remaining/Inadvertent double penalty for same criminality/Duty on
prosecution to advise court of outstanding offences
大陸人搶劫 - 來香港犯搶劫罪構成加重刑罰的因素 - 罪犯因非法居
留而另予懲處 - 就同一犯罪行為不慎地重複懲處 - 控方有責任將未
審結的罪行告知法院
These Applications involved an issue which was common to both. The
Applicant in CA 491/2001, and both Applicants in CA 528/2001, had
unlawfully entered Hong Kong. Soon afterwards they committed the separate
robberies in these applications. They all pleaded guilty and were given
enhanced sentences which exceeded the usual maximum guideline tariff in Mo
Kwong-sang v R [1981] HKLR 610. They seemingly received higher sentences
for their criminality on account of their status as unlawful entrants from the
Mainland.
273
CCAB 2002
The Applicant in CA 491/2001, aged 26, pleaded guilty in the
Magistrates Court, at committal, to a robbery, and confirmed that plea when he
appeared in the Court of First Instance. He was sentenced to 5 years and 8
months’ imprisonment on 10 October 2001. In sentencing, the judge observed:
(Defence counsel) refers very helpfully to the leading case of Mo
Kwong-sang, and he also referred me in his submission to R v Chan
Chung-man [1986] HKC 261. In Mo Kwong-sang, the Court of
Appeal said, setting tariffs for robbery offences, that where a
robbery is carried out involving a knife, the sentence should be five
years. Where it involves private premises, such as these, it should be
six years. Where a person is tied up, it should be seven years. All
these factors exist in this case, but there is more.
The Court of Appeal went on to add that where the crime is caused
with others so that there is an accomplice, that is an additional
aggravating feature, and here we have this man immobilized and a
sock put in his mouth to prevent him calling out. It must have been
a truly terrifying experience to be robbed in these circumstances in
(his) own premises.
But in my judgment there is an additional aggravating feature.
There is a significant incidence of illegal immigrants from the
Mainland coming here to commit serious crime. They enter
illegally, they are not able to lawfully work here, and doing so
carries considerable penalties for both an employer and an
employee, and rightly so. It is almost inevitable, unless they
surrender to the police, that to be able to survive here these people
must resort to serious crime like robbery to obtain money and
possessions that can be sold or traded for food and other things.
Anyone like you who comes to Hong Kong to commit crime is
deliberately targeting the people of Hong Kong. This is an
aggravating feature which the courts must take into account to
deter others from following the same course ……
In my judgment, on the facts of this case, your case calls for a
sentence before the discount for a plea of guilty of 8½ years’
imprisonment. However, I will reduce that by one-third because of
your plea of guilty, and I will therefore sentence you to a term of
68 months’ imprisonment - 5 years and 8 months imprisonment.
Several days later, on 18 October 2001, the Applicant pleaded guilty in
Tuen Mun Magistrates’ Court to remaining in Hong Kong without the authority
of the Director of Immigration having landed unlawfully, and was sentenced to
15 months’ imprisonment to run consecutively to his sentence for the robbery.
The Applicants, in CA 528/2001, on 14 November 2001, appeared in the
Court of First Instance and confirmed their earlier pleas of guilty, entered in the
Magistrates’ Court, to robbery. They were each sentenced to 5 years and 8
months’ imprisonment. In passing sentence, the judge remarked that the
Applicants had ‘sneaked into Hong Kong to commit a crime’. After sentence,
the Applicants were taken to Tuen Mun Magistrates’ Court, where they each
received a sentence of 15 months’ imprisonment in respect of their offences of
remaining in Hong Kong without authority, such sentences to run consecutively
to their sentences for robbery.
On appeal
274
CCAB 2002
Held :
CA 491/2001
(1)
There was a distinct feeling that the Applicant had inadvertently been
punished twice for the same criminality. The robbery offence was said to have
been aggravated for the purposes of sentence by circumstances which in fact
amounted to the further offence, properly dealt with in Tuen Mun Magistrates’
Court, of remaining in Hong Kong without authority. The guideline tariff for
such an offence, following R v So Man-king and Others [1989] 1 HKLR 142,
when committed for the first time, was usually to be regarded as a consecutive
sentence of fifteen months’ imprisonment on a plea of guilty to the sentence
imposed for any other crime committed in Hong Kong for which a prison
sentence was appropriate. In HKSAR v Kong Yung and Another [1999] 1 HKC
325, although a starting point of ‘eight to nine years’ was held to be at the ‘top
end of the range’ on facts which were not unlike the instant case, the sentencing
judge had in fact reduced the sentence he would otherwise have imposed to take
into account the sentence of fifteen months which the Applicants had to serve
for their unlawful entry;
(2)
It was to be hoped that in future when the Court of First Instance was
called upon to deal with any similar situation, the prosecution would inform the
court of the proceedings which were yet to be taken in the Magistrates’ Court;
(3)
The robbery was one which, when all the aggravating factors had been
taken into account, merited a sentence of 7 years’ imprisonment after trial. That
being so, the sentence for the robbery would be reduced by a year to 4 years and
8 months’ imprisonment. The sentence of 15 months’ imprisonment imposed at
the Magistrates’ Court, and which was properly ordered to run consecutively,
would not be affected.
Result - Appeal allowed. Sentence of 4 years and 8 months substituted for the
sentence of 5 years and 8 months, producing a totality of 5 years and
11 months.
CA 528/2001
(1)
In Mo Kwong-sang v R [1981] HKLR 610, at 611, Roberts CJ said:
We suggest that, in future, the appropriate sentence in an ordinary
case of armed robbery, where the accused was carrying a knife or
other dangerous weapon which he displayed to his victim, should
normally be five years.
If such a robbery also involves an invasion of private premises
(which includes domestic and business premises and the common
parts of premises such as lifts and staircases) we suggest that a
sentence of six years would be appropriate.
If any physical violence, which includes tying them up, is used on
any of the victims, we suggest that a sentence of seven years should
be considered.
These suggested sentences should be increased if there are other
aggravating factors. Among these, though the list is not exhaustive,
are invasion of domestic premises during the night; the presence of
more than one person in the group of robbers; threats made to
victims, ill-treatment of elderly persons and children; and a
multiplicity of offences of a similar kind.
These guidelines are intended to apply to those who are convicted
after a trial.
275
CCAB 2002
(2)
When the aggravating features to be found in this case were looked at
together, and in particular the fact that neither of the victims had suffered any
physical harm, the judge must have taken the Applicants’ unlawful status in
Hong Kong as an additional factor which justified a further enhancement in the
starting point. They had, after all, as the judge correctly stated, come to Hong
Kong to commit a crime. However, as in CA 491/2001, this seemed to have
amounted to a double punishment, as the Applicants were to be sentenced
thereafter in the Magistrates’ Court for the offence of remaining in Hong Kong
without authority, of which the Court of First Instance was not aware;
(3)
The sentences of the two Applicants would be reduced by a year to 4
years and 8 months’ imprisonment. That would not affect the consecutive
sentences imposed as each in the Magistrates’ Court for the offence of
remaining without authority.
Result -
CA 476/2001
Stock JA
Lugar Mawson
J
(17.6.2002)
*Peter
Chapman
#Michael Poll
CHIU
Ping-kei
Appeal allowed. Sentence of 4 years and 8 months’ imprisonment
substituted for the sentence of 5 years and 8 months producing a
totality of 5 years and 11 months.
Lift robberies/Lone women in lifts/Sentencing of persistent
offender/Consecutive sentencing/Approach to totality
電梯搶劫 - 電梯內的單身女士 - 對積犯的判刑 - 判處分期執行的刑
期 - 處理整體刑期的方法
The Applicant pleaded guilty to three offences of robbery in the
Magistrates Court, and was committed for sentence to the Court of First
Instance, pursuant to s 81B of the Magistrates Ordinance, Cap 227. Having
reaffirmed those pleas in the Court of First Instance, he was sentenced to
consecutive terms of 4 years’ imprisonment on each count, making a total of 12
years’ imprisonment.
Each offence involved a lift robbery. The victim in each case was a lone
female. After each victim had been threatened with a knife or paper cutter, each
handed over cash and personal belongings.
In mitigation, it was said that the Applicant was an unemployed drug
addict living on public assistance and that he had committed the offences to
raise money to buy drugs. It was submitted that he had admitted the offences
soon after arrest and had pleaded guilty at the earliest opportunity.
The Applicant had an extensive criminal record. Aged 56, he had
appeared in court 21 times since March 1969, and had 60 previous convictions,
23 of which were for robbery. He had been addicted to heroin since 1972. His
last court appearance prior to the present one had been in May 1998, when he
was sentenced in the District Court to 4 years’ imprisonment for robbery. In
sentencing, the judge said:
Counsel accepted that the three offences are all separate and
distinct, and therefore on the face of it, subject to totality, deserving
of consecutive sentences. ... The starting point for lift robberies was
authoritatively pronounced in R v Mo Kwong-sang [1981] HKLR
610. ... Of course, the starting point can be enhanced if there are
aggravating factors present ... Here, the aggravating features must
include the fact that you robbed the same woman twice and that you
committed three reasonably indistinguishable robberies in a short
period of time. All of this must be seen against your background of
identical offending spanning now three decades and more. In my
view, you are a real and sustained threat to the peace and welfare of
276
CCAB 2002
the people of Hong Kong ... The fact that the purpose of robbery was
to secure money to buy dangerous drugs has never been a mitigating
feature, indeed, it could be an aggravating feature (see R v Yau
Kwok-tung [1987] HKLR 782 at 784A) ... in my judgment the
starting point on each of your offences, bearing in mind the decision
of HKSAR v Wan Ho-kit, Lawrence [CACC 479 of 2000
(unreported)] should have been 6 years and 8 months on each
robbery. On a consecutive basis, that would have been produced a
totality of 20 years’ imprisonment. However, applying the totality
principle, I would reduce that to 18 years and then in turn, because
of your plea of guilty, reduce that totality to one of 12 years. I
therefore sentence you to a term of 4 years’ imprisonment on Count
1, plus a consecutive sentence of 4 years’ imprisonment on Count 2,
plus a consecutive sentence of 4 years on Count 3, making a total of
12 years’ imprisonment in all.
Earlier, during an exchange with counsel for the Applicant, the judge
remarked:
Plainly, I have to look at the totality point closely in this
case because ... Mo Kwong-sang for a lift robbery
suggests 6 years ... We have three separate offences
here. The mathematics are very simple, but that’s
obviously an extremely long sentence.
On appeal, it was said that the sentences passed were manifestly
excessive in that the judge ignored the existing guidelines for sentence in cases
involving multiple offences and failed to pay proper, or sufficient regard to the
principle of totality when ordering that the sentences run consecutively.
Held :
(1)
In Mo Kwong-sang, it was held that the appropriate sentence, after trial,
in an ordinary case of armed robbery, in which the accused carried a knife, or
other dangerous weapon which he displayed to his victim, should normally be 5
years’ imprisonment, and that if the robbery also involved an invasion of private
premises, including the common parts of private premises, such as lifts and
staircases, as in this case, a sentence of 6 years’ imprisonment would be
appropriate. The court added that those sentences should be increased if other
aggravating factors were present;
(2)
It was well-established that when a judge was dealing with a
persistent offender, such as the Applicant, he was entitled to adopt a higher
starting point, or pass a higher sentence on him, than would otherwise be the
case so as to have a greater deterrent effect on the accused and to protect the
public from his persistent offending: HKSAR v Chan Pui-chi [1999] 2
HKLRD 830;
(3)
The judge was aware of the principles in Mo Kwong-sang, relating to
sentencing for armed robbery, and, given the facts of each offence and the
aggravating factor of the Applicant’s appalling criminal record, his starting
point sentence of 6 years and 8 months’ imprisonment for each after trial was
not inappropriate. A proper one-third discount to reflect the Applicant’s guilty
pleas would have reduced the appropriate sentence for each offence to 4 years
and 5 months, rather than the 4-year sentence the judge imposed in respect of
each;
(4)
It was well established that when, as here, the judge was concerned
with separate and distinct offences, he should normally, subject to the
principle of totality, consider passing consecutive sentences, even if that
277
CCAB 2002
resulted in the total length of the sentences being more than he could have
passed in respect of any of them;
(5)
No matter how great an accused’s criminality, a judge had to take steps
to avoid the imposition of an inappropriately crushing sentence: R v Faulkner
(1972) 56 Cr App R 594, 596. Not only must the judge stand back, but also
stand back ‘far enough ’ : R v Wong Kwai-pui Cr App 522/89;
(6)
The best course for a judge to adopt in passing sentence in respect of
multiple offences was first to decide what, in all the circumstances, including
both the background of the offence and the accused, was the appropriate
sentence for each offence on the indictment and then, having decided what was
the appropriate sentence for each offence, to consider the question of totality at
the end and impose such sentence as would reflect the criminality in its entirety,
taking into account the pleas and the individual circumstances of the accused –
including, where applicable, the fact that he had a long record for commission
of similar offences – and the fact that he was sentencing for a multiplicity of
offences: Lui Shu-tong v R [1961] HKLR 129, AG v Chan Pui-sang [1994] 1
HKCLR 211, AG v Au Kwok-chai [1996] 3 HKC 192 and HKSAR v Au Yeung
Siu-kay Cr App 276/2001. What the judge should not do was to do what the
judge in this case appeared to have done and put the cart before the horse and
decided first on the overall sentence for the various charges, and then to
apportion that overall sentence as between the offences. That was the wrong
approach to totality;
(7)
This approach had not been followed consistently by the Court of
Appeal. In HKSAR v Wong Lou-tak [1998] 2 HKC 607, a case dealing with 20
charges of obtaining property by deception, for which the Appellant had been
sentenced to 20 consecutive terms of 2 months’ imprisonment making a total
sentence of 3 years and 4 months’ imprisonment, it was said that if a defendant
committed a series of similar offences at different times, in different places and
under different circumstances, the judge should determine the sentence flexibly
by first considering the most serious, or the more serious, incident of those
similar offences, the number of offences committed by the defendant and the
degree of their seriousness. Having considered the most serious case in this type
of offence, the maximum penalty and the sentencing guidelines and the normal
sentence imposed in similar cases, the judge should then proceed to decide the
starting point for sentencing for those offences. The next step was to consider
the mitigating factors in order to arrive at the appropriate reduction. Finally, the
totality principle should be considered to determine the total sentence. Once the
total sentence had been determined, this sentence should be imposed on the
defendant for each of the offences committed but should run concurrently. That
decision, however, could be explained by reference to the particular
circumstances of the case. It had to be remembered that sentencing was not a
science subject to immutable laws; there would be rational exceptions to every
sentencing principle;
(8)
Although the individual sentences of 4 years’ imprisonment on each
count were too light by 5 months, the order that the sentences imposed should
run consecutively had produced an overall sentence which was manifestly
excessive.
