Classified Criminal Appeals Bulletin 2001 Part 1

Transcription

CCAB 2001
Accomplice
Accomplice
CA 338/2000
Stuart-Moore
VP
Wong &
Stock JJA
(8.2.2001)
*D G Saw SC
& Laura Ng
#C Grossman
SC & Osmond
Lam
LEUNG Wong
Accomplice evidence/Directions to jury/One accomplice supporting
evidence of another/Jury to decide whether to believe accomplices
從犯證供 - 給陪審團的指引 - 其中一名從犯的證供支持另一名從犯
的證供 - 由陪審團決定是否相信從犯
The Applicant was convicted after trial of conspiracies to manufacture a
dangerous drug and to traffic in a dangerous drug. He was acquitted on two
similar charges.
On appeal, it was submitted, inter alia, that the judge erred in directing
the jury ‘that they could rely on the evidence of other accomplices to
corroborate the evidence of each (accomplice) witness’. The particular passage
which was criticised was this:
However, of course, you may look for corroboration in the
evidence of the other witnesses if you accept their evidence or
evidence of a particular witness as the truth, and are satisfied it
sufficiently agrees in the most important aspect as regards this
defendant.
It was submitted that having given this direction, coupled with an earlier
direction that ‘it is always dangerous to rely on (accomplice) evidence …
without some other supporting evidence which corroborates it’, it was
incumbent on the judge to identify any independent evidence to the jury: R v B
(MT) [2000] Crim LR 181. It was said that accomplice witnesses, because of
the danger that they might have put their heads together through a mutual desire
to serve their own interests, could not corroborate each other and yet the jury
appeared to have treated the accomplices (PWs 2-4) as having provided support
for PW1 whose evidence they had not been prepared to accept on the two counts
where it had stood alone. Reliance was placed upon Bruce & McCoy’s
Criminal Evidence in Hong Kong, Issue 9, XIII [5]-[50] which read:
As a general rule, suspect witnesses of the type discussed above
cannot corroborate each other. The principal concern in this
field is that two accomplices might get their heads together
because they have the same interest to serve. However, where it
is established that these witnesses have not put their heads
together, it is open to a judge to tell a jury that they may take the
testimony of one such witness into account in assessing the other:
R v Turner [1980] Crim LR 305; R v Au Yeung Chi-kwan & Ors
[1993] 2 HKC 134.
Held :
(1)
It was apparent that the judge made plain to the jury the very real dangers
involved in the evidence of the accomplice witnesses. He highlighted the
evidence in respect of each accomplice which gave rise to the need for caution
on the part of the jury in their approach to these witnesses;
(2)
It was clear that the judge sought to tell the jury that they could look at
the evidence of the accomplice witnesses to see whether the evidence given by
one of them gave any support to what another had said. The word
‘corroboration’ was perhaps not well chosen as a lay jury were unlikely to have
understood it quite so well as the word ‘support’, but it was plainly meant to
have been taken in that sense and not in some other technical sense understood
by lawyers;
(3)
There was no reason in common sense, in logic or in law, why the jury
should not have taken into account the evidence given by each of the
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CCAB 2001
Accomplice
accomplices for the purposes of determining what evidence could be relied upon
as both truthful and accurate. Before the jury could reach the conclusion that the
evidence of the accomplice witnesses lent any support to one another, they
would have had to have rejected the proposition which had been put to them in
cross-examination that they had conspired to give a concocted story against the
Applicant. The judge dealt with that towards the end of the summing up, and
once that proposition was rejected there was no reason why the jury should not
have looked at the separate testimony of each accomplice to see whether support
was given by one or more of them for what had been said by another
accomplice, in order to dispel any doubts there might otherwise have been over
the integrity of that evidence. In particular, in telling the jury that they might
look for support in the evidence of another witness if they first accepted the
truthfulness of his testimony, which was plainly the effect of what the judge was
telling them in the passage about which the Applicant complained, he was not
saying anything which was contrary to either logic or law. It was ultimately for
the jury to decide whether they believed the accomplices, and they must have
done so in large measure.
Result
- Application dismissed.
Per cur - Section 60(1) of the Criminal Procedure Ordinance, Cap 221, which
abolished the obligation upon a judge to give the jury a warning
about convicting the accused on the uncorroborated evidence of a
person merely because that person was an alleged accomplice of the
accused, had no bearing on the issue of whether one accomplice
could in law corroborate or support another.
MA
1355/2000
Barnes DJ
(23.5.2001)
*Ian
McWalters
#Andrew
Bruce SC
SIT Kan-tai
Pre-trial admission/Admission not tendered/Maker not cross examined on
pre-trial admission/Existence of immunity not disclosed to court/Need for
witness to be shown to have understood immunity
審訊前作出承認 - 所作承認並未提交法庭 - 沒有就審訊前作出的承
認接受盤問 - 沒有向法庭披露免予起訴書的存在 - 有需要顯示證人
明白免予起訴書的內容
The Appellant was convicted after trial of two charges of conspiracy to
offer an advantage to a public servant, contrary to sections 4(1)(c) and 12(1) of
the Prevention of Bribery Ordinance, Cap 201, and sections 159A and 159C of
the Crimes Ordinance, Cap 200.
The Appellant was a principal in Shing Shun Engineering Factory
(‘Shing Shun’), which dealt with the Housing Department. It was the
prosecution case that the Appellant was a party to an agreement on two
occasions to offer $5,000 by way of cheques to a public servant (‘Stella’) for
Stella’s assisting or having assisted Shing Shun in its dealings with the Housing
Department. The first cheque was handed to Stella by an employee of Shing
Shun (‘Irene’) and the second by another employee (‘Donna’). The Appellant
did not have any lawful authority or reasonable excuse for doing so.
Although the Appellant faced two charges, they were in fact the third and
fourth charges on the charge sheet, the first and second charges being against
Stella for accepting an advantage as a public servant. Stella pleaded guilty to
the charges and gave evidence for the prosecution in the trial of the Appellant.
It was common ground that the magistrate had taken into account what was
called the ‘pre-trial admission of Stella’ and he said:
Her testimony clearly contradicts her pre-trial admission of the
prosecution case against her for ‘tipping off Irene, a clerk of
Shing Shun, with other tenderers’ information, including bidding
prices. She is trying to scale down her involvement in the illicit
scheme to get a lighter sentence. I reject Stella’s testimony where
it is inconsistent with the counterparts of Irene and Donna.
2
CCAB 2001
Accomplice
When he used the term ‘pre-trial admission’, the magistrate appeared to refer to
the Summary of Facts upon which Stella had pleaded guilty to the first and
second charges.
It was an agreed fact that Irene and Donna testified under immunity. It
was not disputed that the terms of the immunity were not disclosed to the
magistrate.
On appeal, it was submitted, inter alia, that the magistrate erred in taking
account of the ‘pre-trial admission’. The admission was never tendered and
would not be evidence against the Appellant. Stella was not cross-examined on
the admission. The magistrate mentioned his reliance on the pre-trial admission
for the first time when he considered the verdict, thus not availing defence
counsel of the chance to cross-examine Stella on a ‘previous inconsistent
statement’, and/or to make submissions. It was said that the theory of the
magistrate (ie scaling down of involvement) was entirely speculative as Stella
was not given the chance to answer this criticism. That theory was only one of
the possibilities and it was also possible that her ‘pre-trial admissions’ were
untrue. It was also contended that for a defendant who awaited sentence to
testify before the magistrate in a manner apparently inconsistent with the ‘pretrial admission’ was hardly calculating to reduce the sentence.
The Appellant, in the second ground of appeal, contended that the
witness must be shown to be aware of the terms of the document of immunity: R
v McDonald (1983) 77 Cr App R 196. It was also said that the terms of the
immunity must be disclosed to the triers of fact: R v Tsui Lai-ying [1987] HKLR
857, R v Hwa Tak-ming [1996] 2 HKC 62.
Held :
(1)
It was quite clear that the magistrate had wrongly used the ‘pre-trial
admission’ of Stella. An important issue at trial was whether the Appellant
knew the purpose of the payments and whether he had agreed to them as coconspirator. The Appellant was not present when the two payments were made.
His evidence that he did not know of the status of the recipient of the payments
clashed with that of Irene and Donna. Stella provided evidence of payments
made but also contradicted the evidence of Irene and Donna. It appeared the
only reason the magistrate gave for preferring the evidence of Irene and Donna
over Stella where there were conflicts was upon his theory of Stella ‘trying to
scale down’ her involvement. It could not be said that had the magistrate not
committed the error of relying on the ‘pre-trial admission’ of Stella, he would
undoubtedly have entered the same verdict;
(2)
There was nothing before the magistrate to indicate that either Irene or
Donna understood the terms of the immunity. The law did not require the
prosecution to tender physically the immunity document to the court.
Nevertheless, the contents of the immunity had to be made known to the court as
they were relevant to the assessment of the credibility of such tainted witnesses.
The witness testifying under immunity should also be shown to have understood
the terms of the undertaking. The failure to disclose the terms of the immunity
to the magistrate amounted to an irregularity. The defence were denied the
opportunity to cross-examine the two witnesses, and the magistrate was not able
to take into account the extent of the immunity in his evaluation of the
undoubted ‘accomplice’ evidence.
Result - Appeal allowed. Retrial ordered.
3
CCAB 2001
Aid/Abet/Counsel/Procure/Incite
MA 60/2001
Lugar-Mawson
J
(14.6.2001)
*S Chan &
G Lam
#J McGowan
SO
Wai-shing
Whether mere presence at scene of crime gave rise to liability a question of
fact/Magistrate asking leading questions/Test of whether Appellant had a
fair trial/Determination of credibility a function of magistrate and not
appellate court
只在罪案現場是否有法律責任屬事實問題 - 裁判官提出誘導性問題
- 上訴人是否獲得公平審訊的檢驗 - 判斷證人的可信程度屬裁判官
而非上訴庭的職能
The Appellant (D3 at the trial) together with D1 and D2 were convicted
after trial on a single charge of robbery.
The facts showed that the alleged victim was approached by the
Appellant, D1 and D2. The three of them accused the victim of damaging D2’s
mobile phone and demanded compensation. D1 and D2 attempted to take away
the victim’s handbag by force. The Appellant was present for most of the time
with the other defendants, but was seen by the victim to move away for a few
minutes during the course of the interchange between the victim, D1 and D2.
Later, the victim led the three of them to a shopping arcade where he worked in
order to get more money, and he asked the Appellant to follow him to his shop.
On the way, he managed to escape and made a report to the police.
On appeal, it was submitted, inter alia, that the magistrate erred in
finding that the Appellant was guilty based on his mere presence. In the
alternative, the magistrate failed to consider adequately, or at all, the Appellant’s
absence from the scene of the robbery or the state of his knowledge as to the
intentions and actions of the other two defendants. Besides, it was said that the
magistrate descended into the arena by conducting the examination-in-chief of
the victim.
Held :
(1)
Neither mere presence at the scene of a crime, nor a failure to prevent an
offence, would generally give rise to liability. However, presence at the scene
of a crime was capable of constituting encouragement: R v Jefferson [1994] 1
All ER 270, R v Coney [1882] 8 QBD 534. If the accused was present in
pursuance of a prior agreement with the principal, that would normally amount
to aiding and abetting. It was a question of fact in every case;
(2)
It made no difference if the Appellant was away from the scene for a
short while. It was clear from the transcript that the magistrate considered all
the circumstances and formed the view that all three defendants were engaged in
a joint enterprise. This was a conclusion he was entitled to reach from the
evidence. The magistrate considered the claim of damage to the mobile phone
was a ruse to extort money from the victim who was subject to a threat of force
at the time. Despite the fact that there was no evidence to suggest that the
Appellant spoke, or did anything, to the victim, the magistrate was justified in
inferring that he knew what was going on;
(3)
The test of whether or not the magistrate had descended into the arena by
conducting the examination-in-chief of the victim was laid down in R v Yeung
Man-lam [1991] 2 HKLR 486:
… the ultimate question for the consideration of an appellate
court is whether the judge’s conduct was such that it would have
caused the informed bystander listening to the case to say that the
defendant had not had a fair trial.
4
CCAB 2001
(4)
This was a case that revolved around the credibility of the witnesses both
for the prosecution and the defence. The magistrate had the advantage of having
heard and seen the witnesses, including the Appellant, give evidence. The
person appointed to resolve the issues of credibility was the magistrate. It was
not for an appellate court to usurp his function;
(5)
In R v Turnbull [1977] QB 224, Lord Widgery LCJ said that:
…we can do no more than the Criminal Appeal Act 1968
authorises us to do. It does not authorise us to re-try cases. It is
for the jury in each case to decide which witnesses should be
believed. On matters of credibility this Court will only interfere
in three circumstances. First, if the jury has been misdirected as
to how to assess the evidence; secondly, if there has been no
direction at all when there should have been one; and thirdly, if
on the whole of the evidence the jury must have taken a perverse
view of witnesses, but this is rare.
(6)
Section 119(1)(d) of the Magistrates Ordinance, Cap 227 did not
authorise the appellate court to re-try cases;
(7)
In R v R E Low [1961] HKLR 13, which was approved in R v Godber
[1975] HKLR 340, R v Chan King-man & Others [1980] HKLR 105 and R v
Sheikh Abdul Rahman Bux and Others [1989] 1 HKLR 1 and HKSAR v Lee
Hon-shun CA 626/99, Blair-Kerr J said that:
… an appellate court would not, except in the most exceptional
circumstances, interfere with a finding which depended on the
credibility of a witness; and, when the District Judge draws
inferences of fact, which inferences depend not only on an
examination of documents and facts which are not in dispute but
also depend partly on the credibility of witnesses and facts which
were very much in dispute, then I think an appellate court should
act with the greatest caution before interfering with the District
Judge’s finding if, having regard to the whole of the evidence,
such findings appear reasonable.
Result - Appeal dismissed.
5
CCAB 2001
Appeal/Procedure
Appeal/Procedure
CA 220/2000
Mayo ACJHC
HUI
Hon-ho
& 3 others
Application for leave to appeal refused by single judge/ Warning to
applicants of loss of time if appeals pursued
申請上訴許可被單一名法官拒准 - 警告申請人如繼續進行上訴，法
庭或會頒令在上訴裁決前所服刑期作廢
(28.12.2000)
After dismissing applications for leave to appeal against convictions
entered in the District Court for offences of criminal intimidation, assault, and
resisting a police officer, Mayo ACJHC stated:
*Gavin Shiu
#I/P
CA 263/2000
Stuart-Moore
VP & Stock
JA
(30.1.2001)
*P Madigan
#I/P
I take this opportunity to advise these defendants that if
notwithstanding their failure to obtain leave they proceed with
their appeals and they are found to be unmeritorious it is
likely that the court will order that some or all of the time they
have spent in custody will not count towards the sentences
they serve.
CHIU
Ho-chung
Written
submissions/Comments
on
circumstances
where
necessary/Applicant in person/Extent of duty of prosecution to assist court
書面陳詞 - 就在甚麼情況下需要書面陳詞作出評論 - 申請人自辯控方協助法庭的責任
Having allowed an application for leave to appeal against sentence out of
time, the court commented on the absence of any written submissions by the
Respondent. Stock JA observed:
A view seems to have taken root with some counsel who appear
for the respondent in applications for leave to appeal against
conviction or sentence which are to be presented by applicants in
person, that there is no need for the respondent to provide the
court with any assistance in writing before the hearing. That
approach can only be predicated on some assumption that
because the applicant is in person, the application must be
unmeritorious and that there is nothing that can possibly assist
the court. Both assumptions are false. The present case is a
good example. The court was left entirely unaware until this
morning of the stance that was to be taken by the respondent. It
ought to have been obvious, in our view, that the starting point
was particularly high and that some research was required to
ascertain whether there was something in the point taken by the
applicant. Whichever way that research fell, the result should
have been placed before the court. Whilst other cases are often
of limited use, in this particular case a look at the authority upon
which the trial judge relied showed particular aggravating
features, and a look at other decisions involving these quantities
would have shown how out of line this particular sentence was.
In the event it was left entirely for this court to find and examine
the cases. The court had no written submissions from the
respondent hinting at relevant trends, or commenting on the
appropriateness or otherwise of the approach of the trial judge.
Nor was there any submission in advance which told the court
anything about the assistance which the applicant gave to the
authorities to which the trial judge referred in his sentencing
comments. Even at the hearing itself, counsel was completely
unable to provide any assistance. This is not acceptable. We
perceive it to be the duty of the prosecution to place before the
court in every case such submission in advance as may be of
assistance in that case. It may very well be that there will be
cases in which the submissions will necessarily be very brief, for
the facts and the grounds of appeal will call for nothing more.
6
CCAB 2001
Appeal/Procedure
What is necessary will depend on the case. But we have
experienced too many cases in which submissions would have
been of use but none have been provided.
CA 626/99
Stuart-Moore
VP
Stock JA
Lugar-Mawson
J
LEE
Hon-shun
Credibility of witnesses/Function of trial judge/Role of appellate court
證人的可信性 - 原審法官的職能 - 審理上訴的法院的角色
The Applicant was convicted after trial of an offence of wounding with
intent, contrary to s 17(a) of the Offences Against the Person Ordinance, Cap
212.
(13.3.2001)
On appeal, it was submitted, inter alia, that the judge erred in accepting
the evidence of the prosecution witnesses.
*Catherine Ko
Held :
#I/P
(1)
It was not for an appellate court to usurp the function of the trial judge,
who was the trier of fact appointed to resolve issues of credibility. The courts
had made that abundantly clear;
(2)
In England in R v Turnbull [1977] QB 224, 231, Lord Widgery LCJ, in
speaking of the Court of Appeal’s statutory jurisdiction, said:
... we can do no more than the Criminal Appeal Act 1968
authorises us to do. It does not authorise us to re-try cases. It is
for the jury in each case to decide which witnesses should be
believed. On matters of credibility this Court will only interfere in
three circumstances. Firstly, if the jury has been misdirected as to
how to assess the evidence; secondly, if there has been no direction
at all when there should have been one; and thirdly, if on the
whole of the evidence the jury must have taken a perverse view of a
witness, but this is rare.
The jurisdiction of the Court of Appeal, given in s 83 of the Criminal Procedure
Ordinance, was expressed in identical terms to that given to the English Court of
Appeal in s 13 of the Criminal Appeal Act 1968 as originally enacted;
(3)
In Hong Kong, in R v R E Low [1961] HKLR 13, 82, a hearing before
the Full Court of the former Supreme Court, Blair-Kerr J said:
... an appellate court would not, except in the most exceptional
circumstances, interfere with a finding which depended upon the
credibility of a witness; and, when the District Judge draws
inferences of fact, which inferences depend not only on an
examination of documents and facts which are not in dispute but
also depend partly on the credibility of witnesses and facts which
were very much in dispute, then I think an appellate court should
act with the greatest caution before interfering with the District
Judge’s finding if, having regard to the whole of the evidence, such
findings appear reasonable.
Low was quoted with approval in R v Godber [1975] HKLR 340, R v Chan
King-man and Others [1980] HKLR 105 and R v Sheikh Abdul Rahman Bux
and Others [1989] 1 HKLR 1;
(4)
The judge had the advantage of having heard and seen the witnesses,
including the Applicant, give evidence. He was aware and he demonstrated in
his reasons for verdict that, even though he disbelieved the Applicant, the
burden still lay on the prosecution to prove his guilt on the charge he faced.
There was nothing in his reasons for verdict which indicated that the judge’s
approach to the evidence was in any way wrong.
Result - Application dismissed.
7
CCAB 2001
CA 354/2000
Stuart-Moore
VP Keith &
Stock JJA
Appeal/Procedure
(1) CHAN
Ka-po
(2) YEUNG
Hok-bun,
Stephen
Abandonment of application for leave to appeal against
conviction/Application to withdraw abandonment/Comments on reasons
for abandoment/Principles applicable to treatment of notice of
abandonment as a nullity/Argument on merits de bene esse
放棄針對定罪的上訴許可申請 - 申請撤回放棄通知 - 對放棄理由的
評論 - 適用於將放棄通知視作無效的原則 - 暫行上訴理據的爭論點
(7.5.2001)
*K Zervos
# A1 - I/P
H Y Wong (2)
The Applicants were convicted after trial of various charges in the
District Court.
A1 applied for leave to appeal against his convictions and sentences, and
A2 applied for leave to appeal against his convictions. Thereafter, A1 filed a
notice with the Registrar of the High Court abandoning his application for leave
to appeal against his convictions and sentences, and dated 1 December 2000.
No formal order was made dismissing his application on its abandonment, but
the fact of its abandonment was recorded on the court file.
However, within a few months A1 decided that he wanted to apply for
leave to appeal against his conviction after all. He accordingly made a new
application for leave to appeal, seeking an extension of time to do so. That
application, which was treated as an application for leave to treat the notice of
abandonment as a nullity, explained why it was said that the earlier notice of
abandonment needed to be treated as a nullity.
A1 indicated that after his trial he applied for legal aid, but was told in
November that this had been refused. Although he had himself written the
grounds of appeal, he claimed to be under the impression that he could not
himself argue those grounds in court, as only a lawyer could do that.
A1 further said that the prison welfare officer had told him that he could
submit a petition to the Chief Executive for a reduction in his sentence, but that
petition could only be presented after the appeal process had been completed.
That was why he decided to abandon his application for leave to appeal, and to
petition the Chief Executive instead. When he was interviewed in connection
with his petition, and told that the chance of having his sentence reduced on the
basis of executive clemency was slim, he discovered for the first time that he
would be able to present his appeal himself, and this resulted in him deciding to
resurrect his application for leave to appeal.
Held :
(1)
There was extreme scepticism over the claim that the Applicant thought
he had to have a lawyer. He would almost certainly have learned on the prison
grapevine that if he did not have a lawyer he could nonetheless represent
himself;
(2)
It was unlikely that the prison welfare officer would have told the
Applicant of his right to petition the Chief Executive without at the same time
telling him how unlikely it was that his petition would succeed;
(3)
The principles governing applications to treat a notice of abandonment as
a nullity were considered in R v Medway [1976] 1 QB 779, and it was said that
it was not open to the court to treat a notice of abandonment as a nullity simply
because, in light of the special circumstances of the case, that was what justice
required. At p 798, Lawton LJ said that what the court had to be satisfied about
… is that … the abandonment was not the result of a deliberate and
informed decision; in other words that the mind of the applicant did
not go with his act of abandonment. In the nature of things it is
impossible to foresee when and how such a state of affairs may come
about; therefore it would be quite wrong to make a list, under such
8
CCAB 2001
Appeal/Procedure
headings as mistake, fraud, wrong advice, misapprehension and
such like, which purports to be exhaustive of the types of case where
this jurisdiction can be exercised. Such headings can only be
regarded as guidelines, the presence of which may justify its
exercise.
In R v Chan Tak-kwong Cr App 134/83, the Court of Appeal in Hong Kong
regarded itself as bound by the principles in Medway, and they had been
frequently followed since then: HKSAR v Wong Wai-yip Cr App 287/95 and
HKSAR v Chau Kwok-hung Cr App 67/96. However, in Chau Kwok-hung, the
court decided to hear argument on the merits of the appeal de bene esse in order
to determine whether any basis existed for contending that the notice of
abandonment in that case should be treated as a nullity. Whether such an
approach lay easily with Medway was debatable, but a similar course would be
taken. A1 would be permitted the opportunity to submit on the merits of his
application for leave to appeal.
Result -
CA 571/98
Stuart-Moore
& Mayo VPP
Stock JA
CHEUNG
Wai-ming
Case adjourned to date to be fixed for the adjourned hearing of the
application to treat the notice of abandonment as a nullity. A1 would
have the opportunity to submit on the merits of the application for
leave to appeal.
Skeleton argument/Form of submission/Offensive conduct/ Wasted costs
order
論點大綱 - 陳詞形式 - 令人厭惡的行為 - 虛耗訟費命令
(22.6.2001)
The Applicant was convicted after trial of one count of murder, contrary
to s 5 of the Offences Against the Person Ordinance, Cap 212, and one count of
conspiracy to pervert the course of public justice.
*B Ryan &
G Shiu
Having dismissed the appeals against conviction and sentence, the court
observed:
#K Egan
We wish to add that what was put before this court purporting to
be a skeleton argument on behalf of the applicant was of no
assistance to us. For example: “Ground 8: Again this ground of
appeal speaks for itself and the appellant adopts the arguments in
the court below for the purposes of the appeal (see transcript
pages 786B-920G).” This is unacceptable. First, the ground did
not speak for itself, referring as it did to a suggested failure to
meet the requirements of section 77 of the Evidence Ordinance,
without specifying the nature of the failure, without explaining
who the witness was, or addressing the materiality of the
evidence. Secondly, to tell this court to fish and find out for itself,
by reading 134 pages of transcript, what the meat of the
argument is, is offensive. We are, fortunately, rarely faced with
material drawn in this way, but we warn that should this happen
again, such a case will, in the absence of very good contrary
reasons, be adjourned, and that counsel responsible will
personally be at risk of a wasted costs order pursuant to the
provisions of section 18 of the Costs in Criminal Cases
Ordinance, Cap 492.
9
CCAB 2001
CA 299/99
Stuart-Moore
& Mayo VPP
Wong JA
Appeal/Procedure
YUE
Wai-fat
Summing-up to jury/Complaint of lack of balance/Duties of counsel settling
grounds of appeal/Practice Direction
向陪審團作出總結 - 投訴總結欠缺持平 - 律師在擬定上訴理由時所
擔負的責任 - 實務指示
(7.7.2001)
In his application for leave to appeal against convictions for murder,
robbery and wounding with intent, the Applicant complained, inter alia, about a
lack of balance in the summing-up of the judge to the jury.
*D G Saw SC
&
Winston Chan
Held :
#John Haynes
Not only were the criticisms without any foundation, they were made
in flagrant disregard of the Practice Direction relating to Criminal Appeals
to the Court of Appeal. Para 5(a) read:
Where solicitor or counsel settles grounds of appeal, it is his duty to
ensure that:(i)
grounds are only put forward where he has satisfied himself
that they are arguable; it is not his duty to put forward
grounds merely because the appellant wishes him to do so;
(ii)
grounds are not put forward unless they are ‘reasonable’,
that is, they afford some real chance of success;
(iii) grounds are not put forward unless they are supportable by
oral argument and are particularised; and
(iv)
the grounds put forward are settled with care and
accuracy.
The court declined to examine any of the passages to which it was referred as
they revealed no merit whatever.
香港特別行政區訴謝強
HKSAR v TSE Keung
*許紹鼎
M Hui
#黃達華
R Wong
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 1 年第1 1 3 號
高等法院原訟法庭法官彭鍵基
耹訊日期：二零零一年四月廿四日
宣判日期：二零零一年五月廿二日
COURT OF FIRST INSTANCE OF THE HIGH COURT MAGISTRACY
APPEAL NO. 113 OF 2001
Pang J
Date of Hearing: 24 April 2001
Date of Judgment: 22 May 2001
經審訊後裁定無罪 - 覆核時命令重審 - 就重審命令提出上訴 - 是否
有司法管轄權聆訊上訴
上訴人被控六項向代理人提供利益罪名，違反香港法例第 201
章《防止賄賂條例》第 9(2)(b) 條。經審訊後，他被判罪名不成立，
無罪釋放。控方根據《裁判官條例》第 104(7) 條，申請覆核。經聆
訊後，原審裁判官把原先裁定上訴人無罪的判決擱置，並下令案件
須交由另外一位裁判官重新審訊。上訴人就裁判官覆核聆訊中的決
定提出上訴。
10
CCAB 2001
Appeal/Procedure
《裁判官條例》第113(1)條訂明：
任何人如因裁判官就任何罪行而作出的定罪、命令或裁
定而感到受屈，而且並無認罪或承認有關告發或申訴的
內容為真實，即可按下文規定方式，就該項定罪、命令
或裁定向法官提出上訴。
答辯人認為上訴人提出上訴的做法並不拾當，原因是裁判官
在覆核聆訊中所作出的裁決是下令本案需要重審，該項命令並非本
案最終的決定。此命令只能視為有關審訊程序上的命令，所以上訴
庭無權處理是項上訴。第 113(1) 條訂明，上訴人只能就裁判官最終
的裁決提出上訴。答辯人所倚賴的案例有： R v Taj Malook & Anor
[1990] 2 HKL R 209， R v Wong Yin-ping [1997] 2 HKC 312。
裁決：
(1)
裁判官在當日覆核聆訊可有以下三種處理方法，第一，就是
確認較早前的無罪裁決，第二，是推翻無罪的裁決改為判上訴人罪
名成立，第三，就是現行的做法，下令把案件交由另一位裁判官重
新審訊。假設裁判官選擇上述第一或第二項作出有罪或無罪的裁
決，該項裁決必然是屬於最終裁決；
(2)
在本案中裁判官下令擱置原先上訴人無罪的裁定，並下令重
審。就原審裁判官而言，這也是一個最終的裁決，因為本案需要由
他處理的事項已告終結。如果他的命令是正確的話，案件便須由另
一位裁判官重新排期審訊，情況就像處理一件全新的案件一樣。從
這個角度來看，既然覆核的案件已告一段落，但同案重新審理的程
序卻還未展開，所以重審命令不能被視為新案審理期間程序上的裁
決，重審命令只是裁判官在覆核擱置無罪判決的附屬命令；
(3)
上訴人是有權根據法例第113(1)條上訴要求推翻裁判官在覆核
時作出擱置較早前無罪的裁決的命令。
排期審理上訴聆訊。
[English digest
of MA
113/2001,
above]
Pang J
(22.5.2001)
*M Hui
#R Wong
TSE Keung
Acquittal at trial/Trial de novo ordered on review/Appeal against order of
trial de novo/Jurisdiction to hear appeal
The Appellant was acquitted after trial of six charges of offering an
advantage to an agent, contrary to s 9(2)(b) of the Prevention of Bribery
Ordinance, Cap 201. The prosecution applied for a review under s 104(7) of the
Magistrates Ordinance, Cap 227. Upon the hearing, the magistrate set aside his
original verdicts of acquittal and ordered that a trial de novo be heard before
another magistrate. The Appellant appealed against the order under s 113 of
Cap 227.
Section 113 of Cap 227 provided:
Any person aggrieved by any conviction, order or
determination of a magistrate in respect of or in connection
with any offence, who did not plead guilty or admit the truth of
the information or complaint, may appeal from the conviction,
order or determination, in manner hereinafter provided to a
judge.
The Respondent submitted that it was improper for the Appellant to
appeal because the magistrate’s decision to order a retrial at the review was not
the final determination of the case. Such an order should only be regarded as an
11
CCAB 2001
Appeal/Procedure
order in connection with the trial proceedings, and the appellate court had no
jurisdiction to deal with the appeal because s 113 of Cap 227 referred to appeals
against the final determination of the Magistrates’ Court. Reliance was placed
upon R v Taj Malook & Anor [1990] 2 HKLR 209, R v Wong Yin-ping [1997] 2
HKC 312.
Held :
(1)
The magistrate on the review application could have three options in
disposing of the case. First, to confirm the original acquittal verdict; second, to
quash the acquittal verdict and convict the Appellant; and third, the present
option, to order that a trial de novo be heard before another magistrate. Should
the magistrate choose the first or the second option, such a verdict obviously
would have been the final determination;
(2)
In the present case, the magistrate set aside the acquittal verdict and
ordered a retrial. It was considered to be a final determination for the magistrate
because all matters he was required to deal with had been completed. If his
order was correct, the case would have to be listed again for trial before another
magistrate as if it was a new case. Since the case under review had come to an
end and the trial de novo had not yet commenced, the retrial order should not be
regarded as a decision in connection with the trial proceedings of the new case.
The retrial order was only an order ancillary to the magistrate’s decision of
setting aside the acquittal verdict at the review;
(3)
The Appellant had the right to appeal against the magistrate’s decision of
setting aside the acquittal verdict under s 113(1) of Cap 227.
Result - Case re-listed for hearing of appeal.
FAMC
28/2001
Chan ACJ
Bokhary &
Ribeiro PJJ
(5.10.2001)
*Simon Tam
#Graham
Harris &
Philip Wong
LO
Ho-chung
No proviso in magistracy appeal/Approach applicable on appeal to
magistrate’s error/Appeal to be allowed if error of lower court makes it
just
裁判法院的上訴無但書規定 - 處理方法適用於就裁判官犯錯所提出
的上訴 - 如下級法庭犯錯，而判決上訴得直是符合公正的，則應判
決上訴得直
The Applicant was a police officer who was convicted after trial of a
charge of indecent assault.
The sole issue at trial was identification. One of the issues at trial was
the failure of a Chief Inspector who conducted an identification parade to follow
internal police procedures requiring him to obtain consent from the participants
as against consent en masse before holding the parade. The magistrate did not
consider that to have affected the rights of the participants and held the evidence
admissible.
On appeal, it was argued that there was a breach of the police code on
identification evidence which was not drawn to the attention of the trial
magistrate and that was that only one suspect should attend any parade at a time;
but here, as all participants including the Applicant were members of the PTU,
that was tantamount to having nine suspects taking part in the same parade.
Hence, there was a breach of this code. The judge held there was a breach, but
said that one should not speculate as to what the magistrate might or might not
have done if he had been alerted to such breach. The judge concluded that there
was no unfairness or injustice to the Applicant.
The real complaint on appeal was that the judge erred in holding that
there was no unfairness or injustice despite her finding that this was a breach of
the code. It was argued that the judge applied a proviso power under s 83, Cap
221, which she did not possess, in light of Fai Ma Trading Co Ltd v L S Lai
12
CCAB 2001
Appeal/Procedure
(Industry Officer) [1989] 1 HKLR 582, and this had resulted in a substantial and
grave injustice to the Applicant.
Held :
(1)
All the judge did was to apply her power under s 119(1)(d) of the
Magistrates Ordinance, Cap 227. The scope of that power was considered in
Ching Kwok-yin v HKSAR (2000) 3 HKCFAR 387, 390:
There was in the Magistrates Ordinance no equivalent to s 83 of
the Criminal Procedure Ordinance (Cap 221), which specifies the
grounds upon which an appeal to the Court of Appeal may be
allowed, and therefore there is no proviso which requires that the
appeal shall be dismissed if no miscarriage of justice has actually
occurred: the judge may make such order as he thinks just. It
follows that he has to decide whether there has been in the
Magistrates Court an error which makes it just that the appeal
should be allowed and the conviction set aside.
(2)
It was accordingly misconceived to criticise the judge for having
allegedly applied the proviso under s 83 of the Criminal Procedure Ordinance.
There was no reasonably arguable case that a substantial or grave injustice had
been created.
CA 32/2000
Stuart-Moore
ACJHC
Mayo VP
Suffiad J
(27.7.2001)
FAN
Man-shing
Reasons for verdict/Sufficiency of findings of fact of District Judge/Extent
of judge’s duty to evaluate evidence/Basis for interference on appeal
裁決理由 - 區域法院法官對事實的裁斷是否充分 - 法官在衡量證供
方面的責任範圍 - 上訴時對裁決作出干預的理據
The Applicant was convicted after trial of four offences contrary to s
37D of the Immigration Ordinance, Cap 115, and of one offence contrary to s
7A(1) of the Registration of Persons Ordinance, Cap 177.
*Peter
Chapman &
Raymond
Cheng
On appeal, it was submitted, inter alia, that the findings of fact made by
the judge in his Reasons for Verdict were insufficient to found a conviction.
#Rupert Spicer
It was relevant to have regard to the extent of the duty of a judge who
was sitting as a judge and jury giving reasons for any determination made by
him. This was referred to by the Court of Appeal in HKSAR v Choi Gin-ngon
and Others [1998] HKLRD 902, when considering the judgment of Blair-Kerr J
in R v RE Low:
Held :
But it must be remembered that the District Judge is himself the
jury. He has heard the whole of the evidence and is not duty
bound to set down precisely what he accepts, what he rejects and
what weight he attaches to every piece of evidence, or the
arguments of counsel on the evidence, or the whole of the
workings of his mind in arriving at his conclusion.
Of course, to the extent to which he chooses to discuss the
evidence, to that extent does he disclose how ‘the mind of the
jury’ was working; and an appellate court is therefore in a
stronger position to review his conclusions than it is in regard to
a jury verdict. But an appellate court would not, except in the
most exceptional circumstances, interfere with a finding which
depended on the credibility of a witness; and, when the District
Judge draws inferences of fact, which inferences depend not only
on an examination of documents and fact which are not in
13
CCAB 2001
Appeal/Procedure
dispute but also depend partly on the credibility of witnesses and
facts which were very much in dispute, then I think an appellate
court should act with the greatest caution before interfering with
the District Judge’s finding if, having regard to the whole of the
evidence, such findings appear reasonable.
There was no merit to the ground of appeal.
MA 444/2001
PAK
Wan-kam
Lugar-Mawson
J
(23.8.2001)
Appeal against sentence of magistrate/Comments on test to be applied by
judge disposing of appeal
針對裁判官所判刑罰的上訴 - 就法官處置上訴所須應用的驗證標準
作出評論
The Appellant appealed unsuccessfully against her custodial sentence for
tax evasion. [See Magistracy Appeals/Against Sentence: Ed]
*R S K Lee &
Kelvin Lee
In the course of argument, it was noted that s 119(1)(d) of the
Magistrates Ordinance, Cap 227, which dealt with the powers of the judge who
disposed of an appeal against sentence, did not specify the test to be applied.
Nowhere in subsection 119(1)(d) did the words ‘manifestly excessive’ or
‘contrary to principle’ appear, such, so it was said, being the tests applied in
appeals to the Court of Appeal.
#G Harris
Held :
(1)
These words did not appear either in subsection 83I(3) of the Criminal
Procedure Ordinance, Cap 221, which dealt with the Court of Appeal’s powers
on appeals against sentence;
(2)
For all practical intents and purposes, the jurisdiction conferred by s
119(1)(d) was identical to that given to the Court of Appeal by s 83I(3) of the
Criminal Procedure Ordinance. The judge could confirm the magistrate’s
sentence, vary it and increase it. The overriding principle was that whatever the
judge did must be in accordance with both statutory law and established case
authority, and it had to be just.
