To : All Counsel/Senior Law Clerks/Prosecutions All …or for a jockey …or gives or offers a jockey any pecuniary or other gift or consideration’ as being ‘… guilty of a corrupt,

To : All Counsel/Senior Law Clerks/Prosecutions All Court Prosecutors/Magistracies 致：刑事檢控科各律師/高級律政書記裁判法院各法庭檢控主任

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

CRIMINAL APPEALS BULLETIN 刑事上訴案判例簡訊

September Edition/2008

2008年9月號 General Editor 總編輯

I Grenville Cross, SC 江樂士資深大律師

Associate Editor 副編輯

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

Olivia O K Tsang 曾藹琪

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 Public Prosecutor ( *代表檢控官 # Denotes Appellant’s/Applicant’s/Respondent’s Counsel) #代表上訴人/申請人/答辯人的律師)

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

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INDEX 目錄

A p. 4 – p. 6 第4至6頁

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

B. p. 7 – p. 20 第7至20頁

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

C. p. 21 – p. 25 第21至25頁

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

D. p. 26 – p. 28 第26至28頁

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

E. p. 29 – p. 40 第29至40頁

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

F. p. 41 – p. 42 第41至42頁

Judicial Review 司法覆核

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Appeal No.

(Date of Case Significance Judgment) Title A. HONG KONG COURT OF FINAL APPEAL/ APPEAL COMMITTEE

香港終審法院 /上訴委員會 FAMC 43/2008 Li CJ Bokhary & Ribeiro PJJ (11.9.2008) *A Sham & J Man #M Panesar

CHAN Kam-leung

Bias/Test applicable where judicial intervention said to have caused unfair trial/Judges to treat all persons appearing before them with respect/Essential to maintain public confidence in the judiciary 偏見 – 司法干預被指引致審訊不公時的適用驗證標準 – 法官應給予席前的每一個人尊重的對待 – 務須維持公眾對司法機構的信心 The Applicant was convicted in the District Court of 24 charges of fraud. The Applicant was accused at trial of extracting $1,200,000 from nine victims by falsely promising to assign to each of them the right to operate market stalls in the new Tai Po market. The defence was that all these witnesses were lying and that receipts for the money which they produced were forged documents. The Court of Appeal dismissed the Applicant’s appeal against conviction. The Applicant then applied for an extension of time and leave to appeal on the substantial and grave injustice limb. The grounds advanced were the same as those rejected by the Court of Appeal. They were:

Ground 1

The learned trial judge was biased against the Applicant throughout the trial. The Applicant was interrupted, warned and reprimanded during his testimony in the voir dire proceedings and on the general issue. The bias towards the Applicant was further exhibited by the fact that during delivery of the Reasons for Verdict, which lasted about 3 hours, notwithstanding the Applicant was a disabled person, he was not permitted to sit, and therefore, was forced to stand without a crutch for the entire period. Ground 2

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The learned trial judge failed to properly and fairly assess the evidence of the Applicant.

Held: (1) Ground 2 did not provide a viable basis for leave to appeal. The judge assessed the Applicant’s evidence fairly and properly and was entitled to accept the prosecution’s evidence. The case against the Applicant was overwhelming; (2) The test generally applied where curial interventions were alleged to be such as to call into question the fairness of the trial was that enunciated in R v Yeung Mau-lam [1991] HKLR 468, 473:

The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it could have caused the informed bystander listening to the case to say that the defendant had not had a fair trial…we think it appropriate also to emphasise that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.

(3) Assessments of judicial interventions must be made recognising the court’s duty to exercise proper management over the proceedings in what often were difficult conditions. Many, if not most, of the criticised interventions self-evidently appeared to be justifiable in terms of firm case management. Taken as a whole, they did not raise a reasonably arguable case of bias applying the relevant test; (4) The Court of Appeal described the judge’s refusal to allow the Applicant, a disabled person, to sit during the verdict, when he did not have access to his crutch, as ‘perhaps not charitable and even unkind’. The judge’s refusal was wholly unjustified. It was conduct to be deprecated in the strongest terms. It was of the greatest importance that judges treated all persons who appeared before them with courtesy and dealt with them in a way which respected their human dignity. This was essential for the maintenance of public confidence in the judiciary and the administration of justice; (5) It did not follow that such lamentable conduct inevitably meant that a reasonably arguable case existed for concluding that the Applicant was denied a fair trial. The discourteous affront to the Applicant’s dignity in the course of delivering verdict could not reasonably be said to undermine the entire trial process which preceded the verdict.

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Result - Application dismissed.

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B. CRIMINAL APPEALS/ AGAINST CONVICTION

刑事上訴案件 /針對定罪 CA 368/2007 Stuart-Moore VP Beeson & Wright JJ (1.8.2008) *K Zervos SC #J McNamara

FUNG Hok-cheung

Conspiracy to accept advantage as agent/Defendant passing on information from corrupt jockey for placement of bets/Principles of agency/Purposive approach to legislation/Jockey an agent of trainer for whom he rode/Direct adverse proprietary consequence to principal’s affairs not necessary/Substantial effect of use of information on trainer’s reputation/Prevention of Bribery Ordinance (Cap 201) s 9(2)(a) 串謀作為代理人而接受利益 – 被告人將貪污騎師提供的資料交予他人作投注 – 代理原則 – 法例是以目的為本 – 騎師為練馬師策騎是練馬師的代理人 – 無需證明對主事人的事務在所有權方面有直接不良影響 – 有關資料的使用對練馬師的聲譽有重大影響 – 香港法例第210章《防止賄賂條例》第9(2) (a )條 The Applicant was convicted after trial of an offence of conspiracy to offer an advantage as an agent, contrary to s 9(2)(a) of the Prevention of Bribery Ordinance, Cap 201 (‘the Ordinance ’ ), as read with ss 159A and 159C of the Crimes Ordinance, Cap 200. The judge found that the Applicant had entered into a ‘tips-for-bets arrangement ’ with PW1, a senior investigator from the ICAC working undercover. The Applicant had access to a corrupt jockey, Munce, who was prepared to provide tips as to the prospects of success of horses in respect of which he had peculiar information as a result of having ridden them at the request of various trainers; the Applicant would pass this information on to PW1 who would place bets in his own name but on Munce’s behalf; if a bet were successful a proportion of the winnings would be paid over to Munce, via the Applicant, who would retain a share, whereas if it were unsuccessful the loss would be borne, ostensibly, by PW1. One reason for this arrangement was that a jockey was prohibited by rule 59 of the Rules of Racing (‘the Rules ’ ) published by the Hong Kong Jockey Club (‘the Club ’ ) from placing bets in his own name or having any interest in a bet on any race. Rule 151(14) of the Rules described a person who ‘bets with or for a jockey …or gives or offers a jockey any pecuniary or other gift or consideration’ as being ‘… guilty of a corrupt, fraudulent or improper practice ’ and rendered those involved subject to penalty by the stewards of the Club.

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The Ordinance provided, in s 2:

‘agent’ includes a public servant or any person employed by or acting for another;

‘principal’ includes- (a) an employer; (b) … and in s 9(2): Any person who, without lawful authority or reasonable

excuse, offers any advantage to any agent as an inducement to or reward for or otherwise on account of the agent’s –

(a) doing...or having done...any act in relation to his principal’s affairs or business; or

(b) ... shall be guilty of an offence. The particulars of the offence said to have been committed by the Applicant were that he: ...between 16 June 2006 and 3 July 2006...conspired

with Ah Fei to, without lawful authority or reasonable excuse, offer advantages, namely, services or favours consisting of placing bets on horse races on behalf of...Munce and gifts, loans, fees, rewards or commissions consisting of monetary dividends from horse races to the said...Munce who being an agent, namely a jockey acting for horse trainers, as an inducement to or reward for or otherwise on account of the said...Munce doing acts in relation to his principal's affairs or business, namely supplying horseracing tips and riding in horse races in a manner consistent with those racing tips.