Result - Appeal allowed. Sentences of 4 years and 5 months’ imprisonment
substituted on each count. Sentences to be partly consecutive only,
producing a total of 9 years’ imprisonment.
278
CCAB 2002
CA 90/2002
Stock &
Yeung JJA
DHILLON
Kenneth
Simon
(25.9.2002)
Taxi robbery/Robber acting alone without weapon/Driver seized by neck
and money stolen/Starting point of 5 years appropriate
的士搶劫案 - 劫匪沒有武器單獨行事 - 司機被箍頸和劫去金錢 - 以
5 年為量刑起點屬恰當
At 8 pm on 26 September 2001, the Applicant hailed a taxi in Kowloon.
When they approached the destination, the Applicant grabbed the driver’s neck
from behind and ordered him to stop the vehicle. He told the driver to surrender
all his money. The driver gave him $360 and asked for some of it back for a
meal. The Applicant threw back $20, and told the driver to drive on and not to
look back. The Applicant fled. He hailed the next taxi, although the victim of
the robbery pursued it. Police eventually intercepted the second vehicle, but the
Applicant denied the offence.
*Paul Madigan
#Robert
Andrews
The Applicant pleaded guilty. The judge said that the starting point was
between 5 and 8 years’ imprisonment, but that as no weapon was used, as he
acted alone and had no weapon, and as no injury was caused, he would take a
starting point of 5 years. After discount for plea, that was reduced to 3 years
and 4 months’ imprisonment.
On appeal, it was submitted that the starting point was too high.
Held :
This was a taxi robbery in which, although no knife was used, the driver
was seized by his neck from behind and money was stolen. The Applicant, who
was not of previous good character, could point to no mitigation other than his
plea of guilty, for which full credit was given. It could not be said that the
starting point or the sentence was manifestly excessive: R v Tran Van Anh
[1993] 2 HKCLR 122, R v Kan Kin-hung Cr App 195/96, considered.
Sexual Offence
MA 47/2002
Gall J
CHEUNG
Kwai-sang
Indecent assault/Victim a tourist undergoing foot massage/Three
sentencing considerations/Imprisonment appropriate
猥褻侵犯 - 受害人是一名接受足部按摩的遊客 - 三個判刑考慮因素
- 判處監禁是恰當的
(6.2.2002)
*Cheung
Wai-sun
#P K Chan
The Appellant was convicted of a charge of indecent assault and
sentenced to 9 months’ imprisonment.
The facts indicated that the Appellant, aged 57 years, and of good
character, indecently assaulted an Australian tourist, a lady in her mid-twenties,
when she visited a health centre in Tsimshatsui for a foot massage. The
Appellant indecently assaulted her breasts and private parts.
On appeal, reference was made to HKSAR v Chan Ching-ho [2001] 3
HKLRD 476, where Stuart-Moore VP said:
In short, we consider the judge had recognised three
important sentencing considerations in cases of this kind,
namely, the need to deter others, the need to mark the public
279
CCAB 2002
Sentence (Quantum) – Sexual Offence
abhorrence of such crimes and the need to redress the
grievance suffered by the victim, her relatives and friends.
The Appellant contended that Chan Ching-ho was distinguishable as the
victim there was aged 6 years, while the victim here was a mature married
woman aged 27 years.
Held :
(1)
Although the distinction was valid, it was for the magistrate to recognise
the three sentencing considerations mentioned in Chan Ching-ho in the light of
the facts of this particular case. It was important in all cases of indecent assault
that there be an element of deterrence of others, to mark the public abhorrence,
and there was a need to redress the grievances suffered. These necessities, these
requirements and these considerations would vary depending upon the nature of
the indecent assault;
(2)
The magistrate’s approach was proper. She took into account these three
sentencing considerations at a level at which she ought to have considered them
and the sentence passed was wholly appropriate.
Result – Appeal dismissed.
CA 329/2001
Stuart-Moore
VP
LugarMawson J
(14.3.2002)
*Paul Madigan
#Walter Lau
TAM
Kam-fai
Rape/Breach of trust/Young girl suffering permanent psychological
damage/Deterrent sentence
強姦 - 破壞誠信 - 年青女子蒙受永久的心理傷害 - 阻嚇性刑罰
The Applicant was convicted after trial of four counts of rape. He was
sentenced to 10 years’ imprisonment on each count. Starting points for each
offence of 12 years were taken. To reflect totality, all sentences were made
concurrent. The two-year reduction reflected mitigation advanced, particularly
a contention that there was no ‘strong evidence’ that the victim had suffered
long-lasting psychological damage.
The victim was the daughter of the Applicant’s girlfriend. The offences
occurred in July 1996, July 1998, August 1999 and September 1999, in the flat
in which the victim resided with her mother and the Applicant. He was
acquitted of two other counts of rape of the same girl.
The victim was aged eleven at the time of the first offence, and fifteen at
the time of the last offence. During the period covered by the indictment, the
victim became pregnant and underwent an abortion in a hospital in Shenzhen.
The Applicant was not, however, convicted of the allegation of rape that was
said to have brought about the pregnancy. Within one month of moving back
home after the abortion, the Applicant raped her again. Although the victim
moved out of the flat to stay with a school friend in order to avoid the Applicant
and his advances, when she returned home on her fifteenth birthday he raped
her.
The judge, in sentencing, observed that the Applicant was ‘in loco
parentis’ and in control of the victim. The victim was left in his charge while
her mother was working and he regarded himself as her guardian and her
protector.
On appeal
280
CCAB 2002
Held :
(1)
In R v Chow Kan-shing Cr App 205/95, on similar facts, and in respect
of an accused who was sentenced to 10 years’ imprisonment, Power ACJ said:
This was neither a case of excessive violence, nor was it a case of
sexually humiliating conduct, but in circumstances such as
obtained here it is rare to find such elements. The perpetrator of
such offences conducts himself so that the child will be unlikely to
make a complaint which will lead to the discovery of the
misconduct. It is true that the above elements were not present
but it was, nonetheless, a very bad case involving young children
and appalling conduct by a person in a position of trust. He used
that position to overbear the children and, in the case of the first
offence, to frighten the child into silence. The behaviour was
despicable. It is to be noted that there was no suggestion of any
mental abnormality. The offences were carried out by a person
in full control of his facilities with full knowledge of what was
being done for his own sexual gratification.
In such offences the deterrent aspect must loom large. This is
particularly so in our community in Hong Kong which is full of
busy working parents who, countless times in any year, must
entrust their children to the care of others. Such persons are
placed in a position of trust. If they are proved to have abused
that position the courts, when sentencing must take a very severe
view of such conduct. The overall sentence was, in our view, not
a day too long.
(2)
The guideline case on the factors a judge should bear in mind when
sentencing for rape was R v Billam [1986] 1 WLR 349. The Billam principles
had been accepted in Hong Kong. As to those principles, Lord Lane CJ said:
The variable factors in cases of rape are so numerous that it is
difficult to lay down guidelines as to the proper length of sentence
in terms of years.
.....
The crime should in any event be treated as aggravated by any of
the following factors: (1) violence is used over and above the
force necessary to commit the rape; (2) a weapon is used to
frighten or wound the victim; (3) the rape is repeated; (4) the
rape has been carefully planned; (5) the defendant has previous
convictions for rape or other serious offences of a violent or
sexual kind; (6) the victim is subjected to further sexual
indignities or perversions, (7) the victim is either very old or very
young; (8) the effect upon the victim, whether physical or mental,
is of special seriousness. Where any one or more of these
aggravating features are present, the sentence should be
substantially higher than the figure suggested as the starting
point.
.....
The extra distress which giving evidence can cause to a victim
means that a plea of guilty, perhaps more so than in other cases,
should normally result in some reduction from what would
otherwise be the appropriate sentence. The amount of such
reduction will of course depend on all the circumstances,
including the likelihood of a finding of not guilty had the matter
been contested.
281
CCAB 2002
.....
The fact that the victim may be considered to have exposed
herself to danger by acting imprudently (as for instance by
accepting a lift in a car from a stranger) is not a mitigating
factor; and the victim’s previous sexual experience is equally
irrelevant. But if the victim has behaved in a manner which was
calculated to lead the defendant to believe that she would consent
to sexual intercourse, then there should be some mitigation of the
sentence. Previous good character is of only minor relevance.
(3)
The Applicant subjected the victim to repeated, though not frequent
rapes. She was raped in her own home and her own bedroom, which should be
her personal domain. She was placed under psychological pressure not to
divulge anything of the occurrences. She was of very young age. The
Applicant was in a position of responsibility towards her. The relationship
between the Applicant and the victim was such that her will would have been
easily overborne. The Applicant by going to trial put her through extra distress
by requiring her to give evidence of what had happened;
(4)
There was no way of telling what the long-term effects might be on the
girl’s psyche. It was inconceivable that she would suffer no permanent
psychological damage. She had developed behavioural difficulties, such as
truancy, academic inattention, drinking and staying out at night. The greatest
aggravating feature was the gross abuse of trust on a girl of tender years;
(5)
The deterrent aspect of sentencing loomed large. When those in a
position of trust over young girls abused their position, the courts must take a
very severe view of the matter;
(6)
The starting point of 12 years taken by the judge was the least he should
have properly considered. It was not appropriate for him to have reduced the
sentence by two years. The victim’s psychological development had been
scarred for the rest of her life. Section 83I(3) of the Criminal Procedure
Ordinance would be invoked, as the Applicant should have received a sentence
different from that imposed at trial.
Result -
MA 150/2002
McMahon DJ
(6.5.2002)
*Catherine Ko
#Cheng Huan
SC
Bernard
Chung &
Charles Chan
LI
Shui-keung
Appeal against sentence of 10 years’ imprisonment refused.
Sentence of 12 years imprisonment substituted.
Indecent assault/Conviction after trial of multiple offences by bank official
on bank clerk/Absence of remorse precluding community service order
option/Aggravating factors producing increase of starting point
猥褻侵犯 - 銀行高級職員對銀行文員犯下多項罪行經審訊後定罪沒有悔意排除社會服務令的判刑選擇 - 加重刑罰因素造成量刑起點
提高
The Appellant was convicted after trial of four offences of indecent
assault.
The facts as found were that the Appellant was employed as a bank
officer. The victim was a bank clerk who on occasion had worked for the
Appellant. On various occasions, including the four in respect of which the
Appellant was convicted, the Appellant had touched the breast of the victim
outside her clothing.
For the first and second offences, the Appellant was sentenced to 4
months’ imprisonment on each. For the third and fourth offences, he was
282
CCAB 2002
sentenced to 3 months’ imprisonment on each. The sentences were adjusted so
as to be partly concurrent and partly consecutive, thus producing a totality of 6
On appeal, the Appellant complained that the sentence was wrong in
principle in that the magistrate wrongly regarded a community service order as
inappropriate and that generally the sentence was manifestly excessive.
Held :
(1)
The magistrate was right to reject a Community Service Order. All the
factors in R v Brown (1981) 3 Cr App R (S) 294 must be satisfied before a
Community Service Order became appropriate: HKSAR v Wong Yiu-kuen Cr
App 463/2000. One factor was a demonstration of remorse. The Appellant,
however, was convicted after trial and continued to assert his innocence during
the sentencing procedure. There was nothing before the magistrate which
suggested remorse;
(2)
The totality of 6 months’ imprisonment was manifestly excessive.
Indecent assault was an offence with a potentially huge range. The form of
assault in this case, where the Appellant touched the victim’s breast outside her
clothing, was towards the lower end of the range;
(3)
The magistrate was right to treat the fact of the victim’s pregnancy as an
aggravating factor in respect of the first charged offence. It was another
aggravating factor that the Appellant was effectively one of the victim’s
superiors at work, and that the offences took place over a relatively extended
time frame, and continued after the victim had complained to the Appellant’s
superiors at her workplace. Although the working relationship between superior
and staff could not fairly be said to create an equivalent relationship of trust as
existed, for example, between doctor and patient or teacher and child, for
sentencing purposes, it was still an aggravating factor. Employees should be
protected from assaults upon them by their employers, as they were in a
vulnerable position. The victim in the workplace had to return to the scene of
the assaults every day and undoubtedly, on occasion, had to continue to deal
with the person who had assaulted them;
(4)
Notwithstanding the aggravating factors, the magistrate should have
regarded the Appellant as a first offender. The appropriate starting point of
sentence for each of the offences should have been towards the upper end of the
scale thought appropriate for first offenders in Attorney General v Wai Yan-shun
[1991] 2 HKLR 209, (14-28 days), and, as was said there, the appropriate
principle to be applied to first offenders with unblemished and perhaps
otherwise commendable backgrounds in their working and family lives in this
sort of case was that of the ‘clang of the prison gates’ . Each offence, prior to
any aggravating factor being applied, warranted a starting point of one month’s
imprisonment;
(5)
As the working relationship was abused by the Appellant each of those
sentences would be enhanced by two weeks and the first charged offence, given
the state of pregnancy at that time, should be enhanced by a further two weeks.
That would result in sentences of 2 months’ imprisonment for charge 1, and 6
weeks’ imprisonment for charges 2, 3 and 4. Taking into account totality, the
sentences would be adjusted to produce a final sentence of 3 months’
imprisonment.