[This issue is considered in Sentencing in Hong Kong, 3rd ed., at 31: Ed]
CA 476/2000
Stuart-Moore
VP
Woo &
Stock JJA
(24.10.2001)
*Kevin Zervos
#Andrew
Bruce SC
YU
Tai-chi
Unmeritorious application for leave to appeal/Form XI notes/ Practice of
reminding applicants of powers of court to increase sentence to
cease/Assumption for the future that applicants understand Form XI notes
缺乏理據的上訴許可申請 - 表格 XI 的附註 - 提醒申請人法院有權加
刑的做法將予停止 - 日後會假設申請人明瞭表格 XI 的附註
Having dismissed the application for leave to appeal, the Court of Appeal
remarked that the application for leave to appeal which was signed by the
Applicant was contained in Form XI (pursuant to the Criminal Procedure
Ordinance, Cap 221), which had the following notes in both English and
Chinese …
1. On an appeal against sentence, the Court of Appeal has power
under section 83I of the Criminal Procedure Ordinance to either
increase or reduce the sentence;
2. ….
3. The Court of Appeal has power under section 83W of the
Criminal Procedure Ordinance to direct that the time during
which you are in custody pending the determination of your
14
CCAB 2001
Appeal/Procedure
appeal shall not be reckened as part of the term of any sentence
to which you are for the time being subject.
Pursuant to ‘Note 3 ’, the Court indicated it would have ordered loss of
time but for the fact that this might have seemed to represent a departure from
the frequently encountered practice of issuing a reminder from the Court to an
applicant or, if represented, his counsel, that the Court had in mind its powers
under s 83W, Cap 221. The Court continued:
If there is an assumption by litigants or their legal
representatives that such a warning is usually given as to the
Court’s powers, whether under section 83W for ordering loss of
time or under section 83I for increasing sentence, we wish to
make it plain that this should no longer be expected. In future,
the Court will in normal circumstances not issue a reminder as to
the Court’s powers under either section. For these purposes, the
Court will assume that litigants seeking to appeal against
conviction or sentence or both have properly understood the
notes on Form XI which they have signed or, where they are
legally represented, that they have been properly advised of the
terms of sections 83I and 83W of the Criminal Procedure
Ordinance and the circumstances in which those provisions are
invoked.
In this case, because the absence of a reminder might have caused the
Applicant to operate under the aforementioned assumption, loss of time would
not be ordered. For the future there should be no expectation of a reminder
being issued where an increase in sentence or an order for loss of time was
contemplated by the Court.
CACV
353/2001
Rogers VP
Woo &
Le Pichon JJA
(23.11.2001)
John Bleach
SC & Mohan
Bharwaney
(for 1st
Defendant/
Respondent)
John Griffiths
SC & Liza
Jane Cruden
(for 3rd
Defendant/
Appellant)
TSE
Ngai-heung
and
The RitzCarlton Ltd
LO
Sin-tak
The Ming An
Insurance Co
(HK) Ltd
Skeleton arguments/Prompt and due attention to the proper preposition of
skeleton arguments
論點大綱 - 須及時妥為提前遞交論點大綱和須予以重視
This judgment concerned a dispute between two insurance companies as
to which would ultimately bear damages in a civil action.
At the conclusion of its judgment, the Court made certain observations,
as follows, upon the need for prompt and due attention to the proper preposition
of skeleton arguments:
(1)
Although skeleton arguments were filed well prior to the
hearing, the date before the hearing there was produced a
document entitled ‘Notes of Appellant’s legal argument ’.
When it came to the oral argument it became quite clear that
the document was essentially a substitution for the earlier
skeleton argument;
(2)
That manner of producing skeleton arguments was of no
assistance in reaching a proper, and speedy resolution of the
dispute. Appeals were conducted on the basis that the court’s
and the parties’ attention was drawn to the relevant points
prior to the hearing. In that way, attention could be given to
those points so that the argument could become focused.
Late substitution of skeleton arguments was simply counter
productive.
[These dicta would seem to be equally applicable to appeals in criminal
cases: Ed]
15
CCAB 2001
CA 647/99
Appeal/Procedure
LEE
Fat-wan
Stuart-Moore
VP & Suffiad J
Abandonment of appeal/Application to withdraw abandonment/ No inherent
jurisdiction to treat abandonment as nullity/Mind of accused going with his
act
放棄上訴 - 申請撤回放棄上訴 - 法庭並無固有司法管轄權將放棄上
訴一事視為無效 - 被告思想與行為一致
(21.12.2001)
The Applicant pleaded guilty to three offences of trafficking in mixtures
which contained salts of esters of morphine, and was sentenced to 7 years’
imprisonment in total.
*Anthea Pang
#I/P
Although the Applicant initially gave notice of intention to appeal against
sentence, he abandoned the application after he was refused legal aid.
Thereafter he sought to withdraw his abandonment, and gave as his reason for
the abandonment that the Director of Legal Aid would not provide him with a
lawyer and he thought there was no hope of success.
Held :
(1)
The Court had no ‘inherent jurisdiction’ to treat the abandonment as a
nullity except in circumstances where it could be said that “the mind of the
applicant did not go with his act of abandonment, so that it was not his ‘true
act ’ ”: R v Tam Kwok (1976) 62 Cr App R 85;
(2)
The Applicant’s mind did go with his act of abandonment. It was a
deliberate and tactical decision on his part to take that course and the fact that he
believed he had no chance of success if he pursued his original application
provided no good reason why his abandonment should be treated as a nullity.
Bail
CA 28/2000
Stock JA
(in chambers)
(23.3.2001)
*Cheung
Wai-sun &
Catherine Ko
HUYNH
Bat Muoi
Bases for grant of bail pending appeal
准予保釋以候上訴的理據
In refusing an application for bail pending appeal, the court observed :
The position with bail pending appeal is that bail is granted only
where it appears, prima facie, that the appeal is likely to be
successful or where there is a risk that the sentence would have been
served by the time the appeal has been heard.
#Eric Kwok
16
CCAB 2001
CA 528/2000
Bail
FAN
Ying-chao
Stock JA
(in chambers)
Bail pending appeal/Exceptional to grant bail after conviction
准予保釋以候上訴 - 在定罪後准予保釋屬例外情況
In refusing an application for bail pending appeal, the court observed:
*Kevin Zervos
In deciding whether to grant bail pending appeal, the test is whether
there are exceptional circumstances which would drive the court to
the conclusion that justice can only be done by the granting of bail.
In other words once a person is convicted it beomes exceptional to
grant bail. Exceptional circumstances would apply where it
appears, prima facie, that the appeal is highly likely to be successful
or where there is a risk that the sentence will be served by the time
the appeal is heard.
#Gary
Plowman SC
Basic Law/BOR
CA 309/99
Stuart-Moore
VP
Keith &
Stock JJA
(6.4.2001)
*M
Blanchflower
G Shiu &
Diana Lam
#D Keane SC
&
William Wong
(1) PUN
Ganga
Chandra
(2) GURUNG
Santosh
(3) GURUNG
Rajendra
Bikram
Murder/Grievous harm rule not inconsistent with basic rights/Secondary
offender rule not arbitrary/Mandatory sentence of life imprisonment not
arbitrary detention/Weight to be given to view of legislature on policy
issues
謀殺 - 有關嚴重傷害的規則並不抵觸基本權利 - 有關從犯的規則並
不是無理據的 - 判處強制性終身監禁並不是無理拘禁 - 立法機關對
政策事項的意見應予重視
The Appellants were convicted of murder after trial. They were each
sentenced to life imprisonment.
In his summing-up to the jury, the judge gave the jury the conventional
directions on the mens rea required before a person could be convicted of
murder. Those directions were said on appeal to be inconsistent with the Basic
Law and the Bill of Rights. The issue was also raised as to the compatibility of
the mandatory sentence of life imprisonment for murder with the Basic Law and
the Bill of Rights; such a sentence, which had to be imposed regardless of
differences in the degree of culpability and mitigating circumstances, was also
said to be inconsistent with the Basic Law and the Bill of Rights.
At trial the prosecution accepted that not all the Appellants had stabbed
the deceased. Only one of them could have inflicted the fatal wound to the back
of the deceased’s neck. The prosecution case was that A1 and A3 had knives,
and that one or other of them had inflicted the wound from which the deceased
had died. One or other of them was therefore the primary offender. But if the
jury was not sure which of them had inflicted the fatal wound, the prosecution
case was that A1 and A3, as well as A2, should be convicted on the basis that
they were all parties to the fatal stabbing of the deceased. Those of the
Appellants who the jury were not sure had inflicted the fatal wound were
secondary parties.
Article 28 of the Basic Law read:
No Hong Kong resident shall be subjected to arbitrary or unlawful
arrest, detention or imprisonment.
Article 5(1) of the Bill of Rights Ordinance provided:
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
17
CCAB 2001
Basic Law/BOR
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.
Three matters had to be established before the secondary offender could
be liable for a murder committed by the primary offender:
(1)
The primary offender must himself have been guilty of
murder. He must therefore have intended either to kill the
deceased or to cause him really serious bodily harm;
(2)
Actual foresight on the part of the secondary offender was
required. It was not enough for the prosecution to prove that
the secondary offender ought to have realised what the
primary offender might do. The prosecution had to prove
that the secondary offender actually realised what the primary
offender might do, and continued to participate in the joint
enterprise with that foresight;
(3)
What the primary offender might do had to have been
foreseen by the secondary offender as a real possibility.
Thus, the secondary offender had to have realised that there
was a real risk that the primary offender might attack the
deceased with the intention of either killing him or causing
him really serious bodily harm.
It was the prosecution’s case that the three Appellants had been parties to
a joint enterprise to attack the deceased. In the course of carrying out that
enterprise, one of the Appellants had inflicted the fatal wound from which the
deceased had died. If, in carrying out the attack, the Appellant who had inflicted
the fatal stab wound had intended either to kill the deceased or to cause him
really serious bodily injury, that Appellant would be guilty of murder as the
primary offender. But the other Appellants would also be liable for his murder
as secondary offenders if they had realised that there was a real risk that one of
them, in the course of carrying out the attack to which the joint enterprise
related, might attack the deceased with the intention of either killing him or
causing him really serious bodily injury, and had continued to participate in the
joint venture with that realisation.
The Appellants contended that the common law related to the liability of
secondary offenders for murder was inconsistent with the rights protected by
Article 5(1) of the Bill of Rights and Article 28 of the Basic Law. It was said
that the ‘secondary offender’ rule was arbitrary as was mandatory punishment
for life for a secondary offender whatever the degree of his criminal culpability.
Held :
(1)
As was held in HKSAR v Coady (No. 1) [2000] 2 HKLRD 195, the
‘grievous harm’ rule — whereby an accused could be convicted of murder if the
jury was sure that he at least intended to cause the deceased really serious bodily
injury — was not inconsistent with Article 5 of the Bill of Rights or with any
other provisions of the Basic Law or the International Covenant on Civil and
Political Rights;
(2)
The ‘secondary offender’ rule contained elements of the ‘grievous harm’
rule: the foresight required of the secondary offender was foresight that the
primary offender might have attacked the deceased with the intention of either
killing him or causing him really serious bodily injury. In light of Coady, the
trial judge was right to have rejected the submission that the ‘secondary
offender’ rule was arbitrary because it reproduced the arbitrariness of the
‘grievous harm’ rule;
(3)
The ‘secondary offender’ rule could not be said to be arbitrary —
whether the term ‘arbitrary’ meant something which could not be objectively
justified or whether it had some other meaning. As said in Coady, it was not
18
CCAB 2001
Basic Law/BOR
necessary for the court to declare where it stood on the debate as to the supposed
arbitrariness of the ‘grievous harm’ rule. It sufficed to state that the ‘secondary
offender’ rule represented a respectable view as to what the law of murder
should embrace, even though views might differ on the topic, and even if it
resulted in a different mens rea being required for primary and secondary
offenders: R v Powell [1999] 1 AC 1 considered. The ‘secondary offender’ rule
did not infringe Article 5(1) of the Bill of Rights or Article 28 of the Basic Law;
(4)
As regards the submission that the mandatory sentence of life
imprisonment infringed the rights protected by Article 5(1) of the Bill of Rights
and Article 28 of the Basic Law, on the basis that the detention and
imprisonment which it mandated for all persons convicted of murder was
arbitrary, it was the legislature which had decided that life sentences for murder
should be mandatory after a full debate on the topic. The decision to abolish the
death penalty but to make imprisonment for life the mandatory sentence for
murder thus represented the legislature’s view as to where the balance should be
struck between the rights of the individual and the need to protect society as a
whole: AG v Lee Kwong-kut [1993] 2 HKCLR 186. The view that the courts
should give due weight to the views of the legislature on issues of policy when
considering international human rights instruments had recently been established
in European jurisprudence: R v DPP exp Kebilene [2000] 2 AC 326. Due
weight should be given to the concluded view of the majority of the members of
the Legislative Council that life imprisonment should be the mandatory sentence
for murder;
(5)
The mandatory sentence of life imprisonment for murder served a
different purpose from a discretionary sentence of life imprisonment, in which
life imprisonment was the maximum, rather than the only, sentence for a
particular offence. In Wynne v United Kingdom [1994] 19 EHRR 333, the
European Court of Human Rights described a discretionary sentence of life
imprisonment as having a ‘protective’ purpose, which was intended to take into
account ‘the presence of factors which are susceptible to change with the
passage of time, namely mental instability and dangerousness’. The mandatory
sentence, on the other hand, was described in Wynne as ‘essentially punitive in
nature’, and was imposed because of the inherent gravity of the offence;
(6)
There were some crimes for which it was open to the legislature to
conclude that sentences with a predominantly punitive element were appropriate.
In R v Luxton [1990] 58 CCC (3d) 449, the Supreme Court of Canada decided
that the provisions of the Criminal Code which provided for the mandatory
imposition of life imprisonment without eligibility for parole for 25 years for a
person convicted of first-degree murder did not conflict with the rights
guaranteed by the Charter of Rights and Freedoms. Although the Supreme
Court accepted that there were some crimes for which a punitive sentence might
be appropriate, Lamer CJC acknowledged ‘that a sentencing scheme must
exhibit a proportionality to the seriousness of the offence, or to put it on other
way, there must be a gradation of punishments according to the malignity of the
offences’. However, he also acknowledged that ‘a sentencing scheme also must
take into account other factors that are of significance for the societal interest
in punishing wrongdoers’;
(7)
Lamer CJC in Luxton also addressed the argument that the mandatory
sentence of life imprisonment for first-degree murder constituted arbitrary
detention or imprisonment, as the offence encompassed ‘a range of moral
turpitude’ — such being the Appellants’ argument in the present case — and he
concluded that the mandatory term of imprisonment for life without eligibility
for parole for 25 years did not amount to arbitrary detention or imprisonment
because the ‘incarceration is statutorily authorised, it narrowly defines a class
of offenders with respect to whom the punishment will be invoked and it
prescribes quite specifically the conditions under which an offender may be
found guilty of first-degree murder’. If a mandatory sentence of life
19
CCAB 2001
Basic Law/BOR
imprisonment satisfied those criteria, it could not be said to amount to arbitrary
detention or imprisonment;
(8)
The law of murder in Hong Kong did not distinguish between firstdegree murder, second-degree murder and so forth. What it did was to
distinguish between certain forms of homicide, categorising some as murder and
others as manslaughter. Mandatory sentences of life imprisonment had been
authorised by statute, and the class of offenders who came within the category of
murder was sufficiently clear and narrowly defined to satisfy the criteria referred
to in Luxton. That applied to both primary and secondary offenders. The
‘grievous harm’ rule caught only those primary offenders who intended to cause
their victims really serious bodily injury at the very least, and there was much to
be said for the view that the outcome of intentionally inflicting really serious
bodily harm could be so unpredictable that anyone prepared to act in so
shocking a manner had little ground for complaining if, where death resulted, he
forfeited his liberty for the rest of his life;
(9)
The ‘secondary offender’ rule caught only those secondary offenders
who participated in a joint enterprise to cause really serious bodily harm to the
deceased, or, in the case of a joint enterprise in which the death of the deceased
or really serious injury to him was not its aim, the ‘secondary offender’ rule
caught only those secondary offenders who participated in the joint enterprise
realising that there was a real risk that the primary offender would attack the
deceased with the intention of either killing him or causing him really serious
bodily injury. That brought within a very clear and narrow band those
secondary offenders who could be convicted of murder. It was just that a
secondary offender who realised that there was a real chance that the primary
offender might kill with the intention sufficient for murder, but nevertheless
assisted or encouraged the primary offender in the criminal enterprise with that
foresight, should forfeit his liberty for the rest of his life;
(10) It had also to be borne in mind that, with the placing of the Board of
Review on a statutory posting, the Legislative Council had ensured that there
was machinery in place for an independent review of the actual length of an
offender’s detention. As Lamer CJC said in Luxton, ‘this indicates that even in
the case of our most serious offenders, [the legislature] has provided for some
sensitivity to the individual circumstances of each case when it comes to
sentencing’. The mandatory sentence of life imprisonment for murder did not
amount to arbitrary detention or imprisonment contrary to Article 5(1) of the
Bill of Rights and Article 28 of the Basic Law;
(11) Although the mandatory sentence of life imprisonment for murder was
also said to infringe the right of equality before the law protected by Article 25
of the Basic Law, since all residents of Hong Kong had to be sentenced to life
imprisonment if they were convicted of murder, no question of the mandatory
sentence of life imprisonment for murder infringing that Article arose.
Result - Appeal to be re-listed for further argument on other issues.
20
CCAB 2001
CA 3/2001
Stuart-Moore
&
Mayo VPP
Woo JA
(21.8.2001)
*M
Blanchflower
SC & G Shiu
#AA Bruce SC
& RJJ Pierce
Basic Law/BOR
SHUM
Kwok-sher
Misconduct in public office/Offence survived reunification/ Offence not so
wide as to constitute discrimination against public officials/Commission of
offence by office holder by non-disclosure of conflict of interest/Gravamen
of offence/ Deviation from fidelity amounting to corruption/Absence of loss
to Government irrelevant
公職人員行為不當 - 罪行在回歸後仍然存在 - 罪行的範圍並非過於
廣泛以致構成對公務人員的歧視 - 擔任公職的人因未有披露利益
衝突而犯案 - 罪行重點 - 偏離忠誠的行為相當於舞弊 - 政府沒有損
失並非相關因素
The Appellant was convicted after trial of four offences of misconduct in
public office, contrary to common law. The public office in question was that of
Chief Property Manager of the Government Property Agency (‘GPA’) of the
Hong Kong Government.
[For facts of case, see Applications for Review of Sentence: Ed.]
On appeal, ten grounds were pursued.
Ground 1 alleged that the offence of misconduct in public office was not
a crime known to the law of Hong Kong because it had not survived the
resumption of the exercise of sovereignty over Hong Kong by the People’s
Republic of China. The offence was also inconsistent with the Basic Law in that
it violated the right guaranteed under Article 26 of the International Covenant on
Civil and Political Rights (‘ICCPR’), which article was incorporated into the
Basic Law by Article 39 of the Basic Law, which was not to discriminate against
any person on, among other grounds, status. The offence was so wide and vague
as to come within the group of laws that were unacceptable discrimination
against persons by way of their status as public officers. The offence was
inconsistent with the Basic Law as it violated the rights guaranteed under Article
9 of the ICCPR, incorporated into the Basic Law by Article 39 of the Basic Law,
to liberty and security of the person on the basis that the offence was vague and
ill-defined and did not meet the minimum standard of certainty required of law
imposing serious penal sanctions for breach, and, in particular, one of the
elements of the offence that the accused deserved punishment for misconduct
was inconsistent with the appropriate standards of certainty.
Ground 2 alleged that there was a material irregularity in the trial in that
the judge erred in finding as a fact that the defendant knew his duty to disclose
and the scope of it, (a) simply because he held the position he did and (b)
holding that a person ‘could not have been ignorant’ of such a duty and the
scope of it was not a sufficient substitute in law for proof to the criminal
standard of knowledge.
Ground 10 alleged that there was a material irregularity in the trial in
that the judge while adverting to the fact that ‘the work generally required of
Onclever was fairly basic; that it was not unreasonable to think they would be
able to do it satisfactorily; that the company did in fact perform satisfactorily;
they did so by having won the tenders by being the correct bidder; there was no
evidence of the [Applicant] receiving any consequential advantage’, failed to
take proper account of those matters in determining the reasonableness of the
conduct of the Applicant and in determining the impact of his conduct on the
public interest. It was said as well that there was no evidence of any benefit
accruing to the defendant, and that there was no question of corruption.
Held :
(1)
Article 8 of the Basic Law provided that the laws previously in force in
Hong Kong, that was, the common law, rules of equity, ordinances, subordinate
legislation and customary law should be maintained, except for any that
21
CCAB 2001
Basic Law/BOR
contravened that Law, and subject to amendment by the legislature of the
HKSAR. That constitutional declaration was repeated in s 7(1) of the Hong
Kong Reunification Ordinance. In HKSAR v Lui Chi-sum DCCC 709/1998,
McMahon DJ said:
In my view, whilst there has in the case cited been some argument
as to the elements of the offence and therefore the proper form of
the indictment laid, there is no doubt that the offence of
misconduct in a public office has formed part of the common law
for a very long time …. According to my judgment, the common
law offence of misconduct in a public office not only formed part
of the common law of Hong Kong prior to reunification on 1 July
1997, but presently forms part of the continuing common law of
the Hong Kong Special Administrative Region.
There was no merit to the submission that the offence of mis-conduct in public
office had not survived the unification;
(2)
A law must be accessible, i e, a person must be able to know the law
relevant to his case, and it must be sufficiently precise so that the person could
regulate his conduct. However, the precision would vary according to the
subject matter. A law might be in broad terms and be valid. It might be
clarified by court decisions and advice could be sought on the lawfulness of
conduct. Laws related to a public officer’s partiality could not be expected to be
defined with absolute precision, lest excessive rigidity unable to provide for
changing circumstances might result;
(3)
The offence of misconduct in public office was not so wide and vague as
to constitute an unacceptable discrimination against public officials. The
common law courts had applied and interpreted the offence for at least over 300
years. The courts had not found the offence to be so wide and vague as to
infringe the common law and constitutional rights relied upon by the Appellant.
The offence had elements of mens rea and actus rea and it only applied to
public officials in relation to the execution of, or failure to execute, their duties.
The conduct must arise from an improper motive; it did not penalise mere
errors. The offence only applied to very serious conduct deserving of
condemnation and punishment. The offence had been well defined, in terms of
that said by Lord Widgery in R v Dytham [1979] 1 QB 722, 727:
This involves an element of culpability which is not restricted to
corruption or dishonesty but which must be of such a degree that
the misconduct impugned is calculated to injure the public
interest so as to call for condemnation and punishment. Whether
such a situation is revealed by the evidence is a matter that a jury
has to decide. It puts no heavier burden upon them than when in
more familiar contexts they are called upon to consider whether
driving is dangerous or a publication is obscene or a place of
public resort is a disorderly house …
The complaints of vagueness, uncertainty and ill-defined elements had no merit;
(4)
A person holding a public office would be guilty of a misconduct in a
public office if he were not to disclose the particular interests which he served
which would conflict with his duty as such an office holder but continued
purportedly to discharge his duty. That was so despite the fact that he did not
make any gain or undue gain, insofar as he operated partially in pursuit of the
interests of his own including those of his relatives or friends that conflicted
with his official duty or with the interests of the government or the public which
he served, and that his conduct was no serious as to call for condemnation and
punishment: R v Llewellyn-Jones [1968] 1 QB 429, Commonwealth v Steinberg
362 A 2d 379;
(5)
The gravamen of the offences was that the Government was concerned
with having a fair and transparent scheme for tendering for work on public
22
CCAB 2001
Basic Law/BOR
contracts. It was a matter calling for ‘condemnation and punishment’, to adopt
the words of Dytham, when the actions of a senior Government officer, who was
placed in an influential position of trust, abused that trust and acted in such a
way as to give an advantage to an individual tenderer or potential tenderer which
must by its very nature redound to the disadvantage of its competitors. Such
conduct also amounted to corruption. The receipt of a bribe or an advantage
was not an essential ingredient of corruption in its broad and general sense. A
deviation from fidelity in the discharge of a person’s duty could amount to
corruption;
(6)
The judge was correct to state that the fact that the Government might
have suffered no loss was irrelevant to the offence. The gravamen of the offence
was that the defendant had been instrumental in bringing about a situation where
there was not a level playing field for all the parties who wished to tender for the
contracts.
Blackmail
CA 203/2000
Stuart-Moore
ACJHC
Wong &
Stock JJA
(23.11.2000)
*Louisa Lai
#Albert Poon
(1) LAU
Wa-sang
(2) LAU
To-sang
Blackmail/Whether good character direction necessary/ Element of ‘gain’
established even when offender had belief of legal entitlement to property
demanded
勒索 - 是否須給予有關良好品格的指引 - 即使犯罪者相信自己對所
要求的財物享有合法權利，‘獲益’這項犯罪元素也成立
The Applicants were charged with an offence of robbery in the District
Court. After trial, they were convicted of blackmail, in the alternative.
The judge found that at about 12:30 pm on 23 March 1999, A1, A2 and
two other men went to the Company’s premises with a goods vehicle. Once
inside, they required Mr Huen Wing-tim, as well as members of staff and a
visitor to the premises, to go up to the mezzanine floor above the storeroom.
This was the workshop or warehouse. One of the men picked up a file normally used to work ivory – and pointed it at a staff member. Huen Wing-tim
was told that if he did not move, he would be alright. A female member of staff
was pushed into the workshop and was told to make no noise, and foul language
was used. The daughter of one of the Company directors was similarly pushed
and told not to move and not to look. The ivory carver saw one of the men pick
up this file and it frightened him, and he was told to go to the mezzanine floor
and not to make any noise. A visitor to the premises was told not to make a
noise, not to turn round and to mind his own business. Then a large quantity of
ivory was removed from the premises and taken to the vehicle and driven away.
As the men left the premises, they told those who had been threatened not to
report the matter to the police.
In the event, the judge acquitted the defendants of theft because he was
not satisfied that the appropriation of the tusks was dishonest. That being so,
theft was not proved and without proof of theft or intended theft, there could be
no robbery.
Section 32(1) of the Theft Ordinance provides:
If on the trial of any information, charge or indictment for an
offence specified in the first column of the Schedule it is proved
that the accused is not guilty of that offence but guilty of one of
the offences specified opposite thereto in the second column of
23
CCAB 2001
Blackmail
that Schedule or of attempting or being a party to an offence so
specified, the accused shall be acquitted of the offence originally
charged and shall be convicted of such other offence or of
attempting or being a party to such other offence and be liable to
be punished accordingly.
By virtue of paragraph 2 of the Schedule, blackmail was such an alternative to
robbery. Blackmail is defined by section 23(1) of the Theft Ordinance as
follows:
A person commits blackmail if, with a view to gain for himself or
another or with intent to cause loss to another, he makes any
unwarranted demand with menaces; and for this purpose a
demand with menaces is unwarranted unless the person making it
does so in the belief:
(a)
that he has reasonable grounds for making the
demand; and
(b)
that the use of the menaces is a proper means of
reinforcing the demand.
The judge was satisfied that the conduct of the defendants, acting their
respective parts in a joint enterprise at the premises in question, constituted an
unwarranted demand with menaces for gain and that the defendants could not
have believed that the use of such menaces as were deployed could constitute a
proper means of reinforcing the demand.
The judge did not state in terms what the demand was, but he held that
there was a demand and that the demand was accompanied by menaces. The
menaces were represented by the pushing of persons, shepherding them out of
the way, the wielding of the file, and the use of language in terms such as to put
persons there in fear, all of which was so that they would accede unwillingly to
the removal of the ivory. He was satisfied that neither of the defendants could
have believed that the use of those methods was a proper means of enforcing the
demand. He further found that A1 whatever precisely he saw or did not see of
the behaviour of his cohorts or colleagues in the Company premises after his
arrival, knew full well that the ivory was going to be taken by force and in the
atmosphere of threat which was created. A2, he found, took a full part in
ordering or assisting the men who had come along to help to do what it was they
were to do. Accordingly, the judge convicted each defendant of blackmail.
On appeal, it was submitted, inter alia, that the judge failed to give
himself a Vye or Berrada direction; in other words, a direction as to the
defendants’ good character. It was also submitted that there was insufficient
evidence that the demand, such as it was, was made with a view to gain. The
suggestion was that the defendants were only obtaining that which was their due.
Held :
(1)
Although the Applicants relied on R v Chan Wu-nam Cr App 274/92,
which, it was suggested, highlighted the importance of articulation by a judge
that he had taken into account good character, it was made clear, in R v Fok Tinyau [1995] 2 HKC 450, 456, that that case was not:
Authority for the proposition that in all cases where credibility is
in issue, the judge must set out the manner in which he has
considered the accused’s good character in deciding that issue.
Where a judge is sitting alone and evidence of good character
has been given, this court will, even if he makes no mention of it,
unless there be some express or implied indication otherwise, act
upon the basis that he was aware of the character evidence and
that he gave it the weight which he thought it deserved.
24
CCAB 2001
Blackmail
(2)
There was no indication in this case that the judge did not have good
character in mind. This was a closely analyzed and very full judgment in which
the judge gave reasons why, on one aspect of the case, he was prepared to
believe A1, and why on another he was not; and his conclusion seemed to
assume much in A1’s favour, as was evident from his finding as to dishonesty on
the robbery charge. This was a balanced judgment in which his conclusions
clearly proceeded from an assumption in the defendants’ favour that here was a
businessman, A1, who had had the rough end of prevarication on the part of
another man who would not pay his debts; but concluded that in the event A1
went too far. That approach and that balance was evident from the Reasons for
Verdict as a whole;
(3)
In so far as it was suggested that an express reminder as to character was
particularly necessary when there was a question of belief as to the propriety of
methods used to enforce a demand, A1 did not say that he believed the methods
used were proper. He said he had no part of those methods, and he no doubt
distanced himself from them because it was as obvious as could be that no
reasonable person, no matter how clear his previous record, could possibly have
believed that herding people against their will and abusing them could be a
proper method of enforcing a demand. On the facts of this case, there was
nothing in the ‘character’ ground of appeal;
(4)
Section 8(2) of the Theft Ordinance defined gain as follows:
... ‘gain’ (獲益) and ‘loss” (損失) are, except in section 16A, to
be construed as extending only to gain or loss in money or other
property, but as extending to any such gain or loss whether
temporary or permanent; and
(a) ‘gain’ includes a gain by keeping what one has, as well as
a gain by getting what one has not; ...
The editors of Archbold 2000 stated as follows in paragraph 21-267:
Since the definition of ‘gain’ includes ‘getting what one has not’,
it is submitted that there is no justification for any argument that
‘gain’ should be limited to ‘gain’ in the sense of ‘profit’. If a
person makes a demand for a debt lawfully owed to him, it may
be argued that he does not do so with a view to profit, but he
certainly does so with a view to getting what he has not. It has
been held at first instance that by demanding money lawfully
owing to him the defendant did have a view to ‘gain’: by
obtaining hard cash as opposed to a mere right of action in
respect of the debt the defendant was getting more than he
already had: R v Parkes [1973] Crim LR 358 ... In R v Lawrence
and Pomroy, ante, it appears to have been assumed that an
unwarranted demand with menaces for a debt believed to be due
was blackmail.
The same point was made by Blackstone’s Criminal Practice 2000, paragraph
B5.85 that it was
... certainly possible to commit blackmail by using improper
menaces in the course of demanding money or other property to
which one is legally entitled (Lawrence (1971) 57 Cr App R
64); ...
Reference was made in Smith & Hogan Criminal Law, 7th Edition, page 612,
and in Property Offences by Professor T Smith, of Cambridge University, to
some alternative arguments, but Professor Smith concluded that the legislature
intended that a defendant could have a view to gain even where he was or
believed himself legally entitled to the property demanded;
25
CCAB 2001
Blackmail
(5)
In this case, it was amply demonstrated that the Applicants made the
demands, with and backed by the menaces, constituted by the behaviour which
the judge found proved. The judge was wholly entitled to take the view that the
whole affair was pre-planned and that the Applicants were party to that plan and
to a joint enterprise to grab the tusks in the wake of the threatening atmosphere
they intended to and did create, and that each must have known that the use of
such menacing behaviour was not a proper means of reinforcing the demands
that were made. As such, those demands were unwarranted. There was nothing
of substance in any of the grounds raised.
Bookmaking/Gambling
CA 270/00
Stuart-Moore
ACJHC
Mayo VP &
Stock JA
(19.12.2000)
*AA Bruce SC
& Beney
Wong
#Ching Y
Wong SC,
Peter Wong &
Barbara Cheng
OR
Suen-hong
Bookmaking/Admissibility of betting slips/Rule against hearsay evidence
收受賭注 – 賭注記錄紙條可否接納為證據 – 不許接納傳聞證據的
法則
The Applicant was convicted after trial of one charge of bookmaking,
contrary to section 7(1)(a) of the Gambling Ordinance, Cap 148.
The case concerned activities observed, and documents later found, in
the subject premises. The flat was under observation with the aid of a telescope,
from premises opposite the flat from 7 pm to 10 pm on the night in question. In
that time, the Applicant was seen to make 59 telephone calls, and in the case of
about half of them he was seen to make a note after the call.
The unchallenged evidence was that a police party went to the flat at
about 10:05 pm and shouted to be let in. The Applicant’s wife was seen by the
observer to approach the front door and then turn to speak to the Applicant who
was seated on the sofa in the living room with a pile of papers in his hand. She
was heard by those outside the door to ask: ‘Someone looking for you?’ The
police repeated their identity and threatened to break open the door. The
Applicant was seen to go quickly to the kitchen still holding the papers. His
wife went to the sofa. The police broke in and seized a number of documents
from the fridge and from a drawer in the kitchen.
Much of the evidence concentrated upon the nature of these documents
and their contents. The documents were each put to a witness called by the
prosecution who was put forward as an expert in gambling, specifically
bookmaking, and particularly in bookmaking for horse racing.
On appeal against conviction, it was submitted, inter alia, that the expert
witness was wrongly permitted to rely upon the truthfulness of the contents of
those documents: ‘The contents of a document being hearsay made it
inadmissible for the purpose of proving the truth of its contents and that
therefore [the expert] ought not to[have] been permitted to form his opinion of
[them].’
Held :
(1)
A statement other than one made by a person while giving oral evidence
in the proceedings was inadmissible as evidence of any fact stated. It was
excluded because it was thought to be unreliable; hence its exclusion was felt to
be necessary for maintaining higher standards of accuracy in findings of guilt.
Independent policy reasons had also been advanced for the exclusionary rule.
The principal independent justification was that the admission of hearsay
statements would deny the accused an opportunity to participate effectively in
26
CCAB 2001
Bookmaking/Gambling
the proceedings instituted against him by preventing him from cross-examining
the maker of the statement : Cross & Tapper on Evidence 9th Ed p 530 & The
Principles of Criminal Evidence pp 179-180;
(2)
The question then was ‘what was the purpose in this particular trial of
the production of the exhibits analyzed by the expert ?’ The issue in this case
was whether it was proved, to the requisite standard, that the Applicant was
receiving bets ‘by way of business’. The purpose in this case of the production
of the documentary exhibits was to show that the Applicant was in possession of
the paraphernalia, namely, the telephones and the coloured pens next to the
telephones. Those documentary exhibits contained the format and the jargon of
the business, and the purpose of proving their possession, their nature, their
format and their jargon, was to show, together with other evidence, that the flat
was the venue for the conduct of a business of the kind run by bookmakers. To
that end, these documents were admissible evidence and did not breach the
prohibition against hearsay evidence: R v Kearley [1992] 2 AC 228 and R v Ng
Kin-yee [1993] 2 HKC 148 distinguished; Wong Wai-man & Others v HKSAR
[2000] 3 HKLRD 313 and R v Walton (1989) 166 CRL 283 considered;
(3)
The betting slips which were adduced showed the keeping of records
such as might be kept in a bookmaking business. The fact that the Applicant
was actually receiving bets on the day in question was proved by the
uncontested evidence of calls coming in to his flat at an average frequency of
about one every three minutes over a period of three hours on a racing night; by
the fact that he was seen making notes frequently when receiving these calls; and
by the fact that different coloured pens were found by the telephone.
Result – Application dismissed.
Bribery/Corruption/ICAC
CA 147/2000
Stuart-Moore
&
Mayo VPP
Seagroatt J
(19.3.2001)
*B Ryan &
G Shiu
#GJX McCoy
SC,
Alexander
King & Edwin
Choy
LAUNDER
Ewan Quayle
Acceptance of advantage/Inconsistency of verdicts/Direction on s 9(1)(b),
Cap 201/Application of s 11(1) to s 9(1)(b), Cap 201/Warning to jury on
effects of delay on recollection of witnesses/Inferences to be drawn from
defendant’s election not to testify/Conduct of procedures for obtaining
deposition by letters of request/Management of a trial and a jury for the
judge
接受利益 - 裁決不一致 - 就第 2 0 1 章第 9 ( 1 ) ( b) 條作出指引 - 第 2 0 1
章第 1 1 ( 1 ) 條對第 9 ( 1 ) ( b) 條的適用 - 就延誤對證人記憶的影響向陪
審團給予警告 - 在辯方選擇不出庭作供的情況下作出推論 - 以請求
書方式取得書面供詞的程序 - 法官對審訊及陪審團的處理
The Applicant was convicted after trial of accepting an advantage in the
sum of $4,500,000, contrary to s 9(1)(b) of the Prevention of Bribery Ordinance,
Cap 201. The particulars of that count were as follows:
Ewan Quayle Launder, on or about the 11th day of October
1980, in Hong Kong, being an agent of Wardley Limited, without
lawful authority or reasonable excuse, accepted or agreed to
accept an advantage, namely a gift, fee, reward or commission of
HK$4,500,000 from George Tan Soon-gin as an inducement to or
reward for or otherwise on account of the said Ewan Quayle
Launder showing favour to Carrian Holdings Limited and/or
Carrian Investments Limited and/or other companies controlled
by the said George Tan Soon-gin in relation to his principal’s
affairs or business.
