To : All Counsel/Senior Law Clerks/Prosecutions · 2018-02-05 · the International Covenant on Civil and Political Rights (ICCPR) as applied by Article 39 of the Basic Law; and with

To All CounselSenior Law ClerksProsecutions All Court ProsecutorsMagistracies 致刑事檢控科各律師高級律政書記裁判法院各法庭檢控主任

A Publication of the Prosecutions Division of the Department of Justice 律政司刑事檢控科出版的刊物

CRIMINAL APPEALS BULLETIN 刑事上訴案判例簡訊

September Edition2006

2006年9月號

General Editor 總編輯

I Grenville Cross SC 江樂士資深大律師

Associate Editors 副編輯

D G Saw SC 邵德煒資深大律師

Patrick W S Cheung 張維新

Assistant Editors 助理編輯

Denise F S Chan 陳鳳珊

Lily S L Wong 王詩麗

Vinci W S Lam 林穎茜

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

2

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

3

INDEX 目錄

A p 4 - p 26 第4至26頁

Hong Kong Court of Final Appeal 香港終審法院

B p 27 - p 35 第27至35頁

Criminal AppealsAgainst Conviction 刑事上訴案件針對定罪

C p 36 - p 40 第36至40頁

Magistracy AppealsAgainst Conviction 裁判法院上訴案件針對定罪

D p 41 - p 44 第41至44頁

Magistracy AppealsAgainst Sentence 裁判法院上訴案件針對刑罰

E p 45 - p 45 第45至45頁

Practice and Procedure 常規與程序

4

Appeal No

(Date of Case Significance Judgment) Title A HONG KONG COURT OF FINAL APPEAL 香港終審法院 FACC 42005 Li CJ Bokhary Chan amp Ribeiro PJJ Sir Anthony Mason NPJ (3182006) G McCoy SC Josiah Chan Gavin Shiu amp Sally Yam C Grossman SC amp Hylas Chung Benjamin Yu SC as amicus curiae

HKSAR v (1) LAM

Kwong-wai (2) LAM Ka-man

Firearms and Ammunition OrdinanceReverse onus provision in s 20Derogation from presumption of innocenceDerogation not proportionateWeight to be accorded to legislative intent Reading down appropriate to impose an evidential burden Application of proviso 《火器及彈藥條例》ndash 第20條中有關倒轉舉證責任

的規定 ndash 無罪推定的效力受減損 ndash 減損並不相

稱 ndash 立法原意應予重視 ndash 將解釋縮窄為施加證供

責任是恰當的 ndash 但書的應用 The Respondents were convicted of having in their possession an imitation self-loading Beretta contrary to section 20(1) of the Firearms and Ammunition Ordinance (lsquothe Ordinancersquo) This provided that a person who was in possession of an imitation firearm committed an offence punishable with imprisonment s 20(3) provided that a person did not commit the offence if he satisfied the court of one or more of the matters stated in the sub-section Relying on s 20(3) the prosecution did not lead evidence to prove that the Respondents were in possession of the imitation firearm for any of the purposes listed in s 20(3)(c) The principal issue in this appeal was whether s 20(3)(c) by placing an onus on the defendant was consistent with the presumption of innocence (which was protected by art 87(2) of the Basic Law and art 11(1) of the Hong Kong Bill of Rights (BOR) implementing art 14(2) of the International Covenant on Civil and Political Rights (ICCPR) as applied by art 39 of the Basic Law and with the right to a fair trial (which was protected by art 87(2) of the Basic Law and art 10 of the BOR (art 14(1) of the ICCPR) as applied by art 39 of the Basic Law The Court of Appeal resolved this issue by holding that there was inconsistency with the presumption of innocence and the right to a fair trial so that s 20(1) when read with s 20(3)(c) was invalid In reaching this conclusion the court concluded that it was not possible to read s 20 in such a way as to preserve its validity in particular to read the section as creating an evidential not a persuasive burden The court granted the Respondents leave to

5

appeal against their convictions - each had been convicted of the offence of having in his possession an imitation firearm namely one imitation Beretta self-loading pistol contrary to s 20(1) of the Ordinance - quashed the convictions and set aside the 14 months sentences of imprisonment The Appeal Committee granted leave to appeal to the HKSAR on the following point of law of great and general importance certified by the Court of Appeal

Is section 20(1) of the Firearms and Ammunition Ordinance Cap 238 as and when read with section 20(3)(c) of that Ordinance consistent with the presumption of innocence prescribed by Article 11(1) of the Hong Kong Bill of Rights Ordinance Article 142 of the International Covenant on Civil and Political Rights (ICCPR) as applied by Article 39 of the Basic Law and with the right to a fair trial protected by Article 10 of the Hong Kong Bill of Rights Ordinance Article 141 of the ICCPR as applied by Article 39 of the Basic Law and Article 87 of the Basic Law

The Appeal Committee granted leave to appeal on this point of law and on the ground that it was reasonably arguable that grave and substantial injustice had been done The point of law extended to the question whether s 20 could be read in such a way as to preserve its validity in the event that it would otherwise be consistent with the Basic Law or BOR Under the grave and substantial ground the Appellant contended that the Court of Appeal should have applied the proviso to s 83(1) of the Criminal Procedure Ordinance Cap 221 and dismissed the appeals The evidence showed that while R2 was driving a vehicle through a village in Yuen Long with R1 as his passenger the police stopped the vehicle and found an imitation pistol in the boot The pistol was wrapped in the bottom of a speaker box The pistol was purchased that day in Mongkok it was in working order and was capable of discharging projectiles in excess of two joules It had the appearance of a genuine firearm When the weapon was found R1 said it was fake that he bought it for someone and that he had nothing to do with it R2 said the pistol was not genuine and that he and his friend had purchased it that morning in Mongkok R1 said he had purchased the pistol for an uncle and that he had assumed that the uncle had intended to commit a robbery and had assumed also that the request had been for a real gun R2 said the idea had been to present a fake pistol even though a real one was wanted by the ultimate purchasers the implication being that a profit would be made by a false representation The reason it was hidden in the

6

boot so went the story was to enable them to persuade the buyer since he would not be allowed to take the pistol out but merely to feel it as packaged that it was a real gun He said that the buyer had examined the package shortly before the police had intercepted the Respondents The Respondentsrsquo testimony at trial was that they had purchased the gun that morning in order to play war games They denied that they had told the story to the police which the police had attributed to them The judge disbelieved their evidence He stated that lsquoan innocent purchaser of an imitation gun who had a ready explanation for his possession of the weapon would not feel the need to hide the gunrsquo He noted moreover that they had stopped at the village car park specifically in order to dispose of the box in which the pistol was housed upon purchase conduct which was difficult for them to explain The judge said that

Although both admitted possession of the weapon section 20(3)(c) of Cap 238 affords them a defence to the second charge if they can satisfy the court (which I take to be on the balance of probabilities) that

(c) [they were] not in possession of the imitation firearm for a purpose dangerous to the public peace or of committing an offence or in circumstances likely to lead to -

(i) the commission of an offence or

(ii) the possession of the imitation firearm for a purpose dangerous to the public peace

by [themselves] or any other person If I thought they probably had the gun to play war

games as they claimed in court then this would afford them a defence under [section 20(3)(c) of Cap 238] I am however satisfied that I have not heard the truth from these two men as to why they had this gun I do not believe their evidence and there was no other evidence to raise this defence hellip I have found that the defence available under section 20(1)(c) [sic] was not made outrsquo

Article 87(2) of the Basic Law provided

Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs

7

Article 11(1) of the BOR which was in the same terms as art 14 of the ICCPR provided

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law

Article 10 of the BOR (art 14(1) of the ICCPR) provided

In the determination of any criminal charge against him everyone shall be entitled to a fair hearing

Section 20 of the Ordinance was in these terms

(1) Subject to subsections (2) and (3) any person who is in possession of an imitation firearm commits an offence and is liable to imprisonment for 2 years

(2) Any person who within 10 years of being convicted of an offence specified in the Schedule or of an offence under this Ordinance commits an offence under subsection (1) is liable to imprisonment for 7 years

(3) A person does not commit an offence under subsection (1) if he satisfies the magistrate that-

(a) at the relevant time he was under the age of 15 or

(b) he was in possession of the imitation firearm in his capacity as a person who deals in imitation firearms by way of trade or business or as a servant of such a person carrying out his bona fide and lawful instructions or

(c) he was not in possession of the imitation firearm for a purpose dangerous to the public peace or of committing an offence or in circumstances likely to lead to-



by himself or any other person

(4) No prosecution for an offence under subsection (1) shall be instituted without the consent of the Secretary for Justice but this subsection shall not prevent the arrest or the issue of a warrant for the arrest of a person for any such offence

8

Held (1) Although the rights were expressed in absolute terms and were not subject to explicit exceptions or qualifications it had generally been accepted elsewhere that an encroachment on these rights by way of presumption or reverse onus of proof might be justified if it had a rational connection with the pursuit of a legitimate aim and if it was no more than necessary for the achievement of that legitimate aim In principle the same approach applied to the Basic Law It mattered not whether the presumption of innocence was a free-standing right or an aspect of the right to a fair trial Either way the presumption was not an absolute right and was capable of derogation but the derogation must be justified (2) At common law the presumption of innocence was the basis of the central rule of the criminal law which required the prosecution to prove the defendantrsquos guilt of the offence charged beyond reasonable doubt (Woolmington v Director of Public Prosecutions [1935] AC 462 481 ) Proof of the defendantrsquos guilt of the offence charged required proof of all the elements of the offence (3) The presumption of innocence was associated with another fundamental presumption namely that in interpreting a statutory provision which created an offence a mental element (mens rea ) was an essential ingredient of the offence unless Parliament had manifested a contrary intention either expressly or by necessary implication (B (A Minor) v DPP [2000] 2 AC 428 460 R v K [2002] 1 AC 462) There were many instances where legislatures had manifested a contrary intention by attaching criminal liability to proved facts regardless of the defendantrsquos state of mind or blameworthiness There were other cases where a legislature had legislated as here to require the defendant to establish matters even the absence of a mental element as a defence (4) A reverse onus which placed an onus on the defendant to prove all or any of the elements of the offence appeared to be inconsistent with the presumption of innocence because it allowed the defendant to be convicted on failing to discharge the reverse onus even though the prosecution failed to prove all the elements of the offence beyond reasonable doubt In the cases on reverse onus a distinction has been drawn between the legal or persuasive burden of proof and what had been called the evidential burden The distinction was important because an evidential burden (which was not strictly speaking a burden of proof) was generally regarded as consistent with the presumption of innocence (5) An evidential burden unlike a persuasive burden did not