283
CCAB 2002
香港特別行政區訴許景昌
HKSAR v HUI King-cheong
*潘藹蓮
Poon Oi-lin
#林國輝
Osmond Lam
耹訊日期：二零零二年五月十日
宣判日期：二零零二年五月十日
Wo n g D J
Date of Hearing: 10 May 2002
Date of Judgment: 10 May 2002
與 1 6 歲以下的女童非法性交 - 屬嚴重及有預謀的罪行 - 1 8 個月的刑
期明顯不足
上訴人3 5 歲。他被裁定一項與未成年( 即與1 6 歲以下) 的少女
發生非法性行為。他被判入獄1 8 個月。
審訊時，控方的案情如下：控方第一證人是一名中二的
學生，她是從內地初到港的新移民。在去年2月8日下午，她在
家裏看到一張報紙的廣告，於是她撥了報紙所載的電話號碼，希
望應徵所招聘的工作。報紙上只註明該份工作‘是一份兼職的工
作，並且可賺到快錢，每日可賺幾千元。人工是以每日計算，時
間很容易安排，亦不需要工作經驗，非常歡迎學生’。於是她與
上訴人安排在牛頭角地鐵站會面。
上訴人告訴她這份工作只需要與男人睡覺。她覺得非常
震驚。她告訴上訴人她只有十六歲，她不懂怎樣做。上訴人向她
索取身分證。上訴人總共看了兩次，證明這名受害人只有14歲
幾，不足15歲。上訴人帶她到一間公寓，他們二人一同了花
灑浴。上訴人吻她的胸部及她的私處，然後要控方第一證人替他
口交，最後他與她發生了性行為。當時剛巧有警察查房及扣門，
上訴人叫控方第一證人把她的身分證掉出窗外，但她拒絕他的要
求。
上訴時
裁決：
這是一宗非常嚴重的案件。上訴人應得到更重的刑。
這宗案件是有預謀的。上訴人的最終目的是利用這名少女去賣淫
賺錢。所以在刑期方面，18個月是明顯過輕，合適的刑期應為
兩年。
結果：上訴得直。刑期改為兩年監禁。
284
CCAB 2002
[English
Digest of MA
121/2002,
above]
HUI
King-cheong
Unlawful sexual intercourse with a girl under 16/Offence serious and
premeditated/18 months’ imprisonment manifestly inadequate
The Appellant, aged 35, was convicted after trial of an offence of having
unlawful sexual intercourse with a girl under the age of 16. He was sentenced
to 18 months’ imprisonment.
Wong DJ
(10.5.2002)
At trial, the prosecution case was that PW1, aged 14, was a Form 2
student and a new immigrant from the Mainland. On 8 February 2001, she saw
an advertisement in a newspaper and she dialled the telephone number stated
therein in order to get a job. The advertisement read: ‘part-time, quick money,
several thousands daily, wage paid daily, flexible time, no experience required,
students most welcome’. She made an appointment to meet the Appellant at
Ngau Tau Kok MTR station.
*Poon Oi-lin
#Osmond Lam
The Appellant told PW1 that the job only required her to sleep with men.
PW1 was shocked and told the Appellant that she did not know how to do it and
that she was only 16. The Appellant asked for her identity card and checked it
twice. He found that PW1 was only 14 and had not yet reached 15. He brought
PW1 to a villa, and they had a shower together. The Appellant kissed her
breasts and private parts and then asked her to have oral sex with him. He then
had sexual intercourse with PW1. At that moment, police came to knock at the
door. The Appellant asked PW1 to throw her identity card out of the window,
but she refused.
On appeal
Held :
It was a serious case. The Appellant deserved a more severe
punishment. The facts showed that the offence was premeditated and the
Appellant’s aim was to lure this young girl into lucrative sexual employment.
The sentence of 18 months’ imprisonment was manifestly inadequate. A term
of imprisonment of 2 years was appropriate.
Result - Appeal allowed. Two years’ imprisonment substituted.
CA 530/2001
Mayo VP
Stock JA
LugarMawson J
(22.7.2002)
*Peter
Chapman
#Keith
Oderberg
YEE
Yiu-sam
Buggery of girl under 21 as alternative count to non-consensual buggery
count/Consent no longer an issue after non-consensual buggery count not
proceeded with/ Circumstances of giving of consent/Relevant to
sentence/Law designed to protect young girls from others and from
themselves/English authorities on sentencing for consensual buggery of no
value
將未經同意下作出肛交的罪名改為與21歲以下女童作出肛交的交替
罪名 - 不控以未經同意下作出肛交罪名後同意與否不再是爭論點在何種情況下給予同意 - 與判刑有關係 - 法律是為保護年輕少女不
被他人傷害和不被自己傷害而制訂的 - 有關經同意作出肛交的英國
判刑案例無甚價值
The Applicant was charged with offences of (1) trafficking in persons to
Hong Kong, contrary to s 129 of the Crimes Ordinance, Cap 200, (2) assisting
an unauthorised entrant to remain in Hong Kong, contrary to s 37DA (1) of the
Immigration Ordinance, Cap 115, (3) non-consensual buggery, contrary to s
118A of the Crimes Ordinance, and in the alternative to (3), buggery with a girl
under 21, contrary to s 118D of the Crimes Ordinance.
The Applicant pleaded not guilty to the first three counts and guilty to
the fourth, and that was accepted by the prosecution. After a starting point for
285
CCAB 2002
sentence of 4 years’ imprisonment had been taken, the Applicant was sentenced
to 2 years and 8 months’ imprisonment.
The agreed summary of facts stated:
(The victim)(PW1) was born on 27th August 1983 in Hubei, China.
On the 25th December 2000, PW1 then 17 years-old, worked as
karaoke bar hostess in Shenzhen. She met the Defendant, Yee Yiusam at a disco through the introduction of someone called ‘Ah Kin’.
PW1 was asked to address the Defendant as ‘Brother Sang’.
Ah Kin told PW1 in the presence of the Defendant that it was
difficult for her to make money in Shenzhen whereas in Hong Kong
she could make more than a hundred thousand dollars income every
month. The Defendant then asked Ah Kin to explain the details to
her. PW1 was told that she would be required only to dance and
sing with men and did not have to engage in sexual intercourse.
PW1 claimed that she was 20 years old and arrangements were
made for her to come to Hong Kong on the 29th December 2000.
Upon arrival in Hong Kong in the afternoon of the 29th December,
PW1 was met by the Defendant.
The Defendant took PW1 to Flat E, 34th Floor, Block 2, Jubilee
Garden in Shatin. The Defendant gave pornographic magazines to
PW1 and asked her to remove her clothes. PW1 did as she was told.
The Defendant asked PW1 to do what was shown in the magazines
and he would teach her how to have sexual intercourse.
PW1 was asked by the Defendant to kneel down on the sofa and
move her buttocks. The Defendant then smeared lubricant into
PW1’s anus. The Defendant massaged PW1’s anus with his fingers
and then penetrated her anus with his penis. The Defendant did not
wear a condom. The sexual act was recorded on a video (Exh. P.7)
by the Defendant. The Defendant was arrested on 30th December
2000 in the building of the flat in Shatin.
On behalf of the Applicant at trial, it was submitted in mitigation:
(1)
PW1 had told the Applicant that she was aged 20.
(2)
The Applicant had pleaded not guilty to the third count of
non-consensual buggery. From that it should be inferred that
what the fourth count related to was consensual buggery
which meant that PW1 had consented to the Applicant’s
conduct.
(3)
Before coming to Hong Kong PW1 had engaged in
entertaining men in the Mainland.
(4)
The Applicant had a wife and a 2-year-old daughter in the
Mainland.
(5)
By his guilty plea PW1 had been saved the embarrassment
and trauma of having to give evidence in court.
(6)
The act took place in a private flat in circumstances which
were not demeaning in so far as this was possible.
286
CCAB 2002
(7)
There was no evidence that PW1 suffered any trauma
consequent upon the offence.
The main issue canvassed before the judge was the extent to which the
judge could assume that PW1 had consented to this act. After seeing the tape,
the prosecuting counsel submitted that while it appeared that PW1 initially was
consenting to what was taking place it soon became apparent that this consent
had been withdrawn. It appeared that shortly after she had been penetrated she
suffered pain and discomfort and wanted the Applicant to desist. He did not do
so. He continued until he ejaculated.
In his Reasons for Sentence the judge had this to say on this aspect of the
matter:
In my view, the complainant must have been under some pressure
when she was in the flat, to do as she was told. She had agreed,
admittedly, to come voluntarily to Hong Kong to do work of
entertaining men. Because she had agreed to come to Hong Kong
to do that, in my view, she would have agreed to do whatever she
was requested to do. From the video, it is clear - and I agree with
the prosecution’s view of this - that she was agreeing to remove
her clothes and moving her buttocks, as instructed. She did agree
to the lubricant being applied to her anus, she did agree to your
massaging her anus with your fingers. What happened after you
penetrated her anus with your penis, is a matter of some
uncertainty.
In my view, when the complainant was crying and saying things
like, ‘that’s enough’, ‘leave me alone’ and ‘stop, that’s enough’
during the act of buggery, which lasted some 10 minutes, she was
either withdrawing her initial consent to the act or at the very
least, expressing to either you or generally, that she was in pain
and she did not want the act to continue. What was going through
her mind was a very subjective thing which, without hearing her
evidence on the matter, I am unable to say with any degree of
certainty. What is clear to me is that she was not enjoying what
was being done to her and she wanted it to stop.
From the videotape, which was played in court, it is clear that she
began to cry and whimper almost immediately after the act began.
This carried on with her sometimes crying, sometimes whimpering,
sometimes sobbing, sometimes muttering, and at one stage crying
quite audibly, until you ejaculated inside her anus. In my view,
what began as a consensual session of the foreplay, for want of a
better word, developed into the act of buggery, the continuation of
which was expressed by the victim - by the complainant - as
something which she was not enjoying.
On appeal, it was submitted:
(1)
The judge erred in law in seeking to speculate on the
question of consent when lack of consent was not alleged in
the prosecution’s summary of facts and then in resorting to
the concept of ‘some kind of pressure’ and then the concept
of ‘enjoyment’ in determining the starting point of the
sentencing procedure.
(2)
The judge erred in law in fixing the starting point at 4 years’
imprisonment for a consensual act of buggery with a woman
under 21 years of age.
287
CCAB 2002
(3)
The judge failed to take into account any of the authorities
cited to him in respect of the issue of the appropriate
sentence to be imposed.
(4)
The sentence imposed was manifestly excessive on the facts
of the case.
The Applicant submitted that it appeared from the transcript of the
proceedings that the judge proceeded on the basis that PW1’s initial consent had
been withdrawn and that the Applicant had not ceased in his activities after that.
It was said that this was most unfair to the Applicant. The consequence
of the judge coming to this conclusion on the basis of the material which was
before him was to preclude the Applicant from the benefit of a jury’s
determination on this critical issue. The Applicant had only agreed to plead
guilty to the fourth count on the understanding that he would be sentenced on
the basis that PW1 was consenting throughout the commission of the act of
buggery.
The Respondent submitted that although the prosecution had initially
agreed to proceed upon the basis that PW1 had consented to the offence, this did
not bind the judge. The duty of the judge was to consider all of the surrounding
circumstances, and he was not bound by any agreement between the parties.
Held :
(1)
Per Mayo VP:
In Archbold 2002 at para 5-18, it was stated:
If the defendant, having pleaded guilty, advanced an account of the
offence which the prosecution did not, or felt they could not,
challenge, but which the court felt unable to accept, whether
because it conflicted with the facts disclosed in the Crown case or
because it was inherently incredible and defied common sense, it
was desirable that the court should make it clear that it did not
accept the defence account and why. There was an obvious risk of
injustice if the defendant did not learn until sentence was passed
that his version of the facts was rejected, because he could not then
seek to persuade the court to adopt a different view. The court
should therefore make its views known and, failing any other
resolution, a hearing could be held, and evidence called, to resolve
the matter. That would usually involve calling the defendant, and
the prosecutor should ask appropriate questions to test the
defendant’s evidence, adopting for this purpose the role of an
amicus, exploring matters which the court wished to be explored.
It was not generally desirable that the prosecutor, on the ground
that he had no evidence to contradict that of the defendant, should
leave the questioning to the judge.
That commentary failed to address the problem in the present case, where the
Applicant had pleaded not guilty to the section 118A offence and guilty to the
section 118D offence. The one issue which distinguished these two offences
where a woman was under the age of 21 was the question of consent. There
was much merit in the Applicant’s submission that the practical effect of the
way in which the judge had proceeded was to deprive him of the advantage of
his defence being considered by a jury;
288
CCAB 2002
(2)
The question of whether it was permissible for a defendant convicted of
a lesser offence to be sentenced as if he had been convicted of a more serious
one was considered in R v Davies [1998] 1 Cr App R (S) 380, 382:
Ultimately the question before us is whether it was appropriate for
the appellant to be sentenced for rape, when he has not been
convicted of rape and the question of consent was not decided by a
jury. As a matter of principle the answer to that question is no.
We are reinforced in our conclusion by the recent decision of the
Court in Canavan [1998] 1 Cr App R (S) 243 in which Lord
Bingham C.J., giving judgment, said:
A defendant is not to be convicted of any offence with
which he is charged unless and until his guilt is proved.
Such guilt may be proved by his own admission or (on
indictment) by the verdict of the jury. He may be
sentenced only for an offence proved against him (by
admission or verdict) or which he has admitted and
asked the court to take into consideration when passing
sentence: see Anderson [1978] A C 964. If, as we think,
these are basic principles underlying the administration
of the criminal law, it is not easy to see how a defendant
can lawfully be punished for offences for which he has
not been indicted and which he has denied or declined
to admit. It is said that the trial judge, in the light of the
jury’s verdict, can form his own judgment of the
evidence he has heard on the extent of the offending
conduct beyond the instances specified in individual
counts. But this, as it was put in Hutchison [1972] 56
Cr App R 307 at 309; [1972] 1 WLR 398 at 400 is to
‘deprive the appellant of his right to trial by jury in
respect of the other alleged offences’. Unless such other
offences are admitted, such deprivation cannot in our
view be consistent with principle’.