27
CCAB 2001
The Applicant was acquitted of the remaining 12 counts, all of which
also alleged offences contrary to s 9(1)(b) of the Ordinance.
On appeal, it was submitted, inter alia:
Ground 1: Inconsistent Verdicts
The first ground amounted to a complaint that the guilty verdict on count
1 was inconsistent with the verdicts of not guilty on all the remaining counts,
when neither the prosecution nor the judge had put forward anything which was
capable of making any real distinction between count one and the remaining
counts.
Held :
It was a well established principle of law that a conviction would only be
quashed on the ground of its inconsistency with other verdicts if an applicant
was able to demonstrate that the jury’s conclusion was one which no reasonable
jury, which had properly applied their minds to the facts, could have reached: R
v Durante (1972) 56 Cr App R 708, R v Cheng Man-to [1987] 2 HKC 261. As
the circumstances were so glaringly different and cogent on this count, there was
no inconsistency between this verdict and the verdicts on the other counts;
Ground 1A: The s 9(1)(b) offence
It was submitted that the jury had been misdirected in relation to one of
the elements particularised in count 1 which was common to all the counts in the
indictment. It was said that the judge, contrary to the way in which the counts
had been drawn, had directed the jury that a conviction would be returned if
‘favour’ had been shown in the past, namely before the Applicant’s acceptance
of the alleged advantage, whereas the particulars in each count in fact only
permitted the jury to consider ‘favour’ in a present or future context, either an
acceptance of the advantage or after its acceptance. The argument focused on
the allegation in count 1 that the Applicant ‘accepted … an advantage … as an
inducement to or reward for or otherwise on account of (the Applicant),
showing favour to …’.
The Applicant submitted that although the particulars in count 1 alleged
only that the advantage was accepted as an inducement for ‘showing favour’, the
judge had nevertheless directed the jury that the Applicant would be guilty if it
was established that the advantage was for ‘showing or having shown favour’.
It was submitted that this was a material misdirection because s 9(1) of the
Ordinance expressly distinguished between the present and future (i.e. ‘showing
favour’) and the past (i.e. ‘having shown favour’). If, it was argued, the jury had
concluded that favour had been shown in the past, that was outside the ambit of
the allegation contained in the count on which the Applicant was convicted
because nowhere in the particulars was it alleged that the advantage was for
‘having shown’ favour.
Held :
Although it might well be that the words ‘as an inducement to’ could be
said to govern a situation where an advantage was accepted on the basis of a
favour being given at or after the time of the acceptance of the advantage, that
was not the only aggravating factor. The jury had, by way of alternative, also to
consider, as the judge properly directed them, whether the advantage was
accepted as a ‘reward for or otherwise on account of (the Applicant) showing …
favour’ which, taking the ordinary meaning of those words, could be construed
as meaning that a past, present or future favour was contemplated. That placed
no strain on the true construction of those words. The words ‘or having shown
favour’, whilst they were omitted from the particulars of count 1, and whilst they
might have removed any doubt about the intention of this piece of legislation, in
28
CCAB 2001
reality, they added nothing which was not already plain from the phraseology
used in the indictment;
Ground 2: Application of s 11(1) to s 9(1)(b) offence
The Applicant criticised the judge’s directions in his summing up that s
11(1) of the Ordinance had relevance to the jury’s consideration of the s 9(1)(b)
offences alleged in all the counts, including count 1. It was said that before s
11(1) could have any application to an offence brought under s 9(1)(b), the
element of ‘showing favour in relation to one’s principal’s affairs or business’
had to be established by proof of the purpose for which the advantage was paid
‘in order for section 11 to be capable of applying to negative any possible
defence relied upon’.
The response of the Respondent was that the prosecution, relying on
what they had alleged were the strong inferences to be drawn that the payment in
count 1 was for showing favour to Tan’s companies, had to prove not that any
favour was actually shown but that the payment of the money in count 1 was
accepted on the basis that this was a goodwill payment. Reliance was placed on
R v Tsou Shing-hing [1989] 1 HKC 93, where reliance was placed on s 11(1),
and where it had also been contended that there was no evidence showing the
purpose for which money was either paid or accepted.
Held :
(1)
Although in Tsou Shing-hing the facts were different to the present case
where there was an admission of guilt by the Applicant, this was not a
distinction of substance. It provided no reason to distinguish Tsou Shing-hing’s
case from the present one, so long as it had been made plain to the jury that they
had first to find the elements of the offence proved. Whether or not the
circumstantial evidence established guilt was a matter for the jury to decide;
(2)
In Tsou Shing-hing, it was held that the last four words, taken from one
of the phrases (applicable also in the present case) of the s 9(1)(b) offence,
namely ‘accepts any advantage as an inducement to or reward for or otherwise
on account of …’, covered cases ‘where a general goodwill payment had been
made without specific intention in relation to specific acts …’. Although the
Applicant sought to distinguish that case by suggesting that only where direct
evidence had established a defendant’s involvement in the acceptance of an
advantage in the terms of s 9(1)(b), such as would be provided by a confession,
could s 11(1) apply, that plainly was not correct. The elements of the offence
had first to be proved before the ‘non-defences’ in s 11(1)(a), (b) and (c) could
apply. That was made clear to the jury;
(3)
It would have been a serious omission by the judge not to have referred
the jury to the provisions of s 11(1) when an important plank in the defence case
at trial had been that the prosecution was not able to show that the Applicant had
in fact ‘shown favour’ to any of Tan’s companies. The Applicant neither gave
nor called evidence in his defence and, in the absence of a direction as to what
were deemed by s 11(1) not to be defences, the jury might well have entered into
the realms of unnecessary and unwarranted speculation. That direction did not
absolve the prosecution from proving acceptance of the payments on the basis of
what was alleged in count 1. All that the direction effectively achieved was to
make clear to the jury that the prosecution did not have to prove that the
Applicant actually showed favour;
Ground 3: Delay
The Applicant submitted that the judge failed to warn the jury ‘as to the
dangers of witnesses’ recollection in relation to events that were almost twenty
years old ’.
29
CCAB 2001
Held :
(1)
There were cases in which long delay might give rise to serious concern.
Depending on the circumstances of each case, where there had been a lengthy
delay between the events which related to a criminal charge and the trial, it
might be necessary for a judge to direct a jury, or himself if sitting alone, on this
issue. That did not mean that it would be an invariable practice because this
would depend, aside from the length of the delay, on the extent to which a
witnesses’ memory, unaided by any documentary evidence, was crucial and
central to the prosecution case;
(2)
In the event that a direction was considered necessary, the judge would
need to direct the jury about the importance of making allowances for the fact
that memories could fade after considerable time had elapsed. That was a
commonly experienced human failing. Witnesses, from whatever background
and walk of life could not, with the clarity they might have had nearer the time,
be expected to remember with accuracy something which occurred years ago. A
direction along such lines would apply not only to prosecution witnesses but to a
defendant who might, long after the event, find it more difficult to provide
answers about his actions and words. The most obvious example of where a
direction on delay would be important would be in the case where there was an
uncorroborated allegation made by a complainant such as sometimes happened
where sexual offences came to light long after the event;
(3)
In this case there had been a delay before trial of up to twenty years.
Despite that, a specific direction was not required. The trial involved almost no
dispute on the facts as such. Memory was simply not an issue;
Ground 4: … (Not digested)
Ground 5: Applicant’s election not to testify
The Applicant submitted that the judge erred in directing the jury that
they could more readily draw the inferences the prosecution said should be
drawn from the fact that the Applicant had elected not to give evidence. It was
further said that the judge had unfairly criticised the Applicant for his failure to
produce any accounting records in support of his defence when ‘in fact such
documents had been adduced in the course of cross-examination of prosecution
witnesses, such evidence being ignored …’. In essence, it was submitted that
there had been a violation of the common law rule prohibiting the making of
unjustified comments on a defendant’s right to remain silent.
Held :
The way the defence had advanced the Applicant’s case did not reveal
the investors on whose behalf he was said to have been acting. Only the
Applicant was aware of their identity. This was a matter which, if true, was
particularly within his own knowledge. The Applicant’s failure to give evidence
was a circumstance which had a bearing on the probative value of the evidence.
It was a factor which the jury could take into account when evaluating this and
other evidence;
Ground 6: Depositions obtained by Letters of Request
The Applicant submitted that the judge was wrong in law, or alternatively
erred in the exercise of his discretion, when he ruled that seven depositions
about which complaint had been made should be admitted into evidence before
the jury.
30
CCAB 2001
Held :
(1)
Crown Counsel exercised a quasi-judicial function by acting as a cocommissioner for the purpose of taking depositions in the United States.
Although the complaint, in light of Liu Sung-wai v HKSAR [1998] 4 HKC 644,
was that it was wrong for Crown Counsel, employed by the investigating and
prosecuting authority, to have acted as co-commissioner for the purpose of
examining three bank employees, and that Crown Counsel wore two hats, the
question was whether this lack of independence vitiated the process of taking the
depositions, thereby rendering them inadmissible. The depositions were made
by senior bank officials producing banking documents which had come into
existence in the ordinary way of banking business, and fell squarely within the
category identified by s 77F(1)(b) and (2)(b) relating purely to the production of
banking documents. Under s 77F(1), any deposition together with any
document exhibited or annexed thereto, which complied with subsection (1)(b)
and (2)(b):
Shall on its production without further proof be admitted in those
criminal proceedings as prima facie evidence of any fact stated in
the deposition and in the document exhibited or annexed thereto.
The trial judge was obliged by the terms of the Evidence Ordinance to admit the
depositions despite the irregularity of the procedure. However, if the
irregularity had caused the judge to consider whether, in the exercise of his
discretion, he should admit such evidence, the admitting of the depositions by
him would have been in the proper exercise of his discretion. There was no
challenge as to the authenticity of the records and no evidence was called to
impugn them. In reality, there could be no challenge;
(2)
It was not necessary for the court in Hong Kong to consider whether,
because a requested country might have erred in respect of the application or
non-application of its own time bars to letters of request, it should exclude such
evidence otherwise properly obtained. The mandatory wording of s 77F(1)
precluded the consideration of the exercise of a discretion save in the particular
circumstances identified in subsections 1(c) and (d) which dealt with the court’s
approach to mixed depositions;
Ground 7: Jury management after retirement
(a)
The Applicant complained of the judge’s management of the jury after
they had retired to consider their verdicts.
Held :
Although the judge was criticised for his use of the words ‘there is no
need for you to sit any longer unless you wish to, to consider your verdicts’,
which might at a late hour after long deliberation have left them with the
understanding that they could continue to deliberate if they wished, there was no
evidence that they had deliberated after being directed to retire for the night.
The following day, there was no indication of any tiredness on their part, and
they eventually retired for a second night. There was no possibility of prejudice
from the way the judge had directed them;
(b)
The Applicant complained that the trial judge was wrong to have refused
to reconvene the court to hear counsel address him on a matter of law about the
length of time occupied by the jury during their deliberations.
Held :
It was a matter for the judge to decide whether to reconvene the court in
such circumstances;
31
CCAB 2001
(c)
The Applicant complained of a note which was brought to the judge on
which six jurors had identified themselves and had written the telephone
numbers of named persons together with a message, which was common to all of
them, to the effect that they would be in the court building that night. Each
message had a time set alongside it, apparently recording the time when court
staff had tried to relay the messages.
Held :
This mundane and administrative feature of the case did not justify
detailed consideration which could have occasioned no prejudice and it did not
constitute an irregularity.
These were not, as submitted, improper
communications by the court staff with the jury and their family members. It
was entirely proper and sensible that this procedure was carried out. The
messages were of the type to be anticipated in any case involving a jury being
kept overnight. The contact made on behalf of the jurors was properly carried
out;
(d)
The Applicant complained that the judge again asked the jury to continue
their deliberations. It was said that pressure was put on them by the failure of
the judge to tell the jury that they should inform the court if they were unable to
reach a verdict.
Held :
There was no pressure. The jury was well aware of the position. They
had not only been given the ‘Watson’ direction - R v Watson & Others (1988) 87
Cr App R 1, 7: ‘if, after full discussion, you cannot reach agreement then you
must tell me so’ - but had also been told quite clearly that if they needed further
guidance they had only to send a note to that effect.
FAMC
12/2001
Li CJ
Bokhary &
Chan PJJ
(26.7.2001)
*Bernard Ryan
& Gavin Shiu
#Alexander
King & Edwin
Choy
LAUNDER
Ewan Quayle
Accepting an advantage/S9(1)(b) of POBO/Meaning of ‘showing or having
shown’ favour raised point of law of great and general
importance/Direction on inferences/Commissioner taking evidence on
request must be independent of parties/No necessity to put defence case at
length where defence evidence not called/No substantial and grave injustice
接受利益 - 《防止賄賂條例》第 9 ( 1 ) ( b) 條 - ‘ 予以或曾經予以 ’ 優
待的涵義帶出具有重大而廣泛的重要性的法律論點 - 推論方面的指
示 - 按法院請求錄取證據的委託人必須中立，與控辯雙方無涉 - 如
辯方沒有傳喚證據則法官無須詳細指出辯方的論據 - 沒有實質及嚴
重的不公平
The Applicant was convicted of count 1, on an indictment containing 13
counts. Count 1 was an offence contrary to s 9(1)(b) of the Prevention of
Bribery Ordinance, Cap 201. The Court of Appeal affirmed that conviction; it
also declined to certify the involvement of a number of points of law which the
Applicant said were of great and general importance.
The count on which the Applicant was convicted read thus:
Ewan Quayle Launder, on or about the 11th day of October,
HK$4,500,000 Hong Kong currency from George Tan Soon-gin
as an inducement to or reward for or otherwise on account of the
said Ewan Quayle Launder showing favour to Carrian Holdings
Limited and/or Carrian Investments Limited and/or other
companies controlled by the said George Tan Soon-gin in
relation to his principal’s affairs or business.
32
CCAB 2001
The Applicant asked the Appeal Committee to certify the involvement of
five points of law, and to grant leave to appeal to the Court of Final Appeal on
‘the point of law of great and general importance’ limb of s 32(2) of the Hong
Kong Court of Final Appeal Ordinance, Cap 484. Further or alternatively, he
asked for such leave to appeal on the ‘substantial and grave injustice’ limb of
that provision.
First Point of Law
The first point of law sought to be certified read:
It is an error of law for the trial judge to repeatedly direct the
jury in terms of s 9(1)(b) of the Prevention of Bribery
Ordinance, Cap 201, that the Applicant would be guilty if it was
established that the advantage was for ‘showing or having
shown favour’, when the particulars of the count alleged only
that the advantage was accepted as an ‘inducement to or
reward for or otherwise on account of showing favour’.
In rejecting the Applicant’s argument that it was a misdirection, on a
count which only alleged accepting an advantage for showing favour, to tell the
jury that they could convict on the basis of accepting an advantage for ‘showing
or having shown favour’, the Court of Appeal said this:
Ingenious though this argument may sound, we have no hesitation
in rejecting it. As Mr Ryan, in his adopted written submissions
pointed out, it may well be that the words ‘as an inducement to’
could be said to govern a situation where an advantage was
accepted on the basis of a favour being given at or after the time of
the acceptance of the advantage. However, this was not the only
governing factor. The jury had, by way of alternative, also to
consider, as the judge properly directed them, whether the
advantage was accepted as a ‘reward for or otherwise on account
of (the Applicant) showing … favour’ which, taking the ordinary
meaning of these words, could be construed as meaning that a past,
present or future favour was contemplated. It seems to us that this
places no strain on the true construction of these words. The words
‘or having shown favour’, whilst they were omitted from the
particulars of count 1, and whilst they may have removed any
doubt about the intention of this piece of legislation and also the
scope of the allegation in count 1, in reality added nothing which
was not already plain from the phraseology used in the indictment.
The Respondent accepted that under the Indictment Rules, Cap 221, it
was possible to draw a charge under s 9(1)(b) of the Prevention of Bribery
Ordinance alleging acceptance of an advantage for ‘showing or having shown’
favour. But it was submitted nevertheless that the Court of Appeal was plainly
right, so that leave to appeal should not be granted.
Held :
(1)
The first point of law was one of great and general importance, and was
reasonably arguable. It was not possible to say at this stage that a misdirection
such as the one complained of could not have affected the result. The
prosecution was free to advance a proviso argument at the hearing of the appeal
itself;
(2)
Further, even if the way in which the count was worded enabled the
prosecution to put its case on the basis of past as well as present and future
favours, it was reasonably arguable that substantial and grave injustice was
occasioned by the judge’s direction to the jury that they could convict even on
33
CCAB 2001
past favours. This was because it was reasonably arguable that, as the Applicant
contended, the prosecution’s case had in fact throughout been based only on
present and future favours, not past favours.
Result -
Leave to appeal granted on two bases: (i) to pursue that point of law
of great and general importance; and (ii) to pursue the substantial
and grave injustice argument referred to above.
Second Point of Law
The second point of law sought to be certified read:
Does s 11(1) of the Prevention of Bribery Ordinance Cap 201
have any application in a s 9(1) Cap 201 case, in circumstances
where the defence advanced is that no advantage was accepted?
Section 11(1) of the Prevention of Bribery Ordinance provided that:
If, in any proceedings for an offence under any section in this
Part, it is proved that the accused accepted any advantage,
believing or suspecting or having grounds to believe or suspect
that the advantage was given as an inducement to or reward for
or otherwise on account of his doing or forbearing to do, or
having done or forborne to do, any act referred to in that section,
it shall be no defence that (a) he did not actually have the power, right or
opportunity so to do or forbear;
(b) he accepted the advantage without intending so to do
or forebear; or
(c) he did not in fact so do or forbear.
Held :
Counsel for the prosecution mentioned s 11 in his opening speech to the
jury. He did this merely to inform the jury that the matters set out in items (a),
(b) and (c) of s 11(1) were not defences. The judge did the same thing in his
summing up. There was nothing wrong with that. It was suggested that the way
in which the judge dealt with s 11 might well have confused the jury on the
elements of the offence charged, and might well also have deprived the defence
of the value of its argument that, since no actual favour was identified, no
inference that the payments were corrupt ought to be drawn. That was not
reasonably arguable. The elements of the offence charged were dealt with
elsewhere in the summing up. So was the matter of whether corruption was to
be inferred.
Result - Point not certified.
Third Point of Law
The third point of law sought to be certified read:
Is it correct in law for a judge to merely direct a jury that they
may draw an inference by ‘[coming] to common sense
conclusions based on evidence that you accept’ when Lord
Diplock’s advice in Kwan Ping Bong v The Queen [1997] AC
609 required that an inference could only be drawn if it was
‘compelling - one (and the only one) that no reasonable man
could fail to draw from the direct facts proved’?
34
CCAB 2001
Held :
No such point was involved. What the jury had to be told was that no
inference could be drawn against the Applicant unless it was the only reasonable
one. While the judge did not use the expression ‘the only reasonable inference’,
and while it would have been better if he had, what he told the jury was
ultimately to the same effect. That was plain beyond reasonable argument to the
contrary.
Fourth Point of Law
The fourth point of law sought to be certified read:
Is ‘evidence’ obtained pursuant to a Letter of Request (s 77E-G
Evidence Ordinance Cap 8), admissible as a ‘deposition’ in
Hong Kong in circumstances where the ‘evidence’ was obtained
either:(a) under the auspices of a Hong Kong Prosecutor,
purporting to act as or on behalf of a foreign court;
and/or
(b) where the foreign court acted contrary to its own law
in honouring the Letter of Request; and/or
(c) where the defence were given no notice of the taking
of the ‘deposition’?
Complaint (a) was that a member of the Attorney General’s Chambers
had acted as a commissioner in examining three witnesses in the United States
pursuant to Hong Kong letters of request. This happened before the Court of
Final Appeal made it clear in Liu Sung-wai v HKSAR (1997-98) 1 HKCFAR
306, 316, that ‘where a witness or witnesses are to be examined abroad for the
purpose of obtaining evidence for use in criminal proceedings in Hong Kong no
one should seek or accept appointment as an examiner, whether sole or joint,
unless he or she is independent of both the prosecution and the defence’.
Held :
(1)
None of the evidence so obtained in the United States was material to the
only count on which the Applicant was convicted;
(2)
The depositions to which complaints (b) and (c) were directed could be
dealt with as simply as the Court of Appeal did when it said that those
depositions ‘played no part in the jury’s considerations in respect of count 1’.
Fifth Point of Law
The fifth point of law sought to be certified read:
Is paragraph 4 - 438 of Archbold 2001, referring to R v Rose
(1982) 75 Cr App R 322 and R v Wharton [1990] Crim LR 877,
correct in law and applicable in Hong Kong?
Held :
As framed the point was academic. When the complaints which underlay
the point were examined, it was plain that they were answered by the Court of
Appeal’s statement that ‘the management of a trial and of a jury is for the
35
CCAB 2001
judge’ and its view that neither the trial nor the jury had been mismanaged in the
present case.
Substantial and Grave Injustice
Held :
(1)
On the matters which underlay the four points of law which were not
certified, the Applicant relied also on the ‘substantial and grave injustice’ limb
in case it was felt that although those matters had substance they were better
considered under that limb than the ‘point of law of great and general
importance limb’. However, there was no reasonably arguable case of
substantial and grave injustice arising out of any of those matters;
(2)
The Applicant also said that there was a reasonably arguable case of
substantial and grave injustice arising out of a failure on the judge’s part to put
the defence case to the jury. As was his right, he chose not to go into the
witness-box or call any witness. His defence consisted essentially of his
counsel’s submission that the prosecution’s case did not establish his guilt
beyond reasonable doubt. In those circumstances, it was hardly surprising if a
judge did not put the defence case at much length. That did not mean that he did
not put it adequately. It was plain beyond reasonable argument to the contrary
that the defence case had been put adequately.
Result -
MA 61/2001
Lugar-Mawson
J
LEUNG
King-lun
Leave to appeal on the ‘substantial and grave injustice’ limb
refused.
Accepting advantage as agent/Elements of offence/Agent acting
simultaneously for two principals/Act done in relation to affairs or business
of employer or principal
作為代理人而接受利益 - 犯罪要件 - 代理人同一時間代兩名主事人
辦事 - 與僱主或主事人的事務或業務有關的作為
(31.8.2001)
*Bianca Cheng
The Appellant was convicted on 23 November, 2000, after trial, of two
offences of accepting an advantage as an agent, contrary to s 9(1)(a) of the
Prevention of Bribery Ordinance, Cap 201.
#Gary
Plowman SC
Section 9(1)(a) of the Prevention of Bribery Ordinance read:
(1)
Any agent who, without lawful authority or reasonable
excuse, solicits or accepts any advantage as an inducement
to or reward for or otherwise on account of his:(a)
doing or forbearing to do, or having done or forborne
to do, any act in relate on to his principal’s affairs or
business; … shall be guilty of an offence.
The section was based on s 1 of England’s Prevention of Corruption Act,
1906.
The first charge alleged that the Appellant:
… being an agent, namely an employee of China State
Construction Engineering Corporation, on a date unknown in
November 1999, in Hong Kong, without lawful authority or
reasonable excuse, accepted an advantage, namely, a fee, reward
or commission consisting of a sum of $7,000 Hong Kong currency
from Chan Luen-kin, as an inducement to or reward for, or
otherwise on account of (the Appellant) doing or having done an
act in relation to his principal’s affairs or business, namely,
36
CCAB 2001
processing fee claims of Kin Kee Construction Engineering
Company.
The second charge alleged that the Appellant committed a like offence
on 20 January 2000, the advantage accepted being $73,000.
The Appellant was a quantity surveyor, employed by China State
Construction Engineering Corporation (“China State ” ). In 1997-1998, that
firm was engaged to build the Sheung Shiu abattoir. They sub-contracted part of
the work to Kin Kee Construction Engineering Corporation (“Kin Kee ” ). After
Kin Kee had finished the work, Chan Luen-kin, its owner, submitted his own
calculations of the amount due to his firm, together with supporting documents,
to China State. It was the Appellant’s job, as the project quantity surveyor, to
check the claims and clear them for payment by China State. It was the
prosecution case that he had solicited and accepted the sums of money set out in
the charges from Chan Luen-kin as rewards for ‘processing’ the claim.
The Appellant gave evidence in his defence and called one witness. It
was his case that Kin Kee’s payment claims were deficient in their particulars
and he was unable to authorize the issue of the payment certificates. He
therefore discussed the claim with Chan Luen-kin and agreed to prepare the
claims for him on a freelance basis for a fee. He claimed that he had approval to
do this from a Mr Lam, his senior officer in China State.
There was no dispute at trial that the Appellant had accepted the two
sums of money from Chan Luen-kin and that he was China State’s agent and
they were his principal. Lam Chi Fai, China States’ site manager and the
Appellant’s immediate superior, testified that he had not given the Appellant
authority to advise Kin Kee how to prepare their claim and to accept payment
from them for doing so. However, he said that he was aware that the Appellant
was doing this. There was no evidence that the Appellant had inflated Kin
Kee’s claim and the magistrate accepted this in his reasons for sentence.
On appeal, it was submitted that the magistrate failed to understand the
nature of the defence. He thought it was one of principal’s permission, or a
reasonable belief on the Appellant’s part that he had permission. Whereas it was
one of intent or purpose: the Appellant received the two payments from
Chan Luen-kin not as a reward, but as reimbursement for his time in putting Kin
Kee’s claims in order on a free-lance basis. In short, he was ‘moonlighting’ and
although that might have been morally reprehensible, and a breach of faith with
his employers, China State, it was not a criminal offence. He lacked the
necessary intent to be guilty of the offences charged against him.
Held :
(1)
The elements of the offence were very simple. The agent’s capacity was
not an issue. There was no requirement that there be a causal link between the
acceptance of the advantage and the particular favour alleged in the charge. It
was, however, an essential ingredient of the offence that the action or
forbearance of the agent be aimed at the principal; if it was not, there was no
offence. Thus in the appropriate factual situation, a genuine ‘moonlighter’-by
which was meant a person doing paid work in addition to his regular
employment - might not be caught by s 9;
(2)
The only question the magistrate needed to ask himself was: did the
Appellant, without lawful authority, or reasonable excuse, accept from Chan
Luen-kin, the two sums particularised, as a reward for his processing Kin Kee’s
fee claim? There was no need for him to have become sidetracked by erroneous
considerations of ‘capacity’ and ‘detriment’, and ‘permission’. That, however,
was not fatal to the convictions for, as the magistrate realised, the key to the case
lay in the meaning of the phrase ‘… in relation to his principal’s affairs or
business’. In England, the meaning of that phrase had been considered in
37
CCAB 2001
Morgan v DPP [1970] 3 All ER 1053, and Lord Parker LCJ held that the phrase
‘falls to be widely construed ’ ; what the Appellant had there done, although in
relation to the affairs of the trades union of which he was a convenor, was also
in relation to the affairs of his employer, the Rover car company. In
Commissioner of the ICAC v Ch’ng Poh [1997] 2 HKC 128, 135, Lord Lloyd
had said that Morgan was ‘a good example of the sort of circumstances in which
s 9 applies’ and ‘shows that an agent can act simultaneously for two
principals’;
(3)
The Appellant had a duty towards China State, his employers, to check
and certify sub-contractor’s claims. He took money from one of those subcontractors to prepare these claims. He was both author and examiner of the
claims. There could not be a clearer example of an act that was in relation to the
affairs or business of his employer/principal. As Lord Lloyd put it in Ch’ng
Poh, his acts were ‘aimed ’ at his employer/principal.
Result -
MA 929/2001
McMahon DJ
(23.10.2001)
LI
Hiu-ling
Appeal dismissed.
Offering advantage to public servant/Capacity arising as part of mens rea
of offeror/Actual capacity need not be established/Belief of offeror that
offeree had necessary capacity
向公職人員提供利益 - 公職人員的身分構成提供利益者的犯罪意圖
的一部分 - 實際身分毋須確定 - 提供利益者相信接受利益者具有必
需的身分
*Gary Lam
#Andrew
Bruce SC
After trial, the Appellant was convicted of an offence of offering an
advantage to a public servant, contrary to s 4(1)(a) of the Prevention of Bribery
Ordinance, Cap 201. The particulars were that he:
on 5 February 2001 in Hong Kong without lawful authority or
reasonable excuse, offered an advantage, namely sexual service to
Lam Wai-hung, a public servant, namely PC 52923 of the Hong
Kong Police Force as an inducement to or reward for or otherwise
on account of his abstaining from performing and acting in his
capacity as a public servant, namely taking action against the said
appellant in respect of her working as a prostitute.
The evidence showed that the Appellant operated a one woman brothel in
a flat in a building in Tai Po. Police officers PW3 and PW4 went to investigate
after a report from the building administration to the police. Whilst PW3 was
speaking about these matters to the Appellant, she offered to make love with
him, if he did not evict her. On that basis the magistrate convicted the
Appellant.
On appeal, it was submitted, inter alia, that the magistrate misapplied
Leonard J’s test in Kong Pui v R [1973] HKLR 120, to the facts of this case and
should have found that the ‘proviso’ or second limb of that test applied. It was
argued that as the operating of a one woman brothel was not an offence, the
officers could not have evicted her and therefore they, so far as capacity was
concerned, had no greater powers of eviction than any other member of the
public. In Kong Pui (above) Leonard J stated the test as follows:
‘Would that gift have been given or could it have been effectively
solicited if the person in question were not the kind of public
servant he in fact was?’ If the answer is ‘of course not’ … then the
gift has been solicited or given to him in his capacity as a public
servant and is a corrupt one … The present Ordinance aims at the
mischief of a police officer obtaining a gift from a member of the
public for forbearing to act in a manner which would be
embarrassing to that member of the public whether or not he be
entitled virtute offici to do the act forborne …
38
CCAB 2001
The ‘proviso’ or second limb of that test consisted of the words:
provided of course that the embarrassment sought to be avoided by
the gift could not equally easily have been caused by the police
officer had he not been a police officer.
Held :
(1)
The test had withstood the march of time and was an elegant and incisive
pathway to the heart of otherwise perhaps troubling questions of whether
an offer or solicitation was made on account of a civil servant doing an
act in his capacity as a civil servant. It was approved by the Privy
Council in Attorney General v Ip Chiu & Another [1980] HKLR 120;
(2)
The test, however, was a tool, albeit historically an effective tool, for the
determination as to whether an offer or solicitation was made relating to
an act in the capacity of the civil servant. The proviso or second limb of
the test was no more than an illustration of circumstances where the test
itself would provide an answer to the effect that the offer or solicitation
could not be said to be in the civil servant’s capacity. It did not add to or
change the terms or effect of the test which preceded it. It merely
illustrated a general instance where the offer or solicitation would not
relate to the civil servant’s capacity;
(3)
The offer was made to the officer an account of his abstaining from
performing an act in his capacity as a police officer. The question of
capacity arose not as part of the actus reus but as a part of the mens rea
of, in this case, the offeror: Woo Main-wai v R Cr App 655/75;
(4)
Subsection (2) of section 11 rendered it no defence to an offeror of an
advantage that the offeree had no power, right or opportunity to do any
act which represented the quid pro quo to the offer, so long as the offeree
believed or suspected or had reason to believe or suspect that he did. In
the terms of s 11(2), it did not avail the Appellant that the officers had no
power to evict her. What mattered was that she made her offer to PW3
thinking they had. It was not an actual capacity that had to be established
in proving the offence. What had to be proved was that the offeror
believed, in the terms of s 11, the civil servant offeree to have had such
capacity;
(5)
Although Leonard J’s test was couched in objective rather than
subjective language, that was because it was a test which assisted a
tribunal of fact in determining whether or not, on the evidence, the
relevant intention of the alleged offender had been made out. It did not
substitute itself for the legislation. In this case it would not be sufficient
for the prosecution to have established that the offer was made because
the Appellant believed or suspected in terms of s 11(2) that the officers
had the ability as police officers to take steps leading to her eviction and
that by making the offer she hoped to have them abstain from taking
these steps;
(6)
The magistrate correctly approached the question of the capacity of the
police officer from the point of view of the Appellant’s mens rea. He
correctly applied s 11(2). He made a finding of fact whereby he inferred
from what was said and done by the Appellant and the officers that she
intended her offer to be made to the police because she wished them to
abstain, as police, from performing some act leading to her eviction.
Result -
Appeal dismissed.
39
CCAB 2001
FACC 3/2001
Li CJ
Bokhary &
Chan PJJ
Litton &
Sir Anthony
Mason NPJJ
(13.12.2001)
*MC
Blanchflower
SC
B Ryan &
G Shiu
#GJX McCoy
SC
A King &
E Choy
LAUNDER
Ewan Quayle
Accepting an advantage/Charge alleged showing of favour/Section 9(1)(b)
POBO draws distinction between ‘showing favour ’ and ‘having shown
favour ’/Judge misdirecting jury that conviction possible if ‘favour ’ shown
in the past before acceptance of advantage/Effect of failure by trial counsel
to object to direction
接受利益 - 控罪的指稱為予以優待 - 《防止賄賂條例》第 9 ( 1 ) ( b)
條將‘予以優待’及‘曾經予以優待’兩者區分 - 法官錯誤指示陪審團
如在接受利益前過往曾經予以‘優待’則可予定罪 - 原審時的律師沒
有質疑該指示的影響
The Appellant was convicted after trial of an offence of accepting an
advantage in the sum of $4,500,000, contrary to s 9(1) of the Prevention of
Bribery Ordinance, Cap 201 (‘the Ordinance’ ). (Count 1)
Section 9(1)(a) and (b) of the Ordinance was in these terms:
Any agent who, without lawful authority or reasonable excuse,
solicits or accepts any advantage as an inducement to or reward
for or otherwise on account of his:
(a)
doing or forbearing to do, or having done or forborne to do,
any act in relation to his principal’s affairs or business; or
(b)
showing or forbearing to show, or having shown or forborne
to show, favour or disfavour to any person in relation to his
principal’s affairs or business,
shall be guilty of an offence.
The particulars of the count were:
Ewan Quayle Launder, on or about the 11th day of October, 1980,
in Hong Kong, being an agent of Wardley Limited, without lawful
authority or reasonable excuse, accepted or agreed to accept an
advantage, namely a gift, fee, reward or commission of
HK$4,500,000 Hong Kong currency from George TAN Soon-gin as
an inducement to or reward for or otherwise on account of the said
Ewan Quayle Launder showing favour to Carrian Holdings
Limited and/or Carrian Investments Limited and/or other
companies controlled by the said George TAN Soon-gin in relation
to his principal’s affairs or business.
The Appellant was acquitted of 12 other such counts, 9 of which related
to payments by Tan and three of which related to payments by Chung Chingman and his wife, Pau Choi-wah, who controlled the EDA Group. The only
thing which distinguished count 1 from the other counts involving payment from
Tan was the manner of transmission of funds.
On appeal, it was submitted that the trial judge misdirected the jury in
law that they could convict the Appellant of the offence charged if ‘favour ’ had
been shown in the past, before, that is, the Appellant’s acceptance of the alleged
advantage. It was said that the allegation ‘showing favour ’ connoted present
and future but not past favours.
The Appellant also submitted that, if the way in which the count was
expressed enabled the prosecution to present its case on the basis of past as well
as present and future favours, substantial and grave injustice was occasioned by
the trial judge’s direction to the jury, that they could convict even on the basis of
past favours. It was the Appellant’s contention that the prosecution’s case
throughout had been presented on the basis that the relevant advantage had been
accepted for present and future favours only, not past favours.
The Appeal Committee certified that the judgment of the Court of
Appeal involved a point of law of great and general importance, namely [was it]
‘an error of law for the trial Judge to repeatedly direct the jury in terms of s
40
CCAB 2001
9(1)(b) of the Prevention of Bribery Ordinance Cap 201, that the [Appellant]
would be guilty if it was established that the advantage was for ‘showing or
having shown favour’, when the particulars of the count alleged only that the
advantage was accepted as an ‘inducement’ to or reward for or otherwise on
account of showing favour’?
Leave was granted to pursue the certified point of law and the related
substantial and grave injustice argument.
In 1973, the Appellant was employed as a managing director of Wardley
Limited which was the merchant banking subsidiary of the Hong Kong and
Shanghai Bank. In January 1980, he was appointed Chief Executive of
Wardley. He was a director and a member of the credit committee of Wardley.
The credit committee consisted of senior personnel of the merchant bank. They
met regularly to consider applications from customers and potential customers
for loans and other financial services. The Appellant also dealt with
underwriting proposals.
The Appellant exercised influence and control over the granting of loans
because he was a point of contact between Wardley and its major clients. One
such client was George Tan, who controlled the Carrian group of companies.
The prosecution alleged at trial that the Appellant received corrupt
payments at or about the time Wardley granted new loans or renegotiated
existing loans or provided other financial services to Carrian. These bribes were
‘general sweeteners ’ for the Appellant in some way to show favour to the
companies controlled by the persons who were in reality making the payments.
The acceptance of the alleged advantages by the Appellant, the prosecution
claimed, related to Wardley’s affairs or business. The prosecution case was
presented generally as one in which it was alleged that the payments were made
to the Appellant as bribes or general sweeteners for the accused to show favour
to the relevant companies.
The Court of Appeal considered that, as a matter of ordinary meaning,
the acceptance of an advantage as an ‘inducement to or reward for or otherwise
on account of [the Appellant] showing favour ’ could – and presumably should –
be construed as satisfying that a present, past or future favour was contemplated.
The Court of Appeal considered that the words omitted from the count in the
indictment, ‘or having shown ’, though they removed doubts as to the meaning
of ‘for showing favour ’, in reality added nothing that was not already plain from
the phraseology employed in the indictment.