9

expose the defendant to the risk of conviction because he failed to prove some matter on which he bore an evidential onus An evidential burden required lsquoonly that the accused must adduce sufficient evidence to raise an issue before it had to be determined as one of the facts in the case The prosecution did not need to lead any evidence about it so the accused needed to do this if he wished to put the point in issue But if it was put in issue the burden of proof remained with the prosecution The accused needed only to raise a reasonable doubt about his guilt rsquo R v DPP Ex p Kebilene [2000] 2 AC 236 R v Lambert [2002] AC 545 (6) A persuasive burden on the other hand required a defendant to prove on a balance of probabilities an ultimate fact which was necessary to the determination of his guilt or innocence The burden related to an essential element of the offence It reversed the burden of proof by transferring it from the prosecution to the defendant It might be either mandatory or discretionary in its operation With a mandatory persuasive burden it was possible for a conviction to be returned even where the tribunal of fact entertained a doubt as to the defendantrsquos guilt In R v Lambert at 572 Lord Steyn noted that a transfer of the persuasive burden amounted to an interference with the presumption of innocence He said

The former requires the accused to establish his innocence It necessarily involves the risk that if the jury are faithful to the judgersquos direction they may convict where the accused has not discharged the legal burden but left them unsure on the point This risk is not present if only an evidential burden is created

(7) In the context of offences such as s 20 possession had two elements - the physical element and the mental element The physical element was bare possession or in appropriate cases custody or control of the thing The mental element was the defendantrsquos knowledge that the thing was in his possession Knowledge of the existence of the thing itself was enough to satisfy this element of possession Knowledge of its qualities was not required (8) The intention to transfer the onus must be clearly and unambiguously expressed because the common law presumption was that mens rea was an essential ingredient of the offence unless the legislature had exhibited a contrary intention either expressly or by necessary implication B (A Minor) v DPP [2000] 2 AC 428 460 (9) Here there was an express imposition of the onus on the defendant to lsquosatisfy rsquo the magistrate that the purpose of his

10

possession did not fall within s 20(3)(c) that was on the balance of probabilities In the light of the language and the structure of the section the onus so imposed was persuasive not evidential The Court of Appealrsquos conclusion that the onus so imposed was a persuasive onus was correct (10) As the right to be presumed innocent was an essential element in the individualrsquos right to a fair trial and was protected expressly along with the right to a fair trial by art 87(2) of the Basic Law it was convenient to examine the alleged violations of the two rights in the context of contravention of the presumption of innocence There was no difference between the presumption of innocence as it was protected by the Basic Law and the BOR In each case the right to be presumed innocent as one of the rights and freedoms which were constitutionally guaranteed and lay at the heart of Hong Kongrsquos separate system was to be given a generous interpretation one that took account of the interpretation given to it by international and nationals courts and tribunals (11) The leading European authority on the presumption of innocence dealing with the presumption in the context of art 6(2) of the Convention was Salabiaku v France (1988) 13 EHRR 379 The European Court of Human Rights there recognised that national legislatures might under certain conditions penalise a simple or objective fact as such irrespective of whether it resulted from criminal intent or negligence The court also stated that the Convention did not prohibit lsquoin principle rsquo presumptions of fact or of law but it did however require the Contracting States lsquo to remain within certain limits in this respect as regards criminal law rsquo The Court went on to say lsquoArticle 6(2) requires States to confine [such presumptions] within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence rsquo (12) In Sheldrake v DPP [2005] 1 AC 264 297 Lord Bingham of Cornhill distilling the effect of Salabiaku and of decisions of the European Commission on art 6(2) said

From this body of authority certain principles may be derived The overriding concern is that a trial should be fair and the presumption of innocence is a fundamental right directed to that end The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary It is open to states to define the constituent elements of a criminal offence excluding the requirement of mens rea But the substance and effect of any presumption adverse to a defendant must be examined and must be reasonable Relevant to any judgment on

11

reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption maintenance of the rights of the defence flexibility in application of the presumption retention by the court of a power to assess the evidence the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption Security concerns do not absolve member states from their duty to observe basic standards of fairness

The significance of this statement was that it emphasized the need to examine the operation and effect of the particular provision which was said to affect the presumption of innocence in order to determine whether it contravened the presumption In Hong Kong the issue of contravention was to be determined by reference to the principles which had been stated by the court (13) The substance of the offence created by s 20(1) and (3)(c) was an offence of being in possession of an imitation firearm for a purpose dangerous to the public peace or for the commission of an offence When the offence was characterised correctly in this way it was evident that s 20(3)(c) threw the onus of proof on to the defendant the prosecution being required to do no more than prove bare or physical possession plus knowledge of possession Accordingly there existed the real risk that a defendant in failing to satisfy the magistrate of the s 20(3)(c) defence might nevertheless raise a doubt as to the purpose of his possession yet be convicted This view of the offence again led to the conclusion that the substance of the offence was being in possession of the imitation firearm for an unlawful purpose a reverse onus being placed on the defendant in relation to the critical element of the offence The third point which supported the same way of looking at the matter was that the mere possession of an imitation firearm did not naturally and rationally lead to an inference that the possession was prima facie for an unlawful purpose Accordingly s 20(3)(c) derogated from the presumption of innocence (14) As s 20(3)(c) derogated from the presumption of innocence the next question was whether that derogation was rationally connected with a legitimate societal aim It was clear enough that the persuasive onus of proof provided for by s 20(3)(c) was imposed in pursuit of a legitimate aim The aim was the prevention suppression and punishment of serious crime being the use of imitation firearms for a purpose dangerous to the public peace or of committing an offence That this was the aim of the provision appeared from the very terms of s 20(3)(c) itself That the use of imitation firearms for these purposes was a serious problem and a matter of community concern could not be doubted

12

As Lord Bingham CJ noted in Avis and Others [1998] 1 Cr App R 420 423 these weapons often were used to frighten and intimidate victims in order to reinforce unlawful demands They were weapons which were hard to distinguish and might in the circumstances be impossible to distinguish from the real thing The intimidating impact of their use was therefore very similar to the intimidating impact of the threatening use of a real firearm So s 20(3)(c) satisfied the rationality test (15) As to whether the creation of the persuasive onus was necessary to achieve the legitimate aim the means employed must be no more than was necessary to achieve that aim If the means employed went beyond what was necessary in that sense the restriction or limitation on the right in this case the persuasive onus was disproportionate and there was an absence of the requisite proportionality between the means employed and the legitimate aim The word lsquonecessary rsquo in this test should be given its ordinary meaning and nothing was to be gained by substituting for it an expression such as lsquopressing social need rsquo (16) The burden was on the state to justify a limitation or restriction on the constitutional or protected right The burden was a substantial one in the context of justifying the inroad which a reverse onus made into the presumption of innocence The South African Constitutional Court had stated that in such a context the justification must be established lsquoclearly and convincingly rsquo State v Mbatha 1996 (3) BCLR 293 (CC) The justification must be lsquocompelling rsquo R v Johnstone [2003] 1 WLR 1736 1749 (17) It was however appropriate that the court should give weight to the legislaturersquos view that the imposition of a persuasive onus on a defendant to a charge under s 20 was an appropriate response to the problem presented by the use of imitation firearms for unlawful purposes The weight to be accorded to the legislative judgment by the court would vary from case to case depending upon the nature of the problem whether the executive and the legislature were better equipped than the courts to understand its ramifications and the means of dealing with it In matters of serious crime the courts must recognise that the legislature had the responsibility for determining policy and framing the elements of the criminal offence Here however the issue turned on matters of proof onus and evidence In this area the court was able to form its own judgment without labouring under a disadvantage vis-a-vis the legislature It was for the court to exercise its constitutional responsibility by determining the issue after giving appropriate respect to the legislative judgment (18) A statutory provision was not automatically open to challenge under the BOR simply because the provision created an

13

offence of absolute or strict liability AG of Hong Kong v Lee Kwong-kut [1993] AC 951 975 So Wai-lun v HKSAR [2006] 3 HKLRD 394 This view which necessarily applied with equal force to the Basic Law was entirely consistent with the principles stated in Salabiaku and the way in which these principles had been applied (19) As the substance of the offence was being in possession for an unlawful purpose proof of possession threw the onus on to the defendant when possession for an unlawful purpose could not be said to be more likely than not to flow from being in possession of an imitation firearm In this respect the defendant was unfairly called upon to disprove his moral blameworthiness His conviction might rest on conduct which was in no sense blameworthy Further the offence was a serious one punishable by 2 yearsrsquo imprisonment and if there was a previous conviction for a scheduled offence up to 7 yearsrsquo imprisonment The more serious the offence the more important it was that there should be no interference with the presumption Attorney-Generalrsquos Reference (No 1 of 2004) [2004] 2 Cr App R 424 429 (20) It was true that the defendant knew better than anyone else what the purpose of his possession was Indeed it could be said that such knowledge was in a sense peculiar to him But it did not follow that absent a reverse onus the prosecution would be unable to prove the purpose of a defendantrsquos possession The existence of the relevant purpose could usually be inferred from the circumstances of the defendantrsquos possession and conduct The prosecution should have no abnormal difficulty in proving the purpose of the defendantrsquos possession where that possession was for an unlawful purpose (21) An evidential onus would have been sufficient to enable the prosecution to prove a case of being in possession of an imitation firearm for an unlawful purpose without being exposed to the degree of difficulty apprehended by the Appellant The Court of Appeal was right in concluding that the reverse onus was disproportionate and did not satisfy the proportionality test (22) The Court of Appeal decided that it could not read down s 20 so that it imposed only an evidential burden They thought that it was not possible to read the phrase lsquoif he satisfies the [court]rsquo in s 20(3) as imposing a mere evidential burden The court did however say that if the persuasive burden were expressly or by clear implication restricted to possession in a public place lsquoreasonably defined rsquo then the persuasive burden would not have been inconsistent with the right to a fair trial and the presumption of innocence Central to the courtrsquos approach was the view that the courts of the Region are not armed with powers