Accordingly, although we suspect that the appellant may be a
fortunate young man, we are constrained to impose a sentence on
him which reflects that, although guilty of buggery, he was not
convicted of rape. Even allowing for the youth of the woman,
given the nature and enthusiasm of the sexual relationship, it
would not be right for him to be detained in custody any longer,
and on Friday afternoon we ordered his release.
(3)
On the basis of the background and the pleas the judge should have
proceeded upon the basis that PW1 had consented throughout to what took
place. Although the overall circumstances had to be considered, it appeared
from the observations made by the judge that he might have failed to
differentiate between PW1’s acquiescence and enthusiastic participation in the
incident. It was doubtful whether it was possible to glean from viewing a video
what was in the mind of PW1. It was dangerous to attach undue weight to
impressions which might be at variance with the facts which had been agreed;
(4)
The mitigating factors in this case included the character and personality
of PW1 herself. It could be seen from the summary of facts that she was eager
to come to Hong Kong to earn more than $100,000.00 in a short period of time.
Although she was told that she would not be required to engage in sexual
intercourse with men it must have occurred to her, having regard to the amount
of money she hoped to obtain, that she might well have to do rather more than
dancing and singing with men. There was also the fact that she represented to
the Applicant that she was 20 years of age when in fact she was only 17. It
289
CCAB 2002
seemed most unlikely that PW1 suffered any trauma or permanent adverse
effects consequential upon what took place. She was spared the embarrassment
of testifying by the Applicant’s guilty plea;
(5)
What had to be balanced against all of this was the overall seriousness of
the offence. As the Applicant had been involved in bringing PW1 from the
Mainland to Hong Kong she would to an extent have come under the
Applicant’s control. This would be a relevant factor in determining her
willingness in giving her consent to what transpired;
(6)
The section 118D offence was not a trivial one; it carried a maximum of
life imprisonment, which indicated how seriously the legislature viewed it. The
legislation was intended to protect young girls from themselves, even though
they might be willing participants in the act. Here the Applicant, who at the
time was aged 37, was undoubtedly exploiting PW1, over whom he exercised a
considerable degree of control, for his own purposes. And regardless of the fact
that PW1 had represented she was aged 20, she was at the time of the act still
only 17. All of this had to be balanced against the mitigation which was
advanced. The starting point for sentence of four years’ imprisonment was not
in error;
Per Stock JA:
(7)
Where upon the delivery of a verdict or the entering of a plea of guilty to
an offence, the verdict, or the plea, was consistent with more than one version,
or suggested version, of facts underlying the verdict or plea, then it was for the
sentencing judge to determine that factual basis, although in doing so he must
not sentence on a basis which was inconsistent with the jury’s verdict, or
contrary to the constituent elements of the offence to which the defendant had
pleaded guilty. The judge was not bound to accept whatever mitigation was
advanced, nor was he bound to adopt the version most favourable to the
defendant. Where, after a guilty plea, a version was put forward which was
clearly implausible, then a judge was not bound to hear evidence; nor was he
bound to do so where a choice between the two versions would make no
practical difference to sentence. Otherwise, the sentencing tribunal should hear
evidence to enable it to determine the proper factual basis for sentence. These
principles emerged from a compendium of sources. Part L2 ‘Current
Sentencing Practice’ by Professor Thomas; Archbold ‘Criminal Pleading
Evidence and Practice’ 2002, para 5-9 et seq; Cheung v R [2002] 185 ALR 111;
R v Olbrich [1999] 199 CLR 270; R v Isaacs [1997] 41 NSWLR 374. So, too, it
seemed clear, and in accordance with fundamental principle, that where a judge
was invited to adopt a factual premise adverse to the interests of the defendant,
he might do so only if he was sure that that was the proper and correct view of
the facts to take; whereas it was for the defendant to establish, albeit not to the
same degree, matters advanced in his favour: Olbrich pp 280-281; Isaacs p
378D. Further, a judge was not generally bound to accept such factual basis for
sentencing as was agreed between the prosecution and the defence: R v Myers
[1996] 1 Cr App R (S) 187; and the prosecutor should not lend himself to an
agreement which was based upon an unreal and untrue set of facts: R v Beswick
[1996] 1 Cr App R (S) 343;
(8)
The question in this case was whether, given the existence of s 118A, the
judge was entitled to open the issue of consent and to proceed, if he did, to
sentence on the basis that there was no consent, where offences under ss 118A
and 118D were charged expressly as alternatives, and where the Applicant had
pleaded guilty to the fourth count (s 118D), not guilty to the third count
(s 118A), and where the prosecution had accepted that plea and agreed that
count 3 be left on the file, an order which the court then made;
290
CCAB 2002
(9)
The effect of R v Davies [1998] 1 Cr App R (S) 380 appeared to be that
in a case in which lack of consent was alleged, the prosecution was bound in
principle to charge the offence under s 118A, and that, in the face of a deliberate
decision by the prosecution not to charge a s 118D offence alone, the court was
precluded from sentencing on the basis of a non-consensual act. (See also R v
Anthony D [2000] 1 Cr App R (S) 120.) In this case, it was not strictly
necessary to decide that issue, for the decision was dictated by the fact that the
prosecution expressly put the counts in the alternative, and accepted the plea of
not guilty to the s 118A offence. There was but one relevant difference between
the two offences, namely, that under s 118A proof of non-consent was
necessary, whereas under s 118D the offence was committed with or without the
female’s consent (provided she was aged under 21 years). Had that plea not
been accepted, and had the matter proceeded to trial, and had the jury acquitted
in respect of count 3 but convicted in respect of count 4, that result could only
have followed from doubt whether there was or was not consent. In that
situation, it would hardly have been acceptable for the sentencing judge to have
sentenced on a basis of non-consent, seeking then to justify that process on the
footing that absence of consent was not an ingredient of a s 118D offence. The
proper approach could not be different where the prosecution had proffered both
charges and accepted a plea of not guilty to one (s 118A), and guilty to the other
(s 118D). The relevant principle was:
Where an offender is convicted of an offence, whether on his plea
or by verdict, and one of the alleged aggravating circumstances
of the offence is a fact which would constitute an element of
another offence, the sentencer may sentence the offender on the
basis of that aggravating circumstance, notwithstanding that he
has not been convicted of the offence of which the aggravating
circumstance forms an element, if the two offences are of
comparable gravity and the decision to charge the offender with
one offence rather than the other does not imply an acceptance
that the aggravating circumstance cannot be proved (Thomas
Current Sentencing Practice L2-1J).
(10) The judge could not properly proceed on the basis of non-consensual
buggery. The Applicant had been encouraged by the course adopted to plead
guilty to count 4 on the basis, implicit from the framing of the indictment and
the conduct of the prosecutor in accepting his pleas, that the question of consent
was no longer in issue, and he pleaded accordingly. The effect was that he
abandoned his right to have that issue, if it remained an issue, determined by a
jury. That was a right which had, before arraignment, been presented to him by
the indictment;
(11) The trial transcript showed prosecuting counsel initially accepting that
she approached the two counts as representing non-consensual and consensual
buggery respectively, yet saying, when the judge in the course of mitigation
raised concern about pressure on the girl and whether consent was truly given,
that she, counsel, needed to take instructions from the Department of Justice.
Upon return to court, after taking instructions, prosecuting counsel referred to
the tapes, which revealed the crying of the complainant, her protestations that
what was happening was very painful, and her insistence that she had had
enough; and counsel said that the prosecutor’s case, then, was that buggery
continued thereafter but without the girl’s consent. In other words, the case was
that although the act appeared to have been consensual initially, consent had
been withdrawn. This presented the judge with a very difficult task. It was not
entirely easy to discern the precise basis upon which the judge sentenced. He
said that the complainant had not enjoyed what was going on and wanted it to
stop; yet he did not say in terms that consent had been withdrawn;
291
CCAB 2002
(12) It was not open to the judge to sentence on the basis of non-consensual
buggery, if in the event that was what he did. That, however, was by no means
the end of the matter. In so far as the judge was concerned to know whether,
although buggery might well have been consensual, it was nonetheless a
consent given in circumstances which were oppressive, and in which it might
have been difficult for the complainant to say ‘No ’ , that was a valid matter for
the judge to address; he was bound to do so. Neither sentencing principle, nor
the course which the case took, dictated, as the Applicant contended, that ‘the
most favourable view of the facts has to be taken ’ . It was neither realistic, nor
necessarily reflective of the count to which the Applicant did plea guilty, to say
that where there had been consent, the circumstances of that consent and its
nature could not be examined. A judge was not in such a situation constrained
to accept that the act was one committed by two persons in a position of equal
choice, free from pressure of circumstance. Neither the law, nor the agreed
facts, compelled the judge to do so. Had he done so, he would have been acting
mechanically, without regard to the circumstances and facts of the case. The
circumstances in which sexual acts took place were varied, even though consent
was not withheld, for consent took many shades. It might, for example, be that
consent had been given reservedly or unhappily and under pressure of
circumstances, even though the circumstances fell short of negating consent.
The framework within which the act took place; the age of the offender; what
influence, by virtue of his relationship with the complainant or on the facts, was
brought to bear upon the complainant; whether he held some position of, or akin
to, trust, or a position of dominance - all matters of this kind were relevant.
These were shades, factors, which must necessarily be addressed in deciding an
appropriate sentence. So, to the extent that the judge took into account the
question of inequality of status; the fact that the complainant was at the mercy
of the Applicant, being a girl brought here by him so that she was staying
unlawfully; the power which he, a 37-year-old procurer, could and did exercise
over a 17-year-old girl - the judge was quite right to do so;
(13) The starting point of four years’ imprisonment, and the resulting two
years eight months, were not manifestly excessive. English cases, where much
lower sentences were passed in instances of consensual buggery, were of no
value in the present context. The legislation in Hong Kong provided that a
section 118D offence was thought so serious as to merit a maximum term of life
imprisonment. So, too, had regard to be had to the power held by the Applicant
over the complainant by virtue of facts which had their own, local flavour.
Furthermore, consensual in a very strict sense though the act might have been,
this was hardly a developed relationship of mutual affection. What this was was
the exercise, in a dominant way, of power, in order to use this young woman,
and to prepare her for the sordid life for which the Applicant was engaging her.
The suggestions made in mitigation that she was a ‘free agent ’ , and that the act
was ‘entirely consensual ’ in the sense in which that phrase was used, were to
ignore the truth and reality;
(14) The girl’s background could not reasonably be described as a strong
mitigating factor, or that one should assume that she had suffered no trauma. It
was not known how versed or experienced in sexual matters she was. But
assuming that she was no innocent, she was young nonetheless, and was being
used in a framework of non-equality, both as to age and circumstance. Put the
other way, had her background been wholly innocent, that would have been an
aggravating factor. Notwithstanding a young complainant’s sexual experience
or character, it was to be remembered that a law such as this was ‘designed to
protect young people from others, and indeed sometimes to protect them from
themselves ’: R v Matthews [2001] 2 Crim App R (S) 112, 113;
(15) The Applicant was not a person of previous good character. He had a
string of convictions including convictions for robbery, operating a gambling
establishment, and living on the earnings of a prostitute. The principal
292
CCAB 2002
mitigating factor was his plea, and for that he was given full credit. Neither the
starting point, nor the resulting sentence, was too long;
(16) Once the prosecution decided to accept the Applicant’s not guilty plea to
the section 118A offence of non-consensual buggery and proceed against him
only on the section 118D offence of buggery with a girl under 21, which they
had charged in the alternative, and to which he had pleaded guilty, both they
and the judge were precluded from raising the issue of the girl’s consent to the
act of buggery that the Applicant practiced on her. That was not to say that the
judge was precluded from inquiring into the framework in which that act took
place, including the nature of the relationship between the parties, their
divergence of age and the degree of control, or dominance, the Applicant
exercised over the girl;
(17) The reference to the levels of sentence passed in England for offences of
consensual buggery were of no value. The facts and setting were different, and
in Hong Kong the legislature had set life imprisonment as the maximum
sentence for the perpetrator of an offence contrary to s 118D, which indicated
that it was to be regarded as a very serious offence.
Result -
Application for leave to appeal allowed. Appeal dismissed.
Theft/Handling/Deception/False Accounting
CA 446/2001
Stock JA &
Suffiad J
(15.1.2002)
*Sin Pui-ha
#Adrian Bell
WONG
Kam-tat
Handling a stolen car and forgery/Aggravating factor that offender a
motor dealer/Partially consecutive sentences proper/Calculation of totality
處理被竊車輛及偽造 - 犯罪者是汽車經銷商的身分構成加重刑
罰的因素 - 部分刑期分期執行是恰當的 - 計算整體刑期
The Applicant, a car dealer, pleaded guilty to handling a stolen car and to
two charges of forgery. The forgeries were constituted by falsifying the
information on a notice of transfer of ownership and on an application to retain
a vehicle registration mark. The forgeries were committed in order to hide from
the authorities and from the purchasers of the vehicle the fact that the vehicle
had been stolen.
For each of the forgery charges, the judge took a starting point of 3
years’ imprisonment and imposed concurrent terms of 18 months on each. For
the handling stolen goods charge, the judge took a starting point of 4 years’
imprisonment, and imposed a term of 2½ years. He ordered that 2 years of the
2½ year term was to run consecutively to the 18 months for charges 1 and 2, the
balance to run concurrently, a total therefore of 3½ years.
On appeal, it was submitted that the sentences were manifestly excessive
and that, in so far as the judge ordered part of the sentence imposed on charge 3
to run consecutively to the sentences imposed on charges 1 and 2, they were
wrong in principle.
Held :
(1)
Although this case did not involve a luxury car, and was not a case of
stealing or handling a car to export across the border, and although only one car
was involved, it was a serious aggravating factor that the Applicant was a motor
dealer. As the trial judge had observed, ‘motor dealers who act in this fashion
293
CCAB 2002
Sentence (Quantum) – Theft/Handling/Deception/False Accounting
provide a ready market for disposal of stolen cars by mixing stolen vehicles in
amongst stolen stock ’. The situation was quite different from that in which
someone was merely employed to deliver a vehicle, which he knew to be stolen,
to the buyer or to a middle man. This was a dealer using his know how in the
trade to fool an innocent buyer, and to behave as proactively in the whole affair
as a handler could. The starting point of 4 years’ imprisonment for the handling
offence was not too high;
(2)
The judge did not err in principle in treating the forgery offences as
deserving of partially consecutive sentences. The judge, in taking a starting
point of 4 years for the handling charge, had not included the forgery element,
and there was no double penalty. The acts of forgery were not an essential part
of the handling; the nature of the offences was markedly different; and the
conduct did not involve a single invasion of the same legally protected interest.