Held :
(1)
Section 9(1)(b) drew a distinction between ‘showing favour ’ and ‘having
shown favour ’. It was a distinction between the present and prospective on the
one hand and the past on the other hand which was repeatedly drawn in the
Ordinance. Recognition of the distinction required that the different meanings
of the two expressions had to be observed in the use to which the expressions
were put both in the Ordinance itself and in any indictment charging an offence
under the Ordinance: R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31
distinguished;
(2)
Although no objections were made to the directions by counsel at the
trial, that might well be an indication that the direction was not then seen as
being prejudicial to the Appellant’s case: Stirland v DPP [1944] AC 315. It
was not suggested that the failure to object at the trial constituted a bar to an
appeal on the point at issue;
(3)
The directions complained of related to a central element in the offence
charged, namely what the prosecution must prove if it was to succeed. The
relevant direction clearly stated that guilt could be established in one of two
41
CCAB 2001
ways. It could not be said that the relevant directions were not material and
would have been disregarded by the jury. The jury had before them the
schedule of transactions and could have related the repeated directions on
‘having shown favour ’ to the two loan transactions which preceded the
acceptance of the payment in the charge. The direction in question left it open
to the jury as a matter of law to convict on that basis and the possibility that the
jury did so had not been and could not be excluded.
Result - Appeal allowed and conviction quashed.
C&E
MA 1098/99
CHUNG
Kin-wing
(20.10.2000)
Dutiable Commodities Ordinance/Shift of burden of proof to
defence/Burden of proof dischargeable by evidence from prosecution as
well as from defence
《應課稅品條例》 - 舉證責任轉至辯方 - 衡量控辯雙方的證據後方
可解除控方舉證責任
*Paul
Madigan &
Christal Chan
The Appellant was convicted on 21 October 1999 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.
#C Grounds
The facts showed that at about 1640 hours on 20 May 1999, the
Appellant was the driver of a car, Registration No. HZ 7306, which was parked
next to a discarded container in an area near Tuen Mun. A man was found
standing next to the vehicle unscrewing the fuel intake of the vehicle. The
intake cover had already been opened. Beside the man there was a jerry can
containing 25 litres of motor spirit upon which duty had not been paid. Nearby
there was a green garbage bin with a funnel and hose attached to it.
Gall J
The Appellant told the Customs Officer that he went there to refuel one
bucket of petrol and that the cost of one bucket of petrol was $180. It was
common knowledge that at the cost of petrol in Hong Kong, the sum of $180
would purchase in the vicinity of 18 litres of petrol from a legitimate source.
The magistrate drew the conclusion that he was there to purchase the 25 litres
contained in the jerry can.
On appeal
Held :
(1)
The law was such that upon the case of R v Fong Chin-yue [1995] 1
HKC 21, once the prosecution had proved beyond reasonable doubt that the
Appellant knew that the goods with which he was said to be dealing were goods
to which the Ordinance applied, the burden of proof shifted to the Appellant to
prove, on the balance of probabilities, that he believed for good and sufficient
reason that the provisions of the Ordinance had been complied with - in this case
that the duty had been paid;
(2)
Having considered that the burden shifted to the Appellant, the
magistrate said:
The defendant elected not to give evidence and called no witnesses,
and there is no defence evidence regarding the defendant’s belief.
Therefore, I find that the shifted burden of proof was not
discharged and the prosecution case can be proved beyond all
42
CCAB 2001
C&E
reasonable doubt that the defendant knew that the motor spirit was
dutiable.
The law required a magistrate, where a burden shifted in that manner to a
defendant, to look both at the evidence of the defence and at the evidence for the
prosecution to see if, on the totality of the evidence, there was any evidence
which could discharge the burden placed upon the defendant. From the findings
of the magistrate, it was clear that she was of the belief that all the evidence to
rebut the presumption must come from the defence, and in the absence of the
defence giving any evidence, the burden of proof could not be discharged. This
was a fundamental error of law.
Result - Appeal allowed.
FAMC 3/2001
Bokhary
Chan &
Ribeiro PJJ
(9.3.2001)
*Peter
Chapman &
Lam Wing-sai
#Peter Duncan
YIP
Bun-keung
Magistrate not required to give any reason for ruling of case to
answer/Point of law sought to be certified case specific
裁判官無須就須作答辯的裁定給予理由 - 要求法庭證明的法律論點
屬本案的個別情況
The Applicant was convicted after trial by a magistrate of an offence
contrary to s 46(1) of the Dutiable Commodities Ordinance, Cap 109, that was,
being the holder of a liquor licence, contravened a licensing condition, namely
clause 7, by permitting the premises in respect of which the licence was granted
to be used for an immoral purpose.
One of the questions which the Applicant sought to have certified, on the
basis that it involved a point of law of great and general importance, concerned a
challenge to the magistrate’s ruling that there was a case to answer at the end of
the prosecution case. It was suggested that at the end of the prosecution case,
and before the Applicant gave evidence admitting that he was in the premises on
the day in question, there was no evidence that he was present in the premises
and hence there was no case for him to answer.
Held :
(1)
The magistrate was not obliged to give any reason for his ruling;
(2)
The magistrate was entitled to find there was a case to answer. Under
clause 4 of the licensing conditions, the Applicant was under a personal duty to
supervise the premises. In the absence of any suggestion to the contrary, it was
open to the magistrate to infer from the evidence that there was a prima facie
case at the end of the prosecution case that the Applicant was present in the
premises, that he must have known what was happening and that he had
permitted such activity to take place inside the premises;
(3)
The question sought to be certified was case specific and involved no
point of law of great and general importance.
Result - Application for extension of time to apply for leave to appeal
refused.
43
CCAB 2001
MA 526/2001
Longley DJ
C&E
WAN
Hon-sik
Offering for sale pirated goods/Simple display not an offer for
sale/Substitution of alternative verdict not just
要約出售盜版貨品 - 純粹展示並非要約出售 - 轉以他罪裁決並不公
正
(31.8.2001)
*Paul Madigan
#James
McGowan
The Appellant was convicted after trial of offering for sale 909 VCDs
and 16 DVDs being infringing copies of copyright works, for the purpose of
trade and business, contrary to s 118(1)(e)(ii) and s 119(1) of the Copyright
Ordinance, Cap 528.
At trial, two Customs Officers testified that they had seen the Appellant
inside a shop. The officers noticed suspected pirated compact discs displayed
on the walls of the shop. They said that they heard the Appellant telling the
people in the shop that there were new and old Japanese compact discs
available. When they entered the shop, the Appellant admitted that he was its
keeper. In the record of interview, the Appellant admitted that the discs were
pirated, and that he had been introducing Japanese drama series to customers.
The Appellant testified and called a witness to say that the Appellant was
simply a customer of the shop while he himself was the person looking after the
shop. The witness also said that he was not in the shop at the time of the raid
because he had stepped out to go to the toilet.
The issue at the trial was not taken as to whether even if the Appellant
was the keeper responsible for selling infringing compact discs, he had ‘offered
the relevant discs for sale’ as the charge alleged, simply by reason of the fact
that they were displayed in the shop. The magistrate raised this issue and
referred to Fisher v Bell [1960] 3 All ER 731, in which the meaning of ‘offers
for sale’ was considered. Lord Parker decided that the proper interpretation of it
required a look at the general law and in particular the law of contract. He said:
… It is clear that, according to the ordinary law of contract, the
display of an article with a price on it in a shop window is
merely an invitation to treat. It is in no sense an offer for sale
the acceptance of which constitutes a contract. This is clearly
the general law of the country. Not only is that so, but it is to be
observed that, in many statutes and orders which prohibit
selling and offering for sale of goods, it is very common, when it
is so desired, to insert the words ‘offering or exposing for sale’,
‘exposing for sale’ being clearly words which would cover the
display of goods in a shop window.
The magistrate suggested that this was not the approach that should be adopted
by the courts in Hong Kong. He said that the distinction between an invitation
to treat and an offer for sale in the law of contract was not relevant to the
interpretation of a criminal statute.
Held :
(1)
The magistrate’s suggestion was not agreed. The fact that s 118 also
penalised a person who ‘exposed ’ infringing discs ‘for sale’ indicated that the
words ‘offered for sale’ were intended to bear the restricted meaning accorded
to them by the general law. Otherwise it would not attempt to penalise those who
exposed such items for sale. The magistrate could not, therefore, simply on the
basis that they were on display, find that the Appellant was offering the
infringing discs for sale;
(2)
While, as argued by the Respondent, it was possible for a court to return
an alternative verdict, if the elements of the offence alleged in the charge
included all the elements of the alternative mode of committing the offence, such
an argument was not correct. A defendant was entitled to know in what way the
44
CCAB 2001
C&E
prosecution was alleging that he had committed the offence with which he was
charged;
(3)
Although the appellate court, by s 119(d) of the Magistrates
Ordinance, Cap 227, had the power to make any ‘order in the matter as (it)
thinks just and by such order exercise any power which the magistrate
might have exercised’, it would not be just to exercise that power to amend
the charge under s 27 so as to uphold the conviction. The Appellant would
not be accorded the safeguards otherwise given to him by s 27(3) of Cap
227.
MA 794/2001
Gill DJ
KAN
Chung-hung
Attempting to export unmanifested cargo/Substantive offence one of strict
liability/Attempt not requiring of mens rea
企圖輸出未列艙單貨物 - 實質罪行是嚴格法律責任罪行 - 企圖罪行
不需犯罪意圖
(4.12.2001)
*Paul Madigan
#Bruce Tse
The Appellant was convicted after trial of attempting to export
unmanifested cargo.
On appeal, the Appellant submitted that the conviction was unsafe and
unsatisfactory because the magistrate, in treating the substantive offence for
exporting unmanifested cargo as one of strict liability, failed to consider
sufficiently or at all as to whether intention was a necessary ingredient when the
offence was one of attempt charged under s 159G of the Crimes Ordinance, Cap
200; on a plain reading of the section, so it was said, intent was a necessary
ingredient and the magistrate, having found that the Appellant had no knowledge
of the existence of the unmanifested cargo, erred when she convicted him. The
ground derived from the words of s 159G(1):
A person who intending to commit an offence to which this
section applies does an act that is more than merely preparatory
to the commission of the offence is guilty of attempting to commit
the offence.
On a plain reading of the section it was said that intention was clearly a
necessary ingredient.
Held :
(1)
The question of whether intent was a necessary ingredient of the offence
of attempting to export unmanifested cargo was considered in three cases: R v
Lau Sai-wai [1985] HKLR 423, R v Lei Sou-wa [1996] 3 HKC 494, R v Cheng
Kai & Another [1996] 2 HKCLR 91. These indicated that if the substantive
offence imposed strict liability, the attempt to commit the statutory offence of
strict liability did not require mens rea. All the prosecution had to show was
that the accused attempted to export the goods without a licence;
(2)
The intent to commit the offence the prosecution had to prove was an
intent to export, not an attempt to export cargo that the defendant knew was
unmanifested. The strict liability of the substantive offence was thus presevered
in the attempt to commit that offence. That was the only realistic interpretation,
and to treat it otherwise did violence to the presumed legislative intent and
common sense.
Result - Appeal dismissed. [See also Magistracy Appeals/Against Sentence:
Ed]
45
CCAB 2001
MA
1027/2001
McMahon D J
(6.12.2001)
*Cheung Waisun
#Paul Tong
C&E
YU
Wai-chuen
Offering for sale infringing copies/Whether conduct simply an invitation to
treat/Nature of ‘offer’/Intention to be bound immediately on
acceptance/Whether customs officer acting in course of duties
要約出售侵犯版權複製品 - 此項行為是否純粹邀請要約 -‘要約’
的性質 - 有意圖在要約一旦獲接納時即受約束 - 關員是否在執行職
責的過程中行事
The Appellant was convicted after trial of two offences. The first was an
offence of offering for sale infringing copies of copyright works, being compact
discs, contrary to s 118(1)(e) (ii), of the Copyright Ordinance, Cap 528. The
second was an offence of obstructing a member of the Customs and Excise
Service in the course of his duties, contrary to s 17F of the Customs and Excise
Ordinance, Cap 342.
The magistrate found that the Appellant was the person in charge of a
shop which displayed infringing copies of various compact discs. The Appellant
was heard to say to potential customers ‘Feel free to look, feel free to choose,
buy while stocks last’. When a customs officer attempted to arrest him, the
Appellant pushed him away but was caught and subdued after a struggle.
On appeal, in respect of the first charged offence, it was said that
‘offering for sale’ had a particular and certain meaning in law and that the
evidence did not establish that the Appellant had offered the compact discs for
sale. It was said as well that the conviction for the second charged offence
would then collapse as the original arrest would have been unlawful.
The first offence alleged:
YU Wai-chuen, you are charged that on the 23rd day of
November, 2000 at Shop No. 215, 298 Computer Zone, 298
Hennessy Road, Wanchai, you, without the licence of the
copyright owner, offered for sale 53 Compact Disc Roms being
infringing copies of copyright works, namely literary works, for
the purpose of trade or business.
Section 118(1) provided:
A person commits an offence if he, without the licence of the
copyright owner:
(i)
for the purposes of, in the course of, or in connection
with, any trade or business;
(ii)
offers or exposes for sale as hire, ….. an infringing
copy of the copyright work.
The Appellant submitted that the prosecution wrongly charged him with
‘offering’ the compact discs for sale. It was said he could have been, but was
not, charged with ‘exposing’ the compact discs for sale, or with, perhaps,
exhibiting the offending discs in public depending on the circumstances of the
case. The evidence before the magistrate, it was contended, went no further than
proof that the Appellant had made an invitation to treat.
Held :
(1)
The Hong Kong legislation incorporated as an alternative actus of the
offence the ‘exposing’ for sale of the prohibited items. There was a clear
recognition in the legislation that there was a distinction between offering for
sale and merely exposing for sale: HKSAR v Wan Hon-sik MA 526/2001;
(2)
What amounted to an ‘offer’ for the purposes of s 118(1)(e) was
determined by general contractual principles and it was a principle of contract
46
CCAB 2001
C&E
law that the display of goods in a shop was not, without more, an offering of
those goods for sale. In Chitty on Contracts (Vol 1) 28th ed. p 2, it was stated:
As a general rule, a display of goods at a fixed price in a shop
window ….. is an invitation to treat and not an offer; ….. The
general rule applies to normal shop windows or shelf displays; but
it seems that it can be excluded by special circumstances: eg if the
retailer has stated unequivocally that he will sell to a customer
who tenders the required price. The distinction between an offer
and an invitation to treat depends, in the last resort, on the
intention of the maker of the statement; and where his intention to
be bound immediately on acceptance is sufficiently clear it is
submitted that a shop window or shelf display may be an
offer ….. ;
That statement correctly summarised the law;
(3)
As the Appellant had told customers that they were free to look, choose
and buy while stocks lasted, and as goods were displayed, the magistrate was
entitled to infer that an offer to sell the infringing copies had been made, and
that the Appellant would sell any displayed item selected by a customer. The
only reasonable inference from the evidence was that the Appellant was making
an offer to sell the infringing copies on display in the shop;
(4)
As regards the second charged offence, the question of whether or not
customs officers were acting in the course of their duties was in no way decided
by what charges were eventually laid, or whether a suspect was ever prosecuted.
Section 17A, Cap 342, empowered any officer to stop, search and arrest any
person he suspected of having committed an offence. It was at that point of time
that the determination was to be made as to whether the officer was acting in the
course of his duties. There was ample reason to suspect the Appellant was
selling infringing copies of compact discs that were on display at his shop,
contrary to law. The obstruction of the officer was therefore an obstruction
pursuant to s 17F, Cap 342.
Character
CA 203/2000
Stuart-Moore
ACJHC
Wong &
Stock JJA
(23.11.2000)
*Louisa Lai
#Albert Poon
(1) LAU
Wa-sang
(2) LAU
To-sang
Blackmail/Whether good character direction necessary/ Element of ‘gain’
established even when offender had belief of legal entitlement to property
demanded
勒索 - 是否須給予有關良好品格的指引 - 即使犯罪者相信自己對所
要求的財物享有合法權利，‘獲益’這項犯罪元素也成立
The Applicants were charged with an offence of robbery in the District
Court. After trial, they were convicted of blackmail, in the alternative.
The judge found that at about 12:30 pm on 23 March 1999, A1, A2 and
two other men went to the Company’s premises with a goods vehicle. Once
inside, they required Mr Huen Wing-tim, as well as members of staff and a
visitor to the premises, to go up to the mezzanine floor above the storeroom.
This was the workshop or warehouse. One of the men picked up a file –
normally used to work ivory – and pointed it at a staff member. Huen Wing-tim
was told that if he did not move, he would be alright. A female member of staff
was pushed into the workshop and was told to make no noise, and foul language
47
CCAB 2001
Character
was used. The daughter of one of the Company directors was similarly pushed
and told not to move and not to look. The ivory carver saw one of the men pick
up this file and it frightened him, and he was told to go to the mezzanine floor
and not to make any noise. A visitor to the premises was told not to make a
noise, not to turn round and to mind his own business. Then a large quantity of
ivory was removed from the premises and taken to the vehicle and driven away.
As the men left the premises, they told those who had been threatened not to
report the matter to the police.
In the event, the judge acquitted the defendants of theft because he was
not satisfied that the appropriation of the tusks was dishonest. That being so,
theft was not proved and without proof of theft or intended theft, there could be
no robbery.
Section 32(1) of the Theft Ordinance provides:
If on the trial of any information, charge or indictment for an
offence specified in the first column of the Schedule it is proved
that the accused is not guilty of that offence but guilty of one of
the offences specified opposite thereto in the second column of
that Schedule or of attempting or being a party to an offence so
specified, the accused shall be acquitted of the offence originally
charged and shall be convicted of such other offence or of
attempting or being a party to such other offence and be liable to
be punished accordingly.
By virtue of paragraph 2 of the Schedule, blackmail was such an alternative to
robbery. Blackmail is defined by section 23(1) of the Theft Ordinance as
follows:
A person commits blackmail if, with a view to gain for himself or
another or with intent to cause loss to another, he makes any
unwarranted demand with menaces; and for this purpose a
demand with menaces is unwarranted unless the person making it
does so in the belief:
(a)
that he has reasonable grounds for making the
demand; and
(b)
that the use of the menaces is a proper means of
reinforcing the demand.
The judge was satisfied that the conduct of the defendants, acting their
respective parts in a joint enterprise at the premises in question, constituted an
unwarranted demand with menaces for gain and that the defendants could not
have believed that the use of such menaces as were deployed could constitute a
proper means of reinforcing the demand.
The judge did not state in terms what the demand was, but he held that
there was a demand and that the demand was accompanied by menaces. The
menaces were represented by the pushing of persons, shepherding them out of
the way, the wielding of the file, and the use of language in terms such as to put
persons there in fear, all of which was so that they would accede unwillingly to
the removal of the ivory. He was satisfied that neither of the defendants could
have believed that the use of those methods was a proper means of enforcing the
demand. He further found that A1 whatever precisely he saw or did not see of
the behaviour of his cohorts or colleagues in the Company premises after his
arrival, knew full well that the ivory was going to be taken by force and in the
atmosphere of threat which was created. A2, he found, took a full part in
ordering or assisting the men who had come along to help to do what it was they
were to do. Accordingly, the judge convicted each defendant of blackmail.
On appeal, it was submitted, inter alia, that the judge failed to give
himself a Vye or Berrada direction; in other words, a direction as to the
48
CCAB 2001
Character
defendants’ good character. It was also submitted that there was insufficient
evidence that the demand, such as it was, was made with a view to gain. The
suggestion was that the defendants were only obtaining that which was their due.
Held :
(1)
Although the Applicants relied on R v Chan Wu-nam Cr App 274/92,
which, it was suggested, highlighted the importance of articulation by a judge
that he had taken into account good character, it was made clear, in R v Fok Tinyau [1995] 2 HKC 450, 456, that that case was not:
Authority for the proposition that in all cases where credibility is
in issue, the judge must set out the manner in which he has
considered the accused’s good character in deciding that issue.
Where a judge is sitting alone and evidence of good character
has been given, this court will, even if he makes no mention of it,
unless there be some express or implied indication otherwise, act
upon the basis that he was aware of the character evidence and
that he gave it the weight which he thought it deserved.
(2)
There was no indication in this case that the judge did not have good
character in mind. This was a closely analyzed and very full judgment in which
the judge gave reasons why, on one aspect of the case, he was prepared to
believe A1, and why on another he was not; and his conclusion seemed to
assume much in A1’s favour, as was evident from his finding as to dishonesty on
the robbery charge. This was a balanced judgment in which his conclusions
clearly proceeded from an assumption in the defendants’ favour that here was a
businessman, A1, who had had the rough end of prevarication on the part of
another man who would not pay his debts; but concluded that in the event A1
went too far. That approach and that balance was evident from the Reasons for
Verdict as a whole;
(3)
In so far as it was suggested that an express reminder as to character was
particularly necessary when there was a question of belief as to the propriety of
methods used to enforce a demand, A1 did not say that he believed the methods
used were proper. He said he had no part of those methods, and he no doubt
distanced himself from them because it was as obvious as could be that no
reasonable person, no matter how clear his previous record, could possibly have
believed that herding people against their will and abusing them could be a
proper method of enforcing a demand. On the facts of this case, there was
nothing in the ‘character’ ground of appeal;
(4)
Section 8(2) of the Theft Ordinance defined gain as follows:
... ‘gain’ (獲益) and ‘loss” (損失) are, except in section 16A, to
be construed as extending only to gain or loss in money or other
property, but as extending to any such gain or loss whether
temporary or permanent; and
(a) ‘gain’ includes a gain by keeping what one has, as well as
a gain by getting what one has not; ...
The editors of Archbold 2000 stated as follows in paragraph 21-267:
Since the definition of ‘gain’ includes ‘getting what one has not’,
it is submitted that there is no justification for any argument that
‘gain’ should be limited to ‘gain’ in the sense of ‘profit’. If a
person makes a demand for a debt lawfully owed to him, it may
be argued that he does not do so with a view to profit, but he
certainly does so with a view to getting what he has not. It has
been held at first instance that by demanding money lawfully
owing to him the defendant did have a view to ‘gain’: by
obtaining hard cash as opposed to a mere right of action in
respect of the debt the defendant was getting more than he
already had: R v Parkes [1973] Crim LR 358 ... In R v Lawrence
and Pomroy, ante, it appears to have been assumed that an
49
CCAB 2001
Character
unwarranted demand with menaces for a debt believed to be due
was blackmail.
The same point was made by Blackstone’s Criminal Practice 2000, paragraph
B5.85 that it was
... certainly possible to commit blackmail by using improper
menaces in the course of demanding money or other property to
which one is legally entitled (Lawrence (1971) 57 Cr App R
64); ...
Reference was made in Smith & Hogan Criminal Law, 7th Edition, page 612,
and in Property Offences by Professor T Smith, of Cambridge University, to
some alternative arguments, but Professor Smith concluded that the legislature
intended that a defendant could have a view to gain even where he was or
believed himself legally entitled to the property demanded;
(5)
In this case, it was amply demonstrated that the Applicants made the
demands, with and backed by the menaces, constituted by the behaviour which
the judge found proved. The judge was wholly entitled to take the view that the
whole affair was pre-planned and that the Applicants were party to that plan and
to a joint enterprise to grab the tusks in the wake of the threatening atmosphere
they intended to and did create, and that each must have known that the use of
such menacing behaviour was not a proper means of reinforcing the demands
that were made. As such, those demands were unwarranted. There was nothing
of substance in any of the grounds raised.
CA 360/2000
AU YEUNG
Suk-yee
(24.4.2001)
Good character/Nature of directions required/Inadequate direction a
material misdirection/Counsel reminding judge of non-direction/Comments
on judge collecting thoughts and counsel mentioning deficiencies in
direction
良好品格 - 須給予的指引的性質 - 指引不足屬重大的錯誤指引 - 律
師提醒法官沒有給予指引 - 就法官集中思想和律師提及指引欠妥作
出評論
*M
Blanchflower
The Applicant was convicted after trial of an offence of trafficking in a
dangerous drug. She was sentenced to 14 years’ imprisonment.
#C Grounds
The Applicant had no previous convictions. It was therefore necessary
for the judge to give the jury a direction on good character. The judge did not
initially give the jury such a direction, and the question whether such a direction
should have been given only arose when she was telling the jury at the end of
her summing-up about the arrangements which would be made for their lunch.
When the prosecutor invited the judge to give the jury a character direction, the
judge said:
Keith
Woo
& Stock JJA
Members of the jury, the prosecution, very rightly, remind you
that the defendant is of good character and has no previous
convictions. These are matters that you may or may not wish
to take into consideration in the course of your deliberations.
It is there for your background knowledge.
The judge then dealt with other administrative arrangements before the
jury retired to consider its verdict.
On appeal, it was submitted by the Applicant that the character direction
was insufficient.
50
CCAB 2001
Character
Held :
(1)
The law on good character directions was reviewed by the Court of Final
Appeal in Tang Siu-man v HKSAR [1998] 1 HKLRD 350. To understand its
conclusions, it was necessary to appreciate what two English cases - R v Vye
[1993] 1 WLR 471 and R v Aziz [1996] 1 AC 41 - decided. In Vye, the Court of
Appeal held that when a defendant had no previous convictions, the jury should
be directed that the defendant could rely upon his good character as making it
more unlikely than would otherwise be the case that he would commit crime (the
propensity direction). And if such a defendant had either given evidence at his
trial or had made pre-trial statements, the jury should be directed that the
defendant’s good character should be taken into account in the defendant’s
favour when the jury was assessing what weight to give to his evidence or pretrial statement (the credibility direction);
(2)
Vye was affirmed in Aziz, in which the House of Lords explained when a
defendant could be said to be of good character so as to be entitled to character
directions of the kind approved in Vye. That was said to be subject to the
judge’s residual discretion (a) to decline to give character directions in the case
of a defendant without previous convictions if the judge considered it an insult
to common sense to do so, or (b) to qualify the character directions by adding an
appropriate rider to cater for any criminal conduct on the part of the defendant
revealed in the course of the trial;
(3)
In Tang Siu-man, the Court of Final Appeal concluded that there was no
need to impose the Vye and Aziz regimes on trial judges in Hong Kong. Where
positive evidence of good character had been adduced, i.e. evidence of the
defendant’s favourable standing and reputation, and nothing discreditable
concerning the defendant had emerged, a summing-up which failed to give a full
Vye direction - and if needs be something more - might well render the
summing-up unbalanced and unfair. However, where the evidence of good
character consisted simply of the absence of previous convictions, one limb of
the Vye direction might be enough. The court gave the example of a case in
which the central issue in the trial was credibility, and where an inclination on
the part of the jury to believe the defendant would inevitably entitle the
defendant to be acquitted. In such a case, it was said that a failure to give the
credibility direction might well render the summing-up unbalanced and unfair,
but to give the propensity direction might be a surplusage;
(4)
In this case, the judge merely reminded the jury that the Applicant was of
good character and had no previous convictions. She did not tell the jury what
the relevance of that was or for what purpose the jury should take that into
account. Even if it had not been necessary for the judge to explain that the
evidence was relevant to the likelihood of the defendant having committed the
offence with which she was charged, the very least which the judge should have
told the jury was that the evidence was relevant to the Applicant’s credibility.
The failure to give a credibility direction in the present case constituted a
material misdirection;
(5)
Having reminded the jury that the Applicant was of good character and
had no previous convictions, the judge undermined what positive effect this
incomplete direction might have had by telling them that these were ‘matters
that you may or may not wish to take into consideration in the course of your
deliberations ’. If the jury had taken those words literally, they might well have
thought that they could ignore those matters if they wished. That would not
have been a permissible approach. A character direction should require the jury
to take the defendant’s good character into account, although the weight to be
given to it was entirely for the jury to assess. In the context of a particular case,
a jury might choose to give it little weight or no weight at all, but the jury must
nevertheless be told that they must take the defendant’s good character into
account: R v Lee Kam-yuen [1995] 1 HKCLR 264, 266. That was why the
Court of Appeal in England in R v Miah and Akhbar [1997] 2 Cr App R 12
51
CCAB 2001
Character
disapproved of a direction which informed the jury that it was merely entitled to
take the defendant’s good character into account. Implicit in that disapproval
was the notion that a jury should be directed that it was bound to take it into
account, but that the weight which it gave to the defendant’s good character was
a matter entirely for the jury to assess;
(6)
Whatever remaining use the jury could have made of the reminder that
the Applicant was of good character and had no previous convictions was
relegated into insignificance when the jury was told ‘It is there for your
background knowledge.’ The Applicant’s character was not part of the
background. It was an important component of her defence. In Aziz, Lord Steyn
said at pp. 50G-51A:
It has long been recognised that the good character of a
defendant is logically relevant to his credibility and to the
likelihood that he would commit the offence in question. That
seems obvious. The question might nevertheless be posed: why
should a judge be obliged to give directions on good character?
The answer is that in modern practice a judge almost invariably
reminds the jury of the principal points of the prosecution case.
At the same time he must put the defence before the jury in a
fair and balanced way. Fairness requires that the judge should
direct the jury about good character because it is evidence of
probative significance.
The judge’s parting comment that the Applicant’s good character was for the
jury’s background knowledge could not stand in the light of its true probative
value.
Result
- Appeal allowed.
Obiter
- The problem which occurred in this case could have been avoided.
First, when the judge’s failure to give a character direction at all had
been pointed out to her, it would have been wiser for the judge to
collect her thoughts and, if necessary, to adjourn for a short while to
remind herself of the proper direction to give in such circumstances.
Second, it was regrettable that the deficiencies in the character
direction which the judge purported to give were not pointed out to
her by counsel. It might be that counsel for the prosecution did not
want to correct the judge again. It might be that, like the judge,
counsel did not appreciate at the time the deficiencies in the
direction. And even if they had, they might, in the heat of battle, not
have been able to put their finger on precisely what those
deficiencies were. But if they had appreciated at the time the ways
in which the direction was defective and had drawn the deficiencies
to the judge’s attention, the problems which the direction posed
could have been eliminated.
52
CCAB 2001
Charges/Indictment/Summons/Amendments/Joinder/Severance
MA 548/1998
Pang J
(28.2.2001)
*RSK Lee &
Bianca Cheng
#L Lok SC &
Margaret Ng
(1) TAM
Chun-yin
(2) WONG
Shui-hung
(3) CHAN
Siu-ping
(4) WONG
Shui-ying
Disorderly conduct/Amendment of charge to wilful obstruction at close of
prosecution case/Ingredients of wilful obstruction/ Offender causing
situation in which arrest not possible
行為不檢 - 控方結案時將控罪修訂為故意妨礙 - 故意妨礙的要素犯案者造成一種情況令警務人員不可能執行拘捕
The Appellants were part of a group of demonstrators who participated in
a protest against the World Bank and IMF on 21 September 1997 when the
delegates of the participating nations met at the Hong Kong Exhibition and
Convention Centre in Wanchai. A1 organised the demonstration.
When the procession became confused, chaotic and noisy, after the
demonstrators sought to demonstrate at areas other than those designated by the
police, the Appellants were arrested and charged with offences of disorderly
conduct and assault on police.
At trial, at the close of the prosecution case, the prosecution applied to
amend the disorderly conduct charge against A1 and A4 to two charges of
obstructing a police officer in the due execution of his duty in respect of A1 and
A4. That application was made pursuant to s 27(1)(b), Cap 227, and, after
submissions, the amendments were made. A1 and A4 gave and called no
evidence, and both were convicted of the wilful obstruction charges at the end of
the trial.
A2 was convicted of one charge of assaulting a police officer acting in
the due execution of his duty, contrary to s 63 of the Police Force Ordinance,
Cap 232. A3 was convicted of three charges of assaulting a police officer,
contrary to the same Ordinance.
On appeal
Held :
(1)
As there was a clear variance between the original charge against A1 and
A4 of disorderly conduct in a public place, and the prosecution case against
them, and as the evidence suggested it was a case of wilful obstruction when the
Appellants were told to move back from the cordon, the magistrate was under a
duty to amend the charges when he was satisfied that the evidence was at
variance with the original charge: Poon Sau-cheong v Secretary for Justice
[2000] 2 HKC 279. The magistrate also considered and was satisfied that the
amendment gave rise to no injustice to the defendants. The Appellants must
have known the precise nature of the case they had to face at the end of the
prosecution’s case;
(2)
The question which the magistrate had ultimately to decide was whether
the conduct of A1 and A4 amounted to wilfully obstructing the police officer
specified in the amended charge. He was entitled to take a global view of the
evidence. In approaching the question, he reminded himself of the correct test
as formulated in Rice v Connolly [1966] QBD 414: whether a person’s act or
conduct amounted to an obstruction depended on whether it made it more
difficult for the police to carry out their duties? Applying that test, the
magistrate found that A1 and A4, by remaining at the cordon line and refusing to
leave despite repeated police requests, had made it more difficult for the police
to carry out their duties;
(3)
Although, on behalf of A2, it was submitted that the magistrate had
overlooked her subjective mind and erroneously concluded that she had no
reason to kick the police, and that he had not properly assessed her evidence
which was to the effect that she simply reacted to what she considered to be an
53
CCAB 2001
indecent assault on her by the police officer, the magistrate considered all the
relevant evidence and reached his conclusion on it;
(4)
Although A3 was never formally told she was under arrest, and although
it was stated in Christie v Leachinsky [1947] AC 573, that it was a condition of
lawful arrest that the party arrested should know on what charge or on suspicion
of what crime he was arrested, it was not open to A3 to complain of unlawful
arrest as the magistrate found that she had produced the situation in which the
police had to resort to forcibly removing her. When police tried to remove her,
she bit the three officers, and her actions clearly constituted assaults on them.
Result - Appeals dismissed.
MA 383/2000
Barnes DJ
(3.8.2001)
*Kevin Zervos
& Alex Lee
#James
Chandler &
Andrew
Chandler
LAM
Ping-kai
Joinder of multiple charges/Nexus between offences/Length of
trial/Exercise of discretion to sever/Charge not rendered defective by
excessive verbiage/Jurisdiction of magistrate to determine public interest
immunity application ex parte at trial/No need for good character direction
on credibility where no testimony from defendant
合併多項控罪 - 罪行與罪行之間的連繫 - 審訊時間的長短 - 行使酌
情權將控罪分案處理 - 控罪並不因措辭過於累贅而有所缺失 - 裁判
官具有司法管轄權在審訊中單方面裁定公眾利益豁免權的申請 - 被
告人如不作證則裁判官毋須就被告人的可信性給予有關良好品格的
指引
The Appellant was convicted after trial of a charge of conspiracy to
defraud, and of 19 charges of offering an advantage to an agent.
The prosecution case was that the Appellant was a director of AlphaChem Colours Limited (‘Alpha-Chem’) and was responsible for the operation of
the company and for the supply and delivery of dyestuffs and chemical products
to various dyeing factories in Hong Kong. Gloria Wearing and Knitting Factory
Limited (‘Gloria’) was one of the customers of Alpha-Chem, which started to
purchase dyestuffs and chemical products from Alpha-Chem in 1992.
The prosecution alleged that in January 1995, the Appellant and two
others, Yung and Lee, who were supervisors of Gloria, and who pleaded guilty
to various offences and agreed to be prosecution witnesses in the trial of the
Appellant, agreed to create false purchases of dyestuffs and chemical products
by Gloria from Alpha-Chem. Gloria would pay Alpha-Chem for the false
purchases and the proceeds would be shared between the Appellant, Yung and
Lee. The Appellant created false sales from a fictitious firm called Tat Sang
Hong Dyestuffs and Textile Auxiliaries in order to balance the books of AlphaChem. The fraud was carried out between January 1995 and May 1998 and a
total of $481,213.40 was dishonestly obtained from Gloria (charge 1: conspiracy
to defraud). Between January 1993 and December 1994, the Appellant agreed
to offer advantages in the form of kickbacks to Yung and Lee for Gloria placing
orders for the purchase of dyestuffs and chemical products from Alpha-Chem.
The Appellant would calculate the amount of the advantage and upon receipt of
payments by Gloria hand over cash to Yung and Lee.
On various dates between December 1996 and May 1998 the Appellant
offered advantages to Yung and Lee. And on various dates between September
1993 and June 1998, the prosecution alleged that the Appellant also offered
advantages to employees of other companies for placing orders to purchase
goods from Alpha-Chem on the same basis as he offered to Yung and Lee.
On appeal, it was submitted, inter alia, that:
(1)
The charge of conspiracy to defraud and the 22 charges of
offering an advantage to an agent were improperly joined;
(2)
The charge sheet containing 23 charges was overloaded;
54
CCAB 2001
(3)
The magistrate should have exercised his discretion to sever
the charge of conspiracy to defraud from the 22 charges of
offering an advantage to an agent;
(4)
The statement of offence on the charge of conspiracy to
defraud contrary to common law and s 159(A) of the
Crimes Ordinance, Cap 200, was defective as it alleged an
offence unknown in law;
(5)
There was a material irregularity at trial when the magistrate
held an ex parte hearing to determine whether or not certain
non-disclosed material the subject of a claim to public
interest immunity should be disclosed to the Appellant.
This denied the Appellant’s right to a fair trial and was an
affront to the recognised principles of open justice;
(6)
The magistrate erred in directing himself as to the relevance
of good character only so far as it related to propensity, and
he should have considered how the Appellant’s previous
good character would affect his credit in relation to post
arrest interviews with ICAC officers.
Held :
(1)
Under s 10(2)(a) of the Magistrates Ordinance, Cap 227, a court
considering joinder needed to consider whether the offences were ‘of the same
or a similar character’ whereas, under Rule 7 of the Indictment Rules, Cap 221,
a court had to consider whether the offences ‘form or are part of a series of
offences of the same or a similar character’. It was clear that the requirement
under the Indictment Rules was more stringent than under the Magistrates
Ordinance;
(2)
In London v Metropolitan Police Commissioner [1971] AC 29, 39, Lord
Pearson, when dealing with the English equivalent of Rule 7 of the Indictment
Rules, said that both the law and the facts should be taken into account in
deciding whether offences were similar or dissimilar in character. He said:
In my opinion, however, it is important to notice that there has to
be a series of offences of a similar character. For this purpose
there has to be some nexus between the offences… where regard
is had to the requirement of a series of similar offences it is right
to look for a nexus. Nexus is a feature of similarity which in all
the circumstances of the case enables the offences to be described
as a series.