14

to engage in a re-moulding of the relevant provisions (23) Courts had traditionally been reluctant to engage in what might be seen as legislative activity That was why in earlier times the courts stopped short of engaging in remedial interpretation which involved the making of a strained interpretation The justification for now engaging in remedial interpretation was that it enabled the courts in appropriate cases to uphold the validity of legislation albeit in an altered form rather than strike it down To this extent the courts interfered less with the exercise of legislative power than they would if they could not engage in remedial interpretation In that event they would have no option but to declare the legislation unconstitutional and invalid Indeed it could be safely assumed that the legislature intended its legislative provision to have a valid even if reduced operation than to have no operation at all so long as the valid operation was not fundamentally or essentially different from what it enacted (24) The arguments against implying a power in the Basic Law to enable the courts of the Region to make remedial interpretation of legislation to ensure that it was Basic Law-consistent were not to be accepted A court should exercise extreme caution in the exercise of its powers but that did not mean that such a power should not be implied at all The court must proceed on the footing that the courts of the Region including this court possessed all necessary powers to deal with all manner of questions which might legitimately arise in connection with the interpretation and enforcement of the provisions of the Basic Law including their impact on Hong Kong legislation It followed that the implied powers of this court included the obligation to adopt a remedial interpretation of a legislative provision which would so far as it was possible make it Basic Law-consistent Only in the event that such an interpretation was not possible would the court proceed to make a declaration of contravention entailing unconstitutionality and invalidity (25) This implied obligation extended to making a legislative provision BOR-consistent because art 39 of the Basic Law gave constitutional force to the ICCPR provisions lsquoas applied to Hong Kong rsquo by the BOR and provided that they lsquoshall remain in force rsquo Article 39 went on to provide that any restrictions on BOR rights and freedoms should not contravene art 39(1) (26) The next question was whether it was possible to apply a remedial interpretation to the legislative provisions in question in this case so as to make them Basic Law and BOR-consistent Two competing interpretations were suggested The first was that s 20(1) and s 20(3)(c) be read down to cover possession of an

15

imitation firearm in a definable public place for the purposes listed in s 20(3)(c) The other interpretation was that s 20(1) and (3)(c) be treated as imposing a mere evidential burden Of the two interpretations the second had the stronger claims It preserved the application of the provisions over the entire geographical area which the legislature intended to be covered by the provisions that was possession of an imitation firearm anywhere This interpretation did no violence to fundamental or essential elements of the legislation And there was on the view already expressed no doubt that a mere evidential onus was consistent with the presumption of innocence and the right to a fair trial The first interpretation because it would drastically reduce the area of operation of the provision gave less effect to the legislative intention Accordingly it should be declared that s 20(1) in conjunction with s 20(3)(c) should be read and given effect as imposing on the defendant an evidential burden only (27) The final question was whether the Court of Appeal should have applied the proviso on the ground that there was no miscarriage of justice on the basis that the Respondents did not discharge any burden either on an evidential or persuasive basis As the Court of Appeal did not consider the application of the proviso in the circumstances which arose under the provisions as interpreted this question should be remitted to the Court of Appeal for consideration Result - Orders as follows

(1) Appeals allowed

(2) Set aside the orders made by the Court of Appeal allowing the appeals to that court and quashing the convictions and sentences

(3) Declare that s 20(1) in conjunction with s 20(3)(c) of the Ordinance should be read and given effect as imposing an evidential onus only

(4) Remit the matters to the Court of Appeal to consider whether the proviso to s 83(1) of the Criminal Procedure Ordinance should be applied and to dispose of the appeals to that court in the light of its consideration of that question

FACC 12006 Li CJ Bokhary

HKSAR v (1) HUNG Chan-wa

Dangerous Drugs OrdinancePresumption in s 47(1) Presumption of knowledge in s 47(2)Reading down to create evidential burdensProspective overrulingLimits on applications for leave to appeal where previous understanding

16

Chan amp Ribeiro PJJ Sir Anthony Mason NPJ (3182006) G McCoy SC Josiah Chan Gavin Shiu amp Sally Yam C Grossman SC amp Hanif Mughal Benjamin Yu SC as amicus curiae

(2) ATSUSHI Asano

of the law held to be incorrectPractical necessity for finality in the criminal process 《危險藥物條例》ndash 第47(1)條中的推定 ndash 第47(2)條的有關是否知悉的推定 ndash 將解釋縮窄為設定證

供責任 ndash 裁定適用於裁決日之後的案件 ndash 在先前

對法律的理解被裁定為不正確的情況下提出上訴許

可申請的時限 ndash 使刑事案件法律程序終結是有實

際需要的 These appeals came to the court pursuant to leave to appeal granted by the Appeal Committee for the Appellant to pursue the following points which the Court of Appeal certified as points of law of great and general importance involved in its decision

(1) Once an accused is proven or presumed to have in his possession a dangerous drug is the statutory presumption until the contrary is proven that the accused knew that what was in his possession was indeed a dangerous drug provided for by section 47(1) of the Dangerous Drugs Ordinance Cap 134 or by section 47(2) of the Dangerous Drugs Ordinance Cap 134

(2) Are sections 47(1) and 47(2) of the Dangerous Drugs Ordinance Cap 134 consistent with the presumption of innocence prescribed by Article 11(1) of the Hong Kong Bill of Rights Ordinance Article 142 of the International Covenant of Civil and Political Rights (ICCPR) as applied by Article 39 of the Basic Law and with the right to a fair trial protected by Article 10 of the Hong Kong Bill of Rights Ordinance Article 141 of the ICCPR as applied by Article 39 of the Basic Law and Article 87 of the Basic Law

(3) Whether the statutory presumptions under sections 47(1) and (2) of the Dangerous Drugs Ordinance Cap 134 are capable of an interpretation and construction permitting the court to lsquoread downrsquo the sections as imposing an evidential burden upon the accused

(4) If the statutory presumptions under sections 47(1) and (2) of the Dangerous Drugs Ordinance Cap 134 do permit a court to lsquoread downrsquo the provisions as imposing an evidential burden upon the accused whether this is still unconstitutional as the presumptions under section 47 do not provide a specific defence to the accused but cast a burden of proof on a necessary ingredient of the offence

17

The issues which arose in relation to s 47 were

(1) was the reverse onus of proof in relation to knowledge of the nature of the contents of a container imposed by s 47(1) or s 47(2)

(2) was the onus of proof imposed by each sub-section a persuasive onus of proof

(3) if so did it derogate from the presumption of innocence and the right to a fair trial as protected by the Basic Law and the Hong Kong Bill of Rights (lsquothe BOR rsquo)

(4) if so could it be justified as having ndash

(a) a rational connection with a legitimate societal aim (the rationality test) and

(b) was it no more than is necessary to achieve that legitimate aim (the proportionality test)

(5) if not could a remedial interpretation be applied to s 47(1) and (2) as was applied by the Court of Appeal in order to preserve their constitutionality and

(6) if so what interpretation did they bear Section 4 of the Ordinance made it an offence to traffic in dangerous drugs A person convicted of that offence upon indictment was liable to imprisonment for life By virtue of s 2 trafficking included lsquopossessing a dangerous drug for the purpose of traffickingrsquo That was the form of trafficking alleged in these two cases The Court of Appeal said the concept of possession was central to the appeals Section 8 of the Ordinance provided

(1) Save under and in accordance with this Ordinance or a licence granted by the Director thereunder no person shall ndash

(a) have in his possession hellip

hellip

a dangerous drug

Section 47 provided

(1) Any person who is proved to have had in his physical possession ndash

(a) anything containing or supporting a

18

dangerous drug

(b) the keys of any baggage briefcase box case cupboard drawer safe-deposit box safe or other similar container containing a dangerous drug

shall until the contrary is proved be presumed to have had such drug in his possession

(2) Any person who is proved or presumed to have had a dangerous drug in his possession shall until the contrary is proved be presumed to have known the nature of such drug

(3) The presumptions provided for in this section shall not be rebutted by proof that the defendant never had physical possession of the dangerous drug

In this judgment the word lsquocontainer rsquo wherever appearing was used so as to mean anything which contained or supported a dangerous drug including the various things mentioned in s 47(1)(b) Sections 8 and 47 needed to be read in the light of s 2(2) which provided

(2) For the purposes of this Ordinance a person shall be deemed to be in possession of a dangerous drug or a pipe equipment or apparatus as the case may be if it is in his actual custody or is held by some other person subject to his control or for him and on his behalf

It was not suggested however that s 2(2) qualified or affected the presumptions or the reverse onus provisions in s 47 In both appeals it was accepted before the Court of Appeal that the Respondents had possession of a container and knew that the container housed the substance which turned out to be a dangerous drug The first presumption imposed by s 47(1) that the Respondent was in possession of the drug was not an issue A different presumption that the person in possession of a dangerous drug knew that it was a dangerous drug was in issue because each Respondent said that he thought that the material in the container was not a dangerous drug The court then applied a remedial interpretation to s 47(1) and (2) in order to make them consistent with the Basic Law and the BOR basing that remedial interpretation on s 3 of the BOR Ordinance and art VII(3) of the Letters Patent which although ceasing to operate in the HKSAR at midnight on 30 June 1997 had an impact on the Ordinance when it came into operation in