On appeal, the Applicant submitted that it was incumbent upon the judge to be satisfied beyond reasonable doubt that, first, Munce was an agent of the trainers for whom he rode horses and, secondly, that in acting as he did he was doing an act in relation to that trainer’s affairs or business. He asserted that the judge erred in her findings in respect of each of these facets. The Applicant contended for the application of a narrow, civil law style of interpretation of the concept of agency. Held : (1) The application of civil law concepts to criminal matters had often been held to be of no or limited application: DPP v Brooks [1974] AC 862, cited with approval in HKSAR v Yau Kong-shing

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Cr App 276/1996; R v Sheppard (1980) 3 All ER 899, cited with approval in R v Li Wang-fat and Another Cr App 1100/1980; R v Manit Pheromanonta and Ors Cr App 152/1977; (2) Purposive construction of a statute was well established: s 19, Interpretation and General Clauses Ordinance, Cap 1. The purpose of the Ordinance was expressed as being ‘to make further and better provision for the prevention of bribery and for purposes necessary thereto or connected therewith ’ . The purposive approach was adopted in R v Chong Chui-ha and Another [1997] 4 HKC 518; (3) There was no justification for simply applying the principles of agency developed in the common law of contract for the purposes of s 9 of the Ordinance. In order to give effect to the intention of the legislature it was necessary to apply a less restrictive approach to the concept of agency and to give the wording its ordinary and natural meaning. A principal/agent relationship would not only arise when a fiduciary relationship existed between these two persons; (4) It followed that there were a number of routes by which the prosecution might prove that Munce was an agent of a trainer - that he had been employed by a trainer, or acted for a trainer or that there existed between him and the trainer a fiduciary relationship. This list was not exhaustive: it applied to the present application; (5) The judge found that Munce was an agent of the trainers. She based her finding to a substantial extent upon the existence of a fiduciary relationship between Munce and the trainers: in this she erred, as the evidence did not justify the finding of such a relationship which, in any event, was not a prerequisite to a finding that a principal/agent relationship existed. Munce was an agent because he was a person employed by another, although it was not necessary to make the finding that Munce was necessarily an employee of the trainers; (6) Once Munce had accepted an engagement to ride a horse in a race, he had been employed by the trainer; in the ordinary meaning of that expression, he had been employed to ride the horse and he was obligated to do so conscientiously and in accordance with the general instructions and the instructions given to him by the trainers and by the owner; (7) It was arguable that when Munce rode a horse, he was a party to three separate agreements in respect of each of which he enjoyed certain rights and was subject to certain obligations: between himself and the Club; between himself and the trainer;

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and between himself and the owner. The existence of more than one agreement simultaneously did not alter the principal/agent character of the relationship between Munce and the trainer. An agent might have more than one principal simultaneously: Morgan v DPP [1977] 3 ALL ER 1053; (8) Munce was an agent of any particular trainer for whom he rode. The agreement between PW1 and the Applicant was that they would place bets from which Munce, as well as they, would profit if the bet proved to be successful and, to enhance the prospects of the bet being successful, Munce would provide them with ‘inside information ’ obtained as a consequence of the principal/agent relationship existing between him and the trainer and would ride in a manner consistent with the tips. It was plain that the transactions, which the Applicant had with Munce were transactions with an agent, which, coincidentally, might also have involved a dishonest act by an agent. There was no distinction in principle between the present situation and that where a person employed by a commercial venture surreptitiously provided confidential information concerning his employer’s business to a third party in return for payment; (9) The section did not require any direct adverse proprietary consequence to the principal’s affairs or business. What was required was that the person offering the inducement intended that the act to be carried out by the agent itself in some way would influence or affect the affairs or business of the principal; (10) The judge was justified in finding that the use by the Applicant, for financial gain, of the confidential information obtained by Munce as jockey for an agent of the trainer, potentially would affect the trainer’s reputation. Result - Application for leave to appeal granted, but appeal

dismissed.

CA 37/2007 Stuart-Moore VP Yuen JA Wright J (28.8.2008) *P Chapman & Laura Ng

LI Yim-sang

Murder/Directions on motive/Evidence of motive admissible to strengthen prosecution case/Distinction between absence of proven motive and proven absence of motive/Absence of motive not established on evidence/Direction to jury not to consider motive appropriate 謀殺 – 就動機作出指引 – 有關動機的證據可獲接納以加強控方論據 – 無證據證明有動機與有證據證明無動機的區別 – 證據未能證明沒有動機 – 指引陪審團無須考慮動機是恰當的

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#P Ross & Debora Poon

The Applicant was convicted after trial of murder and sentenced to life imprisonment. The prosecution case was that the Applicant strangled his wife with a belt and then fled to the Mainland. He returned 8 years later, and told the police that he had not meant to kill the deceased, adding ‘I did it by mistake on the spur of the moment ’ . The judge directed the jury on the issue of motive by saying:

In respect of motive, there have been hints throughout the trial of a girlfriend in Shenzhen and the alleged quarrels that occurred about that. That is a possible motive. Again you do not have to concern yourself with that matter, what you have to concern yourself with is the question of intention.

When the jury asked a question about motive, the judge said:

…I would remind you that the question of the motive or reason for killing is not something you have to concern yourselves with. What you have to be satisfied of is what the intention of the accused was at the time he killed the deceased.

The judge then told the jury that to convict of murder they had to be sure about three things: that the accused did the act or acts which caused the death; that the killing was unlawful; that the accused either intended to kill the deceased or intended to cause her serious bodily harm. On appeal, it was submitted that this direction on motive was in error in that the jury should have been told that the ‘absence of a motive was relevant in determining whether the Applicant intended to kill the deceased ’ . Held : (1) Evidence of motive, on an allegation of murder, was admissible to show that the defendant on trial was more probably the killer than anyone else. If such could be shown, it was evidence which plainly strengthened the case for the prosecution. Equally, if the evidence was all the other way, and there was not only no motive but every reason to believe that the defendant could not have intended to kill the victim, it was a factor which would considerably weaken the prosecution. The facts in the present case fell into neither of these contrasting categories; (2) The situation which arose in this case was touched upon in De Gruchy v R [2002] HCA 33, where the High Court of Australia expressed how the issue of motive should be approached. It was

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stated:

[29] Although absence of motive is relevant, the Appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive.

[30] The absence of evidence of possible motive is

clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of ‘positive significance’, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.

…

[32] Neither prosecuting counsel’s reference to a disturbed mind nor anything else in the case required any specific direction with respect to motive other than that motive was not an essential element of the crime charged and, thus, did not have to be established by the prosecution. Indeed, had the trial judge gone beyond that, it would have been necessary to direct the jury that there was no evidence of motive on the part of the Appellant, rather than an absence of a motive on his part. Such a direction would not have assisted the defence case.

(3) Later, the court in De Gruchy provided guidance as to when it might be appropriate to give directions to a jury about motive, which would be adopted. The following was stated:

(1) No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive on the context of the evidence as a whole;

(2) Where the prosecution has not sought, or has

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failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation;

(3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that ‘[t]he stronger the motive the more influence it is likely to have [on the jury]’. On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong;

(4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime;

(5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is ‘always a fact in favour of the accused’. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction

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about motive, it would generally be fair and prudent to draw to the jury’s notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: ‘the more heinous the act … the more important becomes the question of motive.’ If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard;

(6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, ‘there may be a motive, and perhaps a strong one, but no evidence of it available’. In Pointer v United States [151 US 396 (1894) at 414], the Supreme Court of the United States put it this way: ‘The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.

(4) In the circumstances, the judge, by keeping the original direction extremely brief, had been as fair to the Applicant as she could be. Such motive as the Applicant might have had to kill the deceased was given no emphasis at all. However, neither was this a matter in which an absence of motive had been established on the evidence. Result - Application dismissed.