(3)
All the magistrate, in looking for a nexus, had to do was to look for
similarity between the offences, both in law and in fact. He considered a
sufficient nexus existed as all the charges involved commercial transactions or
purported commercial transactions involving Alpha-Chem, and all charges
involved the placing of purchase orders with Alpha-Chem. He held that the
charges were properly joined on the basis of that said in R v Kray and Others
(1969) 53 Cr App R 569, 579, namely, that ‘the offences should exhibit such
similar feature as to establish a prima facie case that they can properly and
conveniently be tried together in the interests of justice, which includes, in
addition to interests of the accused, that of the prosecution witnesses and
public. A further relevant factor is the prejudice likely to arise in the second
trial from extensive press reports of the first trial if the offences are tried
separately’. The magistrate’s analysis of the similarity in facts between all the
offences could not be faulted;
(4)
Although a trial which involved 23 charges could not be said to be
commonplace in a Magistrates’ Court, it did not ipso facto appear to be unduly
long. The case had been set down for 18 days and lasted for 73 days because, to
55
CCAB 2001
a large extent, of the stance taken by the defence throughout the trial, including
the numerous and repeated applications before the magistrate. Although it was
open to the defence to put the prosecution to strict proof and to attack its case,
the defence could hardly complain if the trial was thereby prolonged;
(5)
The discretion to sever where charges had been properly joined was
given by the proviso to s 10(2)(a), Cap 227, and, in exercising that discretion, a
magistrate could order a separate trial if he opined that the accused would be
prejudiced or embarrassed by his defence. Where a magistrate had properly
exercised his discretion an appellate court would not lightly interfere: HKSAR v
Zheng Wan-tai [2000] 1 HKC 627. The magistrate had exercised his discretion
properly and sensibly in refusing to sever the charges;
(6)
At trial the magistrate had concluded that the conspiracy to defraud charge
was clearly one under the common law, and he was correct to refer to the statutory
provision as ‘mere excess verbiage’ which did not make the charge defective:
Attorney General v Wong Lau [1993] 1 HKCLR 257, 268. Alternatively, the defect
was too trivial to call for an amendment. In any event, such defect was immaterial
and no injustice or prejudice had been caused to the Appellant whatsoever: Ching
Kwok-yin v HKSAR [2000] 4 HKC 164;
(7)
Magistrates in Hong Kong had the power to regulate the practice and
procedure in their courts and to adopt the procedures to contemporary needs: R v
Camberwell Green Magistrates’ Court, Ex p Christie (1978) 67 Cr App R 39; Chief
Constable of Norfolk v Clayton (1983) 77 Cr App R 24; Attorney General v Ip Waikwong [1982] HKLR 92. The nature of public interest immunity was described by
Lord Bingham of Cornhill CJ in R v Stipendiary Magistrate for Norfolk, Ex p Taylor
[1988] Crim LR 276:
I turn therefore to the questions of public interest immunity
applications in criminal trials. These arise where the Crown hold
material relevant, or potentially relevant, to a prosecution which
they are unwilling or reluctant to disclose to the defence on the
ground that to do so would be seriously injurious to the public
interest. The difficulty arises because any procedure for
determining whether the material should be disclosed to the
defence has necessarily to be conducted in a manner which
conflicts with the general and important principle that justice
should be administered openly with cards face upwards on the
table and with the full knowledge of the defence as well as the
prosecution.
The UK courts had devised rules to meet such difficulties: R v Davis [1993] 1
WLR 613. It was recognised that the substance of the material could not be
disclosed until there was an order for its disclosure. There might be exceptional
cases when it was necessary to deny the defence the knowledge that an ex parte
application had been made;
(7)
Although the Magistrates Court was a creature of statute it was accepted
that magistrates had the power to regulate their own courts to ensure justice was
done. A magistrate did not cease to have jurisdiction to determine a public
interest immunity application ex parte once the trial had started. Although
sections 11 and 19 of the Magistrates Ordinance were general provisions which
stipulated that generally all the proceedings should be conducted in open court
and in the presence of the defendant, Lord Bingham CJ made plain in R v
Stipendiary Magistrate for Norfolk, Ex p Taylor (above) that public interest
immunity applications needed ‘to be conducted in a manner which conflicts with
the general and important principle that justice should be administered openly’.
The magistrate had the jurisdiction to consider the public interest immunity
application ex parte during the trial;
56
CCAB 2001
(8)
The Appellant did not go into the witness box to repeat the exculpatory
parts of his Record of Interview and, in rejecting those parts, the magistrate had
clearly placed no weight on such exculpatory matters which were untested by
cross-examination. The magistrate was not duty bound to give himself a
character direction on credibility. All he had to do was to use common sense to
evaluate the evidence: Tang Siu-man v HKSAR [1998] 1 HKC 371, R v Leung
Tung-wing [1995] 2 HKLR 271.
Conspiracy
CA 133/2000
Stuart-Moore
ACJHC
Leong &
Stock JJA
(8.12.2000)
*DG Saw SC
& Laura Ng
CHEUNG
Ning-yau
Inconsistency of verdicts/Evidence against each conspirator to be
separately assessed/Acquittal of co-accused no basis of itself to quash
conviction
裁決不一致 - 指證每名串謀者的證據須分開衡量 - 裁定同案被控人
無罪本身並不構成推翻判罪的理據
On 20 March 2000, the Applicant was convicted of conspiracy to murder
Wong Kam-fai (count 1) contrary to s 159A of the Crimes Ordinance, Cap 200,
and s 5 of the Offences Against the Person Ordinance, Cap 212. He was
sentenced on the following day to 18 years’ imprisonment for this offence and to
a concurrent term of 8 years’ imprisonment on a second count to which he had
earlier pleaded guilty, of possession of arms and ammunition without a licence.
#Lily Yew
In addition to the Applicant, two co-accused were charged on the same
indictment. Lam Ping-chuen pleaded guilty to possession of arms and
ammunition. Chan Pui-kun (D2) faced a joint charge with the Applicant of the
conspiracy to murder alleged in count 1, and a further charge of conspiracy with
the Applicant to possess arms and ammunition. D2 was acquitted of both
counts.
On appeal, it was submitted that by acquitting D2 of conspiracy with the
Applicant to murder Wong-Kam-fai (and the further charge of conspiracy to
procure and possess firearms), the jury had recorded a verdict against the
Applicant which was inconsistent and one that no reasonable jury could properly
have reached. In particular, it was said that the jury must have rejected PW1’s
evidence to the effect that D2 had recruited the Applicant and PW1 to obtain a
gun and an assassin on more than one occasion in Shenzhen between the dates of
the alleged murder conspiracy.
The Respondent submitted that no inconsistency existed in the jury’s
verdicts against the Applicant and D2. It might well have been that the jury was
not prepared to convict D2 upon the sole basis of PW1’s unsupported evidence
whereas, against the Applicant, there was a very considerable body of
independent evidence to establish a conspiracy on his part with D2.
Held :
(1)
It was well settled that the jury must separately consider the case against
each conspirator. Only in exceptional cases would it be proper for a judge to
direct the jury to convict or acquit both. This aspect of the law was considered
in three decisions in the English Court of Appeal: R v Longman and Cribben
(1981) 72 Cr App R 121 at 124; R v John Joseph Robert (1983) 78 Cr App R
41; R v Ashton [1992] Crim LR 667. The Hong Kong position was set out in
section 159E(4) of the Crimes Ordinance (which made a similar provision to
section 5(8) of the Criminal Law Act 1977 which was applicable in England):
57
CCAB 2001
Conspiracy
A person shall not be entitled to be acquitted of, or to have
quashed his conviction for, the offence of conspiracy for the reason
only that the only other person or persons with whom he is alleged,
in the indictment or charge sheet, to have entered into that
conspiracy are or have been acquitted.
(2)
The judge gave clear directions to the jury about their approach in this
respect. He set the matter out in these terms:
You must consider the case against each accused separately. Just
because you find one accused guilty, you do not say to yourself,
‘Well that’s the end of that, the first one’s guilty, therefore the
second one’s guilty.’ The evidence is different against each of the
accused.
Now, you may say to yourself, because I am going to define
conspiracy later and the definition of conspiracy is that there has to
be an agreement between two people in this case, and you might say
to yourself, ‘Well, how can, if we find there’s an agreement, how can
one be guilty and the other not guilty?’ But think about this.
Supposing Mr ‘A’ and Mr ‘B’ decide to rob the Hong Kong Bank,
Wai Fong, down in Queen’s Road, and they get together some
equipment but before they get any further than that they are
arrested. All the equipment is found in possession of Mr ‘B’. Mr
‘A’, when he is asked by the police says, ‘I don’t want to talk about
this, I’m not going to say anything.’ and he doesn’t ever. But Mr ‘B’
says, ‘Yes, ‘A’ and I met in a restaurant, we decided we’d rob the
bank, we planned this, we were going to blow the main doors off
with dynamite, we were going to shoot the guards, we were going to
do all this sort of thing and we bought all the equipment and it’s in
my flat.’ So the police go along and they seize it.
When it comes to court what is the evidence against Mr ‘A’? The
evidence of the confession made by Mr ‘B’ is not evidence against
Mr ‘A’, as I will be telling you in this trial. The evidence of a
confession or an admission or a statement made to the police by one
accused is not evidence against the other. Mr ‘A’ has said nothing,
nothing was found in his premises. There was nothing upon which
you could convict Mr ‘A’, but Mr ‘B’ admits there was an agreement
between himself and Mr ‘A’ and he admits that he did something
about it and they find the equipment. You could convict Mr ‘B’,
because the evidence of the agreement comes from him, against
himself. It is not evidence against ‘A’ but it is evidence against ‘B’.
So where there is a difference in the evidence then it is possible to
convict one conspirator and not the other, but you consider it
separately and you consider, in respect of the 2nd accused, the
evidence separately in respect of each of the two counts on the
indictment. There are two conspiracies there and they are different
conspiracies.
Very often you will find that the evidence is the same. That the same
piece of evidence can be used for both counts on the indictment. The
same piece of evidence can be used against each of the accused.
When, for example, Fei Wai gives evidence of a conversation in the
presence of both accused then that will be evidence against both
accused because they are both there, they could hear it. It may
relate, you (may) think, to their knowledge of what was going on and
their agreement to it.
58
CCAB 2001
Conspiracy
Some other evidence will relate to only one accused, some evidence
will relate to, in respect of the 2nd accused, only one of the two
charges. So first of all consider one accused and the count in which
he faces, say the 1st accused, and then you will move on to the 2nd
accused take one count and then the other count and look each time
at which evidence is available to you in respect of that accused and
that count.
Those directions were perfectly correct. The facts of the present case were not
dissimilar to those found in R v Ashton (above) where the Court of Appeal in
England held (at page 668) when allowing the appeal that:
….. it was superficially odd that one person should be convicted of
conspiracy with another while that other was acquitted of that
conspiracy. But the common law rule requiring both parties to a
conspiracy to be convicted or acquitted had been abrogated by
Criminal Law Act 1977, s 5(7) and (8). The crucial point was
whether the evidence was substantially different against the two
defendants: Longman & Cribben (1981) 72 Cr App R 121, 124 per
Lord Lane CJ. It therefore meant that one defendant convicted with
conspiracy with another could not necessarily complain of
inconsistent verdicts if the other was acquitted. If there was a
material difference in the quality of the evidence against the two
alleged conspirators, it would not be appropriate to give a direction
requiring the same verdicts on each. The judge must evaluate the
evidence (prosecution and defence) and, as in the present case,
invite submissions from counsel before directing the jury. In the
present case there were important differences between the cases of
W and A and, seeing that A did not dispute the tape evidence, his
defence was stronger than W’s. The court could not accept the
Crown’s submission that on A’s own evidence he must be guilty of
conspiracy to murder and in view of the misdirection his conviction
would be quashed.
(3)
It was apparent that the evidence against the Applicant was markedly
different to the evidence against D2. On the plainly feasible assumption that the
jury were not prepared to act upon PW1’s unsupported evidence, there was little
or no other admissible evidence against D2. The evidence against the
Applicant, however, was very considerable. No inconsistency had emerged
from the jury’s verdicts such as to warrant any interference. Any interference on
this basis could only be justified if it had been established that no reasonable
jury could have arrived at different verdicts for the two alleged conspirators on
count 1. However, there was ample reason for the jury to have distinguished
between the Applicant and D2.
59
CCAB 2001
Conspiracy to Defraud
Conspiracy to Defraud
CA 550/99
Leong CJHC
Stuart-Moore
VP
Wong JA
(1) TAM
Tung-kee
(2) THO
Ah-sa
(3) KWONG
Kwongwah
Conspiracy to defraud/Mens rea for conspiracy/No need for judge to refer
specifically to Ghosh test of dishonesty/Scheme patently dishonest
串謀詐騙 - 串謀的犯罪意圖 - 法官無須明確提及 Gho sh 的不誠實驗
證標準 - 計劃明顯是不誠實的
(2.4.2001)
The Applicants were convicted after trial of conspiracy to defraud,
contrary to common law. The case concerned the construction of shortened
bored piles for the foundation works of the Hong Kong Station Development
Northern Site Project.
*Kevin Zervos
&
Louisa Lai
Held :
#Ching Y
Wong SC &
Barbara Cheng
(1)
Duncan Percy
(2)
John Dunn (3)
(1)
It was clear that A1 had joined the conspiracy with the necessary mens
rea. In R v Anderson [1986] AC 27, 39, Lord Bridge said:
The necessary mens rea of the crime is, in my opinion, established if,
and only if, it is shown that the accused, when he entered into the
agreement, intended to play some part in the agreed course of
conduct in furtherance of the criminal purpose which the agreed
course of conduct was intended to achieve. Nothing less will suffice,
nothing more is required.
Lord Griffiths made the same point in Yip Chiu-keung v R (1995) 99 Cr App R
406, 410:
The crime of conspiracy requires an agreement between two or more
persons to commit an unlawful act with the intention of carrying it out. It
is the intention to carry out the crime that constitutes the necessary mens
rea for the case.
There was ample evidence for the judge to draw the inferences she did;
(2)
Although it was true that the judge did not make any specific reference to
the test of dishonesty laid down in R v Ghosh [1982] 2 All ER 689, it was
perfectly plain that the judge had all the ingredients of the offence of conspiracy
to defraud in her mind when she considered the case against each individual
defendant.
She particularly referred to Scott v Metropolitan Police
Commissioner [1975] AC 819, in which Viscount Dilhorne gave the classic
definition of the offence of conspiracy to defraud;
(3)
This was a case where out of 87 bored piles constructed, 83 of them were
found to be short. It must have been obvious that anyone who participated in the
scheme was dishonest in the extreme according to any test, dishonest or
otherwise.
Result – Applications dismissed.
60
CCAB 2001
Corroboration
Corroboration
MA 273/2000
Toh DJ
(11.6.2000)
*V Chan
#E Laskey
HUI
Kin-fai
Identification an issue at trial/Turnbull direction required/ Appellant
convicted on uncorroborated evidence/Appropriate for magistrate to give
corroboration warning
辨認是審訊時的爭論點 - 需要 T urnb ull 指引 - 根據無佐證證據裁定
上訴人罪名成立 - 裁判官就佐證一事提醒自己始屬恰當
The Appellant was convicted after trial of indecent assault. The facts
showed that PW1 was crossing the road when someone pinched her buttock.
When she looked to the left, she saw the Appellant who was about an arm’s
length away from her. She said that the Appellant walked past her and she
walked parallel to him on the opposite side of the road. She did not lose sight of
the Appellant. The Appellant elected to testify at the trial. His defence was that
PW1 and her colleagues had framed him.
On appeal, it was submitted, firstly, that the identification of the
Appellant by PW1 was manifestly unsatisfactory. Secondly, the magistrate had
failed to give himself the Turnbull direction on identification. Thirdly, the
magistrate had failed to direct himself appropriately on the issue of
corroboration.
The Respondent submitted that the defence was one of frame-up, and as
it was not the defence case that it was a mistaken identification, it was not
necessary for the magistrate to give himself a Turnbull warning.
In the oral reasons for verdict, the magistrate said that:
She testified that she never lost sight of this person thereafter
until he was stopped leaving the Belgian Bank. She identified the
defendant as that person. I am satisfied that it is safe to rely on
her identification of the defendant as being that person.
In the Statement of Findings, the magistrate said that the identification of
the Appellant by PW1 was in no way a fleeting glimpse:
She saw his face as he passed her by. She observed his clothing.
She never lost sight of him during the time she followed him. He
was in her sight even when he was inside the bank as he was close
to the entrance. It was safe to rely on her identification of the
appellant.
Held :
(1)
It was clear from the transcript that the magistrate did not have in mind
the Turnbull directions when he was delivering his oral reasons for verdict. But
by the time he came to write his Statement of Findings, the Turnbull directions
were indeed in his mind and that was why he mentioned in his Statement of
Findings that he did not consider the identification to be one of a fleeting
glimpse;
(2)
The magistrate did not have to recite the principles in Turnbull’s case to
demonstrate that he was aware of them. However, he needed to demonstrate
that he was aware of the special need for care concerning identification evidence
in accordance with the principles set out in R v Turnbull [1977] QB 224. This
was especially so in a case of this nature where the main issue was one of
identification;
61
CCAB 2001
Corroboration
(3)
In R v Tsang Pak-ming MA 391/1988, it was held that
The call in R v Turnbull for caution when considering
identification evidence should not (have) been mere lip service.
That cautionary tone reflects the sobering experience of many
past instances of mistaken identification. It seems to me therefore
that it is at least desirable for magistrates dealing with
identification cases, and where it is appropriate to do so, to
clearly indicate that they have had regard to the principles
enunciated in R v Turnbull. Failure to do so, in appropriate
cases, may well cause the appellate tribunal to doubt that the
magistrate’s decision followed a proper consideration of all
relevant factors.
(4)
In R v Domincan (1992) 60 A Crim R 169, the High Court of Australia
held that:
a general warning of the dangers of identification evidence had
to be given whatever defence was being run at trial.
(5)
In HKSAR v Nguyen Lam Cr App 496/99, it was held that where a
magistrate did not expressly say that the court was aware of the dangers outlined
in the Turnbull guidelines, it was then open to the appellate court to examine the
evidence and its strength in determining how to dispose of an appeal on the
ground of a failure to give an express warning or to demonstrate awareness of
the concerns which underlined the guideline;
(6)
The magistrate should have warned himself of the risks of mistaken
identification. While it could be said that it was not a fleeting glance situation
but an observation under difficult circumstances, nevertheless the magistrate,
apart from saying that it was not a fleeting glance situation, had failed to warn
himself further on this matter. A mere general warning was insufficient;
(7)
At the time of the trial, a corroboration warning was still necessary. The
magistrate in his oral reasons for verdict had failed to mention explicitly or
implicitly that he had warned himself of the dangers of convicting on the
uncorroborated testimony of PW1. This defect was not cured until his
Statement of Findings where he did so warn himself. It was correct that a
magistrate did not have to mention every thought process that went through his
head, and an experienced magistrate was deemed to have the necessary relevant
law in his mind. However, a corroboration warning was important in this case,
particularly when the magistrate had found no corroboration. He should have
expressed in a few words that he had it in mind at the time when he convicted
the Appellant.
62
CCAB 2001
Costs
Costs
DCCC
892/2000
Li DJ
YIP
Yiu-wing
Costs to acquitted defendant/Case instituted on inadequate basis/Defendant
caused unnecessary expenditure
被裁定無罪的被告人獲判給訟費 - 在理據不足的情況下提起本案案件導致被告人作出不必要的開支
(13.3.2000)
*Paul Leung
#Allan Lam
After a ruling of no case to answer, the defendant applied for his costs.
In support of the application the defendant relied on s 5 of the Costs in
Criminal Cases Ordinance, Cap 492 (‘the Ordinance’). It was submitted that the
Ordinance had altered the previous common law principle on costs in criminal
cases so that:
(1)
Whereas previously the prosecution should not seek costs
against a convicted defendant (R v Chan Chor [1968]
HKLR 540), Part III of the Ordinance (sections 11-14) had
altered that position, and allowed the court to award costs to
the prosecution - there was no precondition for the making
of an order for costs;
(2)
Part II of the Ordinance conferred unqualifed power to
award costs to the defendant;
(3)
Section 15(a) of the Ordinance provided that the court
might award costs that were ‘reasonably sufficient to
compensate any party to the proceedings for any expenses
properly incurred by him in the course of those
proceedings’.
In other words, a costs order was
compensatory in nature;
(4)
Section 15(c) of the Ordinance made plain that an order for
costs had to be ‘just and reasonable’;
(5)
Although the basic rule under the Ordinance was that an
acquitted defendant was entitled to an order for costs if he
had incurred expenses in defending the charges against him,
and it was not necessary for him to justify his application, it
was accepted that the court had a residual discretion to
refuse an application for costs where, for example, a costs
order in his favour was ‘not just and reasonable’. It
therefore followed that the burden was on the prosecution, if
it so wanted, to establish the ground of ‘not just and
reasonable’.
The prosecution, which did not dispute the legal principles, resisted the
application on the basis that the defendant by his conduct brought suspicion on
himself.
Held :
The prosecution should have discovered or realised before trial that the
charges preferred could not possibly be made out. The prosecution was warned
at an early stage of the trial to re-consider whether it was proper to proceed.
Since the prosecution nonetheless proceeded, the defendant was put to
unnecessary expenditure by way of legal costs.
Result -
Prosecution to bear the costs of the defence on a party and party
basis for preparation before trial, and on an indemnity basis for the
trial including this application. Costs to be taxed if not agreed.
63
CCAB 2001
CA 378/98
Stuart-Moore
& Mayo VPP
Stock JA
(6.4.2001)
*J Reading SC
& J To
#GJX McCoy
SC & R Pierce
Costs
LUI
Kin-hong,
Jerry
Sentence of imprisonment/No reduction due to ‘dashed hopes’ where
original sentence manifestly inadequate/Abandonment of appeal
conditional upon leave of court/Advantage of making costs order at
trial/Extent of prosecution costs/No power to order costs to take priority
over restitution/Full restitution proper regardless of means
監禁刑罰 - 如原來刑罰明顯不足則不會因‘希望落空’而獲減刑放棄上訴須獲法庭許可 - 在審訊中作出訟費命令的好處 - 控方訟費
所包括的範圍 - 沒有權力命令支付訟費須較復還財產為優先 - 不理
經濟狀況而須全數復還財產是恰當的
The Applicant was convicted after trial of conspiracy to accept
advantages, contrary to common law and s 9(1)(a) of the Prevention of Bribery
Ordinance, Cap 201. He was sentenced on 25 June 1998 to 3 years and 8
months’ imprisonment. He was also ordered to pay the costs of the prosecution
in the sum of $11 million and, after priority had been given to the payment of
costs, restitution in the sums of $6 million and $4 million, respectively, in favour
of his principals Brown and Williamson Tobacco Corporation and BritishAmerican Tobacco Company (HK) Limited (BAT).
The Court of Appeal quashed the conviction on 5 February 1999. On 14
December 1999, the Court of Final Appeal allowed the prosecution’s appeal and
the court then remitted the case to the Court of Appeal for consideration of the
remaining grounds. In the event, only one ground was pursued, and that was
dismissed. [see Criminal Appeals/Against Conviction: Ed]
On appeal
Held :
(1)
Although it was submitted, in reliance upon R v Wong Muk-ping Cr App
92/84, R v Yip Kai-foon [1988] HKC 134, and HKSAR v Li Li-mua [2001] 1
HKLRD 441, that the Applicant was the victim of ‘dashed hopes’, in that he had
been released in February 1999 after his conviction was quashed, only to see it
subsequently reinstated in December 1999, there was no issue as to the
applicable general principle, namely, that due regard was to be given ‘to the
doubts and anxieties experienced by [an] applicant between the time his appeal
against conviction was allowed and the time he came back before the court
after the conviction had been restored ’. (per Kempster JA in Yip Kai-foon);
(2)
However, the court was only empowered to alter a sentence if it
considered that an applicant ‘should be sentenced differently for the offence for
which he was dealt with by the court below’: s 83I(3), Cap 221. In addressing
that issue, all factors relevant to sentence necessarily came into play. The duty
of the court was to achieve a sentence which was correct in all the
circumstances, and whilst an isolated factor on appeal might have real merit,
there might yet be counterbalancing factors which weighed against a reduction
in sentence, and this was such a case. That was so because the original sentence
of imprisonment was manifestly inadequate, as the Applicant and his advisers
must have been fully aware. The Applicant could not come to the court
pocketing his luck whilst flourishing his grievance. So notwithstanding the
dashed hopes factor, it could not properly be said that the Applicant should be
sentenced differently by a reduction of sentence. A reduction would result in a
sentence which, even taking that factor into account, would be a travesty;
(3)
Although the Applicant, once he realised that the court was not minded to
examine the ‘dashed hopes’ argument in isolation, purported to abandon the
application for leave to appeal against sentence out of time or, if the application
was not out of time, to abandon the application in so far as it related to
imprisonment, the application to appeal against sentence was made within the
required time limit, and to take out of the court’s purview those parts of the
appeal against sentence of which the Applicant approved but to leave in those of
which he did not, was not something he was entitled to do without the court’s
64
CCAB 2001
Costs
leave: R v de Courcy [1964] 1 WLR 1245, R v Spicer (1988) 87 Cr App R 297.
The Applicant had complained in open court through counsel, and at length, that
his client had been hard done by, and that the prosecuting authorities had, by
neglect, added to his stress, and it would be a mere game if all of that could be
abandoned, unanswered, without the court’s leave, the moment the court hinted
that the arguments ignored significant features of the case and that the Applicant
was in peril of an adjustment which would, albeit against his interest, reflect the
justice of the matter;
(4)
In so far as the Applicant contended that the judge ought not to have
made a fixed sum order, but should rather have ordered costs to be taxed, there
was a clear advantage in making an order at trial, namely, the avoidance of
expense, and there was much to be said for the making of a fixed sum order in a
straightforward case, or even in a complex case where particulars had been
given to the defence and the matter could be properly resolved. With the
agreement of the Respondent, and as the amount in dispute was now known, the
costs order would be set aside and costs would be taxed;
(5)
It was clear, prima facie, that the cost of seeking letters of request and
obtaining the evidence pursuant to them was a cost, in the words of (the now
repealed) s 72 of the Criminal Procedure Ordinance, which applied to this case,
‘incurred in and about the prosecution and conviction for the offence of which
he is convicted ’;
(6)
Although it was submitted that the extradition proceedings in the USA
were not part of the ‘prosecution and conviction’ process described in s 72(1), it
was difficult, as a matter of principle, to see why the cost of bringing back to the
jurisdiction for trial a defendant who sought to avoid trial and was then
convicted was a cost which should fall on the public purse. The costs of the
Respondent in connection with the extradition, such as the cost of sending legal
advisers to the USA to assist their counterparts in the collation and presentation
of the case, were covered by s 72(1);
(7)
In so far as the judge ordered that payment of costs would take priority
over the order of restitution, there appeared to be no such power and the order
would be set aside;
(8)
Section 12(1) of the Prevention of Bribery Ordinance Cap 201, made
provision upon conviction for restitution, and the judge, in ordering the payment
of restitution in the sum of $10 million, limited the amount of the restitution
order because of the possibility that his assets might not be adequate to meet
both the costs and the full restitution of $21 million. In the circumstances of this
case, the Applicant should be ordered to pay full restitution, an order limited to
the advantages charged, without regard to such substantial interest or capital
gains as might since have accrued. It was contrary to any notion of what was
right that the Applicant should retain the benefit of the enormous criminal gains
he made whilst in the employ of the companies;
(9)
Although the Applicant submitted that before it increased the restitution
order the court had first to be satisfied as to the Applicant’s means, the position
was as stated in Cross and Cheung’s ‘Sentencing in Hong Kong’, 3rd ed, at 379,
namely, ‘it is not necessary for the court considering restitution to take into
account the means of the accused’. That applied to an order under s 12. In this
case of corruption it was not open to an offender who had quite clearly benefited
in sums over $30 million to say that he ought not to make restitution because he
had spirited away or spent the proceeds of that corruption. At common law, the
agent who accepted bribes was liable to his principal for the full amount of the
bribes. He was also liable to pay interest on the amount received from the date
when it was received and, in addition, for any loss sustained as a result of his
breach of duty: Halsbury’s Laws of England, 4th ed, Vol 1(2) para 108. In the
application of that law, there was no room for a defence which said that the
corrupt agent could not afford to pay. There was no room for the court, when
65
CCAB 2001
Costs
the liability to pay had been established to a standard higher than that required in
civil proceedings, to diminish the amount payable because of some suggested
inability to pay, leaving it then to the principals to institute proceedings for the
balance. Restitution should be in the full amount.
Result
FACC 8/2000
Li CJ
Bokhary
Chan &
Ribeiro PJJ
Sir Anthony
Mason NPJ
(3.5.2001)
*Michael
Thomas QC
Ian Lloyd,
Roger
Beresford
G Goodman &
Kelvin Lee
#Jonathan
Caplan QC
M Lunn SC &
A King (1)
Gary Plowman
SC &
Keith Yeung
(2)
(1) LEE
Ming-tee
(2) TSE
Chu-fai,
Ronald
- Leave to appeal against sentence granted. Costs order set aside, and
costs to be taxed if not agreed. Order giving priority to costs order
set aside. Restitution order set aside, and Applicant ordered to pay
Brown and Williamson Tobacco Company $12.75 million, and to
pay BAT $8.5 million.
Hong Kong Court of Final Appeal/Costs to Appellant after permanent stay
of proceedings set aside/Costs award an exercise of discretion/Costs regime
in Criminal Procedure Ordinance not relevant/Arguable grounds no basis
for refusal of costs when central question not approached in conformity
with principle/Respondents not pursuing points used at trial/Deferral of
decision on costs until after trial not justified
香港終審法院 - 永久擱置法律程序撤銷後才將訟費判給上訴人 - 判
給訟費屬行使酌情決定權的範疇 - 《刑事訴訟程序條例》的訟費制
度並不相關 - 當主要問題並非遵照原則處理時爭議性理由不能作為
拒絕判給訟費的基準 - 答辯人沒有繼續引用審訊中採用過的論點將判給訟費的決定押後至審訊完結並無充分理由支持
On 22 March 2001, the Court of Final Appeal handed down judgment
allowing the appeal of the Secretary for Justice and remitted the charges against
the two Respondents to the Court of First Instance for trial. It also made an
order nisi that the Respondents pay the Appellant’s costs in the Court of Final
Appeal, giving the parties leave to file written submissions regarding that order.
R1 invited the Court to make no order as to the costs of the appeal. Two
arguments, which R2 adopted, were advanced in support.
The first argument was based on sections 72 and 73A of the Criminal
Procedure Ordinance. Section 72(1) provided:
It shall be lawful for the court, on the conviction of any person for
an indictable offence in addition to such sentence as may otherwise
by law be passed, to condemn such person to the payment of the
whole or any part of the costs or expenses incurred in and about the
prosecution and conviction for the offence of which he is convicted.
Section 73A(1) provided:Where after trial in the court a person is acquitted, the court may
order the payment out of the public revenue of the costs of the
defence, including the costs of any proceedings before a
magistrate.
It was common ground that those sections governed the costs position in relation
to the Respondents in the Court of First Instance. They did not concern the
Court of Final Appeal’s power to award costs pursuant to section 43 of its
statute which stated:
Costs, including costs in the court below or before a magistrate,
shall be paid by such party or person as the Court shall order.
The Respondents invited the Court to exercise that broad discretion in s 43 by
adopting the statutory policy applicable in the Court of First Instance. They
pointed out that s 72 only empowered the Court of First Instance to make costs
orders on a defendant’s conviction, in addition to the passing of some other
sentence. It was submitted that the Court of First Instance had no power to order
costs against a defendant on a failed application for a permanent stay. It was
66
CCAB 2001
Costs
suggested that ‘the proceedings before the Court of Final Appeal may be viewed
as interlocutory’, since the case had been remitted for trial at first instance. On
that footing, it was said, in line with sections 72 and 73A, the Court should not
make any order as to costs.
The second argument addressed an exercise of discretion. It drew
attention to the fact that the Court held certain criticisms of official conduct
made by the judge to have been justified. On that basis, they submitted:
... that viewed overall, there was a legitimate, arguable basis for
raising the issue of stay with Pang J, in consequence of which,
consonant with the approach of the lower courts in their
approach to the award of costs against defendants, the
[respondents] ought not to be penalised in costs.
Held :
(1)
The first argument was unfounded and sections 72 and 73A were a red
herring. The costs order nisi made in this appeal related solely to the
Appellant’s costs incurred in the Court of Final Appeal. No costs order was in
fact made in respect of the 12-day application before Pang J in the Court of First
Instance. Those sections did not apply to, and shed no light on, the question
whether the costs in the Court of Final Appeal should be borne by the
Respondents. The question involved an exercise of a discretion taking into
account the circumstances of the appeal;
(2)
The second argument was not persuasive. In the first place, it had to be
stressed that nothing in this ruling was intended to affect or to preclude possible
consideration by the trial judge of what, if any, order should be made in relation
to the costs of the stay application before Pang J in the light of the eventual
outcome of the proceedings. So far as the appeal heard by the Court was
concerned, it had been held that the deprecated conduct fell very far short of the
kind of abuse of process that might justify a permanent stay on the ex parte
Bennett basis. While the Inspector’s report should not have been published
before the trial was over, the Court decided that the central question of whether
a fair trial was still possible had not been approached in conformity with
principle, and that in the circumstances there was every reason to believe that
the answer was in the affirmative;
(3)
The Respondents’ case was generally rejected on appeal. At the hearing
significant points that had been advanced before the judge and formed important
elements of his decision were not pursued in the Court of Final Appeal. Those
points might well have made a vital difference to the outcome below;
(4)
R2 submitted that the Court should defer making a final decision as to the
costs of the appeal until after conclusion of the trial. This was premised on the
assumption that if the Respondents were acquitted it was ‘unlikely that they will
be ordered to bear the prosecution’s costs relating to the successful application
for a permanent stay’. That assumption, however, was unjustified in relation to
the costs of the appeal in the Court of Final Appeal. By seeking a permanent
stay, the Respondents took the proceedings on a long and costly detour. The
trial had been placed back on track by the result of the appeal. It was
appropriate that they should bear the costs of the Court of Final Appeal segment
of that detour, whatever the outcome of the trial. No purpose would be served
by the Court deferring its decision.
Result
- Order nisi awarding the Appellant costs made absolute.
[The judgment in respect of which costs were awarded is digested in
the Criminal Appeals Bulletin for March 2001: Ed]
67
CCAB 2001
CA 40/2000
Stuart-Moore
VP Wong &
Stock JJA
(13.6.2001)
*D G Saw, SC
&
David Leung
#Hylas Chung
Costs
WONG
Wah-yee
Application for certificate/Section 32 of Court of Final Appeal
Ordinance/No inherent power to award costs/Court of Appeal not
empowered to award costs upon dismissal of unmeritorious application for
certificate/Comments on lacuna
申請證明 - 《終審法院條例》第32條 - 並無固有權力以判給訟費向上訴法院申請證明，而上訴法院以申請欠缺理據駁回申請時，無
權判給訟費 - 就法律漏洞作出評論
On 17 November 2000, the Applicant’s application for leave to appeal
against conviction of two charges of attempted robbery was dismissed.
The Applicant then sought a certificate, pursuant to s 32 of the Court of
Final Appeal Ordinance, Cap 484, that certain points of law of great and general
public importance were involved n the decision. That application was dismissed
on 3 May 2001, and the court pointed out that of the three questions posed for
suggested certification, two had misunderstood the issue in the case as well as
the judgment delivered; and that the second was entirely bereft of any merit.
Although the application for a certificate was so devoid of merit that the
court was minded to award costs to the Respondent, the issue arose as to the
power of the court to award costs.
The power of the court to grant a certificate, which might then trigger the
grant by the Court of Final Appeal for leave to appeal in a criminal case, was
implicit in s 32 of the Court of Final Appeal Ordinance, which provided:
(1)
No appeal shall be admitted unless leave to appeal has been
granted by the Court; and
(2)
Leave to appeal shall not be granted unless it is certified by
the Court of Appeal or the Court of First Instance, as the case
maybe, that a point of law of great and general importance is
involved in the decision on it is shown that substantial and
grave injustice has been done.