The starting points for the forgery offences were not excessive;
(3)
The judge approached sentencing in a somewhat unusual way. Instead
of giving credit for mitigating factors and reducing the sentence from a starting
point for each offence accordingly, thereby imposing the correct sentence for
the individual offence, and only then looking at totality, he looked first at
overall or global totality as a starting point which he set at 5 years; then gave
20% reduction for the plea, and 6 months reduction for the restitution, and
thereby arrived at the total of 3½ years; and then adjusted the individual
sentences accordingly. In the result, the Applicant was sentenced to 18 months’
imprisonment for each forgery charge which reflected a discount of 50% from
the starting point for those offences; and a sentence of 2½ years for the third
charge which reflected a discount of 37½% from the adopted starting point. In
the event, the sentences for the individual offences were too low;
(4)
The 20% discount which the judge thought warranted for the very late
pleas might well be thought to be on the generous side. Assuming that, with
restitution, a total discount of, at most, 30% was warranted, the correct
sentences in respect of charges 1 and 2 would have been 2 years’ imprisonment
on each charge; and for charge 3, 2 years and 9 months. If 3½ years for all the
offences was then thought appropriate as a totality, and the totality was not
impeachable, a correct order would have been for the sentences on charges 1
and 2 to run concurrently; with 1 year and 6 months of the sentence on charge 3
to run consecutively. However, the total sentence of 3½ years was not
excessive, and the individual sentences favoured the Applicant.
CA 287/2001
Stuart-Moore
VP
Woo JA
CHIU
Peng, Richard
Theft/Mitigation/Mental condition of defendant at time of offence/Effect of
restitution
盜竊罪 - 求情理由 - 被告人犯罪時的精神狀況 - 歸還財物的效力
The Applicant pleaded guilty to a charge of theft, contrary to s 9 of the
Theft Ordinance, Cap. 210. The sum involved was $16 million.
(24.1.2002)
*Simon Tam
#Gary
Plowman SC
&
Clement Lee
The judge accepted mitigation that the Applicant at the time of the
offence suffered from a mood disorder characterised as ‘Bipolar disorder’, and
that at the time he was in a major depressive episode. He also took into account
that the Applicant was remorseful and repaid the money with interest to the
victim. The judge adopted a starting point of 5 years’ imprisonment, gave a one
third reduction for the guilty plea and the previous good character, and, from the
reduced sentence of 3 years and 4 months’ imprisonment, he gave a further
reduction of 6 months for the restitution and another 6 months for the mental
condition of the Applicant, resulting in a sentence of 2 years and 4 months.
294
CCAB 2002
On appeal, it was submitted that the judge failed to give a sufficient
discount for the full restitution made by the Applicant and also for his mental
condition when he committed the offence.
Held :
(1)
If an accused suffered from a mental illness which played a part in the
commission of the offence, the court might properly allow a discount of
sentence: see Cross & Cheung, Sentencing in Hong Kong, 3rd ed., pp 308-309.
The reasoning was described as allowing ‘a diminished role for the element of
deterrence to reflect the mental condition’: Parnis v R (1994) 126 ALR 423,
426. That meant that while the sentence normally imposed by the court was for
deterring an accused unaffected by any abnormal mental condition in the
commission of the offence and for general deterrence, the necessity for both
kinds of deterrence was reduced because the accused was not operating under a
normal mental condition. Although that reasoning had its attraction, it was
preferable to lay emphasis on the justification for a discount in these
circumstances as a reflection of diminished responsibility or culpability on the
part of the accused who had committed crime under an abnormal state of mind.
He knew that it was wrong to commit the crime, but he did not appreciate that
the commission of the crime was as serious as it was: the degree of culpability
was thus lessened. Or, as in this case, the accused’s mental illness made him
gullible and easily susceptible to persuasion by the perpetrator of the crime,
reducing his responsibility for participating;
(2)
Cross and Cheung (above), at p 318, correctly pointed out a shift adopted
by the courts to the significance of restitution as a mitigating factor. The shift
was from restitution merely indicating remorse on the part of an accused for his
crime to being an important alleviation of the victim’s position caused by the
crime. As Power VP observed in Secretary for Justice v Hui Siu-man [1999] 2
HKLRD 236, 242:
However, in modern times, more emphasis has been placed on
factors such as rehabilitation of offenders and the interests of the
victims of crime. There is no encouragement to make restitution if
the offender knows that it will have little effect on sentence. We
are satisfied that full restitution, particularly in commercial
crimes, must be encouraged and that this can only be done if real
weight is given to it as a factor mitigating sentence ...
The changed approach was emphasised in Secretary for Justice v Lin
Yin-ming and Another AR 7/2001. The trial judge should have given a further 6
months’ discount for the restitution.
Result -
Application allowed. Sentence of imprisonment of 1 year and 10
months substituted for the term of 2 years and 4 months.
Obiter -
(1) The burden of establishing that a judge had failed to give
sufficient weight to mitigating factors was greater than that involved
in a challenge that he had failed to take them into consideration: R v
Conway (2001) NSW CCA 51;
(2) In response to a question from the court as to the proper
discount in respect of the two factors, the Applicant’s counsel
contended that the suspension of sentence was appropriate. That
subject had never been raised or even intimated in the Notice of
Appeal, and it was no explanation that the failure to mention this
contention was because it was not proper for counsel to suggest the
appropriate sentence as that was always a matter for the court. If the
matter had been well thought out before the hearing, the proper
295
CCAB 2002
place for the contention should have been in the Notice of Appeal by
way of amendment, to challenge the judge’s refusal to order a
suspended sentence, or at least it should have been raised in the
written skeleton arguments so that attention would be drawn to it.
香港特別行政區訴武文全
H K S A R v VU Van-toan
*萬德豪
Jonathan
Man
耹訊日期：二零零一年十二月廿十日
宣判日期：二零零二年二月七日
#余超卓
Raymond
Yu
To h D J
Date of Hearing: 20 December 2001
Date of Judgment: 7 February 2002
盜竊罪 - 慣犯 - 較高量刑起點是恰當的 - 須處以阻嚇性刑罰
上訴人承認一項盜竊罪，違反香港法例第210 章盜竊罪第9
條，上訴人被判入獄16個月。案情顯示上訴人尾隨一位女士並從該
女子的腰包取走一手電，但被兩名警員立時拘補。
裁判法官在量刑時提醒自己一般的判刑是 12 至 15 個月監
禁，但他有考慮到上訴人有1 6 次刑事紀錄，其中有 1 2 次是與盜竊有
關。他採納一個較高的量刑起點，即2 4 個月。
代表上訴人的大律師指出， 24 個月監禁為量刑起點是明顯
地過高，因為這類案的一般的量刑起點是12至15個月。他又指出裁
判法官在判刑時，錯誤地沒有向上訴人明確表示，他打算判上訴人
一個阻嚇性的刑罰，以致上訴人的代表律師失去作出適當回應的機
會： H KS A R v Ch en g Wa i- ma n M A 3 0 2 /1 9 9 2 一案。
裁決：
(1)
由於上訴人是這類案件的積犯，故裁判官採納一個較高的量
刑起點，是適當的： HKS A R v Ch a n P u i- ch i [ 1 9 9 9 ] 2 HK L R D ﹔
(2)
Ch en g Wa i- ma n 一案的判刑原則被 H KS A R v Wa n Yic k- ta k
M A 3 8 7 /0 1 及 H KS A R v Ch a n Yu - y iu 所採納。在後述的兩宗案件
中，那兩位上訴人是沒有律師代表的，所以在判刑時，上訴法庭指
出裁判法官如果想採納一個阻嚇性的刑期，必須要向兩位上訴人解
釋他當時的想法。在本案中，上訴人在審訊時是有律師代表的，而
在這類案件的判刑時，裁判法官是往往會考慮到阻嚇性的刑期，所
以在這案中，裁判法官採納一個阻嚇性的考慮因素，不是一個新的
判刑傾向﹔
(3)
在Hu yn h V a n Du n g H K M A 2 7 0 /2 0 0 1 一案中，他有1 5 次案
底，1 2 次是同類刑的。上訴法庭認為裁判法官的 2 4 個月為量刑起點
296
CCAB 2002
是適當的。在考慮過本案上訴人的過往犯罪背景及本案的案情，裁
判法官判上訴人2 4 個月為量刑起點，是不可以列為明顯過重的。
上訴被駁回。
[English digest
of MA
937/2001
above]
Toh DJ
VU
Van-toan
Theft/Persistent offender/Higher starting point appropriate/ Deterrent
sentence required
The Appellant pleaded guilty to a charge of theft, contrary to s 9 of the
Theft Ordinance, Cap 210. He was sentenced to 16 months’ imprisonment.
The facts showed that he followed a woman and took a mobile phone from the
woman’s waist bag. He was caught red-handed by two police officers.
(7.2.2002)
*Jonathan
Man
In sentencing, the magistrate reminded himself that the normal sentence
would be 12 to 15 months’ imprisonment. He took into account that the
Appellant had 16 previous convictions, 12 of which were related to theft, and
adopted a higher starting point of 24 months.
#Raymond Yu
On appeal, it was submitted, inter alia, that the starting point adopted
was too high as the starting point for offences of this kind was normally 12 to
15 months’ imprisonment. It was contended that the magistrate erred in failing
to make it clear to the Appellant that he intended to impose a deterrent sentence,
thus depriving counsel of the opportunity of making appropriate replies: HKSAR
v Cheung Wai-man MA 302/92.
Held :
(1)
Since the Appellant was a persistent offender with previous convictions
for similar offences, the magistrate was correct to adopt a higher starting point:
HKSAR v Chan Pui-chi [1999] 2 HKLRD 830;
(2)
The principle of Cheung Wai-man was adopted in HKSAR v Wan Yicktak MA 387/01 and HKAR v Chan Yu-yiu MA 388/01, in which it was ruled
that as the appellants were both unrepresented, the magistrate should have
explained to them what he had in mind when he intended to adopt a deterrent
sentence. In the present case, the Appellant was represented at trial. As the
court would invariably consider a deterrent sentence for this type of offence, the
magistrate had not adopted a new sentencing approach;
(3)
In Huynh Van Dung MA 270/01, the appellant committed an offence of
attempted theft. He had 15 previous convictions, 12 of which were for similar
offences. It was considered that the starting point of 24 months’ imprisonment
adopted by the magistrate was appropriate. In the present case, having taken
into account the Appellant’s criminal record and the facts of the case, the
starting point taken by the magistrate could not be regarded as manifestly
excessive.
297
CCAB 2002
CA 230/2001
Stuart-Moore,
ACJHC
Woo & Stock
JJA
(7.3.2002)
*Cheung Waisun
#James
McGowan
LEUNG
Shuk-man
Theft/Repayment prior to charge/Effect of compensation or restitution as
mitigation/Significant discount appropriate/ Positive good character
盜竊罪 - 被控前已作出償付 - 以補償或歸還財物作為求情因素的效
力 - 顯著減刑是恰當做法 - 顯著的良好品格
The Appellant, aged 26, pleaded guilty to 9 charges of theft involving a
total of $430,000 and to a tenth charge of attempting to steal $2 million.
The facts showed that the Appellant was employed in September 1999
by Levett & Bailey, a firm of quantity surveyors, to work as a personal secretary
to Mr Lai, one of the directors. However, within two months, she forged Mr
Lai’s signature and wrote herself a cheque in the sum of $150,000. When this
went undetected, she continued to write cheques to herself in varying sums
which depended on how much she could obtain within the overdraft limit on Mr
Lai’s account. By May 2000, she forged Mr Lai’s signature on a cheque to
herself in the sum of $2 million. That offence alerted the bank’s suspicious. Mr
Lai was informed and the 10 offences were exposed.
When interviewed by police, the Appellant admitted the offences, and
stated that all except $50,000 had been spent on clothing, watches and handbags
which were in her home. In due course, she handed the unspent stolen money to
the police and they also seized the goods which the Appellant had bought with
the remaining money.
By the time of sentence, the Appellant had, via her family members,
repaid all of the $430,000 she had stolen from Mr Lai. The judge concluded
that there had been a serious breach of trust and there could be no alternative to
an immediate custodial sentence. In her favour the judge said it would not be
appropriate to take the last cheque for $2 million into account in sentencing, as
there was no real prospect of that cheque being met out of the account. He then
sentenced her to an overall term of 2 years’ imprisonment. He took a starting
point of 18 months on charges 1 and 2, which he reduced to 12 months in each
case to run consecutively. The judge imposed concurrent sentences of
imprisonment of 12 months on all the remaining charges.
On appeal
Held :
(1)
Even though the Appellant, even before she was charged, had repaid all
the money she had stolen, the judge made no reference to this as a powerful
factor in mitigation which justified a reduction in sentence beyond the usual
one-third in order to reflect the compensation the Appellant had paid to her
victim. If the situation were otherwise, and a specific discount was not given
for the payment of compensation or restitution, there would be no advantage to
an offender who had repaid some or all of the ill-gotten gains to the victim, over
and above the one-third discount the offender could necessarily expect to
receive for a timely plea of guilty;
(2)
There were no guidelines as to precisely what discount should be given
where compensation for a victim’s losses had been paid or partially paid. The
circumstances of each case differed. A sensible use of the sentencer’s discretion
would normally enable the offender to receive an appropriate discount. In a
case such as this, where full repayment had been made, a significant discount,
above and beyond the usual one third for plea, should plainly be given;
(3)
In all the circumstances, and importantly the Appellant’s payment of
compensation at an early stage to her victim, the overall discount she should
have received on the totality of her sentence was in the region of 50%. This
298
CCAB 2002
would reduce by a further six months the sentence the Appellant was serving.