*張維新及

香港特別行政區訴(1) 翁喜財 ( 2 ) 周逸南

HKSAR v (1 ) YUNG Hei -cho i (2) CHOW Yat-nam

高等法院上訴法庭 – 高院刑事上訴2006年第12號

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林德穎 Cheung Wai - sun & Lam Tak-wing #鍾元富及

侯志揚

Hylas Chung & Felix Hoe

高等法院上訴法庭法官張澤祐

高等法院上訴法庭法官楊振權

高等法院上訴法庭法官袁家寧

宣判日期：二零零八年七月三十日

COURT OF APPEAL OF THE HIGH COURT CRIMINAL APPEAL NO. 12 OF 2006 Cheung Yeung & Yuen JJA Date o f Judgment : 30 Ju ly 2008 製造及販運危險藥物 – 共同被告人承認販運罪 –共同被告人答辯列入承認案情內 – 認罪一事並非不可接納為證據的事實 – 原審法官指示陪審團不應理會共同被告認罪與否來決定申請人有否干犯控

罪，引導符合法律要求第一申請人及第二申請人同被陪審團裁定一項販運危險藥物罪及一項製造危險藥物罪，罪名成

立。控方案情指出， 2005 年 1 月 8 日，一名叫吳俊鋒（｀吳＇）的男子，從油蔴地一單位（｀該單

位＇）行出屋外時，被埋伏的警員截查及拘捕。其

後警員在該單位內拘捕了第一及第二申請人，亦找

到一份租約及一份租單，租約是該單位的業主與吳

簽署的。警員亦在吳身上搜獲 3 條進入該單位的鎖匙，及在該單位內的一個電熱水壺上取得吳的指

模。

2005 年 11 月 10 日，法庭進行審前聆訊時，控辯雙方有討論過吳認罪一事。當時代表第一申請人

的大律師向原審法官說，他與當時代表第二申請人

的大律師都想在審訊時披露這一事實，理由是第一

申請人及第二申請人的立場是他們當時只是在該單

位內吸食毒品，而並非在販毒或製毒。在審前聆訊

時，代表第一申請人的大律師 ( ‘ 大律師 ’ ) 作出該陳詞後，原審法官與他有以下的對話:

官：係。即係其實你哋係想即係話「即係佢

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先至係犯事嗰個人，唔關我哋事嘅，你睇下，拉得佢啱架喇，佢認咗罪」，咁架嘛，係咪呀？

大律師：冇錯。

官：其實你係想控方喺嗰個開案陳詞嗰度講明話有人認咗罪個囉喎？

大律師：係，冇錯。

其後兩申請人的大律師都簽署了一份根據《刑事訴訟程序條例》第65C條作出的 ‘控辯雙方承認的事實 ’ 文件。該文件除了列出吳與該單位的關係與及他當日被捕的情況之外，還在第 7 段述明｀吳於2005 年 6 月 3 日向法庭承認第二項罪名 ( 即販運危險藥物罪 )，但不承認第一項罪名 , 並同意案情。由於吳就販運危險藥物一罪承認控罪，所以控方就製造

危險藥物一罪向他撤銷控罪 ’ 。就吳認罪一點，原審法官在總結案情及引導陪

審團裁決之講辭中，有以下的說法:

咁點解話咗畀你哋知吳俊鋒認咗罪呢？咁其實係等你哋即係消除你哋心中個疑惑，咦，咁點解 …… 吳俊鋒去咗邊呀，咁點解我審又冇吳俊鋒呢？即係呢個係一個原因就話畀你哋知吳俊鋒已經認咗罪喇，所以佢都唔喺你哋面前嘅。咁但係佢認罪就唔應該影響你哋喺呢件案件對兩名被告一 …… 你哋必需要作出嘅決定嘅，情況就等於吳俊鋒冇認罪一樣，即係你哋唔使理佢認咗罪，冇認咗罪，你哋只係要考慮喺呢件案件嚟講，第一、第二被告控方能唔能夠提供到係足夠嘅證據，令到你哋肯定佢哋兩個分別係干犯而家面對嗰兩項嘅控罪，okay？

申請人提出以下的上訴理由：

( i ) 吳認罪一事是不應該放入承認案情內的，

原審法官亦錯誤地接納這事為證據的一部

份 ; 即使這事是可被接納為證據，原審法官

都應行使其酌情權剔除這項證據，因為它

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對申請人害多於利；

( i i ) 原審法官在向陪審團作出有關夥同犯罪的

指引後，錯誤地向陪審團作出有關吳已認

罪的指引。原審法官錯誤地未有向陪審團

作出有關吳認罪並非是針對第一申請人及

第二申請人的證據的指引。

裁決： (1 ) 就第一點上訴理由，法庭認為吳認罪這一事其本質並不是不可接納為證據的事實，辯方是可以傳

召法庭書記作口頭證據證明，所以雙方是可以利用

第 65C 條作為雙方承認的事實： Cheng Chiu v R [1980] HKLR 50不適用； ( 2 ) 至於吳認罪這事應否被接納為證據，重點是在本案中這事實是應辯方的要求而歸納為證據的，而

並非用來針對申請人來指證他們干犯了控罪。在本

案中，兩名申請人的辯護理由正是吳是犯罪者，他

在該單位內販毒，而兩名申請人只是在該單位內吸

食毒品。既然吳認罪的事實是兩名申請人所依賴的

辯方證據，而非用以針對他們入罪的證據，這證據

是可被接納的。法庭看不到原審法官有任何理據應

行使其酌情權不將該同意事實接納為證據。反過來

看，考慮到辯方的立場，若原審法官行使其酌情權

剔除這項雙方承認的事實，原審法官可被批評對辯

方不公，而其做法更構成可爭辯的上訴理由；

(3 ) 就第二點上訴理由，原審法官已向陪審團表明吳認罪一事不應該影響陪審團對本案兩名申請人的

決定。當然，若果原審法官有明文說出吳認罪一事

並不是針對申請人入罪，則會更加清楚，但原審法

官已清楚向陪審團解釋情況等於吳沒有認罪一樣，

陪審團不應理會吳的認罪與否，只須考慮本案中第

一及第二申請人方面控方能否提供到足夠證據令陪

審團肯定他們兩個分別是否干犯了面對的兩項控

罪。這引導已符合 R v Chan Kwong [1982] HKC

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463 一案及 R v Moore（1956）40 Cr App R 50的要求。結果︰上訴駁回。

[English digest of CA 12/2006, above] Cheung Yeung & Yuen JJA (30.7.2008) *Cheung Wai-sun & Lam Tak-wing #Hylas Chung & Felix Hoe

(1) YUNG Hei-choi

(2) CHOW Yat-nam

Manufacturing and trafficking dangerous drugs/Co-defendant pleaded guilty to trafficking in dangerous drugs/Co-defendant’s plea included in admitted facts/Guilty plea not a fact inadmissible as evidence/Trial judge’s direction to jury to ignore co-defendant’s guilty plea in their determination of Applicants’ guilt proper in law A1 and A2 were both convicted after trial by jury of two offences of trafficking and manufacturing a dangerous drug. The prosecution case was that on 8 January 2005, a male named Ng Chun-fung (‘Ng’) was intercepted and arrested by police officers in ambush when he came out of premises (‘the premises’) in Yaumatei. After that, the police arrested A1 and A2 inside the premises, and found a tenancy agreement and a rent receipt. The agreement was signed between the owner and Ng. The police searched Ng and found three keys for entering the premises, and found his fingerprint on an electric water heater inside the premises. At the pre-trial hearing on 10 November 2005, the prosecution and the defence had a discussion on the guilty plea of Ng. At that time, Counsel for A1 told the trial judge that both he and the then Counsel for A2 wanted to disclose this fact at trial because it was the stance of the Applicants that they were taking dangerous drugs in the premises at the material time and they neither trafficked nor manufactured dangerous drugs. At the pre-trial hearing, after Counsel for A1 (‘Counsel’) had made the above submission, he and the trial judge had the following dialogue: Court: Yes. That means you actually want to say,

that guy indeed is the offender. We have nothing to do with the offences. See, it is right to arrest him - he pleaded guilty already. So it is, isn’t it?

Counsel: Correct. Court: Actually you want the prosecution to say

clearly in the opening submission that someone has already pleaded guilty, don’t you?

Counsel: Yes. Correct.

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After that, Counsel for the two Applicants both signed on the admitted facts under s 65C of the Criminal Procedure Ordinance, Cap 221. The admitted facts not only showed Ng’s relation with the premises and the circumstances under which he was arrested, but also, as stated in paragraph 7, that “On 3 June 2005, Ng pleaded guilty in court to the second count of trafficking a dangerous drug, pleaded not guilty to the first count, and agreed to the facts. As Ng pleaded guilty to ‘trafficking in a dangerous drug’, the prosecution dismissed the charge of ‘manufacturing a dangerous drug’.” In his summing up and directions to the jury, the trial judge made the following remarks in relation to Ng’s guilty plea:

So why were you told that Ng Chun-fung had pleaded guilty? In fact this is to clear up any doubts in your mind as to the whereabouts of Ng and why Ng did not appear at this trial. That is to say, the reason why we told you that Ng had pleaded guilty is to explain to you why he did not appear before you. However, his guilty plea should not affect your decision in respect of the two defendants in the present trial … You should make your decision as if Ng had not pleaded guilty at all. That is to say, you need not concern whether or not Ng had pleaded guilty. All you need to do is to consider whether in the present case the prosecution had adduced sufficient evidence against the first and the second defendants so as to make you sure that they had respectively committed the two offences they are now charged with, okay?