Held :
(1)
It was clear enough that in a case in which the application was dismissed
because it had no merit, there was no power in the court to condemn an
applicant to pay the costs of an application for leave under s 32, Cap 484. There
was no inherent power to award costs and, if the power existed, it had to be
found in statute;
(2)
By section 52A of the High Court Ordinance, Cap 4, ‘the costs of and
incidental to all proceedings in the Court of Appeal in its civil jurisdiction …
shall be in the discretion of the Court …’. There was no like provision in
relation to the exercise of such a power in the court’s criminal division. In so far
as Order 62 of the Rules of the High Court applied to criminal proceedings, the
order was expressed to apply ‘under enactments relating to the costs of criminal
proceedings to which this Order applies’: O 62-2(4);
(3)
The power in the court to award costs against an unsuccessful applicant
or appellant was housed in the Costs in Criminal Cases Ordinance, Cap 492,
section 13; but the power was exercised only where the court was satisfied that
an appeal was without merit, or that an application to the court for leave to
appeal against conviction was without merit. It was perfectly clear that the leave
to appeal to which that section applied was leave to the Court of Appeal from a
decision of a lower court. It did not embrace leave to the Court of Final Appeal
and, in any event, under s 32 of the Court of Final Appeal Ordinance,
applications for leave were made to that Court and the only application with
which the Court of Appeal was concerned was an application for a certificate. It
was clear, therefore, that s 13 of the Costs in Criminal Cases Ordinance did not
68
CCAB 2001
Costs
empower the court to award costs upon a failed application for leave for a
certificate;
(4)
Although attention had been drawn to s 17 of the Costs in Criminal Cases
Ordinance, which permitted a court to award costs where in the course of
criminal proceedings costs had been incurred as a result of ‘an unnecessary or
improper act or omission by or on behalf’ of a party to the proceedings, it was
not necessary to determine whether such circumstances might be invoked in the
context of an application for a certificate under s 32, and it was not necessary
because the circumstances envisaged by s 17 were not what the present question
was about. That question was whether in an ordinary case an unsuccessful
application for a certificate might be the subject of a costs order, whereas s 17
addressed particular types of conduct which merited condemnation in costs, such
as negligence or specific unreasonable conduct, or improper conduct;
(5)
In an ordinary case of an application for a certificate under s 32 of the
Court of Final Appeal Ordinance, which was unmeritorious and failed, the Court
of Appeal had no power to award costs in favour of the Respondent. That was a
lacuna which deserved some consideration, for experience showed that some
applications which were made had no chance whatsoever of success. In such
circumstances there was no reason why the Respondent, on whose representation
public funds were expended, should not in a proper case be the beneficiary of a
costs award.
Result - No jurisdiction existed in the Court of Appeal to award costs in
respect of an unsuccessful application for a certificate made pursuant
to s 32, Cap 484.
DCMP
1664/2001
Registrar
Queeny Au
Yeung
LO
Chun-nam
District Court/Jurisdiction to tax bill in criminal cases/Costs order made by
Court of Final Appeal/Basis of authority to tax/Application for extension of
time to file bill of costs (such bill of costs considered to be filed in the wrong
Court)
區域法院 - 在刑事案件中評定訟費的司法權 - 終審法院作出訟費命
令 - 評定訟費權的依據 - 申請延長將訟費單送交存檔的時限（該訟
費單被認為送交不適當的法庭存檔）
(3.7.2001)
*Wong Wingsum
#P Tse
The Applicant was a convicted defendant in a magistracy case. On 20
December 2000, his conviction was quashed by the Court of Final Appeal, and
he was granted costs for proceedings in the Magistrates’ Court, the Court of
First Instance, the Appeal Committee and the Court of Final Appeal.
By originating summons filed on 13 June 2001, the Applicant sought an
extension of time to file his bill of costs for taxation, under rule 9 of the Costs
in Criminal Cases Rules, Cap 492, but this was resisted by the Department of
Justice. It was clear that the Applicant knew that the 3-month limit for filing the
bill had expired by 19 March 2001.
Section 20 of the Costs in Criminal Cases Ordinance, Cap 492 (‘CCCO’)
provided:
(1)
Where an order for costs is made by a court or a judge
under this Ordinance the court or the judge may order that
those costs be taxed;
(2)
Where an order that costs be taxed is made under this
section:
(a)
by a magistrate or by the District Court, those costs
shall be taxed by the Registrar of the District
Court; ……
69
CCAB 2001
Costs
Under s 2 CCCO, ‘court’ included a magistrate, the District Court, the
Court of First Instance, and the Court of Appeal but did not include the Court of
Final Appeal.
Held :
(1)
Unless the costs order was made by a magistrate or the District Court, the
District Court Registrar had no jurisdiction to tax the bill even if the costs
involved proceedings in the Magistrates Court or the District Court. This was
logical because the CCCO was enacted before the Court of Final Appeal came
into existence. That Ordinance could not have contemplated the taxation of bills
pursuant to order of the Court of Final Appeal;
(2)
Moreover, the Court of Final Appeal had its own system for awarding
costs and ordering taxation. That was governed by s 43 of the Hong Kong Court
of Final Appeal Ordinance, Cap 484, which provided:
Costs, including costs in the courts below or before a
magistrate, shall be paid by such party or person as the Court
shall order, and such costs shall be taxed by the Registrar, or
some other officer of the Court to whom the Registrar may
delegate this function.
‘Registrar’ in that context was the Registrar of the Court of Final Appeal;
(3)
Accordingly, on the question of authority to tax, the test was not where
the proceedings for which costs were claimed were conducted but which court
made the costs order so:
(i)
If the cost order was made by a magistrate or the District
Court, the District Court Registrar had power to tax those
costs;
(ii)
If the cost order was made by a magistrate or the District
Court and upheld by the Court of Final Appeal, it was
arguable that the District Court still had power to tax the
costs limited to those proceedings in the Magistrates’ Court
or the District Court;
(iii) If the Court of Final Appeal granted a completely fresh
order for costs covering proceedings below, it was the
Registrar of the Court of Final Appeal who would have
power to tax those costs.
(4)
Based on this reasoning, since it was the Court of Final Appeal which
ordered costs in the Magistrates Court in favour of the Applicant, it was the
Registrar of the Court of Final Appeal who should tax the present bill. It
followed that the court had no jurisdiction to grant an extension of time under
the CCCO. There was no jurisdiction to transfer the application to the Court of
Final Appeal;
(5)
Although the Department of Justice had sought an order for indemnity
costs, in reliance on Nintendo Co Ltd v The World Camera and Radio Co Ltd &
Other [1999] 2 HKLRD 199, where a technical point which the court considered
time wasting, plainly wrong, and not intended to decide the issue between the
parties was taken, and the Court of Appeal therefore awarded costs to the
winning party on an indemnity basis, it appeared that it was the unreasonable
conduct of the paying party in that case that resulted in the costs order made. It
did not lay down the general principle that once a party lost the case on a legal
point, costs on an indemnity basis would follow;
(6)
In the present case, it was regrettable that 4 years since the
implementation of the Hong Kong Court of Final Appeal Ordinance, Cap 484,
some solicitors, law costs draftsmen and recently, in one case, the Department of
Justice as well, were still not aware of the provision for taxing authority in that
70
CCAB 2001
Costs
Ordinance. Even in the present case, the objection to jurisdiction was not taken
at the call-over hearing for the bill on 24 April 2001 but only until about 20 June
2001. Although the Applicant started the application for extension of time in the
wrong court, his conduct was not so culpable as to justify any penalization in
costs beyond a normal order.
Result - Originating summons dismissed for want of jurisdiction.
MA 91/2000
Nguyen J
(10.9.2000)
*Paul Madigan
#Jospeh Tse
CHAU
Chiu-wong
Appellant succeeding on appeal/Costs of trial denied as Appellant brought
suspicion
on
himself/Inadmissible
confession
available
for
consideration/Delay in seeking costs no bar as Appellant not legally
represented when judgment delivered
上訴人上訴成功 - 上訴人自招懷疑因此其要求判給審訊訟費的申請
被拒絕 - 不獲接納為證據的招認可供考慮 - 判決時上訴人並無法律
代表因此其延遲尋求判給訟費一事並不受禁制
The Appellant succeeded in his appeal against conviction.
subsequently sought costs in respect of these events:
He
1. for the trial which lasted for two days on 11 and 12 January
2000;
2. for the bail application which was made on 28 January 2000;
3. for the appeal, the hearing of which took one day, on 27 April
2000; and
4. for the costs hearing.
The Respondent opposed the application on the basis, inter alia, that the
Appellant’s conduct had brought suspicion upon himself. The evidence was that
the Appellant had been seen by two police officers pushing a trolley which was
subsequently found to contain the infringing CDs and VCDs. The evidence of
one of the police officers was that the Appellant appeared to be nervous and,
eventually, when he was stopped by the officers, he made a verbal admission
that the cartons contained infringing CDs. At the trial, the verbal admission was
not relied upon by the magistrate for reasons relating to the credibility of the
police witnesses.
The Appellant submitted that if an admission had been ruled
inadmissible, the court hearing the application for costs should approach the
matter as if the admission had never been made. He relied upon the judgment of
Mayo J in Cheung Bik-kwong v AG & Another [1999] 2 HKC 870. That
approach by Mayo J was not followed by Beeson J in HKSAR v Wong Pak-nin
[2000] 1 HKLRD 74, who said that:
… I do not think it possible to say that on a costs application a
magistrate can never take into account, for the purposes of
deciding the application, the contents or provenance of a
statement that has been ruled inadmissible. There may well be
circumstances where although a statement is ruled out, the
evidence relating to its provenance or contents may reveal that
the accused brought suspicion on himself. A magistrate, in
certain circumstances, must be able to examine a confession
statement from one view for the purposes of dertermining
admissibility, but from a different standpoint for the purposes of
deciding an application for costs.
Held :
(1)
When the prosecution started a trial against a defendant, they had to
assess the evidence in their possession and they could not try and predict
whether the trial court would accept or reject that evidence. The evidence here
71
CCAB 2001
Costs
was that not only was the Appellant pushing the trolley in which were found the
infringing CDs, but he also had on his person a number of invoices which, in the
event, could not be proved to have been connected to their infringing CDs. In
addition to that, there was the alleged verbal admission where he had allegedly
said that the cartons contained infringing CDs. By his conduct the Appellant
had brought suspicion upon himself which was a positive reason for declining
him costs. Therefore the application for costs for the trial would be declined:
HKSAR v Wong Pak-nin [2000] 1 HKLRD 74 followed;
(2)
As regards the bail application made on 28 January, that application was
made before the Statement of Findings was made available and, on the day of
the application, there was an absence of the material which was subsequently
available at the appeal. The application for bail, even though premature, was
not, as had been shown by the result of the appeal, unmeritorious. The
application was justified, and the Appellant’s costs incurred in respect of the bail
application on 28 January would be allowed;
(3)
In respect of the costs incurred on the appeal itself, the delay in applying
should not mean that the Appellant would be denied his costs of the appeal.
There was a delay, but on the day the judgment was handed down, 30 May, the
Appellant was not legally represented and he could not therefore have made the
application on that day. The appeal was successful and even though this had
nothing to do with any default by the prosecution, the Appellant should be given
his costs of the appeal;
(4)
As regards the costs hearing, although the Appellant submitted that the
hearing was necessitated by the prosecution’s wrongful resistance of the
application for costs, the prosecution was entitled to resist the application, and
their resistance to the application for the costs of the trial was successful. Costs
would be denied in respect of the costs hearing.
Result -
CA 269/2000
Stuart-Moore
&
Mayo VPP
Stock JA
(16.11.2001)
*R G Turnbull
#A AllmanBrown (1)
K Egan (3)
G Harris for
the barrister
HKSAR
v
(1) HO
Honchung
(2) LAM
Kwokwah
(3) YUEN
Wai-kin
The Appellant would be awarded his costs for the bail application
made on 28 January and his costs incurred for the hearing of the
appeal. Those costs were to be taxed if not agreed.
Wasted costs order/Appeal adjourned as barrister’s absence from a jury
trial would prejudice the defendant in that trial/Likely prejudice must have
been foreseen by barrister/Obtaining of client’s consent to absence of no
avail/Limits on jurisdiction to award costs
虛耗訟費命令 - 上訴聆訊押後，因大律師在有陪審團的審訊中缺席
會對該審訊中的被告人不利- 大律師必能預見被告人可能蒙受不利
- 即使就缺席一事取得當事人的同意亦無作用 - 判給訟費的司法管
轄權受限制
On 21 June 2001, CACC 269/2000 was listed to be heard before the
Court of Appeal. That was a prosecution appeal by way of case stated. Two
days were set for the hearing. There were three Respondents (R1, R2 or R3).
In the event, the appeal had to be adjourned and the barrister representing
R2 (‘the barrister’) was told that the matter would be listed in due course for
him to show cause why the wasted costs of the appeal hearing should not be
borne by him under s 18 of the Costs in Criminal Cases Ordinance, Cap 492.
The matter was re-listed for that purpose on 31 October 2001.
Before the hearing of the appeal was due to commence on 21 June 2001,
the Court was made aware that the barrister, who had also appeared before two
members of the Court in a sentence appeal hearing ending at 12.22 pm on 20
June 2001, was engaged to act for one of two defendants in a part-heard
commercial crime case before a judge and a jury. At a pre-trial review, 20 days
had been allocated for that case. It had commenced on 21 May 2001 with a
72
CCAB 2001
Costs
voire dire which had taken five days longer than expected. On 14 June 2001, a
jury was sworn and on 21 June the prosecution case was still in progress,
although nearing its end.
The Court, concerned with the interests of the barrister’s client at the
trial, examined the circumstances in which this conflict of apparent
commitments had arisen. An inquiry was initiated into how the barrister
considered himself able to appear before the Court on 21 and 22 June for the
appeal when he was at the same time engaged in a trial where no adjournment of
the trial proceedings had been granted, and upon whether there was any real risk
of prejudice to the defendant in the criminal trial.
After a discussion with the trial judge, the Court concluded that it would
be wholly inappropriate to allow the trial to proceed in the barrister’s absence.
One of the most critical stages of the case was the submission of no case which
was to be made on the defendant’s behalf. It was inconceivable to the Court that
stand-in counsel should be asked to make the submission in a commercial trial
which had already lasted many days. There could as well be no question of
‘covering’ counsel being in any position to deal with an accomplice witness, or
any evidence which was not purely formal, while the barrister was appearing in
the Court of Appeal.
The barrister, when the Court reassembled, was told that on no account
could he be allowed to absent himself from the trial. He was told that he had
‘double-booked ’ by his agreement, on or about 11 June 2001, to accept
instructions in the two-day appeal. The Court informed the barrister that it was
not prepared to hear him on the appeal because that would have left his client
open to the risk of being prejudiced by his absence in the criminal trial. He was
told that he should immediately return to the trial court and that the two-day
appeal would be adjourned to a convenient date to suit counsel’s diaries. He
was also told that he should acquaint himself with the wasted costs provision
under s 18 of the Costs in Criminal Cases Ordinance, Cap 492, and that the
matter would be listed in due course for him to show cause why such an order
should not be made. Additionally, the barrister was informed that it might be
considered necessary for the Bar Association to be notified about his conduct.
The matter was adjourned.
On 31 October 2001, the question was whether a wasted costs order
should be made against the barrister in favour of R1 and R3 whose legal costs
for 21 and 22 June were thrown away by reason of the adjournment of the
appeal. Each of their counsel sought a wasted costs order in their client’s
favour.
Counsel for the barrister conceded during his submissions that he ‘could
not excuse the inexcusable’. He accepted, on reflection, that the barrister ought
not to have accepted the instructions for the appeal, and that he should have
returned the papers in sufficient time to enable someone else to be instructed.
He agreed that the barrister’s ‘proper place’ was to have remained in the trial.
Held :
(1)
The concession was proper, and the merits of the matter seemed to
dictate that the wasted costs should be borne by counsel whose conduct
occasioned the adjournment;
(2)
The barrister must have foreseen, or certainly ought to have foreseen, the
likely prejudice which would be caused to his client by his absence from the
trial. In such circumstances the obtaining of a captive client’s consent was of
scant avail, as it ought never to have been sought. The lay client was being
asked, in a case with a ‘cut-throat’ element to the defence, to agree to his
counsel leaving the trial at about the time when the potentially very important
accomplice witness was to be called and a submission of no case to answer was
73
CCAB 2001
Costs
anticipated. While there were certainly circumstances in which it was
permissible for counsel to request someone else to hold his brief in the course of
a trial, this was not one of them. The Court, accordingly, was left with no
realistic alternative but to adjourn the appeal in order to ensure the barrister
carried out his primary duty to the trial court;
(3)
The barrister’s conduct had left R1 and R3 with the burden of wasted
legal costs, and these might have been considerable. The costs of the
prosecution would have to be borne by public funds. However, s 18 of the Costs
in Criminal Cases Ordinance confined the making of a wasted costs order
against a legal representative to situations where he had failed to appear or was
late. That contrasted with the equivalent provisions in England which enabled a
wasted costs order to be made where costs were incurred by a party ‘as a result
of any improper, unreasonable or negligent act or omission on the part of any
representative’. The English provision was far wider and would have covered
the situation which had arisen, whereas the Hong Kong provision did not. The
courts in Hong Kong had been rendered, for almost all practical purposes,
unable to remedy the kind of grievance which had arisen in this case.
MA
1119/2001
McMahon DJ
(27.11.2001)
Tower Mary
Ltd.
Result -
Applications of R1 and R3 for costs rejected due to lack of
jurisdiction.
Obiter -
It was for policy makers, not the Court, to consider further, if so
minded, whether this was a satisfactory piece of legislation or
whether it required amendment.
Costs to acquitted defendant/Refusal of costs due to counsel’s
conduct/Counsel must be heard on wasted costs
被裁定無罪的被告人獲判給訟費 - 因律師的行為而拒絕判給訟費律師必須就虛耗訟費一事獲得聆訊
The Appellant was acquitted of an alleged offence under the Factories
and Industrial Undertakings Ordinance, Cap 59.
*Polly Wan
#Selwyn Yu
The acquittal was on the merits of the case. The Appellant had done
nothing to bring unwarranted suspicion upon itself for the purpose of
prosecution.
The magistrate declined to award the Appellant costs due to the
behaviour of the defence counsel at the trial. She took into account the costs
wasted by the counsel’s conduct. The magistrate exercised her discretion under
s 3(1)(c) of the Costs in Criminal Cases Ordinance, Cap 492, which stated that
upon acquittal ‘the magistrate may order that costs be awarded to the
defendant’.
On appeal against the refusal to award costs
Held :
(1)
There was no doubt that a refusal to award costs to an acquitted
defendant was within a magistrate’s discretion: R v Kwok Moon-yan & Another
[1989] 2 HKLRD, HKSAR v Dove [1998] 1 HKLRD 179, Tong Cun-lin v
HKSAR [2000] 1 HKLRD 113;
(2)
Although she did not specify the particular provision which entitled her
to refuse costs on the basis of the conduct of defence counsel, she effectively
based her order on s 17 of the Costs in Criminal Cases Ordinance, which
provided:
Where at any time in the course of criminal proceedings a court or
a judge is satisfied that costs have been incurred in respect of the
74
CCAB 2001
Costs
proceedings by a party to the proceedings as a result of an
unnecessary or improper act or omission by or on behalf of the
other party to the proceedings, the court or the judge may, after
hearing all such parties, order that all or part of the costs so
incurred shall be paid to the first-mentioned party to the
proceedings by the other party to the proceedings.
There could be no doubt that the magistrate was entitled to award costs to the
prosecution as the result of the conduct of defence counsel pursuant to s 17.
However, she made no order as to costs and it appeared she set off the wastage
apparently caused by the defence counsel’s conduct against the costs that would
normally have gone to the Appellant upon acquittal;
(3)
The reasoning of the magistrate appeared to have been that costs of the
two days the trial should have taken in the absence of defence counsel’s timewasting, and which should have gone to the Appellant, were extinguished by the
extra two days taken at trial because of the wastage of time occasioned by the
defence counsel, costs of which, pursuant to s 17, should have gone to the
prosecution. There was nothing objectionable with that reasoning and the court
would be loathe to interfere with an order, or no order, as to costs made on that
reasoned basis;
(4)
However, s 17 expressly required that counsel be heard before any
wasted costs were taken into account. That reflected the common law principle
that parties were entitled to be heard on any matter upon which it was
contemplated that an order, such as costs, might be made against them;
(5)
Counsel, particularly defence counsel, were never alerted to the fact that
the magistrate was considering taking into account costs wasted in the trial. At
the very least, defence counsel should have been heard, or given an opportunity
to be heard, on the matter of wasted costs. The absence of such an opportunity
constituted a material irregularity;
(6)
As there was no suggestion that the Appellant had brought the
prosecution upon itself the principle was that costs would follow the event.
Result - Appeal allowed. Costs awarded to Appellant.
75
CCAB 2001
Counsel
Counsel
FAMC
35/2001
Bokhary
Chan &
Ribeiro PJJ
(13.12.2001)
*Peter
Chapman
#John Haynes
MAK
Kam-chuen
Conduct of counsel/Counsel not seeking separate representation/Counsel
not pursuing point on appeal/Party in general bound by manner in which
counsel conducts case/Significant fault required to challenge competence of
counsel/No prejudice shown
律師的行為 - 律師不為申請人尋求獨立的法律代表 - 上訴時律師沒
有繼續論述某論點 - 在一般情況下應訊一方受其律師處理案件的方
式所約束 - 律師須犯重大過失才可被質疑是否稱職 -沒有顯示受到
損害
The Applicant was convicted after trial of conspiracy to manufacture
dangerous drugs. He was sentenced to 20 years’ imprisonment. On 30 April
1999, his appeal against conviction was dismissed. His sentence was later
reduced to 14 years on appeal. Two and a half years later, he sought leave to
appeal against conviction on the ground that he had suffered substantial and
grave injustice.
The Applicant submitted that such injustice arose from two matters: (1)
the conduct of his Senior Counsel at the trial, namely, failing to seek separate
representation for him when there was a clear conflict of interest between him
and the co-accused who were represented by the same counsel; and (2) the
conduct of another Senior Counsel acting for him in the appeal before the Court
of Appeal, namely, failing to consult him or seek his consent before abandoning
the ground of appeal which relied on such conflict of interest at the trial. He
also sought an extension of time to make the application.
Held :
(1)
Without making a specific finding, the Committee was not satisfied that
there was any or any sufficient conflict of interest at the trial so as to require
separate representation for the first accused and the Applicant. Neither the trial
judge nor Senior Counsel considered that necessary. Senior Counsel took time
to consider the matter before he decided to continue to act for both the first
accused and the Applicant. At the appeal stage, although Senior Counsel had
entertained some doubts on the conflict of interest point, after investigation and
deliberation he made a conscious decision to abandon the point;
(2)
The general rule was that a party was bound by the manner in which his
counsel conducted the case on his behalf: R v Birks [1990] 48 A Crim R 385; R
v Mo Lee-kuen [1993] 1 HKCLR 78. Where the conduct of counsel at the trial
was relied on as a ground of appeal, the ultimate question for the court was
whether the conduct complained of had resulted in the accused not getting a fair
trial so that the conviction was unsafe or there was a miscarriage of justice. It
was usually only significant fault which was sometimes called flagrant
incompetence which could form the basis of such a challenge: R v Clinton
[1993] 97 Cr App R 320; R v Donnelly [1998] Crim LR 131; R v Naveed Ullah
[2001] 1 Cr App R 351;
(3)
It was not reasonably arguable that this was such a case. If two Senior
Counsel, having reflected, concluded that this was a point which should not be
pursued, it could not be said that no reasonable competent counsel would have
sensibly adopted the course taken by them. The Applicant had not demonstrated
that he had been prejudiced by the conduct of counsel at the trial or in his appeal
or that the conviction was unsafe as a result of what happened or did not happen.
76
CCAB 2001
Criminal Intimidation
MA
1160/2000
To DJ
(14.2.2001)
CHAN
Tak-kuen
Criminal intimidation/Intent to alarm victim/Specific intent for prosecution
to prove/Not sufficient to prove intention to utter threat
刑事恐嚇 - 有意圖使受害人受驚 - 控方須證明被告有特定犯罪意圖
- 只證明有意圖作出恐嚇並不足夠
The Appellant was convicted after trial of two offences of criminal
intimidation, contrary to s 24(b)(i) of the Crimes Ordinance, Cap 200.
* Catherine Ko
#Cheng Huan
SC & Selwyn
Yu
On appeal, it was submitted, inter alia, that the magistrate failed to make
a specific finding of fact that when making the threat the Appellant intended to
cause alarm which was a crucial element of the offence of criminal intimidation.
Reliance was placed upon that said by McMullin J in Lo Tong-kai v R
[1977] HKLR 193, 196:
What the prosecution must show upon a charge under section 24
of the Crimes Ordinance (a provision which is modelled closely
upon section 503 of the Indian Appeal Code) is that the person
making the threat intends to cause alarm to the person to whom
the threat is made or that the threat itself is of such a kind that a
person of ordinary firmness would be affected by it. In deciding
these matters, as it seems to me, the context of the circumstances
out of which the threat has arisen are of paramount importance
to be considered. The test involves both objective and subjective
considerations inasmuch as (to quote the commentry upon the
Indian section which appears in the 22nd Edition of the Law of
Crimes by Ratannal and Dhirajlal):
The question whether a threat amounts to a criminal
intimidation or not, does not depend on the nerves of the
individual threatened; if it is such a threat as may overcome
the ordinary free will of a firm man, or whatever the nature
of the threat, if it is made with the intention mentioned in
the section, it is an offence.
......in all cases of such utterance the questions of the intention
with which the threat is made and of the effect which it has
produced upon the person to whom it was made or would be
likely to produce on a ‘firm man’ are the relevant questions and
they will fall to be determined by reference to the particular
circumstances affecting both the persons involved at the
particular time when the words were spoken. To my mind
therefore it was of the greatest importance that the court should
have considered whether the words used were ‘wild and whirling
words’ uttered in exasperation by a man driven beyond the point
of endurance by opposition offered to him in his legitimate rights
as owner of premises, and signifying nothing more than an
instinctive outburst of spleen, or whether they were uttered with a
genuine intention of causing fear or were, in the circumstances of
their utterance, likely to produce that effect.
Held :
(1)
Section 24(a)(i) of the Crimes Ordinance provided that a person was
guilty of the offence if he threatened any other person with one of the three
intents specified in the section. The intent under the section that was
particularised in the charge was the intent to alarm PW1. That was a specific
intent which the prosecution must prove. It was not enough to prove that an
accused intended to utter the threat; the prosecution had to prove in addition that
when he uttered the threat he did so with the intent to alarm the person to whom
the threat was made. Where specific intent was one of the elements of the
offence, it was always desirable, though not absolutely essential, that a
77
CCAB 2001
magistrate should make a finding about this crucial element. It would be
sufficient if he had addressed his mind to this element and there was sufficient
evidence in support of such a finding;
(2)
The intent under section 24(a)(i) had to be proved in the same way as
specific intent had to be proved in any other offences involving specific intent,
such as wounding contrary to section 17 of the Offences Against the Person
Ordinance, Cap 212 or murder. Sometimes, intent was proved by admission,
but, more usually, it was proved by inference to be drawn from the surrounding
circumstances, particularly the acts of the accused. When an accused chopped a
victim, the intent to wound contrary to section 19 could be readily drawn. The
specific intent to cause grievous bodily harm contrary to section 17 could also
be drawn from the weapon used, the injury inflicted and what was said at the
time of the wounding. For criminal intimidation, the actus reus was the
utterance of a threat and not the doing of an overt act. What was in the mind of
a speaker was not as apparent as what was in the mind of a person doing an act.
That was where McMullin J’s dicta were most pertinent. In deciding whether
when the threats were uttered the Appellant intended to cause alarm to PW1, the
context of the circumstances out of which the threat had arisen was of paramount
importance. It was not clear if the magistrate had indeed come to the conclusion
that when the threats were uttered, the Appellant intended to cause alarm and
how on those facts he had come to that conclusion. On the contrary, it appeared
from his oral reasons delivered at the time of verdict that he did not have in
mind the issue of intent to alarm.
MA 702/2001
Lugar-Mawson
J
(1) WONG
Chi-fai
(2) HUI
Yu-keung
Criminal intimidation/Whether threatening words uttered by Appellants
merely ‘wild and whirling’/Relevant to consider context of the
circumstances under which threat made
刑事恐嚇 - 上訴人使用帶有威脅的語句是否僅屬‘狂言亂語 ’ 考慮威脅是在何種情況下作出的是相關因素
(9.8.2001)
*Ada Chan
#David Khosa
A1 (D1), D2 and A2 (D3) were charged with an offence of criminal
intimidation, contrary to s 24(a)(i) of the Crimes Ordinance, Cap 200. A1 and
A2 were convicted after trial of the charge whereas D2 was acquitted of the
charge. A1 and A2 were each sentenced to six months’ imprisonment.
The facts showed that the three of them paid three visits to the victim’s
shop within two days. On the second visit, they were warned off by the police
after the victim had made a complaint to the police. On the last visit, they went
to the victim’s shop to dun for a debt that the victim allegedly owed D2. A1,
upon entering the shop, said to the victim, ‘I am going to hit you’. A2 said,
‘After business tonight, I am going to hit you.’ Both spoke in a loud and
threatening manner. D2 was silent throughout. The victim called the police
again and they were arrested.
On appeal, it was argued that the magistrate failed to consider if the
threatening words were uttered by the Appellants, and whether or not they were
merely ‘wild and whirling’.
Held :
(1) In R v Lo Tong-kai [1977] HKLR 193, McMullin J held:
What the prosecution must show upon a charge under s 24 of the
Crimes Ordinance is that the person making the threat intends to
cause alarm to the person to whom the threat is made or that the
threat itself is of such a kind that a person of ordinary firmness
would be affected by it. In deciding these matters, as it seems to
78
CCAB 2001
me, the context of the circumstances out of which the threat has
risen are of paramount importance to be considered;
To my mind therefore it was of greatest importance that the court
should have considered whether the words used were ‘wild and
whirling words’ uttered in exasperation by a man driven beyond
the point of endurance by opposition offered to him in his
legitimate rights as owner of premises, and signifying nothing
more than an instinctive outburst of spleen, or whether they were
uttered with a genuine intention of causing fear or were, in the
circumstances of their utterance, likely to produce that effect.
(2)
The magistrate made no specific finding that each of the Appellants
issued the threat when each spoke with the intention of causing alarm to the
victim. It certainly would have been better if he had done so. But this was not
fatal to the conviction provided it was clear that no other conclusion could have
been arrived at: HKSAR v Yau Yu-ming MA 437/99;
(3)
From the statement of findings, it was clear that the magistrate
considered the surrounding circumstances and the effect the words would have
had on a person of ordinary firmness. And he specifically found that the victim
was a man of reasonable fortitude;
(4)
In the circumstances, the words uttered by the Appellants clearly were
not ‘wild and whirling’ ones. The Appellants uttered the threat of violence to
the victim immediately on walking through the door of the shop. Upon entering
the shop, the first thing A1 said was the threat and that was followed by A2’s
threat. There was no evidence of any conversation preceding the threats, and
there was no evidence of any argument of any sort. The threats of violence were
not uttered in exasperation in the heat of the moment. Neither were they, as
McMullin J put it, ‘instinctive outbursts of spleen made in the heat of the
moment’.
Dangerous Drugs
Civ App
250/2000
Mayo VP
Keith &
Woo JJA
(18.5.2001)
*M
Blanchflower
SC &
Elizabeth Liu
#John Mullick
& Catherine
Wong
SJ
v
LIN
Xin-nian
Application for forfeiture of seized cash/Affirmation referring to facts
outwith deponent’s own knowledge/Use to be made of hearsay
statements/Need to rely on hearsay evidence
申請充公經扣押的現金 - 宣誓所提述事實為宣誓人所不知之事 - 對
傳聞陳述的使用 - 有需要依賴傳聞證據
Part IV A of the Drug Trafficking (Recovery of Proceeds) Ordinance,
Cap 405, (‘the DTROP’), provided for the detention and forfeiture of cash which
was brought into or taken out of Hong Kong and which was connected with drug
trafficking.
This appeal raised the point of the use which might be made of hearsay
evidence when an order of the court was sought to sanction the forfeiture of cash
which had been seized.
On 19 October 1998, the Respondent arrived in Hong Kong at Chek Lap
Kok Airport on a flight from Vancouver. Although he had a PRC passport, he
lived in Canada. Acting on information received, police officers searched him
in the arrivals hall, and he was found to be in possession of CAN$380,060.00 in
cash. That represented about HK$1.9m. The majority of the cash was in $20.00
79
CCAB 2001
Dangerous Drugs
notes. There were 14,003 of them, plus 400 $50.00 notes and 80 $1,000.00
notes. The majority of the cash was in the Respondent’s suitcase, and the
remaining CAN$80,000.00 was stuffed into the pockets of the trousers he was
wearing. He was asked where he had got the money from. He said that part of it
was his but that most of it had been borrowed from his sister in Canada. He was
asked what he was bringing it into Hong Kong for, and he said that he was
taking it to the Mainland to give to his father.
The police suspected that the money was connected with drug trafficking.
The money was seized pursuant to section 52(3) of the Dangerous Drugs
Ordinance (Cap 134) and detained pursuant to section 24B of the DTROP. The
money continued to be detained thereafter pursuant to orders made by judges
sitting in the Court of First Instance pursuant to section 24C(2) of the DTROP.
In the meantime, an investigation into the source of the money was
carried out by Detective Senior Inspector Cheung Hon-bun, an officer in the
Financial Investigations Section of the Narcotics Bureau. His investigations
related to investigations in Hong Kong. In addition, acting on DSI Cheung’s
requests, the Public Security Bureau carried out investigations in the Mainland,
and the Royal Canadian Mounted Police carried out investigations in Canada.
Those investigations revealed that persons connected with the Respondent were
the subject of a major ongoing investigation into drug trafficking in Canada.
The section in Part IVA of the DTROP which provided for forfeiture was
section 24D. It provided:(1)
While any seized property is detained under section
24C(2) ..., a court may, if satisfied on an application made
by or on behalf of the Secretary for Justice that such
property (a) in whole or in part directly or indirectly represents any
person’s proceeds of drug trafficking;
(b) has been used in drug trafficking; or
(c) is intended for use in drug trafficking,
order ... the forfeiture of such property ...
(3)
An order may be made under this section whether or not
proceedings are brought against any person for an offence
under which the seized property concerned is connected.
(4)
The standard of proof on an application under this section
shall be on the balance of probabilities.
‘Seized property ’ was defined in section 24A as meaning ‘any property
seized under section 52 of the Dangerous Drugs Ordinance (Cap 134)
on the ground that it is suspected to be specified property ’. ‘Seized
property ’ was defined in section 24A as meaning:
... any property specified in Schedule 4 (a)
being imported into or exported from Hong Kong; and
(b)
which (i)
in whole or in part directly or indirectly represents any
(ii) has been used in drug trafficking; or
(iii) is intended for use in drug trafficking ...
Section 55B(1) of the High Court Ordinance (Cap 4) provided that the
rule-making power of the Rules Committee of the High Court included the
‘power to make rules regulating the means by which particular facts may be
80
CCAB 2001
Dangerous Drugs
proved, and the mode by which evidence thereof may be given ...’. That power
applied to applications under Part IVA of the DTROP, and was spelt out in
section 24F(2) of the DTROP which provided that rules of court might be made
for applications under Part IVA. Such rules had been made, and were to be
found in Ord 115 of the Rules of the High Court. The rule governing
applications for forfeiture of seized property was Ord 115 r 29, which provided:
(1)
An application under section 24D(1) for the forfeiture of
seized property shall be made by summons ...
(2)
An application under paragraph (1) shall be supported by
an affidavit, which shall state the grounds for believing that
the seized property (a) in whole or in part directly or indirectly represents any
(b) has been used in drug trafficking; or
(c) is intended for use in drug trafficking.
Pursuant to section 24D, the Secretary for Justice applied to the Court of
First Instance for an order for the forfeiture of the cash. It was supported by an
affirmation of DSI Cheung. A further affirmation from him was subsequently
filed, as were affirmations from the Respondent, his sister and his father,
together with a further affirmation from DSI Cheung responding to them and a
further affirmation of the Respondent responding to that. DSI Cheung’s
affirmations exhibited various documents.
Those documents included
statements, affidavits, affirmations and reports which were generated in the
course of the investigation into the source of the money. Those documents,
together with the circumstances in which the Respondent brought the money into
Hong Kong, formed the basis of DSI Cheung’s belief that the cash represented
the proceeds of drug trafficking. In the affirmations themselves, DSI Cheung
summarised the relevant contents of those documents which had contributed to
that belief.
The application was heard by Deputy Judge McMahon, and he declared
himself to be satisfied, on the balance of probabilities, that all the money seized
represented directly or indirectly the proceeds of drug trafficking of some person
or persons in Canada. He restricted his findings to section 24D(1)(a), and made
no findings on sections 24D(1)(b) or 24D(1)(c). He therefore ordered the
forfeiture of all the money.
On appeal, the critical issue related to the use which the judge was
entitled to make of those parts of DSI Cheung’s affirmations which contained
hearsay statements. If he was entitled to take them into account, it was not
contended by the Respondent that it was not open to the judge to make the
finding of fact in terms of section 24D(1)(a) which he did. Alternatively, if he
was not entitled to take them into account, it was not contended by the Applicant
that the judge’s finding of fact could nevertheless stand. Accordingly, the
outcome of this appeal was directly dependent on whether the judge was entitled
to take into account those parts of DSI Cheung’s affirmations which contained
hearsay statements.
Held :
(1)
The point had to be made at the outset that there was no question of any
part of DSI Cheung’s affirmations being inadmissible. They had to contain, to
use the language of Ord 115 r 29(2), the grounds for his belief that the cash
represented the proceeds of drug trafficking. Since his belief was based on the
statements, affidavits, affirmations and reports which the investigation had
generated, his affirmation had to exhibit those documents or at the very least
summarise the contents - whether or not the court was entitled to take those
documents into account in deciding as a fact whether the cash represented the
proceeds of drug trafficking. That was what the judge had meant when he said:
81
CCAB 2001
Dangerous Drugs
... the grounds for the deponent’s belief ... do not themselves have
to be in such a form or of such a nature so as to be independently
admissible as evidence.
(2)
Although Ord 41 r 5(1) prohibited hearsay statements in affirmations and
affidavits, it had to be read as subject to any other statutory provision or rule of
court which necessarily contemplated the reference by the deponent to facts
which were not within his own knowledge. Ord 115 r 29(2) was such a rule.
That was in effect the view of the judge, who said:
Ord 41 r 5(1) may not expressly exempt Ord. 115 r 29 from its
operation as it does the other specified orders therein. But sense
must be given to Ord 115 r 29. If Ord 41 r 5(1) were to apply to
section 24D(1)(Cap 405) applications, then Ord 115 r 29, which
expressly and specifically applies to such applications, would
have no effect. That cannot be intended.
In my judgment, applications pursuant to section 24D(1) (Cap
405) are governed by Ord 115 r 29, and Ord 41 r 5(1) has no
application so as to prevent the operation of Ord 115 r 29 which
in its terms allows hearsay evidence.