That would inform the Appellant that the compensation she had paid to her
victim had been recognised as an important mitigating factor.
Result -
Appeal allowed. Sentences totalling 18 months’ imprisonment
substituted for the sentences of 2 years.
Obiter -
Positive good character might well entitle a defendant to a slightly
enhanced discount such as in the example of an offender who had
worked without payment for a charitable cause within the
community.
香港特別行政區訴曾惠冰
HKSAR v TSANG Wai-ping
*林穎茜
Lam Wing-sai
#謝漢元
Tse Hon-yuen
高等法院原訟法庭暫委法官張慧玲
聆訊日期：二零零二年一月三十一日
宣判日期：二零零二年一月三十一日
Barnes DJ
Date of Hearing: 31 January 2002
Date of Judgment: 31 January 2002
多項以欺騙手段取得財產的罪行 - 年輕罪犯使用偷竊得來的 v isa 卡
- 施行公義須恩威兼施 - 判處感化較判入教導所更為恰當
上訴人，19 歲，承認26 項以欺騙手段取得財產的控罪，違
反香港法例第2 1 0 章《盜竊罪條例》第1 7 ( 1 ) 條。她被判入教導所。
案情顯示於2001 年7 月1 日左右，上訴人自其男朋友取得盜
來的兩張 Vi s a 信用咭後，在 7 月 2 日及 3 日以該兩張咭向不同的商戶
作出26次購物，其中包括化妝品、衣飾、電器、藥物及食品等，涉
及的金額為8 ,0 0 0 多元。
裁判官認為這是一宗非常嚴重的罪行，因為上訴人用偷來的
信用咭在短短的兩天內瘋狂購物，很明顯和普通的所謂“機會罪
犯” 不同。判刑前的報告指出上訴人適宜接受感化及適合被判入教
導所。裁判官考慮上訴人犯案時只有19歲，在犯案之前，並無犯案
紀錄，及上述的報告後，他判上訴人進入教導所。
上訴時，上訴人代表大律師指出上訴人所用之信用咭不是上
訴人自己偷的。上訴人多次犯事，只是一時貪心所致。上訴人是新
移民，於 2000 年 5 月才到香港，犯罪之時，她不明白案件的嚴重
性。她亦從來沒有犯過刑事罪。以她的年齡，法庭應考慮給予她一
個自新機會。
裁決：
(1)
在本案，很明顯有關的罪行是可判處監禁。上訴人的年齡亦
界乎1 4 至2 1 歲之間。有關案件並不是一件為了社會利益而應以懲罰
299
CCAB 2002
性或阻嚇性的刑罰來取締讓犯事者自新的做法。採納讓犯事者(即
上訴人)自新的行為，是符合社會利益。法院需要考慮上訴人的品
性、過往行為、犯罪情況、然後決定上訴人在教導所接受一段時間
的教導，會否有利於感化上訴人及防止罪案的發生；
(2)
就本案案情、上訴人的背景，判上訴人入教導所，不可以說
是不符合在 H KS A R v Wo n g Ch u n - ch eo n g [ 2 0 0 1 ] HK C F AR 2 所講
的原則。但考慮上訴人只有19歲，是一個新移民，她因貪念，在男
朋友處取得偷回來的兩張信用咭後，在兩天內瘋狂購物。她所購買
的大部份物品，並不是價錢十分昂貴的東西，而感化主任認為她是
適合接受感化。在合乎法理的情況下，判處一名犯事者，法庭亦可
以考慮和兼顧憐憫之情，即英文所說的 “ t e mp e r ju st ic e wi th
me rc y ” 。本案的嚴重程度並未達致不能判上訴人接受感化，判上
訴人接受感化是合適的做法。
結果 ﹕ 上訴得直。改判感化令。
[English digest
of MA 1226 of
2001 above]
Barnes DJ
(31.1.2002)
*Lam Wingsai
#Tse Honyuen
TSANG
Wai-ping
Multiple offences of obtaining property by deception/Use of stolen visa
cards by young offender/Tempering justice with mercy/Probation more
appropriate than training centre
The Appellant, aged 19, pleaded guilty to 26 charges of obtaining
property by deception, contrary to s 17(1) of the Theft Ordinance, Cap 210. She
was sentenced to detention in a training centre.
The facts of the case showed that on or about 1 July 2001, the
Appellant obtained two stolen Visa cards from her boyfriend. On 2 and 3 July,
she used the two cards to make 26 purchases in different shops. The purchased
items included cosmetics, clothing, ornaments, electric appliances, medicine
and food valued at over $8,000.
The magistrate considered it a serious case because the Appellant had
used the stolen cards within a short period of time on a shopping spree. The
Appellant was obviously different from the so-called ‘opportunist criminals’.
Pre-sentencing reports indicated that she was suitable for probation and
detention in a training centre. After taking into account her clear record, her age,
and the pre-sentencing reports, the Appellant was sentenced to detention in a
training centre.
On appeal, it was submitted that the Visa cards were not stolen by the
Appellant. She committed numerous offences within two days out of greed.
She migrated to Hong Kong in May 2000 and did not realise the seriousness of
the offences. Because of her clear record and young age, it was said that the
court should consider giving her a chance of reformation.
Held :
(1)
It was clear that the offences were punishable by imprisonment. Since
the Appellant was aged between 14 and 21, to impose a retributive or deterrent
sentence on her instead of giving her a chance to reform was not in the interest
of the community. To let the offender turn over a new leaf was in accord with
the interest of the community. The court had to take into consideration the
Appellant’s character and previous conduct and the circumstances under which
she committed the offences before it could determine whether a period of
training in a training centre would be beneficial to her reform and would help in
preventing crime;
300
CCAB 2002
(2)
Judging from the facts of the case and the Appellant’s background, to
sentence her to detention in a training centre could not be regarded as a
departure from the principles in HKSAR v Wong Chun-cheong [2001] HKCFAR
2. However, it had to be taken into account that the Appellant was only a 19year-old newly-arrived immigrant who, after obtaining from her boyfriend two
stolen Visa cards out of greed, used the cards within two days on a shopping
spree. Most of her purchased items were not very expensive. The probation
officer considered that it was suitable to put the Appellant on probation under
supervision. The court, when passing sentence on an offender, could also have
mercy, a practice which was referred to as ‘tempering justice with mercy’. This
case was not so serious, and the imposition of a probation order was
appropriate.
Result - Appeal allowed. Probation order substituted.
CA 449/2001
Stuart-Moore
ACJHC
Seagroatt J
(12.4.2002)
*Simon Tam
#I/P
KO
Mi-lun
Procuring making of entries in bank record by deception/ Grouping of
multiple offences to achieve a proper totality/ Medical condition receiving
proper treatment in prison/System of documentary credits dependent upon
trust/Offences at top scale of gravity
以欺騙手段促致在銀行紀錄內記入記項 - 將多項罪行分類以達致適
當的整體刑期 - 身體不適在監獄內接受適當的治理 - 跟單信用證制
度有賴誠信 - 罪行屬極嚴重性質
The Applicant was convicted on her own pleas of 30 offences of
procuring the making of an entry in a record of a bank by deception, committed
between 30 June 1998 and 26 October 1998. She was sentenced to 7 years’
imprisonment.
The offences involved the manipulation of credit facilities with a bank in
order to keep a business trading and property venture alive. The Applicant was
the director and major shareholder of a company called Mazlo Trading Ltd
which dealt in frozen meat. It had credit facilities of $117,000,000 at the Wing
Hang Bank. It ran into serious cash flow problems in 1997.
The fraud fell into three categories. The first 14 counts related to the
discounting of postdated cheques by the bank to assist in the financing and sales
of goods by Mazlo to its customers. The Applicant presented false documents
and postdated cheques to the bank purporting to represent delayed payment by
customers for goods already delivered. In fact the postdated cheques were
supplied to the Applicant by friends and business acquaintances on the strength
of her promise to them that she would provide them with funds in their accounts
before the postdated cheques were presented. Of the 14 instances reflected in
these counts, the postdated counts 15 to 26 related to the obtaining of letters of
credit for the benefit of a company called China Good, which was in fact
controlled by the Applicant, for its purported supply of frozen meat to Mazlo.
Documents which purported to demonstrate such trading transactions which
were fictitious were presented to the bank, which was thereby induced to
advance $55,600,000. That was the sum lost by the bank.
The last four counts related to the obtaining of funds or letters of credit
in respect of fictitious supplies of goods by Mazlo. When the group tried to
recoup its advance by attaching the goods, there were no such goods. The bank
lost $15,000,000. The total loss to the bank was therefore $103,600,000.
The trial judge stressed the careful planning of the offences, the false
documentation, the abuse of the letters of credit facilities and the trust which
such banking institutions depended upon, for the commercial viability of this
301
CCAB 2002
form of funding. For the first group of offences, the judge took a starting point
of 9 years on each count concurrent, reducing the sentence to one of 5 years on
each, and ordering 1 year of the sentence on the second group to run
consecutively to the terms of 5 years on the first group, making 6 years. On the
third group, the sentence was 4 years on each count concurrent from a starting
point of 6 years and, again, the judge ordered 1 year of that term to be
consecutive to the 6 years, producing a totality of 7 years.
On appeal
Held :
(1)
Although the court was sympathetic to the chronic health condition of
the Applicant, which involved a deterioration of the kidney function, she would
receive proper medical treatment while she was in Tai Tam;
(2)
Although there was no sentencing guideline for offences such as these,
the maximum sentence was 10 years, and the judge quite properly grouped the
offences to achieve a proper sentence on the basis of totality. The offences
came at the top of the scale of gravity;
(3)
In R v Chan Kam-chuen [1995] 2 HKCLR 257, 261, it was said:
On any view, these offences are very serious. The system of
documentary credits is the means whereby international trade
has been conducted for hundreds of years. The system depends
upon trust. Money is paid out not upon an examination of the
goods but upon the documents themselves. It is fundamental to
the system that the documents be truthful and accurate. If false
documents are circulated, some of which are in effect title to the
goods themselves, the whole system falls apart. That is why
courts always regard offences of this nature as very serious.
Applying Chan Kam-chuen, the sentence of 7 years’ imprisonment was
unimpeachable.
CA 33/2002
Stuart-Moore
VP
Stock JA
LugarMawson J
(10.5.2002)
*Simon Tam
#Shahmin
Khattak
MA
Kim-hung
Fraud on social welfare system/Methodical embezzlement of a large sum
over a long period/Restitution as a mitigating factor/Effect of delay in
prosecuting/Comments on TIC procedure
對社會福利制度的欺詐 - 在一段長時期內有規律地盜用大筆公款歸還款項作為求情因素 - 延誤檢控的影響 - 就 ‘ 考慮 ’ 程序作出評
論
The Appellant pleaded guilty to 25 charges of procuring the making of
an entry in a bank record by deception, contrary to s 18D(1) of the Theft
Ordinance, Cap 210. He was sentenced to concurrent terms of 18 months’
imprisonment on each offence.
The case related to a fraud upon the social welfare system. The
Appellant first applied for Comprehensive Social Security Assistance
(‘Assistance ’ ) from the Social Welfare Department in late 1995. On 3
December 1995 he attended an initial interview with a social security officer,
and he and his wife were told he had to fill in all the details on the form
truthfully, otherwise he might face prosecution. The Appellant falsely declared
on the form that the value of his family’s assets was $25,805; in truth they were
$288,317; he had concealed the existence of two bank accounts in his name.
Assistance was granted to him as a result of his false claim. The first payment
302
CCAB 2002
was backdated to 18 October 1995. Had he declared that his family’s assets
were over $71,000 he would have been ineligible for Assistance.
The Appellant had to re-confirm his means every six months at an
interview at the Social Welfare Department (‘SWD’) offices. There he was
required to fill in a review form stating the current value of his family’s assets.
From 12 December 1995 to 12 August 1999 - a period of 3 years and 8 months at each of those twice-yearly interviews, the Appellant deliberately misstated
the true value of his family’s assets. By 1999 the Appellant’s family’s assets
had grown from $288,317 to around $442,000.
The fraud came to light when, in early August 1999, his daughter applied
for Student Financial Assistance when she entered university. The Social
Welfare Department then came to know of the existence of the two bank
accounts, which the Appellant had concealed from them. When questioned
about this by an investigating Social Welfare Officer on 26 August 1999, he
admitted that he had deliberately made false declarations. He repaid the whole
amount of Assistance that he had fraudulently obtained since October 1995 on 3
December 1999; this amounted to $425,244.
It was not until 28 November 2000, nearly 12 months after he had made
full repayment, that the SWD’s Internal Review Committee recommended that
the Appellant should be prosecuted. The Department referred the matter to the
police and it was not until 2 April 2001, five months later, that the Appellant
was arrested. After caution, he made a full confession in which he said that he
had deliberately made the false claims in order to fund his daughter’s education,
and out of greed.
The Appellant was eventually prosecuted in the District Court on 25
specimen charges which related to a total amount of $258,892. He was not
charged with fraudulently obtaining the whole amount of $425,244 Assistance
paid to him because the prosecution did not wish to overload the charge sheet.
Nearly 2½ years passed between the day the frauds were discovered, and he
admitted committing them, and the day he was sentenced for his offences.
The Appellant was aged 67 years. He had little education and no trade.
He was married, and his wife could not work because of illness. His daughter
had graduated from university. He had assumed responsibility for the care of
his wife’s mother, who was 83 and in poor health.
In her Reasons for Sentence the judge said that she took an overall
starting point of 2½ years and reduced that by one-third to reflect the
Appellant’s guilty pleas, and then by a further two months to acknowledge the
fact that he had made full restitution.