The Applicants advanced the following grounds of appeal: (i) Ng’s plea of guilty should not have been included in the

admitted facts. The trial judge erred in accepting the plea as part of the evidence; even if the plea were admissible as evidence, the trial judge should have exercised her discretion to exclude it because its prejudicial effect on the Applicants would outweigh its probative value;

(ii) After giving a direction on joint enterprise, the trial

judge erred in giving a direction to the jury in relation to Ng’s plea of guilty. She erred in failing to direct the jury that Ng’s plea of guilty was not to be regarded as evidence against the Applicants.

Held :

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(1) With regard to the first ground of appeal, the court found that Ng’s plea of guilty in essence could not be said to be a fact inadmissible as evidence. The defence could have called the court clerk to give oral evidence of this fact. Therefore, both parties could admit this fact pursuant to s 65C of the Criminal Procedure Ordinance, Cap 221: Cheng Chiu v R [1980] HKLR 50 not applicable; (2) As to whether Ng’s plea of guilty should be admissible as evidence, the main point was that in the present case, this fact was admitted as evidence at the request of the defence, and it was not used as evidence against the Applicants to establish their guilt. In the present case, A1 and A2 defended on the ground that Ng was the offender who trafficked in dangerous drugs in the premises, whereas they themselves were merely consumers taking drugs in the premises. Since Ng’s guilty plea was relied on by the Applicants to defend their case, and the plea was not used as evidence to incriminate themselves, it should be admissible as evidence. The court could not see any reason that the trial judge should exercise her discretion to exclude this agreed fact. On the contrary, taking into account the defence stance, if the trial judge exercised her discretion to exclude this agreed fact, she could be criticized for being unfair to the defence and this could constitute an arguable ground of appeal; (3) With regard to the second ground of appeal, the trial judge had made it clear to the jury that Ng’s guilty plea should not influence their decision in respect of A1 and A2. Of course, the trial judge would have made it more clear if she had expressly stated that Ng’s guilty plea was not to be used to incriminate the Applicants. However, the trial judge did explain clearly to the jury that they should make their decision as if Ng had not pleaded guilty at all. The jury should pay no attention to whether Ng had pleaded guilty or not. They only needed to determine whether the prosecution had been able to adduce sufficient evidence against A1 and A2 so that they were sure that the Applicants had respectively committed the two offences they were charged with. This direction met the requirements in R v Chan Kwong [1982] HKC 463 and R v Moore (1956) 40 Cr App R 50. Result - Applications dismissed.

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C. CRIMINAL APPEALS/ AGAINST SENTENCE

刑事上訴案件 /針對刑罰 CA 92/2008 Stuart-Moore VP Yuen JA (28.8.2008) *Grace Chan #Andy Hung

(1) LIANG Yaqiong (2) ZHONG Cuilan (3) LI Haimei (4) SU Ziyao

Conspiracy to defraud/Street deception/Mainland gang deceiving gullible victim/Calculation of starting point/Need to keep sense of proportion with other serious dishonesty offences/ Enhancement of 60% due to prevalence of offence not justified/ Failure to follow guidelines leading others to feel sense of grievance/Arbitrary decisions by individual sentencers to be avoided/Organized and Serious Crimes Ordinance (Cap 455) s 27(11) 串謀詐騙 – 街頭騙案 – 大陸人糾黨向易受騙的受害者行騙 – 量刑起點的計算方法 – 須有意識保持與其他嚴重不誠實罪行的刑罰相稱 – 因罪行普遍而加刑百分之六十的理由不充分 – 不遵循量刑指引會令其他人感到受屈 – 應避免個別判刑者作出無理據的決定 – 香港法例第455章《有組織及嚴重罪行條例》第27(11)條 The Applicants pleaded guilty to conspiracy to defraud, contrary to Common Law and s 159C(6) of the Crimes Ordinance, Cap 200. The Applicants were mainlanders who came to Hong Kong to practise a form of street deception on the victim, a female, by falsely representing to her, in the words of the charge, that :

… her son would befallen with misfortune and will be dead by tonight on 5.9.2007; … that in order to prevent the said ill fate a ritual blessing had to be performed by a spiritual doctor; … [and] that she was to surrender valuables including money, gold ornaments into a bag for the performance of the said ritual blessing by the spiritual doctor and after which the valuables will be returned to her.

The prosecution applied for the enhancement of the sentence of each accused, pursuant to s 27(11) of the Organized and Serious Crimes Ordinance, Cap 455 (‘OSCO’). The judge found that each of the accused was equally culpable, and that the only mitigation culpable of reducing sentence was the plea of guilty each of them had entered before the trial. The judge followed the procedure for the enhancement of

22

sentence contained in HKSAR v Tam Wai-pio [1998] 4 HKC 291. Having first decided that enhancement of sentence was appropriate, he then examined the statistics he had been given to illustrate the prevalence of street scams in Hong Kong, finding that between 50 and 55 per cent of all reported cases of this kind took the form of ‘spiritual blessing’ offences. The judge said it was apparent that this kind of deception had not been deterred as it was ‘persistently prevalent’, and that if the usual 50 per cent enhancement adopted since 2001 did not deter, a percentage higher than that should be considered to deter like-minded people from committing street deceptions of this kind. The judge decided to enhance the sentences by approximately 60 per cent. The judge adopted a starting point of 3½ years’ imprisonment which he reduced to 28 months as discount for the guilty pleas, and this was enhanced to 44 months, pursuant to s 27(11) of the OSCO. On appeal, it was submitted that the sentence was manifestly excessive, and that the 3½ year starting point was too high and that the enhancement of about 60 per cent was wrong in principle especially against a background where the accused were not recidivists. Held : (1) The judge was extremely familiar with the grave view taken of crimes of this sort and had cited HKSAR v Huang Yu-huan and Another [2002] 2 HKC 682, as an illustration of the criminality involved. He was also aware of previous appellate decisions, and in all but one of the examples he cited a sentence of 3 years’ imprisonment was considered appropriate. He took a higher starting point because the Applicants formed part of a gang which consisted of six members, which was more than in all the examples to which he had referred; (2) Whilst there was sympathy for the judge’s concern that offences of this kind had not been dealt with sufficiently heavily in the past to deter others in the light of clear evidence that these crimes showed little sign of abating, a sense of proportion had to be maintained with other serious offences involving dishonesty including burglary and thefts by well-organised teams of pickpockets; (3) The judge chose to take a higher starting point than in any of the other cases he used as illustrations of street deception offences although, in practical terms, whether or not there were slightly more participants engaged in this conspiracy, the criminality involved was just the same;

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(4) The courts made a real effort to achieve a parity of sentencing for like offences and when this principle was not applied, a sense of grievance was almost bound to result on the part of those who were arbitrarily selected for much heavier punishment. This was one reason why, when sentencing guidelines were called for or an increase in the general tariff for a particular kind of offence was recommended, the responsibility was left to the appellate court so that arbitrary decisions were not made by individual sentencers; (5) The judge not only took a higher starting point for the offence than the court had considered to be an appropriate level of sentence in earlier similar cases involving a single offence but he then also enhanced those sentences by a greater percentage than had apparently ever been taken before. There was, in this regard, an element of double counting as the Applicants then found themselves receiving an increased enhancement on an already increased starting point; (6) If the Applicants had previously been sentenced for a scam of this type following an earlier visit to Hong Kong, there would have been every justification for an increased starting point in precisely the same way that an earlier conviction would often amount to an aggravating factor when an offender had previously committed an offence of the same kind: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830. The Applicants were not previous offenders; (7) In this particular case, unlike many others, the victim was spared the trauma of any actual loss. This was due to the timely intervention of the police; (8) The proper starting point for each of the Applicants was 3 years’ imprisonment, reduced to 2 years for the guilty pleas. The enhancement ought to have been no more than 50 per cent. Result - Appeals allowed. All sentences reduced from 3 years

and 8 months’ imprisonment to 3 years. Per cur - The judge very properly alerted defence counsel to his

intention to enhance sentence so as to enable counsel to address the point.