19

1992 The remedial interpretation took the form of reading the persuasive onus imposed by s 47(1) and (2) down to an evidential onus The Appellantrsquos main submission was that s 47 did not impose a persuasive onus of proof and that the persuasive onus satisfied both the rationality and the proportionality tests in other words the persuasive onus not only had a rational connection with the legitimate objective as the Court of Appeal found but also it derogated from the presumption of innocence no more than was necessary to achieve that legitimate objective The Appellant also submitted that the Court of Appeal erred in the interpretation which it placed on s 47(1) and (2) Although the answer to this submission had no material bearing on the main thrust of the Appellantrsquos case it was dealt with at the outset Held Per Sir Anthony Mason (1) The Appellant submitted that s 47(1) incorporated a double presumption first a presumption that a person who had in his physical possession anything containing a dangerous drug or the keys to any container containing a dangerous drug had legal possession of that dangerous drug and secondly a presumption that the person had knowledge of the presence of the drug in the container On this argument s 47(2) was not directed to creating a presumption of knowledge of the presence of the drug in the container for that was the subject of the second presumption created by s 47(1) Instead s 47(2) was directed to the case where a defendant was shown to have legal possession of a dangerous drug but contended that he thought that it was a drug other than that identified by the Government Chemist and described in the particulars of the charge (2) This interpretation of s 47(1) and (2) had the support of three decisions of the Court of Appeal R v Tam Chun-fai [1994] 2 HKC 397 at 401F-G R v Ng Chiu-leung [1996] 1 HKC 181 at 187F-I and HKSAR v Chan Ming-fai [2001] 4 HKC 511 at 516D-517F see also R v Tsang Kwok-wing [1989] 1 HKLR 270 (which was concerned with s 24 of the Firearms and Ammunition Ordinance Cap 238) (3) Although the question of interpretation had been the subject of disagreement the arguments which supported the Court of Appealrsquos interpretation of s 47(1) and (2) were stronger As a matter of language and analysis sub-section (1) appeared to create two presumptions even if the second presumption arose only by

20

reason of the knowledge imputed to the defendant by presuming that he had legal possession of the contents of the container The operation of the sub-section was to be understood in the light of the principle of the common law that lsquohellip the term ldquopossessionrdquo is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse rsquo R v Warner [1969] 2 AC 256 305

(4) When sub-section (1) was so understood its evident purpose was to enable the prosecution to establish a case by proving that the defendant had physical possession of a container or keys to a container which housed a dangerous drug Once physical possession was established the double presumption arose that of legal possession of the drug and that of knowledge But knowledge of what As a constituent element of the concept of legal possession it was knowledge of the presence of the thing possessed that was required not knowledge of its nature or its qualities (5) There was accordingly no necessity for the implied presumption of knowledge in s 47(1) to extend to knowledge of the nature of the drug or knowledge that it was a dangerous drug in order to constitute legal possession at common law And in that context in the absence of some indication of legislative intention (of which there was none) there was no reason at all why the presumption as to knowledge of the presence of the thing itself should be extended to knowledge of its nature or qualities On this view of s 47(1) the presumption of legal possession of a substance would not be displaced by the defendant showing that although he was aware that there was a substance housed in the container he did not know that it was a dangerous drug Under s 47(1) he would need to show on the probabilities that he was unaware of the presence of a substance in the container (6) Not only was there no indication of legislative intention that s 47(1) contained an unexpressed presumption extending to knowledge of the presence of a dangerous drug s 47(2) by providing expressly for a presumption on that matter negated the basis for such an implication in sub-section (1) In so providing s 47(2) also enabled the defendant to prove that he was unaware of the presence of a dangerous drug a course not available under s 47(1) (7) As a matter of first impression there were difficulties with s 47(2) The opening words of sub-section (2) suggested that it operated outside the ambit of sub-section (1) after the defendantrsquos legal possession of the dangerous drug had been established by proof or presumption In combination with the reference to lsquothe

21

nature of the drugrsquo the opening words excited the reader to speculation about an array of improbable explanations of the purpose of sub-section (2) But it was clear that s 47(1) (2) and (3) were all related in various ways to proof of offences relating to the possession of a dangerous drug whether by way of proof or presumption This circumstance suggested that the presumption under s 47(2) of knowledge of the presence of a dangerous drug in a container was relevantly linked to the possession-based offences created by ss 4 and 8 of the Ordinance (8) The explanation of the relationship between s 47(1) and (2) and the seemingly infelicitous language of sub-section (2) was to be found as the Court of Appeal held in attributing to it the purpose of responding to the expectation that the courts would in accordance with established principle read into the offence provisions a requirement of knowledge of the presence of a dangerous drug (see R v Warner at 307 He Kaw-teh v The Queen (1985) 157 CLR 523 589) The case for adopting this approach was a very strong one The offences created by ss 4 and 8 were serious offences the former (trafficking) very serious being punishable by a sentence of life imprisonment (9) So understood s 47(2) shed most of the difficulties which had been thought to surround it It was directed at an additional element of the offences which stood outside the common law concept of legal possession dealt with by s 47(1) In the expectation that the two presumptions carrying the prosecution case based on physical possession forward to legal possession would not be enough to establish the mental element ndash knowledge of the nature of the drug ndash on which the courts would insist a further presumption was provided by s 47(2) Once this was acknowledged the relationship between s 47(1) and (2) was comprehensible and the opening words of sub-section (2) served the purpose of indicating that after proof or presumption of legal possession there was introduced another presumption namely of knowledge of the nature of the drug The explanation provided an important role for s 47(2) whereas on the Appellantrsquos submission the suggested purposes which the sub-section served were unconvincing (10) Clearly the reverse onus imposed by s 47(2) was a persuasive onus and so was the onus imposed by s 47(1) (11) It was equally clear applying the approach adopted by the court in HKSAR v Lam Kwong-wai and Lam Ka-man FACC No 42005 para 41 that the reverse onus under s 47(2) as well as that under s 47(1) derogated from the presumption of innocence and consequently from the right to a fair trial The prosecution was required to do no more than prove physical possession of a

22

container or of keys to a container containing a dangerous drug Presumptions then arose which threw on to the defendant the onus of proving that he did not have possession of such a drug or that he was unaware of the presence of such a drug It was clear enough that the defendant might be convicted under s 4 and s 8 because he failed to prove on the balance of probabilities that he did not have legal possession of the drug or that he was unaware that he had such a drug in his possession yet the evidence may be such as to generate a reasonable doubt that he had possession or that he had knowledge that what he possessed was a dangerous drug Moreover the reverse onus under s 47(2) related to a critical aspect of the offence involving what was blameworthy conduct on the part of the defendant namely his knowledge that he was in possession of a dangerous drug (12) In this situation it was for the Appellant to justify the derogation from the presumption of innocence by showing that the derogation

(a) was rationally connected with the pursuit of a legitimate societal objective (lsquothe rationality testrsquo) and

(b) that the means employed ndash the imposition of the reverse onus ndash were no more than were necessary to achieve that legitimate objective (lsquothe proportionality testrsquo)

The relevant principles governing these matters were in HKSAR v Lam Kwong-wai and Lam Ka-man FACC 42005 and there was no occasion to repeat what was said there (13) The Court of Appeal was correct in holding that the rationalist test was satisfied Proof of the elements of possession offences relating to dangerous drugs was notoriously difficult particularly in cases where the drugs were in a container and the defendant maintained that he did not know that what was in the container was a dangerous drug The imposition of presumptions as to legal possession and the defendantrsquos knowledge of the nature of the drug possessed was rationally connected with the legitimate objective of preventing and suppressing the trade and use of dangerous drugs and punishing those who participated in them (14) The application of the proportionality test was the critical issue in this case The Court of Appeal was right in concluding that the persuasive burdens imposed by s 47(1) and (2) failed the proportionality test As noted in HKSAR v Lam Kwong-wai and Lam Ka-man it was accepted that in some situations a reverse onus provision might satisfy the proportionality test see for example L v DPP [2003] QB 137 R v Matthews (Mark) [2003] 2 Cr App R 19 But the burden of justification rested with the State and the reasons supporting the justification must be compelling Granted that weight must be given to the legislative judgment

23

particularly where as here the State was grappling with the acute problem of dangerous drugs and the sophisticated techniques employed by criminals engaged in drug trafficking it was the responsibility of the courts to ensure that the constitutional rights of the individual were adequately protected so that the interference with those rights was no more than was necessary to achieve the legitimate societal objective In this context the courts were well-equipped to discharge that responsibility because the issue was one that related to matters of proof onus and evidence In discharging this responsibility the courts recognized that the more serious the crime the more important was the protection of the constitutional rights of the individual (15) Various considerations were relied upon to support the imposition of a persuasive onus First there was the gravity of the social problem generated by the trafficking and use of dangerous drugs and the difficulty of solving that social problem a difficulty which had been experienced throughout the world Secondly there was the particular problem of proving possession and knowledge on the part of a defendant of the identity of the contents of a container which was in his possession Thirdly proof of the absence of such awareness was a matter peculiarly within the defendantrsquos own knowledge (16) The very purpose of s 47(1) and (2) was to throw on to the defendant the burden of disproving legal possession and knowledge of the nature of the contents these elements being the substratum of a possession-based offence under s 4 or s 8 This derogation from the presumption of innocence was so severe that it was not sustainable unless it could be shown at least that the legitimate objective could not be achieved otherwise than by the imposition of these reverse burdens of proof This had not been shown The Appellant has not demonstrated that an evidential onus of proof would be inadequate to achieve that objective It did not appear that the legislative endorsement of s 47(1) and (2) was based on a considered judgment that an evidential onus would not have achieved the legitimate objective The House of Lords majority decision in R v Lambert [2002] 2 AC 545 confirmed that view The majority in Lambert concluded that the imposition of a persuasive burden on the defendant to prove absence of cocaine with intent to supply contrary to s 5(3) of the Misuse of Drugs Act 1971 (UK) was a derogation from the presumption of innocence under art 6(2) of the European Convention on Human Rights and Fundamental Freedoms that it could not be justified as being no more than necessary for the achievement of the legitimate objective and that it should be treated as an evidential onus (17) It was simple common sense that possession of a container housing drugs would generally demand a full and adequate