As it was, Ord 41 r 5(1) related only to the contents of affidavits and
affirmations. Once it was held that Ord 41 r 5(1) did not prevent affidavits and
affirmations filed pursuant to Ord 115 r 29(2) from containing facts which were
not within the deponent’s own knowledge, the remaining question was what use
the court could make of those facts. That was not a question which Ord 41 r 51
engaged;
(3)
It would be surprising if the Rules Committee of the High Court really
intended (a) to require the affidavit or affirmation in support of an application
for forfeiture under section 24D of the DTROP to contain references to facts
which might not have been within the deponent’s knowledge while at the same
time (b) denying to the court the right to take those facts into account. If Ord
115 r 29(2) was intended, to use the language of section 55B of the High Court
Ordinance, to ‘regulat[e] the means by which particular facts may be proved,
and the mode by which evidence thereof may be given ’, it followed that it was
intended to permit the court to take into account all the facts contained in the
affidavit or affirmation in support even if some or all of them were not within
the deponent’s knowledge. It would be for the court to decide what weight to
give to such facts. That, in effect, was the reasoning of the judge, who said:
Any provision such as Ord 115 r 29(2) ... which permits evidence
to be provided to a court or tribunal expressed in the form of a
belief based on disclosed grounds or sources must envisage the
deponent providing what would otherwise be hearsay evidence to
the court.
(4)
This reasoning represented an example of the circumstances in which an
implied statutory exception to the rule against hearsay arose. Other examples
included (a) hearsay evidence obtained in the course of an official investigation
into the affairs of a company in support of an application by the Secretary of
State for Trade and Industry for a disqualification order under section 8 of the
Company Directors Disqualification Act 1986 (In re Rex Williams Leisure Plc
(In Administration) [1994] Ch 350), and (b) similar hearsay evidence obtained
from an office holder in support of an application by the Secretary of State for a
disqualification order under section 7 of the 1986 Act (Secretary of State for
Trade and Industry v Ashcroft [1998] Ch 71);
(5)
It could readily be seen why the Rules Committee would have wanted to
sanction the court’s use of hearsay evidence on an application for forfeiture
under section 24D of the DTROP. The cash did not have to represent the
82
CCAB 2001
Dangerous Drugs
proceeds of drug trafficking in Hong Kong. It could represent the proceeds of
drug trafficking anywhere in the world. The laundering of the proceeds of drug
trafficking was now an international trade, and the evidence relied upon by law
enforcement authorities to establish that cash brought into or taken out of Hong
Kong represented the proceeds of drug trafficking might come from many
different parts of the world;
(6)
If the court was not entitled to take account of hearsay statements in the
deponent’s affidavit or affirmation, separate affidavits or affirmations
(themselves not containing hearsay statements) would be required from whoever
could give relevant information about the source of the cash - irrespective of the
country in which they happened to be. And if they happened to be in a country
in which Hong Kong had not negotiated an arrangement for mutual legal
assistance, there was no procedure for compelling such a witness to provide an
affidavit or affirmation. Indeed, the costs involved in obtaining affidavits or
affirmations from witnesses overseas could well exceed $125,000.00, which was
the minimum amount of cash which could be made the subject of an order for
forfeiture under section 24D. Thus, in some cases, the cost of obtaining the
evidence to justify an application for a forfeiture order might be prohibitive if
the court was not entitled to take account of hearsay statements in the deponent’s
affidavit or affirmation. All these consideration applied with equal force to any
affidavit or affirmation on which a person affected by the application might wish
to rely. It might be difficult or even impossible for him to show that the cash
came from a legitimate source without being able to rely on hearsay evidence;
(7)
The judge did not err in relying on the hearsay statements in the
affirmations of DSI Cheung for the purpose of determining whether the cash
represented the proceeds of drug trafficking.
Result- Appeal dismissed.
Obiter (1)
An application for forfeiture under s 24D of the DTROP was a civil
cause or matter, not a criminal proceeding Ali v Best (1997) 161 JP 393. That
meant that an appeal lay to the Court of Appeal from the order of the judge;
(2)
The old regime of Part IV of the Evidence Ordinance applied to the
present case only because the application for forfeiture was made before the
provisions repealing it came into operation: section 7 of the amending
Ordinance provided that the Evidence Ordinance applied to civil proceedings
which were commenced before the amending Ordinance came into operation as
if the repeal of Part IV had never been made. The new regime was contained in
the new section 47(1) of the Evidence Ordinance which provided:
In civil proceedings evidence shall not be excluded on the ground
that it is hearsay unless (a)
a party against whom the evidence is to be adduced objects
to the admission of the evidence; and
(b)
the court is satisfied, having regard to the circumstances of
the case, that the exclusion of the evidence is not
prejudicial to the interests of justice.
Thus, the issue which this appeal had raised was not likely to arise again.
83
CCAB 2001
Defendant’s Right to Remain Silent
CA 147/2000
Stuart-Moore
&
Mayo VPP
Seagroatt J
(19.3.2001)
*B Ryan &
G Shiu
#GJX McCoy
SC,
Alexander
King & Edwin
Choy
LAUNDER
Ewan Quayle
judge
counts.
Held :
84
CCAB 2001
Held :
Held :
(1)
(2)
85
CCAB 2001
(3)
Ground 3: Delay
years old ’.
Held :
(1)
(2)
(3)
86
CCAB 2001
Held :
other evidence;
the jury.
Held :
(1)
and (2)(b):
(2)
87
CCAB 2001
(a)
Held :
(b)
Held :
such circumstances;
(c)
Held :
out;
(d)
reach a verdict.
Held :
88
CCAB 2001
CA 306/2000
YEUNG
Sze-sze
Stuart-Moore
& Mayo VPP
Cheung J
Accused electing not to testify/No explanation provided/Court drawing
adverse inference
被告選擇不出庭作供 - 沒有作出解釋 - 法庭作出不利的推論
The Applicant, was convicted after a trial in the District Court, in which
she neither gave evidence nor called any witnesses, of an offence of arson.
(9.5.2001)
On appeal, it was submitted, inter alia, that the judge wrongly drew an
adverse inference against the Applicant arising from her election to remain
silent.
*M
Blanchflower
SC
Held :
#Yeung
Shak-nung
The judge was fully entitled to weigh this matter in the balance. It was
settled law that where a person might be able to provide an explanation but did
not do so a court might more readily draw an adverse inference against him:
HKSAR v Choi Gin-ngon and Others [1998] 1 HKLRD 902, Lam Tsz-wah v R
[1984] HKLR 54, R v Sung Shui-sing [1962] HKLR 587, R v Sharmpal Singh
[1962] AC 188.
CA 470/2000
Wong &
Woo JJA
Cheung J
(13.7.2001)
*Paul Madigan
#David Boyton
CHAN
Chi-kwan
Conspiracy to defraud/Accused not testifying/Inferences more readily
drawn/No need for single judge to remind himself of Ghosh test
串謀詐騙 - 被告沒有作供 - 較輕易地作出推論 - 單獨主審的法官無
須提醒自己 Gho sh 一案的驗證標準
The Applicant was convicted after trial in the District Court of a charge
of conspiracy to defraud, contrary to common law, and punishable under s
159C(6) of the Crimes Ordinance, Cap 200. The particulars of offence alleged
that the Applicant, between 23 November 1999 and 21 December 1999,
conspired with persons unknown to defraud Chau Ping-shing of $1,000,000, by
a series of dishonest and false representations.
The Applicant had elected not to testify at trial. In his Reasons for
Verdict, the judge concluded:
In those circumstances and in the absence of evidence to the
contrary, the inference that the defendant was a part of the
fraud is very strong. They are circumstances which cry out for
an explanation from the defendant. The defendant, as I have
said, elected not to give evidence. That is his right and that he
should not give or call evidence does not in any way displace
the burden on the prosecution. Neither may I, nor do I, draw
any inference against him because he has exercised his rights
in that way. But if he elects not to give evidence, there may be
no challenge to the evidence that has been given and he cannot
complain if inferences are more readily drawn against him.
There was nothing in the evidence before me to suggest that
the defendant was merely an intermediary. There is nothing
to indicate that he was a middleman who, for a commission,
brought parties together. It was not suggested that he ever
said so during any of the negotiations. He signed on behalf
of the company.
The defendant’s involvement in the
establishment of the contract at a time when Asia & Pacific
Trading Company’s right to the steel had lapsed by reason of
the failure of its contract of purchase raises, without any
answer being available on the evidence, the inference was
that the defendant knew of the subsequent events. I accept
89
CCAB 2001
that agents, middlemen or intermediaries are regularly used
in commercial transactions but there is simply no evidence
before me that that was the defendant’s role. He did not even
say so himself.
That agents are used in commercial
transactions is not sufficient to raise the inference on these
facts that the defendant’s role was one of an intermediary.
In the absence of evidence to the contrary, the inference that the
defendant was a knowing part of the fraud perpetrated on PW1 is
overwhelming. He is accordingly convicted as charged.
On appeal, it was submitted, inter alia, that the judge erred in stating that
since the Applicant did not call or give any evidence, ‘he cannot complain if
inferences are more readily drawn against him’. It was also said that the judge
had not expressly referred to the Ghosh test.
Held :
(1)
The judge was merely following the utterances of the appellate courts in
Hong Kong. In R v Sung Shui-sing [1962] HKLR 587, 592, Hogan CJ said:
No accused is under any compulsion to give evidence on his own
behalf or, in any but the most exceptional circumstances, to
shoulder the onus of proving his innocence; but where the
prosecution have established facts from which a tribunal might
reasonably infer a fraudulent intent, it does not lie in his mouth to
complain if such an inference is made and if this inference is
reached more readily because of his decision not to afford to the
tribunal the benefit of his version of his intentions.
In Lam Tsz-wah v The Queen [1984] HKLR 54, 63, it was said:
... since the applicant chose not to go into the witness box to
explain the circumstances ... he cannot complain if a proper
inference is drawn, and if it is drawn more readily in view of his
election.
There could be no justification for saying that the judge had elevated the
strength of the prosecution’s evidence because the defendant had elected not
to give or call any evidence. What ‘an inference more readily drawn against’
the defendant simply meant was that in the absence of any evidence from the
defendant that might create any reasonable doubt on the inference consistent
with guilt or give rise to the consideration of an inference consistent with
innocence, the inference of guilt would be more readily drawn. The complaint
was without substance;
(2)
It was pertinent to refer to Lawton LJ’s judgment in R v Kenneth Mutch
(1972) 57 Cr App R 196, 199:
But at the same time members of the Jury, you must not think that
in not giving evidence he is not doing what he is perfectly entitled
to do. He is entitled to sit where he is as he has done and please
do not think that the onus of proof is shifting, it isn’t. It remains
fairly and squarely upon the shoulders of the prosecution but, at
the same time, I have to tell you this: the Jury are entitled to draw
inferences unfavourable to the prisoner where he is not called to
establish an innocent explanation of facts proved by the
prosecution which, without such explanation, tell for his guilt.
In R v Tan Siew-gim [1995] 2 HKC 513 at 517, Lord Keith of Kinkel said:
It is a significant feature of the case that the appellant did not
give evidence in her defence. The matters revealed by the
evidence for the prosecution cried out for some explanation on
90
CCAB 2001
the part of the appellant which might be consistent with her
innocence. The nature of these matters was such that the Jury
would have been well entitled to consider that the absence of any
evidence to the contrary from the appellant, she must be taken to
have been aware of the true character of ARFL’s activities.
(3)
It was trite law in Hong Kong that a judge sitting alone without a
jury did not need to remind himself of Ghosh. In this case, there was no
dispute that there was a fraudulent conspiracy, and the sole issue was
whether the Applicant was a party to that conspiracy with knowledge. The
Ghosh test had no application.
CA 356/2000
Stuart-Moore
VP
Wong &
Keith JJA
CHENG
Chun-ming
Silence of defendant when interviewed/Adverse comment by judge on
silence an error of law/Ample evidence attracting application of proviso
被告人在會面時保持緘默 - 法官對於被告人保持緘默提出不利評論
是法律上犯錯 - 有充足證據令但書適用
The Applicant was convicted after trial of one charge of handling stolen
goods.
(3.8.2001)
On appeal
*Sin Pui-ha
Held :
#Andy Hung
(1)
It was clear that, in commenting, not only extensively, but also adversely,
on the Applicant’s silence when he was interviewed or confronted by the police,
the judge had clearly overstepped the prohibited boundary and thereby
committed an error of law. A similar situation arose in HKSAR v Del Carmen
[2000] 3 HKC 431, and, at 443, Stuart-Moore VP observed:
Whilst common sense might dictate that the failure on the part of
a defendant to reveal a defence at an opportune moment prior to
trial is something to be weighed in the scales when determining
how much weight to attach to a defence first raised at trial, it
seems that common law precedent is generally opposed to
permitting judge making any comment which invites the jury to
use this feature of the evidence in this way.
In the present case, the judge directed the jury that they could use
the applicant’s silence on material aspects of her defence as
factors they could ‘take into account in assessing the credibility
of the account that she gave (in evidence at her trial)’. This, it
seems to us, was inviting the jury to take an adverse opinion of
the applicant’s evidence.
That a judge may not comment, even to the limited extent to be
found in the present case, seems to us to be far from satisfactory.
The jury was entitled to know that the applicant had remained
silent after her arrest and they would inevitably have drawn their
own conclusions about the story she told for the first time in her
evidence at trial. All the judge had sought to do was to limit the
extent to which the jury could deploy the evidence about the
applicant’s silence, by restricting their consideration of it to the
sole issue of credibility. To that extent, while having every
sympathy for the judge’s motives in directing the jury in this way,
we have reluctantly come to the conclusion, in the absence of
legislation permitting such a direction, that the judge went
further than she was permitted to go and thereby misdirected the
jury. However, we are satisfied that no miscarriage of justice has
actually occurred as the result of this misdirection. We have
91
CCAB 2001
borne in mind that this was a case based upon strong
circumstantial evidence and, putting aside the misdirection, we
are satisfied the jury would inevitably have come to the same
conclusion.
(2)
Notwithstanding the misdirection, there remained ample evidence to
justify the judge coming to the conclusion he reached. No miscarriage of justice
had actually occurred and the proviso to s 83(1) of the Criminal Procedure
Ordinance, Cap 221, would be applied.
Result -
MA 621/2001
McMahon DJ
(12.10.2001)
LI
Lap-sun
Theft/Possession of recently stolen property/Defendant saying nothing to
police upon interception/Constraint upon comment
on exercise of right
to silence
盜竊罪 - 管有最近被竊的財物 - 被告人被警方截查時一言不發 - 對
於就行使緘默權作出評論的限制
*Paul Madigan
#Christopher
Coghlan
Appeal dismissed. [See also Criminal Appeals/Against Sentence: Ed]
The Appellant was convicted after trial of theft.
Shortly after the bag of the victim was taken, the Appellant was
intercepted and found to have on him a mobile phone and a coin purse
from the bag.
When first questioned by the police, the Appellant said nothing.
When later questioned at the police station, he said he ‘had not
deliberately taken the items.’ Of the Appellant’s initial silence, the
magistrate said:
The defendant had not been cautioned at that stage but he still
had the right to remain silence.
However, in the
circumstances of this case his innocent possession of PW1’s
property screamed out for an explanation. After all, he says
he was going out because he had seen the police and was
walking out to see if they were involved with the missing bag.
A spontaneous explanation, even if it was, ‘sorry, this is just a
joke’, would be expected and the phone and the coin bag
would have been in his hands, not out of right in a pocket, or
tucked into his trousers.
On appeal, it was complained that the magistrate went further than
permitted in his comments on the Appellant’s silence when first
questioned.
Held :
(1)
Although it might well be thought that the magistrate’s comments were
simply a reflection of solid common sense, the law was such that adverse
comment on a defendant’s exercise of his right to silence was constrained:
HKSAR v Del Carnan [2000] 3 HKC 431, HKSAR Cheng Chun-ming Cr App
356/2000, R v Lau Siu-wah Cr App 1174/82;
(2)
The magistrate’s comments went too far in law. He took the Appellant’s
silence into account in concluding his version of events ‘held no water’. That
was a material finding.
92
CCAB 2001
Environmental Offences
MA
1026/2000
Beeson J
(3.4.2001)
Sunley
Engineering
&
Construction
Co Ltd
Water Pollution/Licensee under obligation to take reasonable steps to
ensure compliance with provisions of licence made under reg 17B(1) of the
Water Pollution Control (General) Regulations/Whether reg 17B an
offence of strict liability
水污染 - 持牌人有義務採取合理步驟確保根據《水污染管制(一般)
規例》第 17B(1) 條訂立的牌照條文獲得遵從 - 第 17B(1) 條所訂立
的罪行是否嚴格法律責任罪行
*M Hui
#P Wong
The Appellant company was convicted of an offence contrary to
regulation 17B(1) of the Water Pollution Control (General) Regulations, Cap
358 in that it contravened the provision of the licence granted under the Water
Pollution Control Ordinance, Cap 358, namely Standard Condition 1.1 by
making a discharge of which the suspended solids exceeded the maximum
standard stated in the table in Standard Condition 1.1. of the licence. The
Appellant company was fined $40,000.
The facts showed that the Appellant company was the registered general
building contractor of the construction site concerned. It was granted a
discharge licence, pursuant to s 20 of Cap 358. The licence set out, inter alia,
standard conditions in relation to the limitations on the quantity and composition
of the discharge. The terms and conditions of the licence imposed mandatory
duties on the licensee. The inspectors from the Environmental Protection
Department examined discharged effluent from the site. Muddy effluent was
seen flowing into a sedimentation tank from which it was discharged to a surface
channel outside the site. They collected samples of the effluent for the analysis
by the Government Laboratory.
On appeal, it was submitted, firstly, that the magistrate wrongly
construed reg. 17B(1) of the Water Pollution Control (General) Regulations as
creating an obligation on the Appellant company to take all reasonable steps to
prevent a discharge of sub-standard effluent from the site. Secondly, it was said
that the magistrate, having considered the submission that a person could not be
held criminally liable by virtue merely of his position and that there was no
principle of vicarious liability, erred in holding that the Appellant company had
a positive duty or obligation, because of its position, to take all reasonable steps
to prevent a discharge of sub-standard effluent from the site.
Held :
(1)
It was helpful to look at the framework of the legislation in which reg.
17B existed and to look at the overall aim and the purpose of the legislation to
decide the obligations of a licensee. Having considered sections 8, 9, 10, 12, 20
and 22 of Cap 358 and reg. 17B, the legislative framework was clear, and there
was an obligation on the Appellant company to ensure that the provisions of the
licence were not breached. The prosecution was not required to establish
precisely who had caused the discharge. That would be to place an impossible
burden on the prosecution and would also render nugatory the purpose for which
the licence was issued;
(2)
On the basis of the test in HKSAR v Paul Y – ITC Construction Ltd
[1998] 2 HKLRD 35, for determining whether an offence was one of strict
liability, the instant breach of the licence condition created an offence of strict
liability in terms of s 17B;
(3)
The legislature, by setting up the licensing system, intended to control the
discharge of effluent and to that end intended that proof of knowledge of
breaches of the licence was not necessary. There was no point in having a
licensing system, unless the licensee could be made to bear the responsibility for
breaches for it. If all the licensee needed to do to escape liability for breaches
93
CCAB 2001
was to point the finger at unknown persons as having caused the discharge, no
one could ever be held responsible for breaches of the licence;
(4)
The licensee would have a defence by establishing on the balance of
probabilities that it had taken all reasonable steps to prevent a discharge of substandard effluent, or that it had a reasonable, if mistaken, belief that proper
preventative steps had been taken to comply with the conditions of the licence.
Evidence/Hearsay
CA 270/00
Stuart-Moore
ACJHC
Mayo VP &
Stock JA
(19.12.2000)
*AA Bruce SC
& Beney
Wong
#Ching Y
Wong SC,
Peter Wong &
Barbara Cheng
OR
Suen-hong
Bookmaking/Admissibility of betting slips/Rule against hearsay evidence
收受賭注 – 賭注記錄紙條可否接納為證據 – 不許接納傳聞證據的
法則
The Applicant was convicted after trial of one charge of bookmaking,
contrary to section 7(1)(a) of the Gambling Ordinance, Cap 148.
The case concerned activities observed, and documents later found, in
the subject premises. The flat was under observation with the aid of a telescope,
from premises opposite the flat from 7 pm to 10 pm on the night in question. In
that time, the Applicant was seen to make 59 telephone calls, and in the case of
about half of them he was seen to make a note after the call.
The unchallenged evidence was that a police party went to the flat at
about 10:05 pm and shouted to be let in. The Applicant’s wife was seen by the
observer to approach the front door and then turn to speak to the Applicant who
was seated on the sofa in the living room with a pile of papers in his hand. She
was heard by those outside the door to ask: ‘Someone looking for you?’ The
police repeated their identity and threatened to break open the door. The
Applicant was seen to go quickly to the kitchen still holding the papers. His
wife went to the sofa. The police broke in and seized a number of documents
from the fridge and from a drawer in the kitchen.
Much of the evidence concentrated upon the nature of these documents
and their contents. The documents were each put to a witness called by the
prosecution who was put forward as an expert in gambling, specifically
bookmaking, and particularly in bookmaking for horse racing.
On appeal against conviction, it was submitted, inter alia, that the expert
witness was wrongly permitted to rely upon the truthfulness of the contents of
those documents: ‘The contents of a document being hearsay made it
inadmissible for the purpose of proving the truth of its contents and that
therefore [the expert] ought not to[have] been permitted to form his opinion of
[them].’
Held :
(1)
A statement other than one made by a person while giving oral evidence
in the proceedings was inadmissible as evidence of any fact stated. It was
excluded because it was thought to be unreliable; hence its exclusion was felt to
be necessary for maintaining higher standards of accuracy in findings of guilt.
Independent policy reasons had also been advanced for the exclusionary rule.
The principal independent justification was that the admission of hearsay
statements would deny the accused an opportunity to participate effectively in
the proceedings instituted against him by preventing him from cross-examining
94
CCAB 2001
Evidence/Hearsay
the maker of the statement : Cross & Tapper on Evidence 9th Ed p 530 & The
Principles of Criminal Evidence pp 179-180;
(2)
The question then was ‘what was the purpose in this particular trial of
the production of the exhibits analyzed by the expert ?’ The issue in this case
was whether it was proved, to the requisite standard, that the Applicant was
receiving bets ‘by way of business’. The purpose in this case of the production
of the documentary exhibits was to show that the Applicant was in possession of
the paraphernalia, namely, the telephones and the coloured pens next to the
telephones. Those documentary exhibits contained the format and the jargon of
the business, and the purpose of proving their possession, their nature, their
format and their jargon, was to show, together with other evidence, that the flat
was the venue for the conduct of a business of the kind run by bookmakers. To
that end, these documents were admissible evidence and did not breach the
prohibition against hearsay evidence: R v Kearley [1992] 2 AC 228 and R v Ng
Kin-yee [1993] 2 HKC 148 distinguished; Wong Wai-man & Others v HKSAR
[2000] 3 HKLRD 313 and R v Walton (1989) 166 CRL 283 considered;
(3)
The betting slips which were adduced showed the keeping of records
such as might be kept in a bookmaking business. The fact that the Applicant
was actually receiving bets on the day in question was proved by the
uncontested evidence of calls coming in to his flat at an average frequency of
about one every three minutes over a period of three hours on a racing night; by
the fact that he was seen making notes frequently when receiving these calls; and
by the fact that different coloured pens were found by the telephone.
Result – Application dismissed.
CA 476/2000
Stuart-Moore
VP
Woo &
Stock JJA
(24.10.2001)
*Kevin Zervos
#Andrew
Bruce, SC
YU
Tai-chi
Prosecution
calling
rebuttal
evidence/Matter
arising
ex
improviso/Defendant asserting matters not put to prosecution
witnesses/Drawing of adverse inference from failure of defendant to crossexamine
控方傳喚反駁證據 - 臨時出現的事宜 - 被告人堅稱的事宜並無向控
方證人提出 - 由於被告人沒有盤問而導致作出不利的推論
The Applicant was convicted after trial of an offence of conspiracy to
defraud, contrary to common law and punishable under s 159C(6) of the Crimes
Ordinance, Cap 200.
On appeal, it was submitted, first, that there was a material irregularity in
the trial as the judge erred in permitting the prosecution to call evidence after the
Applicant had closed his case. Second, it was said that the conviction was
unsafe and unsatisfactory in that the trial judge wrongly took account of the
failure of the Applicant to cross-examine the prosecution on an aspect of his
case, and that a failure to cross-examine was a very dangerous basis for drawing
adverse inferences as to credibility.
Held :
(1)
It was proper for the prosecution to be allowed to call rebuttal evidence
as the matters asserted by way of defence by the Applicant in his testimony had
never been put to the prosecution witnesses. The prosecution could not have
been expected to assume that such matters would have been advanced. The
issue upon which the prosecution sought to call rebuttal evidence arose ex
improviso. The Applicant’s trial counsel had very properly raised no objection
to the prosecution’s application to call rebuttal evidence;
(2)
The general rule which required the putting of the case to witnesses was
well-established since Browne v Dunn (1893) 6 R 67, HL. The headnote read:
95
CCAB 2001
Evidence/Hearsay
If in the course of a case it is intended to suggest that a witness is
not speaking the truth upon a particular point, his attention must
be directed to the fact by cross-examination showing that that
imputation is intended to be made, so that he may have an
opportunity of making any explanation which is open to him,
unless that is otherwise perfectly clear that he has had full notice
beforehand that there is an intention to impeach the credibility of
his story, or the story is of an incredible and romancing
character.
(3)
As to how far an inference could be drawn from a non-observance of the
rule, it was instructive to read the judgment of King CJ in Manunta referred to
in the judgment of Gleeson CJ in R v Birks (1990) 48 A Crim R 382, 399:
It is legitimate, of course, to draw appropriate conclusions from
counsel’s failure to put in cross-examination some matter to
which his client or his witnesses subsequently depose. It is a
process of reasoning, however, which is fraught with peril and
should therefore be used only with much caution and
circumspection. There may be many explanations of the omission
which do not reflect upon the credibility of the witnesses.
Counsel may have misunderstood his instructions. The witnesses
may not have been fully co-operative in providing statements.
Forensic pressures may have resulted in looseness or
inexactitude in the framing of questions. The matters might
simply have been overlooked. I think that where the possibility of
drawing an adverse inference is left to the jury, the jury should
be assisted, generally speaking, by some reference to the sort of
factors which I have mentioned. Jurors are not familiar with the
course of trial or preparation for trial and such considerations
may not enter spontaneously into their minds.
(4)
What in fact the judge had said was that here there was an accused who
did not put the very essence of his case, a case known all along, to material
witnesses, because he knew what the answers would be, and he did not want the
court to hear those answers. In fact the judge said so in terms when he
castigated counsel for never putting the matter;
(5)
Although care had to be taken before adverse conclusions were drawn as
to credibility by reason of a failure to cross-examine on a certain issue, or to put
a particular point, that was not to say it could not be done. The judge drew an
inference which any experienced judge would have drawn. The matter omitted
in cross-examination of the prosecution witnesses was not a matter which
touched upon an isolated topic; it was a matter which was the very essence of
the case for the defendant.
Result -
Application dismissed. [See also Practice and Procedure: Ed]
96
CCAB 2001
Extradition
Extradition
CA 147/2000
Stuart-Moore
&
Mayo VPP
Seagroatt J
(19.3.2001)
*B Ryan &
G Shiu
#GJX McCoy
SC,
Alexander
King & Edwin
Choy
LAUNDER
Ewan Quayle
judge
counts.
Held :
97
CCAB 2001
Extradition
Held :
Held :
(1)
(2)
98
CCAB 2001
Extradition
(3)
Ground 3: Delay
years old ’.
Held :
(1)
(2)
(3)
99
CCAB 2001
Extradition
Held :
other evidence;
the jury.
Held :
(1)
and (2)(b):
(2)
100
CCAB 2001
Extradition
(a)
Held :
(b)
Held :
such circumstances;
(c)
Held :
out;
(d)
reach a verdict.
Held :
101
CCAB 2001
Forgery/False Instruments
CA 28/2000
Stuart-Moore
VP
Woo & Stock
JJA
(14.6.2001)
*Cheung Waisun &
Ko Po-chui
#Eric Kwok
HUYNH
Bat-muoi
Aiding and abetting, counselling and procuring the using of forged travel
document/Meaning of forgery
協助、教唆、慫使和促致偽造旅行證件的使用 - 偽造的涵義
The Appellant was convicted of two charges of aiding, abetting,
counselling or procuring D1 to use a forged 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 s 89 of the Criminal Procedure Ordinance, Cap 221.
On 26 September, 1999, the Appellant and D1 together entered Hong
Kong from the Mainland at Lo Wu. D1 was in possession of a passport bearing
D1’s photograph in the name of Huynh Minh Hoa of Belgian nationality. The
Appellant was in possession of a valid Belgian passport in her own name. They
passed through Immigration Arrival Inspection. While in Hong Kong the
Appellant bought for herself and D1 air tickets for the USA, departing on 27
September for the USA via Vancouver. On that day at the airport, using the
same passports, they passed through Immigration Department inspection.
In a recorded interview, the Appellant admitted that in August, 1999, she
met a man called Ng in Beijing who specialized in producing forged passports
for Chinese to go to work abroad. Ng suggested to her that she could have a
remuneration of US$1,000 for taking each Chinese holder of a forged passport
to a foreign country and all her expenses for meals, accommodation and plane
tickets would be paid for. However, she had to look for her own clients and he
would supply the forged passports. She asked D1 if he would like to go to work
in a foreign country. She told D1 that she had a friend who could arrange a
forged passport for him to go to work overseas. She would accompany him to
go all the way. D1 agreed. The Appellant took D1 to have 10 photographs
taken. She passed them onto Ng. On 23 September, 1999, Ng told her to get
D1’s forged passport. When she was handed the passport, she found it to be a
Belgian passport and discovered that only the photograph was D1’s whilst the
other particulars in the passport did not relate to him. The record of interview
was admitted in evidence.
The Appellant gave evidence that all along she had never known that
there was any problem with D1’s passport. She was nevertheless convicted.
On appeal, the Appellant said that the passport was genuine. She
produced a letter from the Consulate General of Belgium in Hong Kong which
was to the effect that the passport was issued by the Townhall in Brussels and
that the only untruth contained in it was that the photograph in it did not show
Huynh Minh Hoa but instead D1. That letter was admitted into evidence
pursuant to s 83V of the Criminal Procedure Ordinance, Cap 221.
The Appellant argued that the passport was not a ‘forged’ document
within the meaning of s 42(2)(b) of the Immigration Ordinance, Cap 115.
The Respondent submitted that:
(1)
S 42(2)(b) of the Immigration Ordinance, Cap 115 provided, ‘Any person
who ….. uses ….. any forged, false or unlawfully obtained or altered travel
document ….. shall be guilty of an offence’. ‘False’ meant false in a material
particular and ‘forged’ had the meaning assigned to that term by Part IX of the
Crimes Ordinance, Cap 200;
(2)
S 68(2) of the Crimes Ordinance, Cap 200 provided that ‘forgery’ should
be construed in accordance with Part IX;
102
CCAB 2001
(3)
S 71 of the Crimes Ordinance, Cap 200 provided, ‘A person who makes
a false instrument, with the intention that he or another shall use it to induce
somebody to accept it as genuine, and by reason of so accepting it to do or not
to do some act to his own or any other person’s prejudice, commits the offence
of forgery .....’;
(4)
S 69 of the Crimes Ordinance, Cap 200 provided, ‘(a) an instrument is
false if it purports to have been ….. (vii) made or altered on a date on which or
place at which or otherwise in circumstances in which it was not in fact made
or altered .....’;
(5)
S 69 of the Crimes Ordinance, Cap 200 had extended the meaning of
‘forgery’ to ‘false’. If any of the circumstances in s 69(a) were established, the
related instrument was a forged instrument under s 42(2)(b) of the Immigration
Ordinance, Cap 115. S 69(a)(vii) of the Crimes Ordinance, Cap 200 provided
that an instrument was false if it purported to have been made in circumstances
in which it was not in fact made. The circumstances in which a genuine passport
would have been made and issued by the authorities in Brussels were that the
photographs submitted were those of Huynh Minh Hoa, but these were not the
actual circumstances in which the passport was issued. The passport was
therefore a forgery.
Held :
(1)
The significant words in s 69(a)(vii) of the Crimes Ordinance, Cap 200
were ‘the circumstances in which’ the instrument was ‘in fact made’. The
passport purported to say that it had been issued by an official on such and such
a date, and at such and such a place, pursuant to the authority which that officer
had to issue it. The passport was in fact made in the form and upon the terms in
which the maker made it. It had not since been altered, and was made on the
date and place and in the circumstances in which it purported to have been
made. If it also purported to represent that it was made after an application for a
passport, then that too was an accurate representation about itself. The subject
passport contained no lie about itself, although it contained a lie. It also
contained no lie about the circumstances in which it was made, whether as to
time, or place, or authority. It did not qualify as a forgery under s 69(a)(vii) or
any of the categories of false instrument within the ambit of any other category
under s 69. The factual situation here was very different from those in Attorney
General’s Reference (No 1 of 2000) [2001] 1 WLR 331, R v Donnelly (Ian)
[1984] 1 WLR 1017, R v Jeraj [1994] Crim L R 595 and R v Warneford [1994]
Crim L R 753;
(2)
The two charges would be amended by replacing the word ‘forged’ with
the word ‘false’ wherever ‘forged’ appeared on the charge sheet: R v Chan
Chak-fan CA328/93 followed.
[See also Criminal Appeals/Against Sentence: Ed]
103
CCAB 2001
Homicide
Homicide
CA 331/2000
Stuart-Moore
ACJHC
Wong
& Stock JJA
(10.4.2001)
*DG Saw SC
& Jackson
Poon
#F Whitehouse
CHEUNG
Ki-wing
Murder/Single series of acts resulting in death/Each act not requiring of
separate direction/Only issue one of intent at time of unlawful acts
謀殺 - 引致死亡的單一連串作為 - 每項作為無須獨立指引 - 唯一爭
論點是作出非法作為時的意圖
After trial, the Applicant was convicted of murder and robbery. The
judge left a lesser charge of theft open to the jury as an alternative to robbery on
the basis that they should convict of theft if the Applicant had only formed an
intention to steal after he had rendered the victim unconscious. The Applicant
sought leave to appeal against conviction on the murder count alone.
The prosecution alleged that the Applicant deliberately killed the victim,
a stranger whom he had escorted to his home in a drunken state, in order to steal
her jewellery and other belongings. He told police that he strangled her while
straddling her body as she lay face upwards on the floor until she lost
consciousness. He ‘clasped’ her neck while using his right hand to stop her
shouting for help. The Applicant next put some adhesive tape tightly round her
nose and mouth, allegedly to make sure that she died because he had seen she
was still alive after his first attempt to strangle her. When he saw the victim was
still alive, the Applicant repeated his attempt to strangle the victim, this time
using both hands to ‘clasp’ her neck as he straddled her body. He then dumped
her body in a cardboard box inside a refuse room two floors below his flat and
covered it with rubbish. After the second strangulation, the victim showed no
sign of movement. However, as he carried the victim’s body down the stairs he
noticed she was ‘quivering’.
The body was discovered later that same day. The victim’s jewellery,
cash, handbag and ‘discman’ had all been taken. In due course, a fingerprint
which was identified as that of the Applicant was found on the outside of the
carton used to contain the victim’s body.
The post-mortem established that the victim had died of suffocation.
Under the victim’s left fingernails were found samples containing sufficient
DNA to establish a match with the Applicant’s blood. The Applicant had been
scratched by the victim in several places in her struggle for life. The victim
herself had 25 injuries.
The defence case was that although the Applicant had caused the victim’s
death, he had simply overreacted when he tried to prevent her leaving his flat.
The victim had become unconscious when he ‘grasped’ her neck and, in order to
prevent her shouting out again when she awoke, he had wound tape around her
mouth, not realising, contrary to his earlier admissions to police, that it had also
covered her nose. He also said that he had not tried to strangle the victim a
second time. The reason he had told police that he had tried to strangle the
victim twice was because of confusion which had led to a mistake on his part.
He then carried her body down the two flights of stairs where he left the body in
a carton, having first stolen her jewellery and belongings. He denied that the
motive for his violence towards the victim was in order to rob her. He said that
he had not formed any intention to steal until after the victim lost consciousness.
He said he placed the victim’s body in the carton hoping that when she
recovered consciousness, she would be able to free herself.
Against the background that the central issue at trial was the Applicant’s
intent at the time of his actions which led to the victim’s death, it was primarily
submitted by the Applicant that the judge was wrong to have treated the
strangulation, followed by the suffocation, and possible further strangulation, as
a ‘series of acts’ culminating in the death of the victim. It was said that the
judge should have directed the jury specifically to consider the Applicant’s
intention at the time when he had wrapped the tape around the victim’s head
104
CCAB 2001
Homicide
instead of treating the strangulations and suffocation as an ongoing series of acts
with no break in the chain of causation. It was contended that the judge at least
should have left the matter on the basis that ‘the eventual killing by suffocation
was not or may not have been part of a preconceived plan to kill the victim’. If
that was the jury’s finding then, in such circumstances, the Applicant’s intention
at the time of the strangulation should have been disregarded and ‘they should
have been told that it was only his intention at the time the tape was applied
which was relevant’.
Held :
(1)
The Applicant had plainly committed a single series of acts which
resulted in death. The only issue was whether the Applicant was guilty of
murder or, alternatively, manslaughter by reason of his lack of intent at the time
of his unlawful acts upon the victim;
(2)
The legal position which had arisen was dealt with by Lord Lane CJ in R
v John Le Brun (1992) 94 Cr App R 101, 104:
It seems to us that where the lawful application of force and the
eventual act causing death are part of the same sequence of
events, the same transaction, the fact that there is an appreciable
interval of time between the two does not serve to exonerate the
defendant from liability. That is certainly so where the
appellant’s subsequent actions which caused death, after the
initial unlawful blow, are designed to conceal his commission of
the original unlawful assault.