On appeal
Held :
(1)
There were no Hong Kong authorities on the sentencing principles to be
applied, and the approach to be taken, when sentencing for offences which
involved frauds upon the public welfare system. However, given that these
offences were committed over 3½ years, and given the amount of money
involved in the 25 charges, and given that it was a deliberate deception from the
very beginning, a starting point of 2½ years’ imprisonment was not manifestly
excessive;
(2)
Restitution should be encouraged and acknowledged with a discount in
sentence. The size of that discount depended very much upon the facts and
circumstances of each case. The additional discount to reflect the restitution in
303
CCAB 2002
this case was two months, which represented no more than a reduction of 6.6%
from the starting point. In arriving at the appropriate figure the sentencing
principle that an accused should not be allowed to keep his ill-gotten gains had
to be borne in mind, as should the question of whether or not he had suffered
financial hardship in making restitution;
(3)
The timing and circumstances under which the Appellant made
restitution were very much in his favour. The fraud was discovered in early
August 1999. He admitted his wrongdoing on 28 August 1999. Full restitution
of the entire amount of Assistance paid to him since October 1995 was made on
3 December 1999. This was 11 (nearly 12) months before the SWD decided to
prosecute him, 16 months before his arrest, 23 months before he faced any
criminal charge and nearly 25 months before he fell to be sentenced. This was
not a case where the Appellant made restitution as a tactical move only days, or
hours, before his sentencing. His restitution had the hallmarks of being the act
of a man who had realistically accepted that the game was up and that he had
been found out, and who genuinely wished to make amends with the authorities
he had cheated. It was an act motivated more by genuine remorse than selfinterest. The restitution should have been rewarded by a much greater discount
than two months;
(4)
The delay of over 2½ years between the Appellant’s admission of the
offences and the date of his sentence was inexcusable. This was a potentially
complicated investigation, which had been made very simple by the Appellant’s
cooperation. The discussions about what to do within the SWD went on far too
long, as did the subsequent police investigation. This must have had a
debilitating effect upon the Appellant. He would not have known whether the
SWD considered the matter concluded with his payment of restitution, or
whether they were to take it further. Some discount for that should have been
given to him;
(5)
The Appellant’s offences were so serious that they amply justified him
being ordered to serve immediate custodial sentences for each one. For over 3½
years he deliberately and methodically embezzled a very large sum of money
from the SWD. However, the judge had not given sufficient consideration to
the quite exceptional mitigating factors in this case.
Result - Appeal allowed. Each of the Appellant’s 25 sentences of 18 months’
imprisonment reduced by 9 months. All sentences concurrent,
making an overall period of imprisonment of 9 months.
Obiter - It was open to the prosecution to have dealt with the fraudulent
obtaining of the remaining amounts of Assistance by way of the
‘taking into consideration’ procedure, which was expressly provided
for by s 81 of the District Court Ordinance. The prosecution was
urged to use that procedure in future cases where it was appropriate to
do so.
304
CCAB 2002
CA 8/2002
Stock JA
LugarMawson J
(4.6.2002)
*Simon Tam
#Andy Hung
YIP
Chi-wai,
Thomas
Handling stolen goods/Aggravating feature that offender acted in concert
with a security guard who acted in breach of trust/ Community Service
Order not appropriate/Absence of Remorse
處理贓物 - 犯案者與行事違反誠信的保安員配合作案屬加重刑罰因
素 - 社會服務令不恰當 - 沒有悔意
The Applicant and his co-accused, D1, pleaded guilty to, respectively,
handling stolen goods and burglary.
D1 was a security guard employed at a block of serviced apartments, and
he used security keys, with which he had been entrusted, to enter the apartment
of one of the tenants, and to steal a Rolex watch from a drawer. He gave the
watch to the Applicant, who pawned it for $7,000. It had been agreed that the
proceeds of the theft would be split between them. When D1 told the Applicant
that police had been notified of the theft, the Applicant redeemed the watch
from the pawn shop but later pawned it again, and used the proceeds of sale to
gamble, won some money, and then redeemed it again. The watch was found
by the police in a wardrobe of the Applicant’s bedroom.
D1 was charged with burglary and the Applicant with handling stolen
property. The judge took a starting point of 3 years’ imprisonment for D1, and
sentenced him to 2 years; for the Applicant, a starting point of 2 years’
imprisonment was taken, and reduced to 16 months.
On appeal, it was submitted, inter alia, that the judge erred in concluding
that the case was too serious for the imposition of a community service order.
Held :
(1)
The judge did not err in her view that the circumstances of the offence,
and the offender, were such that a term of imprisonment was required in
this case. This was a planned offence, and planned with the advantage of
an inside man as thief, a security guard. Whilst it was not the Applicant
himself who acted in breach of trust, he acted in concert with the thief,
knowing full well that the thief was a security guard, and the Applicant
deliberately benefited from it. That was an aggravating feature;
(2)
There was little remorse in this case for, once the police were called, the
Applicant took care to remove the watch from the pawn shop where it
had been placed, and even pawned it a second time.
305
CCAB 2002
CA 53/2002
Stuart-Moore
ACJHC
Seagroatt J
(7.8.2002)
*William Tam
#H Y Wong
LEE
Tsung-lin
Credit card fraud/Major operation with international dimension/Deterrent
sentence necessary/Enhancement of sentence under OSCO/Effect of
jurisdictional limit of District Court
信用卡詐騙 - 涉及國際犯罪層面的大規模騙案 - 必須判以阻嚇性刑
罰 - 根據《有組織及嚴重罪行條例》加重刑罰 - 區域法院的司法管
轄權限的影響
The Applicant was part of a Taiwanese gang of fraudsters who came to
Hong Kong in March 2001 to obtain goods and services by using a large
number of forged credit cards. He pleaded guilty to nine counts of making a
false instrument, namely, a forged credit card. He obtained a range of goods
and services thereby. He also pleaded guilty to three other counts: count 28
related to his possession of three false instruments, namely, forged credit cards;
count 29 to fifty-four false instruments, also forged credit cards; count 30,
which concerned his possession of equipment for making forged credit cards,
namely, an encoder, transformer and an adaptor.
The total value of goods and services obtained by the defendants in less
than one day amounted to a little over HK$205,000.
In sentencing, the judge had regard to the factors in R v Chan Sui-to &
Another [1996] 2 HKCLR 128, 131:
(1)
the size of the operation, e.g. whether it involves large sums of
money, a number of persons or forged credit cards;
(2)
the planning that went into the perpetration of fraud, whether it
was elaborate or simple, whether technical skills were used and to
what extent;
(3)
whether there was an international dimension;
(4)
whether the accused played a major role, e.g. running a syndicate,
engaging in actual manufacture, organising the use of forged
cards, or whether he was a mere cog in the wheel as a courier or a
custodian or keeper;
(5)
whether there was a plea of guilty.
The Applicant met all the criteria at the higher level. The judge took a starting
point of 3½ years for the offences of using the forged cards, and reduced that by
one-third to 2 years and 4 months, all sentences to run concurrently.
For the possession of the three forged credit cards (count 28), the judge
applied the same formula. For the possession of the 54 forged credit cards
(count 29), he took a starting point of 7½ years, which was reduced to 5 years.
On count 30, possession of equipment, a starting point of 7 years was taken, and
discounted to 4 years and 8 months. The overall sentence was 5 years.
The judge then enhanced the sentences by virtue of s 27(2) of the
Organized and Serious Crimes Ordinance, Cap 455, (‘OSCO’) by 25% to take
into account the gravity, prevalence and effect upon the community of the
offences. The effect of this was that the sentence on count 29 was increased to
On appeal
Held :
(1)
Credit card frauds were prevalent and they struck at the root of
commercial trust and stability. A particular deterrent element in the sentence
was called for;
306
CCAB 2002
(2)
The case had a clear international dimension. There was elaborate
planning, a gang was recruited, it was a major operation. Although Chan Sui-to
was helpful for its identification of the factors for consideration, it was
significantly different on its facts. Although the scale of operation in HKSAR v
Ng Swee-thiam [2000] 2 HKLRD 772, was more serious than in Chan Sui-to, in
that case there had been, as there was in this case, no application to enhance
sentence under OSCO;
(3)
The starting point of 7½ years was amply justified on the facts. The
judge applied a discount of one-third bringing the sentence to one of 5 years.
The reduction of 2 years below the 7-year jurisdictional limit of the District
Court was unarguably meaningful. The enhancement under OSCO of 25% was
unobjectionable. The actual sentence of 6 years and 3 months represented a
reduction of 9 months from the jurisdictional limit that was meaningful in this
case. It was also a case within the same category where a reduction of less than
one year could be considered: HKSAR v Li Yan [1998] 4 HKC 12.
MA 683/2002
Day DJ
(23.8.2002)
*Jackson Poon
#I/P
Nguyen
Quyet Tam
Attempted theft/Sentence for pickpocketing/No distinction between attempt
and completed offence/Application of totality principle/No need for
magistrate to refer to totality
企圖盜竊罪 - 扒竊罪的判刑 - 企圖罪行和既遂罪行並無分別 - 整體
量刑原則的適用 - 裁判司不必提述整體量刑原則
The Appellant pleaded guilty to an offence of attempted theft, by way of
pickpocketing, and was sentenced to nine months’ imprisonment. That sentence
was ordered to be served consecutively to a term of 23 months which he was
already serving.
The magistrate calculated sentence on the basis that a starting point of
fifteen months was appropriate. He reduced that by one-third to ten months
because of the guilty plea. A further month was then deducted because the
offence was an attempt.
On appeal
Held :
(1)
There would be nothing wrong in itself with a sentence of 9 months’
imprisonment following a plea to attempted theft where the offence was
pickpocketing. In R v Vy Van Kien and Another [1991] 1 HKLR 422,
Penlington JA suggested a starting point of 12 to 15 months’ imprisonment,
where there were no aggravating features such as the use of a weapon, for theft
in a place where the public were at risk or where the offender acted in concert
with others. He also commented that the fact that an offence was an attempt
rather than a completed offence was irrelevant to sentence. Although the
starting point and the reduction for plea were both proper, the Appellant was
fortunate to have had a further month deducted from the sentence because it was
an attempt;
(2)
The totality principle was a well-recognised part of sentencing, and was
designed to help the court to arrive at a sentence where more than one offence
was involved. It enabled ‘a court to mitigate what strict justice would indicate,
where the total effect of the sentences merited by the individual crimes becomes
so crushing as to call for the merciful intervention of the court by reducing the
total effect’ : R v Rossi (1988) 142 LSJS 451, 453. A court should stand back
307
CCAB 2002
and consider whether ‘the total sentence is so disproportionate to the overall
offending as to be unduly crushing ’ : R v Major, Brett (1998) 100 A Crim R 66,
75. The principle was as relevant if there was more than one offence to be
sentenced on one day as it was when an accused who was already serving a
sentence of imprisonment was, as here, sentenced again: R v Ng Chun-keung
[1993] 2 HKC 171;
(3)
That an experienced magistrate would have had the totality principle in
mind was without question. The magistrate made no express reduction for
totality, but he did not have to. It was very much in his discretion whether,
having considered totality and having stood back from the overall sentence, he
considered a reduction necessary.
CA 299/2001
Stock JA
LugarMawson J
(24.9.2002)
*Kevin Zervos
#Maggie
Wong (1)
Gary Plowman
SC (2)
(1) CHAN
Kinchung
(2) FONG
Shui-hing
Fraud on large scale/Clear record of little relevance/Approach to
totality/Family circumstances only relevant in exceptional cases/Effect on
children of imprisonment of parents
嚴重的欺詐行為 - 無犯罪紀錄並非相關因素 - 處理整體刑期的方法
- 家庭狀況只在特殊情況下才是相關因素 - 父母被監禁對子女的影
響
The Applicants, who were husband and wife, were convicted after trial
of twelve offences which arose out of schemes they implemented to defraud
banks.
The Applicants fraudulently obtained mortgage facilities of almost $13
million, and letter of credit facilities of over $6 million. The amount
outstanding on the mortgage loans was, by the time of sentence, in the region of
$12 million, disregarding interest, and the amount not returned on the letters of
credit was about $5 million.
The Applicants were sentenced to four years’ imprisonment on each
charge, all to run concurrently.
On appeal
Held :
(1)
Although A1 had a clear record, he committed offence after offence over
an extended period, and each offence involved planning and falsification of
documents. The offences were committed on twelve separate occasions, and
eight letters of credit were issued on the back of eight separate and false
representations over a period of months, that there were underlying transactions
with companies at arms length, when in truth there were no underlying
transactions and the companies were connected. The absence of previous
convictions in the face of such prolonged and repeated fraud carried little, if any
weight;
(2)
The judge did not seem to have considered whether individual and
separate acts, or quite separate groups of offences targeting the different banks,
merited, in principle, consecutive sentences. Some at least of the offences
warranted consecutive sentences. He ought then to have addressed the question
of totality. Sentencing on individual charges did not preclude application of the
totality principle. It was, however, the first step to be taken; addressing the
question whether the acts in principle warranted consecutive sentences was the
second; and assessing the correct totality was the third. The sentences were too
light, and a totality of 5 to 6 years’ imprisonment would not have been
excessive;
308
CCAB 2002
(3)
The accused had three young children, aged 7 years, 3 years and 4
months and 16 months, and there was no case where children who were
deprived of the company of their parents or of a single parent by reason of the
parent’s imprisonment were not affected in an emotional and practical way. It
was a hard and distressing fact of life that the impact of imprisonment of adults
for serious offences was not restricted to the offender but was visited upon the
innocent who had hitherto depended upon the offender for care and comfort and
guidance;
(4)
There were exceptional cases in which a sentence might take into
account the fact that the sentence would deprive children of all parental care,
and the consequence of that deprivation. Their features distinguished such
cases from the current case. In this case, the mother embarked upon a relatively
lengthy course of criminality by which she engaged, with her husband, in fraud
to the tune of millions of dollars. The nature and extent of the offences were
such that a substantial prison term was required. The children, whilst
emotionally disadvantaged by the absence of their parents, nonetheless had the
benefit of the company and care of close family with whom they lived. Nor
was there any question of some pressing or dire illness. As Callaway JA
observed in R v Carmody (Supreme Court of Victoria, Court of Appeal, 18
March 1998, unreported), ‘children cannot be used as a form of insurance by
parents engaged in criminal enterprises’. Those were sensible and rational,
though not cold-hearted, sentiments which it would be well for any court faced
with pleas of this type to bear in mind;
(5)
A balanced approach to sentencing was one that had proper regard to
essential sentencing principle and policy, which included the principle that the
adverse effect of imprisonment upon an offender’s family would not normally
be taken into account, and was one that had full regard to the seriousness of the
crime, although not ignoring credible evidence that might justify a merciful
sentence. There could be no definitive or exhaustive list of the type of
circumstance in which release or earlier release of a single parent, or of one of
two imprisoned parents, would be appropriate by reason of the needs of the
young child or children. These circumstances, however, would arise only
exceptionally, and they already embraced considerations of compassion and
mercy such that there was no need for recourse to the exercise of some further
residual merciful discretion.