24

explanation while the introduction of a statement by the defendant containing a self-serving explanation that he did not know what was in the container could be dealt with by an appropriate direction (Lambert at 573B-E per Lord Steyn) It would be a serious mistake to think that a jury would not evaluate for itself the decision of a defendant to prefer silence when offered an opportunity to make a statement or explanation on being questioned or charged The difference in permissible judicial comment between England and Hong Kong was not of such significance as to undermine the value that the decision in Lambert had for Hong Kong in considering the issues in this case It was open to a trial judge to invite the jury to consider the common sense point (made by Lord Steyn at 575C) that it must be comparatively rare for a drug dealer to entrust a valuable parcel of drugs to an innocent (18) It followed that the persuasive burdens imposed by s 47(1) and (2) were disproportionate and that in each sub-section an evidential onus would be a sufficient means of achieving the legitimate objective (19) The Court of Appeal was right to apply a remedial interpretation to s 47(1) and (2) by treating the burdens of proof as creating an evidential onus only But in accordance with the approach adopted by the Court in HKSAR v Lam Kwong-wai and Lam Ka-man that remedial approach was to be based on implied powers conferred upon the courts of the Region by the Basic Law itself There was no occasion to express an opinion on the case for remedial interpretation based on s 3 of the BOR Ordinance which ceased to have effect before 1 July 1997 Per Li CJ (20) The power to engage in prospective overruling if it existed was an extraordinary power The courts must approach its exercise with the greatest circumspection The Appellant invited its application on the basis of its apprehension of a flood of applications to the courts for extension of time to appeal against conviction resulting in gravely disruptive consequences for the criminal justice system It was submitted that the principle of certainty was an important one and that making the proposed order would prevent these applications from being made and achieve certainty It was therefore necessary first to identify the applicable principle in order to ascertain the magnitude of the problem which might arise before deciding whether the proposed order should be made If for example applications for extension of time dealt with in accordance with the applicable principle were likely to succeed only in exceptional circumstances it would not be necessary to consider the appropriateness of resorting to the

25

power of prospective overruling (21) The avenue of appeal was provided for by statute for persons convicted of criminal offences Various statutory provisions provided for appeals through the hierarchy of the court system (See ss 113 114 and 114A of the Magistrates Ordinance Cap 227 ss 82 and 83Q of the Criminal Procedure Ordinance Cap 221 s 83 of the District Court Ordinance Cap 336 and ss 31 32 and 33 of the Hong Kong Court of Final Appeal Ordinance Cap 484) These provisions laid down time limits for appeals and conferred on the courts the discretion to extend time This arrangement was an important feature of any criminal justice system It was in the interests of society for there to be finality in the criminal process But the time limits for the purpose of achieving finality were not absolute The courts had the discretion to relax the time limit where this was considered to be justified in the circumstances of an individual case (22) While the question whether time should be extended for an appeal against conviction was essentially a matter of discretion for the courts it was of course not an unfettered discretion The burden was on the defendant to justify exercise of that discretion in his favour (23) Whatever be the level of court in dealing with applications for extension of time to appeal against conviction on the ground that the previous view that the relevant provisions imposed legal or persuasive burdens had now been authoritatively held to be incorrect and that the relevant provisions only imposed evidential burdens the principle to apply was that this ground by itself would not justify an extension of time Such a principle was well-established by overseas jurisprudence In overseas jurisdictions the courts in dealing with applications for extension of time for appeal against conviction had consistently applied the principle that time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction had held the previous understanding of the law to be incorrect In adopting this principle the courts recognized the practical necessity for finality in the criminal process (24) However overseas jurisprudence did not exclude the possibility that there could be exceptional circumstances in a particular case which would justify the court in extending time for appeal against conviction on the ground that a subsequent judgment had held the previous understanding of the law to be incorrect Especially as the court did not have before it an appeal raising a question relating to extension of time it was not feasible for the court on this occasion to attempt to define what constituted exceptional circumstances except to say that the circumstances

26

must be so exceptional that the occasions when they would be held to exist would be very rare Cases where the defendant had pleaded guilty would not fall within this exception No opinion was expressed about the correctness of the decision in R v Kwok Hing-man [1994] 2 HKCLR 160 in relation to the extension of time for an appeal against conviction for a non-existent offence (25) In deciding whether to apply for extension of time for appeal against conviction defendants must take account of the principle referred to above that would be applied by the courts Having regard to this principle the magnitude of the problem would appear to be much less than apprehended Assuming that the courts had the power to engage in prospective overruling its exercise was plainly not justified in this case Result - (1) Sections 47(1) and (2) should be read and given

effect as imposing an evidential burden only (2) Appeals dismissed

27

B CRIMINAL APPEALS AGAINGST CONVICTION 刑事上訴案件針對定罪 CA 2662005 Stuart-Moore VP Yeung amp Tang JJA (3082006) K Zervos SC amp H Hung P Loughran

LIU Chun-yip

MurderDefence of diminished responsibility based on abnormality of mind induced by disease should have been left to the juryLong-term drug abuse as the cause of the disease not relevant to the establishment of the defenceMisdirection for jury to be told that the defence of diminished responsibility must fail if paranoid psychosis induced by abuse of illicit drugs謀殺 ndash 基於由疾病所引起的神志失常而以受減責

神志失常影響作為抗辯理由應由陪審團決定是否

成立 ndash 長期濫用藥物引致疾病與抗辯理由是否確

立並無關係 ndash 法官向陪審團表示如妄想型精神

病是由濫用違禁藥物所引致則以受減責神志失常

影響作為抗辯理由不能成立是錯誤的指引 The Applicant killed Chui Sau-chun (lsquoChui rsquo) and Tsoi Wai-man and badly wounded two other members of the same family using a large kitchen knife to stab them all The motiveless attacks were apparently committed while he was suffering from a psychosis episode The Applicant was Chuirsquos godson He had been living for just over a month with her family as a favour to him when the attacks took place There was no issue at trial that the Applicant had carried out the attacks On arraignment he pleaded guilty to manslaughter in respect of counts 1 and 2 and to unlawful and malicious wounding on counts 3 and 4 These were not acceptable to either the judge or the prosecution The Applicant was ultimately convicted on the two counts of murder as well as the two counts of wounding with intent The perfected ground of appeal was that

The learned trial judge(s) erred in law andor fact by wrongly ruling andor directing that if the abnormality of mind was related to the abuse of drugs it was not capable of satisfying the relevant criteria in s 3 [of the] Homicide Ordinance Cap 339 of (induction by) lsquodisease or injuryrsquo and was [thus] incapable of making out the defence of diminished responsibility allowed for by such section

It was not disputed at trial that the Applicant at the time he killed the victims was suffering from an abnormality of mind which had been induced by paranoid psychosis a disease of the mind There was also agreement that the Applicantrsquos abnormality

28

of mind substantially impaired his mental responsibility for his acts at the time of the killings The only area of dispute which arose from the evidence given by the psychiatrists was the actual cause of the Appellantrsquos disease of the mind The prosecutionrsquos psychiatrist gave an opinion that this was the result of the Applicantrsquos abuse of dangerous drugs over many years whereas the defence psychiatrist took the view that there were other factors which had led to the Applicantrsquos psychotic condition In addition to the psychiatric evidence there was uncontradicted evidence at trial based on the scientific analysis of samples taken from the Applicant after his arrest that the Applicant was not intoxicated by the effects of dangerous drugs at the time of the killings The significance of the disagreement between the psychiatrists as to what might have caused the Applicantrsquos psychosis was that the jury were directed that if the abnormality of mind stemming from paranoid psychosis was lsquoinduced by abuse of dangerous drugs including ice and ecstasy rsquo this would fall outside the definition of diminished responsibility in s 3(1) of the Homicide Ordinance and in those circumstances such a defence to the charges of murder must fail The guilty verdicts provided a clear indication that the jury was satisfied that the abnormality of mind was induced by the Applicantrsquos long-term abuse of dangerous drugs The issue on which the appeal focused therefore was whether the fact that the disease of (or injury to) the mind was caused by prolonged abuse of dangerous drugs prevented the Applicant from putting forward a defence of diminished responsibility on this basis If so the Applicant would succeed as he was not permitted to advance a defence of diminished responsibility on this evidential foundation The Applicant submitted that an abnormality of mind amounting to lsquodisease or injury rsquo was sufficient to give rise to the partial defence of manslaughter by reason of diminished responsibility regardless of its cause The judge so it was said had erroneously focused on the cause of the disease or injury and this would only have been material to the juryrsquos consideration if the Applicant had been drug-intoxicated at the time he carried out the killings There was no suggestion that the Applicant was unable to form the specific intent required for murder The evidence clearly established that the Applicant knew what he was doing when he attacked the victims with a knife Section 3(1) of the Homicide Ordinance Cap 339 provided

(1) Where a person kills or is a party to the killing of another he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded

29

development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing

The burden on a balance of responsibilities of establishing diminished responsibility as a partial defence to murder was by virtue of s 3(2) on the defence Held (1) It was rightly conceded that the Applicantrsquos abnormality of mind did not arise from lsquoarrested or retarded development of mind or any inherent causes rsquo The issue therefore centred on whether at the time he killed two of the victims at the flat his abnormality of mind was lsquoinduced by disease or injuryrsquo Dr Lui the psychiatrist had described the abnormality of mind as being the lsquopsychoses rsquo and had described this as a lsquodisease of the mind rsquo At trial the judge had proceeded on the basis that as the malfunctioning of the Applicantrsquos mind was not a permanent condition and had lsquotransitory effect rsquo brought on by the voluntary application of dangerous drugs the psychosis from which he suffered could not properly be called a lsquodisease rsquo of the mind R v Quick [1973] 1 QB 910 considered (2) The Applicant was not intoxicated by the effects of dangerous drugs when he killed His case was therefore distinguishable from the facts which were in R v Ferton (1975) 61 Cr App R 261 where the Applicant who suffered from an abnormality of mind had been drinking alcohol to excess before he killed four people The crucial factor in Fertonrsquos case was plainly the alcohol taken just prior to the killings but of importance in this case was whether the undoubted abnormality of mind which substantially impaired the Applicantrsquos mental responsibility for his acts when killing was a factor to be considered by the jury despite the evidence given by Dr Lui that the psychosis a disease of the mind was caused by the Applicantrsquos abuse of drugs over a long period of time The judge declined to leave diminished responsibility to the jury because lsquoparanoid psychosis induced by abuse of dangerous drugs does not come within these terms rsquo (3) The terms of s 3(1) of the Homicide Ordinance were clear enough The abnormality of mind was an accepted fact at trial and there was no evidence for the jury to have drawn a contrary inference It was undisputed that paranoid psychosis was a disease of the mind and so also was the fact that arising from the abnormality of mind the Applicantrsquos mental responsibility for his acts was substantially impaired On the face of it all three criteria

30

necessary to establish this defence to murder were present There was no further criterion requiring that the cause of the disease should have been other than one which had been self-inflicted (4) It was well-established that a purely transient state brought on by the recent consumption of dangerous drugs or alcohol was to be disregarded for the purposes of this defence The abnormality of mind in such a case was to be regarded as neither induced by disease (or injury) nor it was obvious to have arisen from inherent causes The fact that the undoubted abnormality of mind in this case was caused by a disease which might have been cured to the extent that the Applicant was found by Dr Lui to be lsquosymptoms free rsquo on account of his enforced abstinences from dangerous drugs over the long time he had spent in custody was not something which could properly be said to affect the situation Some lsquodiseases rsquo recovered in the course of time and s 3(1) made no mention of a requirement that the disease should be permanent in nature In R v Hobson [1998] 1 Cr App R 31 the English Court of Appeal having heard fresh evidence allowed an appeal against conviction for murder and ordered a retrial in circumstances where the appellant who had endured violence at the hands of the deceased on numerous occasions was said to have been suffering from lsquobattered womenrsquos syndrome rsquo This has been newly classified (between the trial and the appeal) as a mental disease and was said to be a variant of post-traumatic stress disorder (5) The focus should have been on the existence of the disease rather than the cause of it HKSAR v Tang Kwok-wai [2000] 2 HKLRD 744 Everything in this case pointed to the Applicant having done damage though not necessarily irreparable or permanent damage to the brain leading to paranoid psychosis which substantially impaired his mental responsibility for his acts which led to these killings This view was reached from the evidence at trial that the psychotic condition suffered by the Applicant was one which arose from the Applicantrsquos heavy and prolonged abuse of drugs The position would have been quite different if the evidence had shown merely that the Applicant was intoxicated by the voluntary consumption of dangerous drugs at the time of the killings In such a case without evidence of disease of (or injury to) the mind the foundation for a defence of diminished responsibility could not have been laid (6) In R v Tandy (1998) 87 Cr App R 45 it was decided that the voluntary consumption of alcohol by that applicant rendering her intoxicated at the time she strangled her daughter meant that the defence of diminished responsibility was not available to her What it did not decide was that if the voluntary consumption of alcohol (and the same would apply had that case been concerned with dangerous drugs) had caused a disease of (or injury to) the

31

mind and the other criteria necessary to establish diminished responsibility were present the defence would not arise In the present case the Applicantrsquos most recent (and voluntary) consumption of dangerous drugs some considerable time beforehand had no bearing upon the Applicantrsquos abnormality of mind at the time when the killings took place (7) The Court in Tandy did not cast any doubt on the proposition that a self-inflicted disease of or injury to the mind (or brain) such as alcoholism could qualify as a disease or injury for the purposes of raising a defence of diminished responsibility Accepting that it did so qualify what was said in Tandy was that this defence was available to the appellant if her alcoholism had reached a level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgement and emotional responses or at a rather lower level of injury where the damage to the brain was such that the appellantrsquos consumption of alcohol had become involuntary in the sense that she was lsquono longer able to resist the impulse to drink rsquo In the present case the situation was rather less complicated than in Tandy as the jury was only concerned with the psychiatric evidence Not only were all the criteria for a defence of diminished responsibility established there was nothing to contradict that evidence emanating from any other source (8) The defence of diminished responsibility should not have been confined to the narrow basis on which it was left The alternative basis which effectively hinged upon the defence establishing that the Applicantrsquos abnormality of mind was induced by disease should also have been left to be determined by the jury the cause of the disease (long-term drug abuse) being for present purposes irrelevant to the establishment of the defence The judgersquos direction to the jury that the defence of diminished responsibility must fail if the paranoid psychosis was induced by the abuse of illicit drugs amounted to a material misdirection Result - Convictions on counts 1 and 2 for murder quashed and

manslaughter verdicts substituted Conviction for wounding with intent on counts 3 and 4 to stand Sentencing on counts 1 and 2 adjourned for an updated report from Dr Lui

CA 3032005 Stuart-Moore VP

(1) LI Man-tak (2) TAN

Covert surveillanceRecording of meetings by ICAC Infringement of right to privacyApplicants unable to point to any factor supportive of the exclusion of surveillance records

32

Yeung JA amp Suffiad J (1392006) I C McWalters SC A Macrae SC J Tse SC amp Maggie Wong (1) G Plowman SC amp Po Wing-kay (2)

Chye-seng Nicholas

No oppressive conduct or inducementAdmission of records by a reasonable tribunalErroneous reliance by judge on lies in cautioned statement as foundation for admissibility of record of meeting under the co-conspiratorrsquos rule 秘密監察 ndash 會面被廉政公署錄音和錄影 ndash 侵犯私

隱權 ndash 申請人未能指出任何對豁除監察紀錄起支

持作用的因素 ndash 無欺壓行為亦無誘使 ndash 合理的法

院是會接納紀錄為證據的 ndash 法官錯誤地依賴警誡

供詞內的謊言作為在共同串謀者的規則下將會面

紀錄接納為證據的理據 A1 was convicted of charge 1 namely conspiring with others to offer a bribe to Adrian Foo as a reward for causing ING to purchase 18 million Kwong Hing shares A1 and A2 were convicted of charge 2B which alleged a conspiracy to offer a bribe to procure the publication of a bullish report on Kwong Hing shares andor for promoting the Kwong Hing shares On appeal A1 submitted inter alia that the judge was wrong to admit the records of two meetings into evidence That was on the basis that as the judge had rightly ruled that the covert surveillance of the ICAC of those meetings contravened the right of privacy guaranteed under art 30 of the Basic Law and of the Bill of Rights adopted a wrong test on the issue of admissibility The suggestion was that by adopting the approach enunciated in R v Sang [1980] AC 402 and R v Kuruma [1955] AC 197 the judge had failed to take into account the significant shift in approach arising out of human rights legislation A2 submitted inter alia that the judge was wrong to conclude that A2 had lied on two matters he mentioned and alternatively even if those lies had been established the judge was wrong to rely on them as an indication of guilt or as evidence capable of strengthening an inference of guilt It was further said that the judge had failed to consider the possible innocent explanation for the lsquolies rsquo even if they were indeed lsquolies rsquo Held (1) The court must balance the two main competing interests the interest in protecting and enforcing constitutionally guaranteed rights and the interest in the detection of crime and bringing criminals to justice In the exercise of the judicial discretion the court must ensure that the accused has a fair trial The judge was aware of the lsquodouble breach rsquo of the right of privacy namely the telephone interception and the covert surveillance resulting

33

therefrom (2) The judge referred to the evidence of Mr Tong Lui an ICAC principal investigator that lsquocovertly recording the meeting was the only means by which the ICAC could obtain important evidence of this very serious corruption case rsquo and then rightly pointed out that the right to privacy might be outweighed by the public interest in the detection of serious crime The judge made reference to the defence concession that lsquothe ICAC officers did not knowingly and wilfully breach the defendantrsquos right What they did was at best a deliberate act done in ignorance of those rights rsquo thus indicating that he had the overall behaviour of the investigating authority or the treatment of the Applicant in mind The judge noted that the Applicants did not contend that the records of the meetings were unreliable or inauthentic and that they had the opportunity to challenge them if they so wished (3) In referring to Sang (supra) and other common law cases the judge was clearly placing importance on the fairness of the trial Having considered all those factors and then having conducted a balancing exercise he concluded that he could not find any unfairness in admitting the records of meetings as evidence The approach adopted was a correct one broadly in line with the decision pronounced over six months later of the Court of Appeal in HKSAR v Chan Kau-tai [2006] 1 HKLRD 400 (4) The judge had not wrongly placed the burden on A1 to show unfairness The judge was simply stating as a matter of fact that A1 was unable to show how unfairness would follow if the challenged evidence was admitted When the court considered the exercise of discretion it was acting on its own motion and the concept of the burden of proof had no application The exercise of the discretion to admit the records of the two meetings could not be faulted At trial A1 was unable to show how unfairness would follow by the admission of the evidence and the position was the same on appeal Other than pointing out the undisputed infringement of the right to privacy neither A1 nor A2 was able to point to any factor supportive of the exclusion of the surveillance records of the two meetings (5) This was a very serious case of corruption It was a fraud not just against the company and its shareholders or the respective financial houses but the public at large and thus had huge impact on Hong Kongrsquos image as a world-class financial centre At the time of the covert surveillance there were ongoing criminal activities and as Li CJ had said in Secretary for Justice v Lam Tat-ming and Another (2003) 3 HKCFAR 168 180

The law recognises that the use of undercover operations is an essential weapon in the armoury of