[For enhancement of sentence generally, see Sentencing in Hong Kong, 5th ed., Ch 28: Ed]

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CA 402/2007 Stuart-Moore VP Beeson & Wright JJ (17.9.2008) *J Reading SC & Alvin Chui #I/P

LAM Shui-sai

Immigration/Assisting passage to Hong Kong of unauthorized entrants/Defendant in charge of sampan not equipped for navigation at sea/Starting point of 6 years’ imprisonment appropriate/Reduction of 6 months for saving of court time not appropriate 入境 – 協助未獲授權進境者前來香港的旅程 – 被告人掌管的舢舨沒有海上航行裝備 – 以6年監禁為量刑起點屬恰當 – 因節省法庭時間而減刑 6個月屬不恰當 The Applicant was convicted after trial of an offence of assisting the passage to Hong Kong of unauthorized entrants, contrary to s 37D(1)(a) of the Immigration Ordinance, Cap 115. The facts showed that marine police saw a sampan sailing without navigation lights at 10.30 pm and when it refused to stop there was a chase. When the sampan, captained by the Applicant, was eventually stopped, 10 people were found lying on top of one another in three compartments on the boat; 8 Vietnamese women and 2 Mainland men, all of whom were found to be illegal immigrants. The judge concluded that the Applicant was the steersman. Upon Marine Department’s inspection, the sampan was found to measure 7 metres long by 2 metres wide; the hull was in poor condition; it had no firefighting or lifesaving appliances, nor any navigation lights for night navigation. Therefore the sampan could not be considered equipped for navigation at sea. In sentencing, the judge considered R v Lam Kon-man Cr App 329/1990, where it was held that the person in charge of a vessel in which unauthorised entrants were carried should receive 5 years’ imprisonment after trial. That starting point should be increased if there was evidence of concealment of the unauthorised entrants, or if the vessel was unseaworthy and, where both circumstances existed, a starting point as high as 9 years would be appropriate. The judge considered the factually similar case of HKSAR v Tsui Kwong-ming Cr App 247/2004, and, as there, adopted a starting point of 6 years’ imprisonment, which he then reduced to 5 years and 6 months. On appeal Held : (1) The Applicant was aged 51 and was a mainland citizen with a clear record in Hong Kong. He had three children by his

25

divorced wife and the children were said to be looked after by their grandmother who herself required regular medical attention. The Applicant was the sole breadwinner and had formerly worked as a construction site worker. None of his personal details amounted to cogent mitigation for this offence; (2) Although the judge gave a reduction of 6 months from the starting point of 6 years to acknowledge that the Applicant had admitted a substantial part of the prosecution case which, in her opinion, had saved court time, such a reduction was wholly unjustified, as any saving of court time would be minimal and in a case of this kind was not appropriate in any event. Result - Application dismissed. [For assisting the passage to Hong Kong of unauthorised entrants generally and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at p 611: Ed]

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D. MAGISTRACY APPEALS/ AGAINST CONVICTION

裁判法院上訴案件 /針對定罪 MA 313/2008 Beeson J (22.9.2008) *Tam Sze-lok #A Bruce SC

CHAN Yuet-ching

Triad society/Acting as a member of a triad society/Ingredients of offence/Offence cast wide to combat triad-type activities/ Triad Societies Ordinance (Cap 151) s 20(2) 三合會社團 – 以三合會社團成員的身分行事 – 犯罪要件 – 罪行規管範圍廣泛以撲滅三合會活動 – 香港法例第151章《社團條例》第20(2)條 The Appellant was convicted after trial of two offences of acting as a member of a triad society, contrary to s 20(2) of the Societies Ordinance, Cap 151. The evidence on Charge 1 showed that the Appellant was together with a group of men believed to be triads at the Duck Disco in Tsuen Wan on 13 March 2000, and that he adopted a position as leader. A triad expert interpreted the incident as a triad show of strength over several hours. None of those present drank beer, played finger-guessing games or danced. A man arrived and spoke to the Appellant for about 30 minutes, and then left. During this time the assembled group sat silently with serious facial expressions. After the man had gone the Appellant told the group that ‘the matter with Lo Fuk has been settled ’; the reference to ‘Lo Fuk ’ apparently being to the Fuk Yee Hing Triad Society. The group then began drinking, dancing and playing finger-guessing games. The magistrate found the Appellant was in control of the persons gathered at the disco and was taking a leadership role in a typical triad show of force following a ‘blowing of the whistle ’. Charge 2 was based on a similar incident at Jungle King Karaoke Box (‘Jungle King ’) in Tsuen Wan on 21 April 2000. The Appellant was found to have adopted a role as one of the leaders of a group which was intent on creating a show of force apparently to put pressure on the owners, or management, of the Jungle King. A group of about 9 persons travelled to the Nam Fung Centre where they were joined by another group of 20 and the combined groups went up to the Jungle King. At the lobby the group adopted an angry demeanour to create a show of force. A discussion ensued between the Jungle King management and the leaders of the waiting group, which included the Appellant. Those waiting blocked access to potential patrons of the Jungle King by putting rubbish bins in the lift, and a fight with knives broke out between the lobby group and those inside the Jungle King. The Appellant took charge when one of the waiting lobby group was injured, and later visited him at hospital where he directed the

27

injured man’s ‘big brother ’ to look after him. The magistrate found that the fight was between opposing triad groups and that the gathering was a typical triad show of force. There was said to be a difference between proving a person to have intentionally done the kind of act that a triad would do, and proof that the accused acted thus, knowing that his act had such a character. It was not enough to establish that the acts were acts a triad would do; it must be proved the Appellant knew them to be such acts. As the magistrate had not made a finding on this the charge could not be established. On appeal, it was submitted, inter alia, that the magistrate erred in convicting the Appellant of the offence under s 20(2) of the Societies Ordinance, Cap 151, when it had not been proved that the Appellant knew that his conduct was such that he was acting as a member of a triad society. Section 20(2) stated:

Any person who is or acts as a member of a triad society or proposes or claims to be a member of a triad society or attends a meeting of a triad society or who pays money or gives any aid to or for the purposes of the triad society or is found in possession of or has the custody or control of any books, accounts, writing, lists of members, seals, banners or insignia of or relating to any triad society or to any branch of a triad society whether or not such society or branch is established in Hong Kong, shall be guilty of an offence and shall be liable on conviction on indictment.

Held : (1) On a clear reading of s 20(2), all the prosecution needed to prove was that the Appellant was acting in a manner which emulated the actions of a member of a triad society; that he was taking part in the kind of activities of a triad society that a member might be required to take part in. Presence alone during such activities would be insufficient. An overt act, or acts, must have been done consciously in circumstances which left no room for doubt. As McMahon J stated in HKSAR v Lam Yan-ming MA 1078/2003:

The offence is restricted to acting as if the offender were a member of a triad society, not merely doing something which a triad might occasionally do.

(2) The section was cast wide deliberately, to enable triad-type activities to be stamped out. It would place an unreasonably heavy

28

burden on the prosecution to constrict the section in the manner suggested. Result - Appeal dismissed.

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E. MAGISTRACY APPEALS/ AGAINST SENTENCE

裁判法院上訴案件 /針對刑罰 MA 714/2008 Beeson J (12.9.2008) *Stewart Hau #I/P

MAHAMADOU Kamissoko

Immigration/Using a false travel document/False representation to immigration officer/Quantum of sentence 入境 – 使用虛假旅行證件 – 向入境事務主任作出虛假申述 – 判刑的輕重 The Appellant pleaded guilty to an offence of using a false travel document for the purpose of Part II of the Immigration Ordinance, contrary to s 42(2)(b) of the Immigration Ordinance, Cap 115, and to a second offence of making a false representation to an immigration officer, contrary to s 42(1)(a) of the same Ordinance. The admitted facts showed that the Appellant presented his Malian passport, together with an expired Malian passport, each of which bore the same false date of birth (10 May 1974), to the immigration authorities at the China Ferry Terminal on the Appellant’s arrival in Hong Kong, from Macau. The Appellant, a Malian citizen, was granted permission to land as a visitor. When he went through customs, another Malian passport bearing his correct date of birth was found in his possession. He was later arrested. Under caution, the Appellant admitted that he was born on 10 May 1972 and that he had applied for a Malian passport from the Malian authorities, but had not submitted his family register. When he received the travel document he knew that the date of birth was wrong, but still used the passport for arrival clearance, thus falsely representing his date of birth. Travel records showed that the Appellant used a passport with the false birth date to travel to Hong Kong between June 2003 and August 2005, when that travel document expired. Thereafter from October 2005 to the time of arrest, the Appellant used the current false passport. He had entered Hong Kong more than 20 times since 2003. The magistrate, having adopted starting point of 12 months on each charge, sentenced the Appellant to 8 months’ imprisonment for each offence, to be served concurrently. On appeal Held :