Result - Application of A1 for leave to appeal out of time refused. A2 granted
leave to appeal, but appeal dismissed.
Obiter - If the plight of young children occasioned by the imprisonment of
both parents was such that a reduction of sentence was warranted, it
would, save in the most unusual circumstances, be warranted for the
mother alone.
309
CCAB 2002
香港特別行政區訴 T R A N T hi L e Qua ng
HKSAR v TRAN Thi Le Quang
高等法院原訟法庭 - 高院裁判法院上訴2 00 2年第 65 9號
*張維新
Cheung
Wai-Sun
#上訴人自
辯I/P
耹訊日期：二零零二年八月廿九日
宣判日期：二零零二年八月廿九日
To D J
店鋪盜竊 - 上訴人為積犯 - 須判以阻嚇性刑罰 - 量刑取向
上訴人承認兩項偷竊罪。首宗案件發生於 2 00 2 年 5 月 5 日。第
二宗案件案發於 10 日後。上訴人被判每條控罪監禁 6 個月，兩刑期
分期執行，總刑期為監禁 12 個月。
上訴人現年 41 歲，她共有 1 7 次盜竊記錄。於 2 00 0 年及 2 00 1 年
均因同樣罪行而被判監禁。
是次上訴的爭議為裁判官應把全部或部分刑期同期執行。
裁決：
(1)
在眾多店舖盜竊案件中，高等法院原訟法庭曾多次表示9個月
監禁為恰當的量刑起點；見 H K SAR v N g Kin -ma n H C M A
34 0/ 2 00 1 。所以就該兩項判刑，裁判官選用的量刑起點及所判處的
刑期均屬恰當；
(2)
上訴人可算是一名屢犯不改的積犯。為對她起阻嚇之效，裁
判官可選用較高量刑起點。若裁判官同時判處兩項或以上的刑期
時，他可就每項罪行選用較高量刑起點以起阻嚇之效，然後基於總
體判刑原則把部分刑期同時執行，以達至一個既恰當亦可起阻嚇作
用的總體刑期。同樣裁判官亦可選用一般的量刑起點判刑，但以分
期執行，或大部分分期執行，以達至同一效果。很明顯在這兩項判
刑中，裁判官是選擇了後者的判刑方式；
(3)
考慮到這兩項罪行的案情，上訴人的背境，她屢犯不改的性
格，裁判官的總體判刑完全恰當。
310
CCAB 2002
[English digest
of MA
659/2002,
above]
To DJ
TRAN
Thi Le Quang
Shop theft/Appellant a recidivist/Deterrent sentence required/ Sentencing
approach
The Appellant pleaded guilty to two charges of shop theft. The first
offence took place on 5 May 2002 and the second occurred ten days later. She
was sentenced to 6 months’ imprisonment on each charge, with sentences
ordered to run consecutively, making a total of 12 months’ imprisonment.
(29.8.2002)
*Cheung Waisun
#I/P
The Appellant, aged 41, had 17 previous theft convictions. She had
received sentences of imprisonment for similar offences in 2000 and 2001.
On appeal, it was submitted that the sentences should have been made
wholly or partly concurrent.
Held :
(1)
In view of the large number of shoplifting cases, the Court of First
Instance had repeatedly indicated that 9 months’ imprisonment was the
appropriate starting point: HKSAR v Ng Kin-man MA 340/01. The starting
point adopted by the magistrate and the sentences he imposed were both
appropriate;
(2)
The Appellant could be regarded as a recidivist who kept re-offending.
The magistrate could choose to adopt a higher starting point in order to achieve
a deterrent effect. If a magistrate had to impose two or more sentences at the
same time, he might, for the purpose of deterrence, adopt a higher starting point
for each offence, and then make the sentences partly concurrent by having
regard to the principle of totality. Similarly, a magistrate might adopt the usual
starting point when sentencing, and then make the sentences or a substantial part
thereof consecutive, so as to achieve the same effect. Apparently the
magistrate had chosen the latter approach;
(3)
Having taken into account the facts of the offences, the Appellant’s
background, and her persistence in re-offending, the overall sentence imposed
was totally appropriate.
311
CCAB 2002
Sentence (Quantum) – Throwing Corrosive Fluid
Throwing Corrosive Fluid
CA 134/2002
Stuart Moore
VP
& Gall J
(18.10.2002)
*Paul Madigan
#C Remedios
WONG
Hon-lai
Throwing corrosive acid with intent/Premeditated attack upon wholly
innocent victim/Sentencing considerations/Sentences turn on facts of
particular case
有意圖而淋潑腐蝕性酸液 - 有預謀地攻擊完全無辜的受害人 - 判刑
的考慮 - 判刑按個別案件的案情而定
The Applicant pleaded guilty to an offence of throwing a corrosive liquid
with intent to cause grievous bodily harm, contrary to s 29(c) of the Offences
Against the Person Ordinance, Cap 212, and to one offence of inflicting
grievous bodily harm, contrary to s 19 of the said Ordinance.
The first count alleged that the Applicant unlawfully and maliciously
threw a corrosive fluid, namely, sulphuric acid, upon the victim, Wong Yautong (‘Madam Wong’ ), with intent to do bodily harm to her. The second count
alleged that at the same time and place the Applicant unlawfully and
maliciously inflicted grievous bodily harm upon Ching Yuk-lin (‘Madam
Ching’ ).
The facts indicated that the victim, Madam Wong, was born in the
Mainland and in 1994 married a Hong Kong resident, Mr Yuen. She gave birth
to a son and a daughter, both of whom joined their father in Hong Kong and
acquired resident status. Madam Wong did not have such status and continued
to live in the Mainland. Mr Yuen, husband of the victim, came to know the
Applicant in 1992 and he developed a relationship with her which resulted in
her giving birth to a son in 1995. Soon after that birth, the relationship between
Mr Yuen and the Applicant deteriorated.
The victim, Madam Wong, came to Hong Kong on 11 May 2001 to visit
her husband and children. On 12 July, she took her son to a kindergarten, and,
having left him there whilst she walked along Hip Yan Street, the Applicant
threw acid onto her causing serious injuries to her face. The injuries were
severe scarring, leading to left eye lagothalmos and impaired visual acuity; a
deformed left pinna with stenosed external auditory canal and decreased hearing
over the left ear; deformity to the left nostril and a scar over the left corner of
the mouth leading to facial asymmetry when the mouth was opened.
A pregnant woman, Madam Ching, was walking behind Madam Wong
and was also injured on her left arm and face. That formed the basis of the
second count on the indictment.
The Applicant ran from the scene and was stopped by an off duty police
officer. She was detained after a struggle. She admitted she had never seen
Madam Wong before that morning but had purchased the fluid about two weeks
before and that morning she poured some of the fluid into a bottle for the
purpose, as she told police, of splashing it on and burning Madam Wong.
The Applicant, aged 47 years, was sentenced to 9 years’ imprisonment
for count 1, after 15 years had been taken as the starting point, to reflect both
the guilty plea and the clear record. For the second count, the judge took 3
years as the starting point and reduced it to 2 years to reflect the mitigation. The
sentences were made concurrent.
In sentencing, the judge commented that the attack was not directed
against the man who had treated her so badly, but against a wholly innocent
victim who had no idea of the Applicant’s existence. Serious elements of
premeditation existed. The amount of fluid was substantial.
312
CCAB 2002
Sentence (Quantum) – Throwing Corrosive Fluid
On appeal, it was submitted that the sentence for the first count was
manifestly excessive, and that the judge erred in taking a starting point of 15
years.
Held :
(1)
Sentences for offences of this type rested mainly upon the facts and
circumstances of each case: HKSAR v Wong Siu-kwan Cr App 166/2001;
(2)
The judge properly took account of the horrific nature of the act of the
Applicant, the fact that it was visited upon an innocent party, and that it was
planned to the extent that the Applicant armed herself with acid and lay in wait
for the victim. The judge took into account all relevant matters and gave them
the weight they deserved;
(3)
The sentence was not manifestly excessive, either in the starting point
taken by the judge or in the degree to which she mitigated the sentences.
Vice
香港特別行政區訴
HKSAR v
*溫淑芳
Polly Wan
#楊若全
Y C Yeung
袁玉  ( 第一上訴人 )
梁志強 ( 第二上訴人 )
YUEN Yuk-king (1)
LEUNG Chi-keung (2)
耹訊日期：二零零二年三月五日
宣判日期：二零零二年三月五日
To h D J
經營和管理賣淫場所 - 被告以往有良好品格 - 被告認罪 - 判處緩刑
是恰當的
第一上訴人承認一項經營賣淫場所罪，違反《刑事罪行條
例》第 2 0 0 章之第 1 3 9 ( 1 ) ( a) 節。第二上訴人承認一項管理賣淫場所
罪，違反同一條例之第1 3 9 ( 1 ) ( b ) 節。
案情撮要，顯示在2001年5月18日至2001年7月18日，警方
人員在 7 次放蛇行動中，於涉案場所海濤美容按摩院 (“海濤 ”），先
後有5 名女士為這幾位放蛇警員提供性服務。
313
CCAB 2002
Sentence (Quantum) – Vice
在判刑時，裁判官考慮過感化報告及社會服務令。他亦考慮
了兩位上訴人均沒有刑事記錄及他們的認罪，於是各判罰款 $ 5 ,0 0 0
及監禁三個月。
在上訴時，上訴人代表大律師指海濤已經營了7年時間，在
這7年內，這次放蛇行動中才犯事，很明顯地看出海濤曾經營正當
按摩及美容服務。
裁決：
(1)
本案的案情較為嚴重。在短短兩個月內，共有七次放蛇行
動。每次警員付服務費時均是交給第一或第二上訴人；
(2)
因受經濟衰退的壓力下提供賣淫服務不是一個求情的因素；
(3)
由於兩位上訴人為初犯，他們又第一時間認罪及海濤在以往
經營時的確沒有犯案記錄，它是一間正式持牌的接摩美容院，故此
判處他們即時監禁三個月是過重的刑。應判監3 個月但緩刑18 個
月。
結果︰上訴得直。改判緩刑1 8 個月。
[English digest
of MA 12 of
2001 above]
Toh DJ
(1) YUEN
Yuk-king
(2) LEUNG
Chi-keung
Keeping and managing a vice establishment/Accused of previous good
character/Guilty pleas/Suspended sentence appropriate
A1 pleaded guilty to an offence of keeping a vice establishment, contrary
to s 139(1) of the Crimes Ordinance, Cap 200, and A2 pleaded guilty to an
offence of managing a vice establishment, contrary to s 139(1)(b), Cap 200.
(5.3.2002)
*Polly Wan
#Y C Yeung
The facts showed that between 18 May and 18 July 2001, the police
mounted 7 undercover operations against Sea Waves Beauty and Massage (‘Sea
Waves’), the subject premises. During these operations a total of 5 women
provided sexual services to the officers who disguised themselves as customers.
In sentencing, the magistrate considered the option of community service
and obtained relevant probation reports. He took into account the Appellants’
clear records and their guilty pleas and found it appropriate to sentence each of
them to 3 months’ imprisonment and a fine of $5,000.
On appeal, it was submitted that Sea Waves had operated for seven years
and was only involved in this one episode. It had previously provided proper
massage and beauty services to its customers.
Held :
(1)
The circumstances of the case were serious. The police had managed to
carry out seven undercover operations within a period of two months, and on
each occasion the service fee was paid either to A1 or A2;
(2)
The provision of lewd services on account of the pressures of economic
recession was not a mitigating factor;
(3)
Since the Appellants were first offenders and had pleaded guilty at the
first opportunity, and as Sea Waves had all along been a duly licensed beauty
and massage company with no criminal involvement, an immediate custodial
314
CCAB 2002
Sentence (Quantum) – Vice
sentence of 3 months’ imprisonment was considered excessive. A sentence of 3
months’ imprisonment suspended for 18 months was more appropriate.
Result -
Appeal allowed. Suspended sentence of 18 months substituted.
[See also Sentencing in Hong Kong, 3rd edition, at pp 432 to 443: Ed]
MA 635/2002
WANG
Fang-ling
(11.9.2002)
Soliciting for an immoral purpose/Prevalence of offence a relevant
factor/Serious implications for public health/ Immediate custodial sentence
appropriate
為不道德目的而唆使他人 - 罪行的普遍程度為相關因素 - 對公眾衛
生有重大影響 - 判處即時監禁屬恰當
*Cheung Waisun
The Appellant was convicted after trial of an offence of soliciting for an
immoral purpose and sentenced to 3 months’ imprisonment.
#G Surman
The prosecution witness said the Appellant accosted him in Wanchai and
offered to have sexual intercourse with him if he paid her $1,500. They went to
a nearby hotel and he paid her the money. She was then arrested.
Wright DJ
In imposing the sentence he did, the magistrate recorded that the offence
was prevalent and the place in question was notorious for offences of this type.
On appeal
Held :
(1)
The magistrate was fully entitled to have regard to the matters he did. It
was well settled that a magistrate might properly have regard to situations which
prevailed in his area of jurisdiction. He had done no more than that. He sat in
Court 1 of Eastern Magistrates Court on a daily basis, and had done so for a
substantial period, and was entitled to rely on his daily experience;
(2)
It was a common sense observation of the magistrate that offences of this
type had serious implications for public health in Hong Kong;
(3)
This offence carried a maximum period of imprisonment of 6 months
and a fine of up to $10,000 and a short immediate custodial sentence even for
those of clear record was within current sentencing practice for these offences
and had been for some years. Two months’ imprisonment on a plea of guilty,
indicating three months after trial, was commonplace. The sentence was proper,
if robust.
Result -
Appeal dismissed.
315

Classified Criminal Appeals Bulletin 2002 Part 2

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