34

the law enforcement agencies particularly their use when the criminal activities are ongoing but also their use after crimes are completed to obtain evidence to bring the criminal to book The use of undercover operations plays an important part in societyrsquos struggle to combat crime especially serious crime whether it be corruption trafficking in dangerous drugs or terrorism But the success and indeed viability of such undercover operations depend upon the concealment of the true identity of the law enforcement officer in order to establish the appropriate relationship with the alleged wrongdoers They therefore unavoidably involve elements of subterfuge deceit and trickery The law accepts that law enforcement agencies may find it necessary to resort to tactics of that kind

(6) On the prosecutionrsquos case the full and correct records of the two meetings were produced One of the participants in the meetings Vincent Yum gave evidence of what was said during the meetings a cogent factor in favour of admission according to R v P [2002] 1 AC 46 Vincent Yumrsquos evidence could be tested with reference to the records of the meeting and to that extent the production of the records of meetings would certainly lead to a fairer trial (7) There was no suggestion of any oppressive conduct or inducement on the part of the ICAC nor was there any suggestion that A1 was acting involuntarily in saying what he said during the meetings (8) Any reasonable tribunal adopting the proper approach would have admitted the records of the meetings as evidence albeit such evidence was obtained in breach of the right to privacy (9) The judge was entitled to find that A2 had lied in his cautioned interview on his role in the publication of a bullish report on Kwong Hing and his contact with its management at the material time However the judge concluded that A2rsquos lsquolies rsquo not only (a) strengthened the inference of guilt against him but (b) provided a foundation for the receipt of hearsay evidence The judge relied on A2rsquos lsquolies rsquo as the sole foundation for the receipt of the record of one of the meetings under the co-conspiratorrsquos rule and in this he was in error Without the record of that meeting as evidence the prosecution case against A2 would have been seriously dented This rendered his conviction on charge 2B as unsafe and unsatisfactory Result - A1rsquos appeal dismissed A2rsquos appeal allowed

35

36

C MAGISTRACY APPEALS AGAINST CONVICTION 裁判法院上訴案件針對定罪 MA 2232006 Nguyen J (2282006) Sin Pui-ha MK Wong SC amp Manyi Tsang

LEE Ka-ming amp 7 others

Vice establishmentBiasMagistrate revoking bail after no case submission without prior warning or indicationDefence denied opportunity to make representations as to deprivation of libertyImpression of bias created in mind of impartial observer 賣淫場所 ndash 偏見 ndash 裁判官在無須答辯的陳詞作出

後沒有事先警告或表示而撤銷保釋 ndash 辯方沒有獲

給予機會就個人自由被剝奪作出申述 ndash 令公正無

私的旁觀者心中覺得存有偏見 The eight Appellants were convicted of the offence of assisting in the management of a vice establishment They had originally been charged with managing a vice establishment On appeal it was submitted that the magistrate acted in an unjudicial manner such that an impartial observer would feel that he was biased against all the Appellants What happened was that on 6 December 2005 the seventh day of the trial after submissions of no case were made on behalf of all 11 Appellants the magistrate ruled that each of them had a case to answer The defence indicated there would be no defence evidence and there were discussions of when the trial would be adjourned to to enable counsel to prepare final written submissions It was agreed that the trial should be adjourned to 9 December three days later The magistrate then without prior warning or indication revoked the bail of all the Appellants and immediately left the bench Twice the counsel acting for the Appellants requested the court clerk to ask the magistrate to return to court that they would make submissions to him in respect of bail On both occasions the magistrate refused to return to court On 9 December after the magistrate had heard final submission he found A4 and A10 not guilty and acquitted them Bail for the other defendants was reinstated Judgment was reserved to 13 December On 13 December the magistrate acquitted D6 As a result A4 A6 and A10 were kept in custody unnecessarily for three days The Appellants submitted that the magistratersquos actions showed that he was already biased against all the Appellants The fact that he acquitted three of them meant that the evidence against them was so weak that even though he was biased he had no choice but to

37

acquit them Reliance was placed on R v Muk To-wai MA 6371996 a reckless driving case where the magistrate who revoked the defendantrsquos bail after she decided to adjourn the trial for one day for verdict Mayo JA said

It is evident from a perusal of Miss Chowrsquos statement of findings that this was not a particularly serious case of reckless driving and it is difficult to conceive how any magistrate properly discharging his duties could revoke bail in such circumstances I have regrettably come to the conclusion that any reasonable person attending at the trial would have formed the view that the magistrate must have formed a bias against the appellant for her to revoke bail in such circumstances

Reliance was further placed by the Appellants upon HKSAR v Ngai Wan-cheung Cr App 1982005 where Stock JA with reference to the judge revoking bail after closing submissions and prior to her adjourning the trial for three weeks for verdict said

Whilst the revocation of bail at that stage of a trial is not unusual it nonetheless always behoves a judge to afford an opportunity for representations before any deprivation of liberty

The revocation of bail was not the only act of which complaint was made Three other incidents were cited

(a) When A3 at one stage needed to obey a call of nature the magistrate gave him 5 minutes and ordered him to return immediately saying the court was not a kindergarten and he should not need to remind the Appellants to go to the toilet before attending court every day

(b) In the middle of the trial the magistrate asked A5 why he was so happy and said lsquoif I were you I would be very frightenedrsquo

(c) When A11 was testifying in the voire dire the tone of what the magistrate said to A11 was hostile

Held (1) At the stage when the magistrate revoked bail he had only ruled that there was a case to answer He had not heard counselrsquos final addresses In the event after he heard those addresses he immediately acquitted two defendants and after he had deliberated on the evidence he acquitted another one In respect of the eight he did convict he only convicted them of the lesser charge of lsquoassisting in the management of a vice establishment rsquo

38

(2) There was a low likelihood of immediate custodial sentences for this offence and the revocation of bail therefore brought the case more into line with R v Muk To-wai (supra) where the charge of reckless driving should not have attracted a term of imprisonment (3) The magistrate had no good reason for revoking bail in the manner he did The Appellants had all along complied strictly with the terms of their bail and on that day the magistrate had not even heard the final addresses from counsel The matter was compounded by the magistrate twice refusing to return to court to hear submissions from counsel about the question of bail In HKSAR v Ngai Wan-cheung (supra) Stock JA said that lsquoit nonetheless always behoves a judge to afford an opportunity for representations before any deprivation of liberty rsquo (4) Any fair-minded and informed observer would conclude that either there was a real possibility or a real danger that the court was biased against the Appellants The magistratersquos comment to A5 that if he (the magistrate) were A5 he would feel very frightened could well add to the anxiety of the impartial observer The remarks could well have led to the suspicion that at that stage he had already decided the facts either as against A5 himself or against all the Appellants Result - Appeals allowed

MA 282006 Longley DJ (1882006) Vincent Wong Oliver H Davies

YANG Xianu

Loitering with intent to commit deceptionMagistrate taking judicial notice of lsquoa classic street deception rsquoWrong to take judicial notice of particular deception of fraudsters Necessary for court to alert parties to intent to take judicial notice 意圖犯欺騙罪而遊蕩 ndash 裁判官對｀一宗典型的街頭欺騙案予以司法認知 ndash 對欺詐人的某項欺騙

手法予以司法認知是錯誤的 ndash 法庭有需要將予以

司法認知的意圖提醒控辯雙方 The Appellant was convicted of loitering with two persons not in custody with intent to commit an arrestable offence namely deception contrary to s 161 of the Crimes Ordinance Cap 200 The evidence was that the Appellant approached PW1 as she was walking her dog and asked her for the location of a particular company and a particular person PW1 told the Appellant it was a residential area and pointed the direction to the Appellant As she was pointing the direction to the Appellant a second woman who

39

had been standing about 10 feet away said she knew the company and that there was a spiritual doctor in the company PW1 had learnt of cases involving deceptions relating to alleged spiritual doctors from the television She decided to ignore the two women and walked on The two women nonetheless went on to have a conversation as they walked close to her Their conversation was as to the merits of this spiritual doctor PW1 formed the impression that they were talking for the purpose of letting her hear what they were saying After a short while they left PW1 and joined a third woman who had been watching what was going on The magistrate was satisfied that the only inference that would be drawn from the circumstances was that this discussion was preparatory to the later implementation of a street deception She said

This is a classic street deception In the absence of any other evidence to the contrary I was satisfied that the only reasonable inference which could be drawn was that there was an intent on the part of the Appellant with others to commit an arrestable offence namely deception and that there was sufficient evidence to prove an attempt to commit the deception

On appeal it was submitted that the magistrate erred in taking judicial notice of facts that were not put before the court Although there was no express reference to judicial notice by the magistrate in the course of the trial or in the statement of findings the magistrate must have taken judicial notice of a particular modus operandi allegedly used by those practising deception Held (1) Without taking judicial notice the magistrate could not have been satisfied beyond reasonable doubt on the evidence adduced before her that the Appellant necessarily had an intention to practice deception The magistrate must have taken judicial notice of a particular modus operandi allegedly used by those who practise street deceptions (2) Judges and magistrates might take notice of facts that were so generally known that ordinary persons might be presumed to be aware of them This particular modus operandi did not fall within that category Whilst some indeed many members of the public who read newspapers and watched television might be aware of deceptions practised during similar introductions it did not fall within the knowledge of which ordinary persons could be

40

presumed to be aware There were matters upon which judges and magistrate might have specialised knowledge by reason of their experience and there were certain of these matters of which they would take judicial notice but no authority suggested that judicial notice could be taken of a particular deception used by fraudsters (3) It was not necessary to decide whether a particular deception could be the subject of judicial notice That might well turn on the nature of the particular deception But even if it was a matter about which judicial notice could be taken it was incumbent on the magistrate in this case to make clear to the parties that it was a matter about which she intended to or might take judicial notice so as to give the defence sufficient opportunity to call evidence andor made submissions That was not done Result - Appeal allowed

41

D MAGISTRACY APPEALS AGAINST SENTENCE 裁判法院上訴案件針對刑罰 MA 6802006 Longley DJ (1682006) H Melwaney IP