30

(1) When sentencing, the magistrate had noted that the Appellant was a businessman with a clear record in Hong Kong, and there was no indication that the false passports had been used for any illegal activities; (2) The magistrate referred to R v Wang Ju-wen [1989] 2 HKLR 26, which indicated 18 months’ imprisonment on a plea of guilty was appropriate for possession and use of a false passport; that case involved a businessman using two false passports on 16 occasions to facilitate his business travel; (3) The starting point of 12 months’ imprisonment appeared to be lower than usual for this type of offence; (4) There were no mitigating features apart from the guilty plea, and the magistrate imposed a sentence that would be regarded as lenient for this type of offence. Result - Appeal dismissed. [For false passports generally and making false representations to an immigration officer and quantum of sentence, see Sentencing in Hong Kong, 5th ed., at pp 614-615: Ed]

MA 674/2008 Beeson J (25.9.2008) *Ned Lai #L Lok SC & Edward Shum

CHAN Kun-hoi

Offering advantage to an agent/General sweetener offered over period of time/Need for deterrent sentence/Discount for offer to testify against co-defendant who pleaded guilty in consequence/Prevention of Bribery Ordinance (Cap 201) s 9 向代理人提供利益 – 在一段期間內提供一般甜頭 – 須判處阻嚇性刑罰 – 因自願指證同案被告人並導致同案被告人認罪而獲得的減刑 – 香港法例第201章《防止賄賂條例》第9條 The Appellant pleaded guilty to one offence of offering advantages to an agent, contrary to ss 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. His co-defendant faced a mirror charge of accepting advantages as an agent. The Appellant was sentenced to 5 months’ imprisonment, and his co-defendant (D2) was sentenced to 6 months’ imprisonment. After he was charged, the Appellant indicated that he would plead guilty and that he was prepared to give evidence against D2, who intended to plead not guilty. He gave a non-prejudicial statement, in which he pointed out that D2 had taken the initiative and that he had ‘followed the flow ’ , making the payments over a

31

2-year period as a general sweetener rather than as encouragement to do any particular task. Thereafter, D2, like the Appellant, pleaded guilty, having changed his position in the meantime. Had the trial of D2 proceeded, the Appellant would have been called as a witness for the prosecution. The magistrate recognised the Appellant’s clear record, age (66), the support he received from family, friends, employees and contractors, and that, comparatively, the money involved was small. But he stated:

…the courts in Hong Kong have steadfastly set their faces against watering-down, or making light of the corrosive effect of corruption. In the case of SJ v Li Cheuk-ming [1999] 1 HKLRD 59 (English translation at 63)(Application for Review No. 2 of 1998) CA, the Court of Appeal held that a community service order is not excluded as a proper sentence even for offences that are serious, including bribery and corruption. But Chan CJHC said, at 66A:

‘however, bribery and corruption have for ages been regarded as crimes which are intolerable in a civilized society. They are cancerous activities in a healthy and sound society and their impact to the entire society could be serious, far-reaching and adverse. They must be eradicated quickly and thoroughly, otherwise they would spread to the whole community like a prairie fire that never burns out and the consequence is disastrous.’

The magistrate also referred to Lai Yuk-kui v R [1981] HKLR 691 and R v Chan Koon-kwok, Arthur [1990] 2 HKLRD 458, as authorities for the principle that sentences in cases of bribery and corruption should contain the element of general deterrence. In the latter case, the court stated ‘attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of the Prevention of Bribery Ordinance may be properly marked’. In Lai Yuk-kui, the Court of Appeal said ‘an immediate custodial sentence should normally be imposed whether the offender is a public officer or not. The usual minimum imprisonment for relatively minor cases of corruption in the public sector should be twelve months ’. The magistrate stated:

32

I did not consider the personal and family circumstances of the Appellant amounted to exceptional circumstances. His medical condition reflected age and the anxiety of waiting for the trial to conclude. Such condition was not so serious that, in itself, it should be regarded as an exceptional circumstance. There were other members of his family who were capable of running the Appellant’s business with the aid of loyal staff in the absence of the Appellant. The Appellant’s good works did him credit but did not amount to exceptional circumstances. I acknowledged that the practice of giving general sweeteners was common in the catering industry. I considered that the Appellant was fully aware of the unlawfulness of such practice and did nothing to resist ‘going with the flow’. A person in his position should have used his authority and standing within the catering and general communities to demonstrate that he would stand up for generally accepted standards of probity and honesty and refuse to adopt prevalent corrupt practices.

The magistrate decided that the only way of dealing with the Appellant was to pass an immediate custodial sentence. He took a starting point of 9 months. He gave the Appellant credit for his plea of guilty and reduced the sentence to 6 months. He then noted R v Yan Im-kun Cr App 680/1996, as authority for the proposition that the Appellant should be given credit for his offer to give evidence and for his having made and fully adopted a witness statement. The magistrate accepted that some discount should be given for those factors and further reduced the sentence to 5 months. D2 was sentenced at the same time to a period of imprisonment of 6 months, calculated on the same basis as the magistrate had calculated the sentence for the Appellant. He did not, however, give the co-defendant any further reduction. On appeal, it was submitted that the magistrate erred in taking a starting point of 9 months for the Appellant and D2, as their relative culpability should be reflected by different starting points; in particular, it was D2 who had made the approach to him for payment of money. It was also argued that the magistrate failed to give sufficient credit for the Appellant’s willingness to give evidence for the prosecution. The sentence of 5 months was said to be manifestly excessive as the magistrate had failed, sufficiently, to take into account the Appellant’s personal circumstances, in particular, his old age and personal health. Held :

33

(1) The magistrate took careful note of the personal circumstances of the Appellant, and he found, rightly, that there were no exceptional circumstances to justify a substantial discount; (2) The magistrate correctly treated deterrence as part of the sentence. As the authorities indicated, absent special circumstances, a sentence of immediate imprisonment was necessary, and the magistrate adopted an appropriate starting point. The giving and receipt of a general sweetener had covered a period of 2 years. The perniciousness of a system of general sweeteners could be even more damaging to society than one where specific tasks were performed for the advantage offered; (3) Whilst the magistrate gave credit for the offer to give evidence, he failed to take into account sufficiently the effect of the Appellant’s plea on D2. D2 only decided to change his plea when he realised the Appellant was going to give evidence. Some additional credit would therefore be given to recognise that the Appellant’s non-prejudicial statement and his offer to give evidence were instrumental in effecting D2’s change of plea. Result - Appeal allowed. Sentence of 4 months’ imprisonment

substituted.

*張維新及

陳詠嫻

Cheung Wai-sun & Agnes Chan

#盧敏儀

Money Lo

香港特別行政區訴陸華華 HKSAR v LOCK Wah-wah

高等法院原訟法庭 – 高院裁判法院上訴2008年第401號高等法院原訟法庭法官張慧玲

宣判日期：二零零八年七月二十五日

COURT OF FIRST INSTANCE OF THE HIGH COURT MAGISTRACY APPEAL NO. 401 OF 2008 Barnes J Da te o f Judgment : 25 Ju ly 2008 僱用不可合法僱用的人 – 僱主未有查閱新僱員的

文件 – 入境條例第17I和17J條 –法例要求僱員持

有永久性居民身分證 – 身分證上的｀三粒星＇與

是否永久性居民無關 – 上訴人對法律的無知值得

34

原諒 – 罰款已充分反映罪責

上訴人本被控一項僱用不可合法僱用的人罪，違反香港法例第 115 章《入境條例》第 17I (1 ) 條。其後控方改控較輕的僱主未有查閱新僱員的文件

罪，違反上述條例第 17J(1) 及 (2 ) 條。上訴人承認該較輕控罪，被裁判官判處2個月監禁。

根據上訴人承認的案情， 2007 年 10 月 11 日，警員截查女子聶素英（ ‘ 聶 ’ ）時，聶未能提供身分證明文件，並指稱她在一茶餐廳工作。警員帶同聶

前往該茶餐廳，聶出示一 ‘ 雙程證 ’ ，該證件顯示聶是以訪客身份來港，祇可逗留7天。警員調查顯示聶在 8 月 2 0 日以偽造身分證前往該茶餐廳應徵洗碗員一職。上訴人是茶餐廳

東主。他會見聶，檢視及影印聶提供的身分證

後，以 $ 2 8 0 日薪聘用聶。上訴人在聘用她之前並無查閱她的有效旅行証件。警員以僱用不可

被僱用的人的罪名拘捕上訴人，警誡下上訴人

承認控罪。

裁判官即時判刑時說： … 呢啲喺茶餐廳嗰度聘用一啲唔可以喺香港做

嘢嘅人嘅情況就係十分之猖獗㗎，就算佢係有三粒星，即係呢個永久居民嘅身分證，你都係喺法律之下係有責任去作出調查，去確保個身分證係一個有效嘅身分證。咁今次更加佢唔係揸一個永久居民嘅身分證，亦令到你應該就係

有極之懷疑佢個身分㗎嘞，咁你都係繼續去請佢。喺咁嘅情況之下，一個罰款係唔適合㗎，本席以三個月嘅監禁作為量刑起點，你自己認

罪，減為兩個月，兩個月監禁㗎。……[本席加橫線作強調]

上訴人指出審訊時的代表律師及裁判官都將｀三粒星＇與｀香港永久居民＇混淆。事實上有

｀三粒星＇不一定是｀香港永久居民＇，而｀香港

35

永久居民＇亦不一定有｀三粒星＇。｀三粒星＇是

源於入境處推行的出入境簡化計劃，有｀三粒

星＇( 及與本案無關的｀一粒星＇或｀R＇) 標記的

身分證，持有人可無須使用｀回港證＇出入香港

前往內地及澳門。既然經常接觸法例的人都不清晰

法例，上訴人祇是一名小市民，他對法律的無知是

可理解及值得原諒的。裁判官指上訴人｀明知＇

聶是不可被僱用的人是錯誤的，她採納 3 個月量刑

起點是不正確及過重。

答辯人同意上訴應得直，有關判刑是明顯過

重。

裁決： ( 1 ) 《入境條例》第 17I 條，即僱用不可合法受僱用的人的罪名的最高刑罰是罰款 $350 ,000 及監禁3 年。上訴庭在 SJ v Ho Mei -wa [2004] 3 HKLRD 270 一案中，就僱用不可合法受僱的人頒下新的判刑指引，若案件涉及一名僱員，而僱主

是明知該人不能合法受聘或妄顧該人是否能合法

受聘，聘用該人是以散工形式，案件亦無令案情

更嚴重的元素，經審訊後判刑 3 個月是恰當的。

(2 ) 另外，《入境條例》第 17J(1) (a ) 條規定任何人均不得在香港訂立僱用他人的僱傭合約，除非

先查閱該人所持有的身分證，如該人所持有的身

分證並非《人事登記條例》(第 177 章)中所界定的永久性居民身分證，則先查閱該人所持有的有效

旅行證件。《人事登記條例》界定的｀永久性居

民身分證＇是載有｀持有人擁有香港居留權＇字

句的身分證。若持證人持有｀永久性居民身分

證＇，便不須查閱其他證件，否則便須查閱第 17J條列在 (1 ) (b ) 或 (c ) 的證件。根據該條例第 17J(2)條，任何人違反第 (1 ) 款，即屬犯罪，可處罰款$150 ,000 及監禁 1 年。第 17J 條的最高刑罰明顯較第 17I 條為輕。

36

(3 ) 從上述條例可見，持有｀永久性居民身分

證＇的人是可合法在港受聘的。不持有｀永久性

居民身分證＇的人不一定不能合法受聘，但僱主

須依法查閱其他有效證件；

(4 ) 第 17J 條是一條嚴格法律責任條款，控方不須證明被告有犯罪的認知。雖然條例本身並無列明免

責條文，一名被控告人士是可引用｀在何者可能性

較高此標準下＇，證明他有良好及足夠理由相信

( 即使是錯誤信念 ) ，他已經做了法律上的要求：

AG v Fong Chin Yue & Others [1995] 1 HKCLR 193； (5 ) 身分證有｀三粒星＇在香港而言可謂歷史頗長。雖然設立｀三粒星＇的原意是方便香港居民出

入境內地及澳門，但事實上有多人 ( 尤其是本案的

調查警員、上訴人代表大律師及裁判官 ) 都將｀永

久性居民＇與｀三粒星＇混淆；

(6 ) 裁判官指即使身分證有｀三粒星＇，即｀永久居民身分證＇，上訴人仍須作調查，看看是否有

效。法庭並不認同。根據第 17J 條，若上訴人查看的是一張｀香港永久居民身分證＇，他是無須再作

調查的。誠然，若該偽造身分證是粗製濫作，祇要

小心細閱便能分辨是假證，上訴人必定難辭其咎。

但法庭在細閱有關身分證的影印本後，可理解上訴

人是被聶瞞騙，不知該身分證是偽造的。上訴人指

稱以為僱員有身分證便可，不知悉若非 ‘ 香港永久居民身分證 ’ 便必須再查閱其他有效證件。法庭無理由不相信上訴人此解釋。上訴人干犯此罪行是

‘情有可原 ’的； (7 ) 法庭在考慮一般判罰、本案的所有情況、上訴人的背景(初犯，小型茶餐廳東主，月入九千)後，

認為罰款$3 ,000已充分反映其罪責。結果︰上訴得直。監禁刑期取消，改為罰款 3 ,000

元。

37

[English digest of MA 401/2008, above] Barnes J (25.7.2008) *Cheung Wai-sun & Agnes Chan #Money Lo

LOCK Wah-wah

Employing a person not lawfully employable/Employer failed to inspect documents of new employee/Immigration Ordinance (Cap115) ss 17I & 17J/Legal requirement for employee to hold permanent identity card/Symbol of ‘three asterisks ’ on identity card not relevant to permanent resident status/Appellant’s ignorance of the law forgivable/Culpability fully reflected in fine The Appellant was initially charged with a count of employing a person not lawfully employable, contrary to s17I(1) of the Immigration Ordinance, Cap 115. The prosecution later amended the charge to one of failing to inspect the documents of a new employee, contrary to s17J(1) and (2) of the same Ordinance. The Appellant pleaded guilty to the latter, which was the lesser charge, and was sentenced by the magistrate to 2 months’ imprisonment. According to the facts admitted by the Appellant, on 11 October 2007, a female named Nie Suying (‘Nie’) could not produce any identity document when she was stopped and searched by a police officer. She claimed to be working in a restaurant. The police officer went with her to the restaurant where she produced a ‘two-way permit’ . The permit indicated that she was permitted to remain in Hong Kong as a visitor for 7 days only. Police investigation revealed that Nie applied for the job of dish washing worker in the restaurant with a forged identity card on 20 August. The Appellant was the proprietor of the restaurant. He interviewed Nie, inspected and photocopied the identity card produced by her, and subsequently hired her on a daily wage of $280. The Appellant had not inspected Nie’s valid travel documents before hiring her. He was arrested for employing a person not lawfully employable, an offence he admitted under caution. The magistrate made the following remarks at the time of sentencing:

…the offence of employing people unemployable in Hong Kong to work in restaurants is becoming rampant. Even if her identity card had borne a symbol of three asterisks, which meant it were a permanent identity card, you still had a duty in law to make enquiries to ensure that it were a valid identity card. In the present case, she produced a non-permanent

38

identity card; therefore you should have been extremely suspicious of her status. You hired her nonetheless. Under such circumstances, a fine is simply not appropriate. I shall take 3 months’ imprisonment as the starting point and reduce the sentence to 2 months to reflect your guilty plea. Imprisonment for 2 months...