KE Yuqiong

Use of forged identity card to obtain employmentBreach of condition of stayTotal sentence of 15 monthsrsquo imprisonment 使用偽造身分證找工作 ndash 違反逗留條件 ndash 總刑期

為15個月監禁 The Appellant pleaded guilty to an offence of using a forged identity card contrary to s 7A of the Registration of Persons Ordinance Cap 177 and to an offence of breaching the conditions of her stay contrary to s 41 of the Immigration Ordinance Cap 115 She was sentenced to terms of imprisonment of respectively 15 months and 6 weeks the sentences to be served concurrently The facts showed that the Appellant entered Hong Kong from the Mainland on 20 March 2006 and was permitted to remain as a visitor for 90 days on condition that she did not take up employment On 25 May 2006 she was found working in a noodle shop in Quarry Bay which employment she had obtained the previous day In doing so she had used a forged Hong Kong Identity Card bearing her photograph She admitted that she had obtained the identity card on payment of $500 On appeal it was submitted that both sentences were too severe Held (1) The sentence of 15 monthsrsquo imprisonment for the offence of possession of a forged identity card was perfectly proper bearing in mind that there was a link between the Appellantrsquos status in Hong Kong and the forged identity card and that she had used it to work illegally HKSAR v Shamim Narwaz MA 8041993 HKSAR v Lee Chang-li [2005] 1 HKLRD 864 (2) The sentence of 6 weeksrsquo imprisonment to run concurrently for the offence of breach of condition of stay could not be criticised Result - Appeal dismissed

MA 2452006 NGUYEN Dealing with goods to which the Dutiable Commodities

42

Pang DJ (12062006) Laura Ng IP

Phuong Dung Ordinance appliedPossession of 68460 dutiable cigarettes Immediate imprisonment appropriate 處理《應課稅品條例》適用的貨品 ndash 管有 68 460枝應課稅香煙 ndash 判處即時監禁是恰當的 The Appellant pleaded guilty to an offence of dealing with goods to which the Dutiable Commodities Ordinance applied contrary to s 17(1) as read with s 46(3) of the Dutiable Commodities Ordinance Cap 109 The admitted facts showed that in a raid customs officers entered the Appellantrsquos flat and found a stock of 68460 dutiable cigarettes The Appellant admitted ownership of the cigarettes and that she had bought them for re-sale The magistrate was told that the Appellant lived with her husband who was unemployed that she had 3 young children and had five previous convictions of which three were similar and was in breach of a 3-month suspended prison sentence The magistrate adopted a starting point of 9 monthsrsquo imprisonment and reduced it to 6 months for the guilty plea The 3-month suspended sentence was activated to be served consecutively On appeal Held The sentence was irreproachable Result - Appeal dismissed

MA 6652006 Longley DJ (592006) H Melwaney P Ross

KO Kwong-shing

Failing to provide a specimen of breathDisqualification from driving for 18 monthsLong disqualification period necessary for this offenceDisqualification for a proprietor of a transportation company simply an inconvenience 沒有提供呼氣樣本 ndash 取消駕駛資格 18個月 ndash 本罪

行有需要判處取消駕駛資格一段長時間 ndash 運輸公

司東主被取消駕駛資格純粹令他不便 The Appellant pleaded guilty to an offence of failing to provide a specimen of breath having been suspected of committing a traffic offence contrary to s 39B(1)(a) and (6) of the Road Traffic Ordinance Cap 374

43

The Appellant was fined $6000 and disqualified from driving for 18 months The facts showed that the Appellant drove a private car in Tong Mei Road in the early hours of 24 May 2006 when he was seen to violate a lsquono entry rsquo sign and turn into a one-way street driving in the wrong direction He was stopped by the police but despite smelling of alcohol he refused to provide a specimen of breath In mitigation the magistrate was told that the Appellant aged 59 years had driven for 35 years was of clear record and was the proprietor of a transportation company employing some 30 drivers and earning about $30000 per month He required his driving licence for his business in order to assist drivers who were on leave and to oversee his business In his reasons for sentence the magistrate said My baseline sentence for driving with excess alcohol

is a fine of $6000 with disqualification of 12 months This is increased or decreased according to circumstances especially the level of reading and any serious aggravating features However this was a refusal to provide a specimen of breath and in my opinion is much more serious than providing the test In this case the admitted facts was to the effect that the defendant had a strong smell of alcohol on his breathe Also conspicuous by its absence was any reasonable explanation for his refusal I would strongly suggest the court must treat this offence more seriously than an average breathalyzer case as to do otherwise would encourage and fortify the resolve of the profoundly intoxicated to refuse the test This denies the court essential information extremely relevant to sentence Were it to be argued that the court could not and should not assume a high alcohol intake would be patently absurd A sober defendant would naturally wish to establish his fitness to drive

Also the need for a driving licence is a two edged

sword in that a view could properly be taken that if one depends on onersquos driving licence then one must be careful and not to offend and risk its loss In sentencing the defendant I paid full regard to his excellent driving record and took into account the mitigation The brief facts and the mitigation acknowledge that he was in a state of drink What he prevented the court from knowing is just how bad that

44

state was On appeal it was submitted that the magistrate erred first by treating the Appellant as having a high alcohol intake second by treating the offence more seriously than the average breathalyzer case rather than as a case of driving with alcohol just exceeding the prescribed limit and third by failing to take into account that the Appellant worked as a professional driver Held The reasoning of the magistrate in imposing a disqualification for 18 months in this case was compelling It accorded with the view of the editors of Wilkinsonrsquos Road Traffic Offences 22nd edition (paragraphs 4334-4337)

It is submitted that whilst the court is by the very nature of the offence handicapped by not knowing the exact alcohol level of the defendant the level of penalties and the period of disqualification should approximate as nearly as possible to the penalties which would have been imposed if the defendant had supplied a specimen and the analysis had shown a high blood-alcohol level It may be difficult for a defendant who refuses to supply a specimen to persuade a court that his alcohol level would have been low since he could have demonstrated that fact by supplying specimens for analysis Of necessity he can only have committed the offence by failing to supply a specimen without reasonable excuse

(2) The editors of Wilkinson also concurred with the view of the magistrate when they commented that if it were to become the general policy of the court only to impose a sentence equivalent to that imposed on someone just over the limit for the offence of refusing to provide a specimen it would encourage drivers who had been drinking heavily to refuse to supply specimens for testing rather than to supply them (3) Although the Appellant was described as a professional driver he was not someone who would lose his livelihood in the event of disqualification He was a proprietor of a transportation company employing 30 drivers who drove in the course of running his business Disqualification might inconvenience him in the running of his business but it did not prevent him carrying it on Result - Appeal dismissed

45

E PRACTICE AND PROCEDURE 常規與程序 FACC 42006 Bokhary Chan amp Ribeiro PJJ (1562006) Gavin Shiu Charles Chan

OEI Hengky Wiryo

Court of Final AppealApplication to extend time for filing of printed caseNeed for time-limits to be complied with Responsibilities of the courtSometimes necessary to change counsel 終審法院 ndash 申請延展時限以便將印妥的案由述要

送交存檔 ndash 有需要遵守時限 ndash 法庭的責任 ndash 有時

有需要轉換律師 Application was made for the extension of time for the filing of printed cases Held (1) Experiences showed that it was necessary to remind the legal profession that the time-limits set by the rules were to be complied with and that it would be dangerous to assume that extensions were to be had for the asking Even if consented to an extension had to be justified upon good and detailed reasons why it was not possible or it was thought that it would not be possible to comply with the time-limit concerned (2) Members of the court had to do a great deal of reading in advance of hearings The court counted on printed cases and other materials being made available without delay so that they could be read as and when time could be found to do so in between the hearing of appeals leave applications and single judge applications (3) Litigants and their legal advisers should understand that the courtrsquos responsibility was not confined to dealing with their appeals and leave applications The courtrsquos responsibility included the development of the law in the interest of the general public That was a relevant consideration when deciding which proposed appeals should be taken on Flouting time-limits could imperil leave which had been granted Extensions of time were not always the solution if counsel who had been briefed was unable to do the work on time Sometimes the solution was for other counsel to be briefed in their stead Result - Time extended so that the Appellantrsquos printed case must

be filed by 15 September 2006 and the Respondentrsquos printed case by 13 October 2006

2

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

3

INDEX 目錄

A p 4 - p 26 第4至26頁


B p 27 - p 35 第27至35頁


C p 36 - p 40 第36至40頁


D p 41 - p 44 第41至44頁


E p 45 - p 45 第45至45頁


4

Appeal No


HKSAR v (1) LAM






5




6










7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





3

INDEX 目錄

A p 4 - p 26 第4至26頁


B p 27 - p 35 第27至35頁


C p 36 - p 40 第36至40頁


D p 41 - p 44 第41至44頁


E p 45 - p 45 第45至45頁


4

Appeal No


HKSAR v (1) LAM






5




6










7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





4

Appeal No


HKSAR v (1) LAM






5




6










7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





5




6










7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





6










7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





7
















8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





8


9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





9




10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





10



11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





11



12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





12


13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





13


14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





14


15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





15


(1) Appeals allowed







16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





16


(2) ATSUSHI Asano










17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





17












hellip

a dangerous drug

Section 47 provided



18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





18

dangerous drug








19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





19


20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





20



21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





21


22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





22





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





23


24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





24


25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





25


26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





26



27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





27


LIU Chun-yip









28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





28



29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





29



30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





30


31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





31






32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





32


Chye-seng Nicholas







33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





33



34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





34



35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





35

36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





36







37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





37










38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





38



YANG Xianu




39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





39




40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





40


41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





41


KE Yuqiong




42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





42




KO Kwong-shing




43





44




45


OEI Hengky Wiryo





43





44




45


OEI Hengky Wiryo





44




45


OEI Hengky Wiryo





45


OEI Hengky Wiryo





Documents

To : All Counsel/Senior Law Clerks/Prosecutions · 2018-02-05 · the International Covenant on Civil and Political Rights (ICCPR) as applied by Article 39 of the Basic Law; and with