The Appellant pointed out that during the trial, the counsel and the magistrate were both confused about the relationship between the symbol of three asterisks and the Hong Kong permanent resident status. In fact, an identity card bearing a symbol of ‘three asterisks ’ was not necessarily a ‘Hong Kong permanent identity card ’; and a ‘Hong Kong permanent identity card ’ did not necessarily bear a symbol of ‘three asterisks ’. The symbol of ‘three asterisks ’ originated from the Immigration Department’s Easy Travel Scheme under which a holder of a Hong Kong identity card bearing a symbol of ‘three asterisks ’ (or a symbol of one asterisk or a ‘R ’, which was irrelevant to the present case) could travel through Hong Kong to and from Macau and the Mainland without a ‘re-entry permit ’ . Given that even people constantly dealing with the law were unclear about this law, it was understandable and forgivable that the Appellant, an ordinary member of the public, was ignorant about this law. The magistrate erred in finding that the Appellant was ‘well aware ’ that Nie was not lawfully employable. The starting point of 3 months’ imprisonment was inappropriate and excessive. The Respondent agreed that the appeal should be allowed and that the sentence was manifestly excessive. Held : (1) The maximum penalty under s 17I of the Immigration Ordinance for an employer of a person not lawfully employable was $350,000 and 3 years’ imprisonment. In SJ v Ho Mei-wa [2004] 3 HKLRD 270, the Court of Appeal handed down a new sentencing guideline for the offence of employing a person who is not lawfully employable. If the case involved a single employee, full knowledge or recklessness on the part of the employer as to the employment of a person not lawfully employable, employment on a casual basis and absence of aggravated features, a 3-month sentence after trial would be appropriate; (2) In addition, under s 17J(1)(a) of the Immigration Ordinance, no person shall in Hong Kong enter into a contract of employment to employ any other person unless he first inspected the identity card held by such other person and where the identity card held by such other person was not a permanent identity card as defined in the Registration of Persons Ordinance (Cap 177), a valid travel

39

document held by such other person. The ‘permanent identity card ’ as defined in the Registration of Persons Ordinance means an identity card which contained a statement that ‘the holder has the right of abode in Hong Kong ’. Inspection of other documents was not required if the holder held a ‘permanent identity card ’. Otherwise, inspection of the documents as specified in s 17J(1)(b) or (c) would be required. Under s 17J(2) of the said Ordinance, any person who contravened subsection (1) committed an offence and was liable to a fine of $150,000 and to imprisonment for 1 year. The maximum penalty under s 17J was obviously less than that under s 17I; (3) From the Ordinance, it could be seen that a holder of a ‘permanent identity card ’ was lawfully employable in Hong Kong. A person not holding a ‘permanent identity card ’ was not necessarily not lawfully employable, but the law required the employer to inspect other valid documents; (4) Section 17J created a strict liability offence. The prosecution needed not prove the mens rea of the accused. Although statutory defence was not available, the accused might prove on a balance of probabilities that he had good and sufficient reason to believe, though erroneously, that he had met the requirements of law : AG v Fong Chin Yue & others [1995] 1 HKCLR 193; (5) It was a long time ago when a Hong Kong identity card first bore a symbol of ‘three asterisks ’. The original intention for the existence of such a symbol on an identity card was to facilitate the travel of Hong Kong residents to and from the Mainland and Macau. Nevertheless, in reality, many people (including particularly the investigating police officers, counsel for the appellant and the magistrate in the present case) were confused about the relationship between the permanent resident status and the symbol of ‘three asterisks ’; (6) The magistrate stated that the Appellant was required to make enquiries to ensure the validity of an identity card even though the card bore a symbol of ‘three asterisks ’, which meant it was a ‘permanent identity card ’. The court disagreed. Under s 17J, the Appellant need not make further enquiries if the document he inspected was a ‘Hong Kong permanent identity card ’. Of course, if it was a forged identity card of coarse quality and its forgery was easily detectable upon inspection with care, the Appellant was definitely culpable. However, after careful examination of the photocopy of the identity card in question, the court found that it was understandable that the Appellant was cheated by Nie so that he did not realize it was a forged identity card. The Appellant alleged that he had thought that an employee

40

holding an identity card would be lawfully employable, not knowing that he was required to make further inspection of other valid documents if it was not a ‘Hong Kong permanent identity card ’. The court had no reason to disbelieve the Appellant’s explanation. The commission of this offence by the Appellant was thus ‘forgivable’; (7) Having regard to the normal sentence for this type of offence, all the circumstances of the present case and the background of the Appellant (being a first time offender and a proprietor of a small restaurant, with a monthly income of $9,000), the court considered that a fine of $3,000 could fully reflect his culpability. Result - Appeal allowed. Sentence of imprisonment set aside and

substituted with a fine of $3,000.

41

F. JUDICIAL REVIEW 司法覆核

CACV 64/2008 Rogers VP Le Pichon JA (23.9.2008) *Appellant: I/P #Respondent: Not represented

MA Pui-tung v DOJ

Article 63 of Basic Law/Decision not to prosecute/Judicial interference with prosecutorial decision extremely rare/ Alternative remedy not an absolute bar to judicial review/ Availability of private prosecution 《基本法》第 63條 – 不提出檢控的決定 – 對檢控決定作出司法干預極為罕見 – 有替代的補救方法並不等於絕對不可司法覆核 – 仍可提出私人檢控 On 25 February 2008, the Court of First Instance refused the Appellant’s application for leave to bring judicial review proceedings. The Appellant’s firm had acted on behalf of a litigant, Mr Koo (‘Koo ’), who had been introduced to the firm by a clerk, Mr Wong (‘Wong ’). Following a complaint by Koo, the Solicitors Disciplinary Tribunal concluded that the Appellant was guilty of disciplinary offences, including failure to provide his client with a written record of fees and his failure to deliver a bill of costs to Koo within a reasonable time of the conclusion of the matter, failure to keep his client properly informed of the true nature of a notice to act in person on which Koo had been asked by the Appellant to sign, and failure to arrange for the attendance of a responsible representative throughout the proceedings, instead instructing Wong to attend (These proceedings were described in the court’s judgment in CACV 221/2003, dated 11 November 2003). The Appellant’s view was that Koo and Wong had been guilty of giving false evidence against him. He therefore asked the Department of Justice to prosecute Koo for perjury. The decision was taken that there would be no prosecution of Koo, and despite renewed application that decision was adhered to. The Appellant sought judicial review in respect of the decision not to prosecute Koo for any criminal offence on the purported ground of insufficient evidence. The judge considered that on the basis of Keung Siu-wah v AG [1990] 2 HKLR 238, it was not open to review a decision of the DPP not to prosecute. In doing so the judge also had regard to Kwan Sun-chu Pearl v DoJ [2006] 3 HKC 207. However, the judge also went on to say that he considered that there was nothing at all in the papers which indicated any basis upon which it might be said that it could be reasonably argued either that the Director did not correctly understand the law or that the decision was

42

irrational in the sense of being Wednesbury unreasonable, or that there had been a failure to act with procedural fairness. On appeal Held : (1) As pointed out in Kwan Pearl Siu-chu, the statement in Keung Siu-wah required clarification. At p 255-6 it had said:

…the authorities are overwhelming that the decision of the Attorney General whether or not to prosecute in any particular case is not subject to judicial review.

(2) It was, no doubt, in extremely rare cases and only where the evidence pointed unquestionably to the desirability of there being a prosecution that a court should interfere with a decision of the prosecuting authority not to prosecute. There were instances where an application for judicial review in respect of a refusal to prosecute had been allowed: R v DPP, ex parte C [1995] 1 Cr App R 136. In such cases, however, the facts spoke for themselves. It was, perhaps, all the more important that a court should exercise extreme caution if consideration was given to questioning a decision not to prosecute because Article 63 of the Basic Law provided:

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.

(3) None of the matters raised amounted to anything which came anywhere near a ground upon which a court could question the decision not to prosecute Koo; (4) Although the availability of alternative remedies was no longer considered an absolute bar to the grant of judicial review, where an alternative remedy existed the court should be slow and circumspect in permitting an application for judicial review to proceed. It would appear that the theoretical possibility of a private prosecution might exist, although it was most unlikely that any private prosecution for perjury would be allowed to proceed. Result - Appeal dismissed. [The ambit of judicial review of prosecution decisions was reviewed in RV v Dir of Immigration and SJ [2008] 2 HKC 209 (CFI): Ed]

HKSAR v (1) YUNG Hei-choiHKSAR v LOCK Wah-wah

Documents

To : All Counsel/Senior Law Clerks/Prosecutions All …or for a jockey …or gives or offers a jockey any pecuniary or other gift or consideration’ as being ‘… guilty of a corrupt,