(3)
There was no ‘appreciable interval’ between any of the Applicant’s
hostile acts towards the victim. The jury had to decide what the Applicant’s
intention was at the time he did those acts which ultimately brought about the
victim’s death. The position of the Applicant could be likened to that of a
defendant accused of murder, having inflicted three stab wounds, where only the
second proved fatal – that was, for all practical purposes, the same as in this case
where the Applicant had first strangled the victim, then sealed her air-supply
before finally strangling her again.
Result
CA 309/99
Stuart-Moore
VP
Keith &
Stock JJA
(6.4.2001)
*M
Blanchflower
G Shiu &
Diana Lam
#D Keane SC
&
William Wong
(1) PUN
Ganga
Chandra
(2) GURUNG
Santosh
(3) GURUNG
Rajendra
Bikram
- Application dismissed.
Murder/Grievous harm rule not inconsistent with basic rights/Secondary
offender rule not arbitrary/Mandatory sentence of life imprisonment not
arbitrary detention/Weight to be given to view of legislature on policy
issues
謀殺 - 有關嚴重傷害的規則並不抵觸基本權利 - 有關從犯的規則並
不是無理據的 - 判處強制性終身監禁並不是無理拘禁 - 立法機關對
政策事項的意見應予重視
The Appellants were convicted of murder after trial. They were each
sentenced to life imprisonment.
In his summing-up to the jury, the judge gave the jury the conventional
directions on the mens rea required before a person could be convicted of
murder. Those directions were said on appeal to be inconsistent with the Basic
Law and the Bill of Rights. The issue was also raised as to the compatibility of
the mandatory sentence of life imprisonment for murder with the Basic Law and
the Bill of Rights; such a sentence, which had to be imposed regardless of
differences in the degree of culpability and mitigating circumstances, was also
said to be inconsistent with the Basic Law and the Bill of Rights.
At trial the prosecution accepted that not all the Appellants had stabbed
the deceased. Only one of them could have inflicted the fatal wound to the back
105
CCAB 2001
Homicide
of the deceased’s neck. The prosecution case was that A1 and A3 had knives,
and that one or other of them had inflicted the wound from which the deceased
had died. One or other of them was therefore the primary offender. But if the
jury was not sure which of them had inflicted the fatal wound, the prosecution
case was that A1 and A3, as well as A2, should be convicted on the basis that
they were all parties to the fatal stabbing of the deceased. Those of the
Appellants who the jury were not sure had inflicted the fatal wound were
secondary parties.
Article 28 of the Basic Law read:
No Hong Kong resident shall be subjected to arbitrary or unlawful
arrest, detention or imprisonment.
Article 5(1) of the Bill of Rights Ordinance provided:
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.
Three matters had to be established before the secondary offender could
be liable for a murder committed by the primary offender:
(1)
The primary offender must himself have been guilty of
murder. He must therefore have intended either to kill the
deceased or to cause him really serious bodily harm;
(2)
Actual foresight on the part of the secondary offender was
required. It was not enough for the prosecution to prove that
the secondary offender ought to have realised what the
primary offender might do. The prosecution had to prove
that the secondary offender actually realised what the primary
offender might do, and continued to participate in the joint
enterprise with that foresight;
(3)
What the primary offender might do had to have been
foreseen by the secondary offender as a real possibility.
Thus, the secondary offender had to have realised that there
was a real risk that the primary offender might attack the
deceased with the intention of either killing him or causing
him really serious bodily harm.
It was the prosecution’s case that the three Appellants had been parties to
a joint enterprise to attack the deceased. In the course of carrying out that
enterprise, one of the Appellants had inflicted the fatal wound from which the
deceased had died. If, in carrying out the attack, the Appellant who had inflicted
the fatal stab wound had intended either to kill the deceased or to cause him
really serious bodily injury, that Appellant would be guilty of murder as the
primary offender. But the other Appellants would also be liable for his murder
as secondary offenders if they had realised that there was a real risk that one of
them, in the course of carrying out the attack to which the joint enterprise
related, might attack the deceased with the intention of either killing him or
causing him really serious bodily injury, and had continued to participate in the
joint venture with that realisation.
The Appellants contended that the common law related to the liability of
secondary offenders for murder was inconsistent with the rights protected by
Article 5(1) of the Bill of Rights and Article 28 of the Basic Law. It was said
that the ‘secondary offender’ rule was arbitrary as was mandatory punishment
for life for a secondary offender whatever the degree of his criminal culpability.
106
CCAB 2001
Homicide
Held :
(1)
As was held in HKSAR v Coady (No. 1) [2000] 2 HKLRD 195, the
‘grievous harm’ rule — whereby an accused could be convicted of murder if the
jury was sure that he at least intended to cause the deceased really serious bodily
injury — was not inconsistent with Article 5 of the Bill of Rights or with any
other provisions of the Basic Law or the International Covenant on Civil and
Political Rights;
(2)
The ‘secondary offender’ rule contained elements of the ‘grievous harm’
rule: the foresight required of the secondary offender was foresight that the
primary offender might have attacked the deceased with the intention of either
killing him or causing him really serious bodily injury. In light of Coady, the
trial judge was right to have rejected the submission that the ‘secondary
offender’ rule was arbitrary because it reproduced the arbitrariness of the
‘grievous harm’ rule;
(3)
The ‘secondary offender’ rule could not be said to be arbitrary —
whether the term ‘arbitrary’ meant something which could not be objectively
justified or whether it had some other meaning. As said in Coady, it was not
necessary for the court to declare where it stood on the debate as to the supposed
arbitrariness of the ‘grievous harm’ rule. It sufficed to state that the ‘secondary
offender’ rule represented a respectable view as to what the law of murder
should embrace, even though views might differ on the topic, and even if it
resulted in a different mens rea being required for primary and secondary
offenders: R v Powell [1999] 1 AC 1 considered. The ‘secondary offender’ rule
did not infringe Article 5(1) of the Bill of Rights or Article 28 of the Basic Law;
(4)
As regards the submission that the mandatory sentence of life
imprisonment infringed the rights protected by Article 5(1) of the Bill of Rights
and Article 28 of the Basic Law, on the basis that the detention and
imprisonment which it mandated for all persons convicted of murder was
arbitrary, it was the legislature which had decided that life sentences for murder
should be mandatory after a full debate on the topic. The decision to abolish the
death penalty but to make imprisonment for life the mandatory sentence for
murder thus represented the legislature’s view as to where the balance should be
struck between the rights of the individual and the need to protect society as a
whole: AG v Lee Kwong-kut [1993] 2 HKCLR 186. The view that the courts
should give due weight to the views of the legislature on issues of policy when
considering international human rights instruments had recently been established
in European jurisprudence: R v DPP exp Kebilene [2000] 2 AC 326. Due
weight should be given to the concluded view of the majority of the members of
the Legislative Council that life imprisonment should be the mandatory sentence
for murder;
(5)
The mandatory sentence of life imprisonment for murder served a
different purpose from a discretionary sentence of life imprisonment, in which
life imprisonment was the maximum, rather than the only, sentence for a
particular offence. In Wynne v United Kingdom [1994] 19 EHRR 333, the
European Court of Human Rights described a discretionary sentence of life
imprisonment as having a ‘protective’ purpose, which was intended to take into
account ‘the presence of factors which are susceptible to change with the
passage of time, namely mental instability and dangerousness’. The mandatory
sentence, on the other hand, was described in Wynne as ‘essentially punitive in
nature’, and was imposed because of the inherent gravity of the offence;
(6)
There were some crimes for which it was open to the legislature to
conclude that sentences with a predominantly punitive element were appropriate.
In R v Luxton [1990] 58 CCC (3d) 449, the Supreme Court of Canada decided
that the provisions of the Criminal Code which provided for the mandatory
imposition of life imprisonment without eligibility for parole for 25 years for a
person convicted of first-degree murder did not conflict with the rights
107
CCAB 2001
Homicide
guaranteed by the Charter of Rights and Freedoms. Although the Supreme
Court accepted that there were some crimes for which a punitive sentence might
be appropriate, Lamer CJC acknowledged ‘that a sentencing scheme must
exhibit a proportionality to the seriousness of the offence, or to put it on other
way, there must be a gradation of punishments according to the malignity of the
offences’. However, he also acknowledged that ‘a sentencing scheme also must
take into account other factors that are of significance for the societal interest
in punishing wrongdoers’;
(7)
Lamer CJC in Luxton also addressed the argument that the mandatory
sentence of life imprisonment for first-degree murder constituted arbitrary
detention or imprisonment, as the offence encompassed ‘a range of moral
turpitude’ — such being the Appellants’ argument in the present case — and he
concluded that the mandatory term of imprisonment for life without eligibility
for parole for 25 years did not amount to arbitrary detention or imprisonment
because the ‘incarceration is statutorily authorised, it narrowly defines a class
of offenders with respect to whom the punishment will be invoked and it
prescribes quite specifically the conditions under which an offender may be
found guilty of first-degree murder’. If a mandatory sentence of life
imprisonment satisfied those criteria, it could not be said to amount to arbitrary
detention or imprisonment;
(8)
The law of murder in Hong Kong did not distinguish between firstdegree murder, second-degree murder and so forth. What it did was to
distinguish between certain forms of homicide, categorising some as murder and
others as manslaughter. Mandatory sentences of life imprisonment had been
authorised by statute, and the class of offenders who came within the category of
murder was sufficiently clear and narrowly defined to satisfy the criteria referred
to in Luxton. That applied to both primary and secondary offenders. The
‘grievous harm’ rule caught only those primary offenders who intended to cause
their victims really serious bodily injury at the very least, and there was much to
be said for the view that the outcome of intentionally inflicting really serious
bodily harm could be so unpredictable that anyone prepared to act in so
shocking a manner had little ground for complaining if, where death resulted, he
forfeited his liberty for the rest of his life;
(9)
The ‘secondary offender’ rule caught only those secondary offenders
who participated in a joint enterprise to cause really serious bodily harm to the
deceased, or, in the case of a joint enterprise in which the death of the deceased
or really serious injury to him was not its aim, the ‘secondary offender’ rule
caught only those secondary offenders who participated in the joint enterprise
realising that there was a real risk that the primary offender would attack the
deceased with the intention of either killing him or causing him really serious
bodily injury. That brought within a very clear and narrow band those
secondary offenders who could be convicted of murder. It was just that a
secondary offender who realised that there was a real chance that the primary
offender might kill with the intention sufficient for murder, but nevertheless
assisted or encouraged the primary offender in the criminal enterprise with that
foresight, should forfeit his liberty for the rest of his life;
(10) It had also to be borne in mind that, with the placing of the Board of
Review on a statutory posting, the Legislative Council had ensured that there
was machinery in place for an independent review of the actual length of an
offender’s detention. As Lamer CJC said in Luxton, ‘this indicates that even in
the case of our most serious offenders, [the legislature] has provided for some
sensitivity to the individual circumstances of each case when it comes to
sentencing’. The mandatory sentence of life imprisonment for murder did not
amount to arbitrary detention or imprisonment contrary to Article 5(1) of the
Bill of Rights and Article 28 of the Basic Law;
(11) Although the mandatory sentence of life imprisonment for murder was
also said to infringe the right of equality before the law protected by Article 25
108
CCAB 2001
Homicide
of the Basic Law, since all residents of Hong Kong had to be sentenced to life
imprisonment if they were convicted of murder, no question of the mandatory
sentence of life imprisonment for murder infringing that Article arose.
Result - Appeal to be re-listed for further argument on other issues.
CA 401/99
Stuart-Moore
ACJHC
Stock JA &
Burrell J
(15.6.2001)
*Darryl Saw
SC &
Wayne
Moultrie
# Neville
Sarony SC &
Nigel Bedford
TSUI Chu-tin,
John
Murder/Diminished
responsibility/Terms
of
Requirements of a summing-up
謀殺 - 減責神志失常 - 指引的用語 - 對總結的要求
directions/
The Applicant was convicted after trial of an offence of murder.
On appeal, it was submitted, inter alia, that the directions to the jury as to
how to approach their deliberations on the focal issue of ‘diminished
responsibility’ were fatally flawed.
The issue for consideration was one of whether the summing-up
accurately crystallised, and with sufficient clarity, the key issue which the jury
had to decide, and whether the jury was given adequate assistance in the difficult
task which it faced. The issue was not whether, at the material time, the
Applicant suffered from an abnormality of mind. The essential question for the
jury’s consideration was whether that abnormality operated substantially to
impair his mental responsibility for his act. It required a direction to the jury
which precisely and accurately specified the relevant law and which summarised
accurately and clearly how the evidence in the case might bring the Applicant
within the defence and how, on the other hand, the Applicant’s act might,
notwithstanding his acknowledged illness, fall outside the defence.
Held :
(1)
It was not desirable to talk to a jury in terms of first finding a defendant
guilty of murder before going on to consider the issue of diminished
responsibility. There was no question of any finding of guilt of murder unless
the defence first failed to prove diminished responsibility on a balance of
probabilities. Although the direction given in this case was not fatal, as it was
cured by later directions, judges should stick to the established formula:
Providing that the prosecution has proved all the elements of the
offence of murder, you must convict the defendant of that offence,
unless you find that at the time of the offence he was suffering
from an abnormality of the mind which in law substantially
impaired his mental responsibility for the killing. If he was, his
responsibility is diminished and that will reduce the offence from
one of murder to one of manslaughter … If his defence fails to
prove any one or more [of the elements of diminished
responsibility], providing that the prosecution has proved the
ingredients of murder to which I have referred, your verdict must
be guilty of murder. If, on the other hand, the defence has
satisfied you that it is more likely than not that all three elements
of the defence’s diminished responsibility were present when the
defendant killed your verdict must be not guilty of murder but
guilty of manslaughter.
(2)
The directions given by the judge carried too much room for the jury to
understand as a theme that if the attack was triggered or motivated by jealousy
and anger, accompanied by an intention to kill or cause serious harm, then that
was somehow to be divorced from the mental illness, and that the defence of
diminished responsibility did not apply. It was impairment that was the key
factor, and the concentration on a complete loss of control caused by the disease
alone detracted from the concept that the jury should have had at the forefront of
its mind, a concept illustrated in the rationale for the defence:
109
CCAB 2001
Homicide
A man whose impulse is irresistible bears no moral
responsibility for his act, for he has no choice; a man whose
impulse is much more difficult to resist than that of an ordinary
man bears a diminished degree of moral responsibility for his
act (Smith & Hogan, ‘Criminal Law’, 7th ed., p.p. 213-214.)
(3)
The defence of diminished responsibility was said in R v Byrne [1960] 2
QB 390, 403-405, to be:
… wide enough to cover the mind’s activities in all its aspects,
not only the perception of physical acts and matters, and the
ability to form a rational judgment as to whether an act is right
or wrong, but also the ability to exercise will power to control
physical acts in accordance with that rational judgment. The
expression ‘mental responsibility for his acts’ points to a
consideration of the extent to which the accused’s mind is
answerable for his physical acts which must include a
consideration of the extent of his ability to exercise will power
to control his physical acts …
Inability to exercise will power to control physical acts,
provided that it is due to abnormality of mind from one of the
causes specified in the parenthesis in the subsection is, in our
view, sufficient to entitle the accused to the benefit of the
section; difficulty in controlling his physical acts depending on
the degree of difficulty, may be. It is for the jury to decide on
the whole of the evidence whether such inability or difficulty
has, not as a matter of scientific certainty but on the balance of
probabilities, been established, and in the case of difficulty
whether the difficulty is so great as to amount in their view to a
substantial impairment of the accused’s mental responsibility
for his acts.
There was no such qualification to be found in this summing-up. In other words,
no suggestion that real difficulty in control occasioned, or significantly
contributed to, by the illness, might suffice. Not every case would call for the
introduction of the question of difficulty in exercising control. This case did.
This was not necessarily a black and white issue, yet it was painted as such: on
the one side was total loss of control, and caused only by the illness, and on the
other, was rage, anger and jealousy, and there was no reference in this summing
up to the role which abnormality of mind might play in promoting or
aggravating anger and rage, or to the role it might play in conjunction with
anger, rage and jealousy;
(4) What was required was a summing-up which accurately and clearly
defined the issues of law, with reference then to the salient evidence, and the
summing-up had not sufficiently met that requirement. There was a real
misgiving that the jury might have approached its task with an inaccurate or
unclear understanding of the issue which it had to determine. The verdict was
not safe and satisfactory.
110
CCAB 2001
CA 78/99
Stuart-Moore
& Mayo VPP
Stock JA
(20.7.2001)
*A A Bruce
SC
& Simon Tam
#C Coghlan
(1)
R Donald (2)
M Moosdeen
(3)
D Percy (4)
J Haynes (5)
F Whitehouse
(6)
Homicide
(1) HUI
Chi-wai
(2) MAK
Ka-ho
(3) NG
Mingchun
(4) CHAN
Tak-ming
(5) WONG
Kum-po
(6) FUN
Hin-chun
Murder/Withdrawal from joint enterprise/Directions to jury on defence
case/Judge entitled to comment on assertions in defence speeches/Exclusion
of defence evidence which did not assist jury/Status of mere allegation by
defence that prosecution could not rebut
謀殺 - 退出共同犯罪 - 就辯方論據向陪審團作出的指引 - 法官有權
評論辯方陳詞中所作聲稱 - 摒除對陪審團沒有幫助的辯方證據 - 辯
方僅作指稱而控方不能反駁時該指稱的效力
All the Applicants were convicted after trial of murder. The particulars
of offence were that ‘on or about 14 May 1997, at room 1508, Block 39, Sau
Mau Ping Estate, together with a man named Shek Tsz-kin, they murdered a
youth called Luk Chi-wai.’
The Applicants were all teenagers at the date of the killing of the victim,
nicknamed ‘Ah Kai’. A1 was aged 17 years; A2 was aged 17 years; A3 was
aged 17 years; A4 was aged 16 years; A5 was aged 14 years; A6 was aged 17
years.
The prosecution case was that over a period of about 2½ hours, all the
Applicants took part in a prolonged and almost incessant attack upon Ah Kai, aged
16 years, in room 1508 of Sau Mau Ping Estate; that in the course of that attack Ah
Kai was subjected to a constant barrage of kicks, punches, and blows with poles,
wooden sticks, folding stools and, finally, water pipes and a plastic stick; and that
in due course and in the presence of these Applicants, or most of them, he died. It
was further alleged that there then followed a course of action by which they
attempted to erase traces of their crime, that they set the body alight, put what was
left in bags, and disposed of what remained in a rubbish container. The body was
never discovered. All that was left, which was discovered, were bone fragments.
The prosecution case was not that the Applicants intended to kill Ah Kai, but that
they intended to cause him grievous bodily harm, and did so, and that in
consequence he died. Its case was that of a joint enterprise of such a nature that it
mattered not who struck particular blows or with what implement, since all
Applicants, it was contended, were present, assisting by their presence and by their
conduct in the escapade of terrible violence which they visited upon a solitary
youth who offered no resistance, and who ultimately perished in their presence.
It was conceded that the summing-up of the judge included an accurate
precis of the evidence of Shek and of the other eye witnesses who gave evidence
for the prosecution, and that that evidence largely accorded also with a summary
of facts which was used in the trial of Shek. Shek had pleaded guilty to
manslaughter, a plea accepted by the prosecution.
On appeal
Held :
(1)
As there was uncontradicted evidence that A2 left the premises at 10:30
pm, the judge should have, but did not sufficiently, made it clear that there was
evidence that there was a complete break in the enterprise, so that the true
question was whether a second phase was ever contemplated at all and, if so,
whether A2 was a party to that second or separate assault and whether the
injuries inflicted before that break were such as to lead inevitably to the
conclusion that they caused or contributed significantly to the death of Ah Kai:
R v Becerra, R v Cooper (1976) 62 Cr App R 212 distinguished. There was
clear evidence that at about 10:30 pm the assault had ceased; and that the
departure of those who did depart was not an escape from an ongoing escapade,
but rather a departure from premises in which an escapade had taken place, but
which then appeared to be over. The conviction of A2 for murder was not safe.
(2)
The duty of a judge was to fairly outline the defence to the jury. He must
place before them what was the substance of the defence. As Goddard LCJ
observed in R v Clayton-Wright (1948) 33 Cr App R 24, 29:
111
CCAB 2001
Homicide
That does not mean to say he is to paint in the details or to
comment on every argument which has been used or to remind
them of the whole of the evidence which has been given.
What was necessary would depend on the case, whether the defendant had given
evidence and what the issues were. The test was whether the judge had fairly
reviewed the essential features of the evidence for the defendant: R v
Richardson (1994) 98 Cr App R 174. The trial judge had fairly put to the jury
the essential features of the defence of A3;
(3)
Judges were entitled in the course of a summing-up to make comments
about assertions made in speeches and, where the circumstances so warranted, to
make strong comment, the jury having been told, as they were in this case, that
they could take or leave such comment as they saw fit; although the formula
whereby a jury was told to ignore judicial comment, if they disagreed with it,
was not a formula that would save every comment. The judge who had sat
through a trial and heard speeches and the tone in which they were delivered,
was well placed to assess what could be left alone and what, on the other hand,
carried a danger of a fundamental misconception such that it should be the
subject of comment. It was well within the experience of those who conducted,
or appeared in, jury trials that comments about a point arising in counsel’s
speeches were regularly made without first giving counsel the chance to make
submissions about the proposed comment. There were some matters which a
judge would be wise to discuss with counsel before the summing-up, and it was
also open to a judge to invite counsel to correct himself, rather than be
corrected. But where a judge was confident, as clearly this judge was, about the
text or nature of a submission made by counsel in a speech, the judge might
make his comment, and it was always open to counsel, as happened in this case,
to invite the judge to qualify or correct himself;
(4)
The judge was correct to refuse A5 permission to call expert evidence
from Dr Ho, a psychologist, who would have given evidence to the effect that
A5 had been desensitised to violence depicted in comic books and films; he
could also have testified that A5 suffered from no psychological disturbance and
lacked ‘motivation for foresight’, and was a follower and not a leader. That
evidence was not relevant to the issue which the jury had to decide in relation to
A5, which was whether he was party to an attack intended to cause grievous
bodily harm, and whether he himself intended to cause grievous bodily harm. If
it was a fact, as Dr Ho suggested, that the comic book culture in which A5 found
himself was a culture which had a disregard for human life, that might be an
explanation for violence by youngsters. The point at issue, accepting that he
was a follower, and accepting that his group was a group of bullies acting out
their bullying culture by which they were surrounded, was whether A5 took part
in the attack which caused Ah Kai’s death and, if he did, whether he intended
that really serious harm be caused. There would be no question of a defence by
duress. There was no suggestion that he did not know that the pipes would
cause very serious harm. Nothing the psychologist said that was relevant to the
case of A5 was not said or could not be said by the Applicant. Nothing required
expert evidence to assist the jury in relation to issues before them that they were
not fully capable of assessing themselves;
(5)
The judge told the jury that in the absence of evidence from A6, a mere
allegation, which the prosecution was in no practical position to rebut, remained
just that, a mere allegation; and that given that the prosecution was in no
practical position to rebut it, and that the reason for not calling evidence had
been explained to him, the failure to call evidence did not raise suspicion in his
mind, and neither did the making of a mere allegation. What raised suspicion
was the failure to call evidence in the face of an allegation where it was possible
to call that evidence. If it was not possible, it was not to be thought that an
allegation of itself, no matter how vague, or unidentifiable the targets, could take
the place of evidence.
112
CCAB 2001
Homicide
Result -
Applications for leave to appeal of A1, A3, A4, A5 and A6
dismissed. Application of A2 allowed, and a conviction of inflicting
serious bodily harm substituted for conviction of murder.
Identification
CA 207/2000
Stuart-Moore
VP
Woo &
Stock JJA
LAM
Wai-leung
Identification evidence/Turbull direction not always necessary/
Identification at parade but not at court/Lapse of time
認人證據 - 並非一定需要 T urnb ull 指引 - 在認人手續中認人而非在
法庭認人 - 時間的消逝
(10.4.2001)
The Applicant was D4 in a trial in the District Court. He and four others
faced a charge of blackmail, contrary to s 23 (1) and (3) of the Theft Ordinance,
Cap 210; only D2 was further charged with another offence of claiming to be a
member of a triad society.
*M
Blanchflower &
Winsome
Chan
After trial, all defendants were convicted of the blackmail charge and D2
was also convicted of the triad charge.
#Alan Hoo SC
& Hectar Pun
On appeal, it was submitted, inter alia, that the judge (a) failed to show
that he was mindful of the principles in R v Turnbull and (b) failed to warn
himself that though the identifying witness (PW4) was reminded that he has
identified D4 in the identification parade, that witness failed to identify D4 in
court.
Held :
(1)
It was not necessary to recite as a ritual the Turnbull principle as to the
particular care to be given to identification evidence every time a court
considered the issue. The court must direct its mind to the circumstances
surrounding the defendant’s identification. Where a defendant’s presence at the
scene of crime was admitted, but his participation in the crime was disputed, a
Turnbull direction was not always necessary. In R v Slater [1995] 1 Cr App R
584, Rose LJ said:
Where, however, there is no issue as to the defendant’s presence
at or near the scene of the offence, but the issue is as to what he
was doing, it does not automatically follow ... that an Turnbull
direction must be given. Whether such a direction is necessary
will depend on the circumstances of the particular case.
In the present case, since there were admitted facts that D4 was identified by
PW1 as amongst the gang who had earlier demanded extortion money from her
and that he was also identified by PW4 as one of the persons involved in
extorting money during the incident, and the only issue was whether D4 was a
party to the blackmail or an innocent bystander, it was not necessary to give a
Turnbull direction;
(2)
In R v Christie [1914] AC 545 and R v Osborne [1973] 1 QB 678, it was
held that the identification by a witness out of court was admissible. In
Osborne, the defendants were charged with taking part in a robbery. As the trial
took place seven and a half months after the event, one female witness said that
she could not remember having picked out anyone at an identification parade
and the other woman witness first said that she thought one of the defendants to
be a man she had picked out at a parade, and then said that she did not think that
that man was in court. The police inspector in charge of and present at the
113
CCAB 2001
Identification
parades was called and asked whom the two women had picked out at the
parade. Lawton LJ, in Osborne at 690, said:
We do not agree that Chief Inspector Stevenson’s evidence
contradicted their (the women witnesses’) evidence. All that Mrs
Brookes had said was that she did not remember, and, as I have
already indicated, that is very understandable after a delay of
seven and a half months. She had, however, done something.
Within four days of the robbery she had attended an identification
parade. She had been told in the presence and hearing of the
defendant Osborne, as is the usual practice, what she was to do,
namely, point out anybody whom she had seen at the time of the
raid. She did point somebody out and it was the defendant
Osborne. One asks oneself as a matter of commonsense why,
when a witness has forgotten what she did, evidence should not
be given by another witness with a better memory to establish
what, in fact, she did when the events were fresh in her mind.
Much the same situation arises with regard to Mrs Head. She
said in the witness box that she had picked somebody out. She
did not think that the man she had picked out was in court, but
that again is understandable because appearances can change
after seven and a half months, and if the experience of this court
is anything to go by, accused persons often look much smarter in
the dock than they do when they are first arrested. This court can
see no reason at all in principle why evidence of that kind should
not be admitted.
It was submitted that the admission of that evidence was contrary
to decision of the House of Lords in Rex v Christie [1914] AC
545. That case has long been regarded as a difficult one to
understand because the speeches of their Lordships were not
directed to the same points, but his can be got from the speeches:
that evidence of identification other than identification in the
witness box is admissible. All that the prosecution were seeking
to do was to establish the fact of identification at the
identification parades held on November 20. This court can see
no reason why that evidence should not have been admitted.
(3)
Similar to Osborne, the trial in this case took place in May 2000, over 8
months after the blackmail had taken place. It was entirely reasonable and
acceptable that PW1 and PW4 were able to identify D4 at times not long after
the event but were unable to identify D4 in court, especially where D4 did not
seem to possess any easily appreciable or describable features. This had to be
compared with the easily recognisable features of the other defendants, such as a
crew cut dyed-silver hairstyle and a harelip.
114
CCAB 2001
CA 333/2000
Stuart-Moore
& Mayo VPP
Stock JA
(1.6.2001)
*Simon Tam
#Keith
Oderberg
& Simon Ng
(1)
David Khosa
(2)
Identification
(1) LI
Kam-chiu
(2) KWOK
Siu-ho
Identification evidence/Rejection of alibi evidence lending support to
identification/Accused party to fabricated alibis
認人證據 - 不在犯罪現場的證據被拒接納使認人證據獲得支持 - 被
告參與造不在犯罪現場的證據
The Applicants were convicted after trial of two offences of wounding with
intent, contrary to s 17(a) of the Offences Against the Person Ordinance, Cap 212.
The second Applicant pleaded guilty to a charge of resisting a police officer in the
execution of his duty.
On appeal, it was submitted, inter alia, that the judge erred in finding
support for the identification evidence from the fact that each Applicant called
alibi witnesses who the judge held had been lying and fabricating the alibi
evidence and assuming that they had connived in this. A1 submitted that there
was no authority which extended the doctrine of lies propounded in HKSAR v
Mo Shiu-shing [1999] 2 HKLRD 155, to apply to a person other than the
defendant so that it could be used to support an identification by a witness. A2
contended that the judge erred in applying the principles laid down in Mo Shiushing as there was no positive or independent evidence that the alibi witnesses
had deliberately lied. That error had been compounded, so it was said, by the
judge’s observation that A2 had an obvious motive to fabricate the evidence and
that he had not given evidence at his trial, all of which supported the correctness
and reliability of the identification.
Held :
(1)
Rejection of alibi evidence could lend support to identification evidence.
Support for this proposition could be found from the judgment of Widgery LCJ
on p. 230 of Turnbull:
Care should be taken by the judge when directing the jury
about the support for an identification which may be
derived from the fact that they have rejected an alibi. False
alibis may be put forward for many reasons: an accused,
for example, who has only his own truthful evidence to rely
on may stupidly fabricate an alibi and get lying witnesses
to support it out of fear that his own evidence will not be
enough. Further, alibi witnesses can make genuine
mistakes about dates and occasions like any other
witnesses can. It is only when the jury is satisfied that the
sole reason for the fabrication was to deceive them and
there is no other explanation for its being put forward can
fabrication provide any support for identification evidence.
The jury should be reminded that proving the accused has
told lies about where he was at the material time does not
by itself prove that he was where the identifying witness
says he was.
While Widgery LCJ was commenting upon directions which should be given to
a jury it must be the case that where a judge was sitting as a judge and jury these
considerations would have been self evident to the judge. Implicit also in that
passage was that the rejection of the alibi evidence referred to by Widgery LCJ
did not have to be established by positive or independent evidence. It was
sufficient that the jury rejected the testimony. That was also consistent with the
principles enunciated in Mo Shiu-shing;
(2)
It was manifest from the judge’s reasons for verdict that she did for
obvious reasons reject entirely the evidence of both alibi witnesses. It was also
clear that if the reasons for verdict were considered in context that the judge was
satisfied that the Applicants must have been parties to the fabrications as it was
inconceivable that these witnesses would have come forward and given this
evidence unless requested to do so by the Applicants. This might also have been
115
CCAB 2001
Identification
a relevant consideration as to why the Applicants had not gone into the witness
box;
(3)
It was not clear from the judge’s observations that she was saying that the
Applicants’ election not to give evidence was of itself in any way evidence of
these Applicants’ guilt.
Result - Applications dismissed.
MA
1039/2000
Barnes DJ
(31.5.2001)
*Anthea Pang
#Philip Wong
LO Ho-chung
Identity parade/Suspect a police officer/Identity parade composed of police
officers and not actors/UK and HK Codes/ No statutory rules regulating
parades in HK/Effect of non-compliance with rules
認人手續 - 疑犯是警務人員 - 在認人手續中由警務人員而非“戲
子”列隊接受辨認 - 英國的守則及香港的守則 - 沒有法定規則規管
香港的認人手續 - 不遵從規則的後果
The Appellant was convicted after trial of an offence of indecent assault,
contrary to s 122(1) of the Crimes Ordinance, Cap 200.
The prosecution case was that the Appellant, a police officer, went with a
colleague, while on duty, to a one-woman brothel in Tai Po, and checked the
identity card of the prostitute. In the absence of his colleague, it was alleged
that he indecently assaulted the prostitute. After the incident, the prostitute
complained of indecent assault to her flatmate and she positively identified the
Appellant at an identification parade five days later.
As the prosecution case was based on identification evidence, on appeal,
it was submitted, inter alia, that the identification parade evidence had been
wrongly admitted as there had been a flagrant disregard of paragraphs 24 to 26
of the Force Procedure Manual on Identification Procedures. Paragraphs 2426 read:
The parade is to consist of at least eight persons (in addition to
the Suspect) who should as far as possible resemble the Suspect
in age, height, general appearance and position in life. If the
Suspect has any distinguished marks or features (e.g. tattoos or
visible scars), they should be covered or obscured in some way
and the corresponding locations on the bodies of the actors
should be similarly treated. Where the Suspect wears spectacles,
a beard, moustache etc., all the actors should present similar
features. One Suspect only will be included in a parade, unless
there are two Suspects of roughly similar appearance, in which
case they may be paraded together, but with at least twelve other
persons. In no circumstance will more than two Suspects be
included in one parade.
Members of a particular group such as the disciplined services or
the military will normally be used as participants in a parade
when the Suspect is himself a member of that particular group.
Occasionally, more than one member of a group is a possible
Suspect (e.g. an allegation against an unidentified officer which
can only be narrowed down to a number of officers who were on
duty at the time and place in question). In such circumstances,
separate parades are to be held for each officer, unless there are
two of similar appearance, when they may appear on the same
parade with at least twelve other officers from another district or
unit who could not possible (sic) have been involved in the
circumstances leading the allegation. Where members of the
military or disciplined services in uniform form a parade,
numerals or other identifying badges/features of the uniform will
be removed or concealed.
116
CCAB 2001
Identification
When the Suspect is brought to the place where the parade is to
be held, he is to be asked by the OC Parade whether he has any
objections to the arrangements for the parade or to any of the
other participant in it. Any objections will be recorded on the
Pol 279 and, where applicable, steps taken to remove the
grounds of objection. The Suspect will be allowed to select his
own position in the line and that position will be recorded clearly
in writing on the Pol 279 where there is more than one Witness,
the OC Parade will tell the Suspect, after each Witness has left
the room, that he can if he so wishes change his position in the
line. In this respect, each position in the line need be clearly
numbered, either by means of a numeral laid on the floor in front
of each parade member or some other means.
The Appellant submitted that since arrangements were made for all
members of the Tai Po Tactical Unit, which included the Appellant, to take part
in Identification Parades, each and every one of them was a suspect. By having
8 other suspects to be viewed together with the Appellant at the parade, there
were in fact 9 suspects altogether. There was no attempt to arrange for other
members of the police force to be actors to ensure that the Identification Parade
followed the guideline, which was a flagrant breach of the rules. The effect of
such a breach was, so it was said, that justice had not been seen to be done.
Although the magistrate had considered the issue of consent en masse and the
difference (or lack of it) among participants, since he was not alerted to this
particular breach, he might have been under the impression that that was the best
the police could have done and held that there was no unfairness in the
circumstances.
The Appellant relied on the Archbold, 2001 ed Para 14-84 when dealing
with the effect of breaches of Code D (UK Code), which, it was said, was in
essence the same as the HK Code:
Although every case has to be determined on its own facts, it is
submitted that whenever Code D is breached, the resolution of
two preliminary issues should be of considerable assistance in
determining the fundamental issue as to the fairness of the
proceedings. First, did the breach occasion the mischief which
the code was designed to prevent? If so, the identification may be
flawed. Secondly, was the breach caused by a flagrant disregard
of the code, or was the breach, or the cumulative effect of more
than one breach, capable of engendering considerable suspicion
that the identification procedure was unfair? If so, even if the
breach of a particular provision did not lead to the mischief
intended to be prevented, the evidence of identification might be
so tainted with unfairness that it should not be admitted, as in R v
Gall and R v Finley ...
Reliance was placed upon R v Gall (1990) Cr App R 64, in which the
police officer responsible for the investigation of the case against the defendant
took part in the conduct of the Identification Parade, which was in breach of the
UK Code. The Court of Appeal endorsed the view taken by the first trial judge,
Judge Black, to exclude such evidence. Judge Black expressed his view that ‘a
prisoner could well feel considerable suspicion of what might be going on if an
investigating officer comes into the parade room, has a look at the parade, has
the opportunity to talk to the witness, and then the witness is introduced into the
parade’. The Appellant submitted it was not enough that the police officer had
exonerated his conduct, it was what the prisoner felt that was important. In
other words, justice must be seen to be done.
The Appellant also relied on R v Finley [1993] Crim LR 50, where the
Court of Appeal held that the police had broken so many parts of the Code that
it was difficult to believe it was mere inefficiency rather than deliberate flouting
117
CCAB 2001
Identification
of the Code. It was submitted that the police in the present case similarly
flouted the rules. In R v Finley, the witnesses were kept in the same room before
the parade and were not warned not to discuss the case. Although they said they
had not discussed the case the Court of Appeal found that they were in a
position where they could have done so.
The Respondent submitted that the UK Code was issued pursuant to the
Police and Criminal Evidence Act whereas the HK Code was contained in the
Force Procedure Manual and was not issued pursuant to any Ordinance. There
were no statutory rules as to the conduct of identification parades in Hong Kong.
It was argued that even in the UK context, non-compliance with the Code was
not decisive. It was again only a factor, may be a cogent factor, in the decision
to admit or exclude evidence: R v Popat [1998] 2 Cr App R 208, p 213. The
mere non-compliance with the Force Procedure Manual on Parade Procedures
was not an automatic basis to exclude the evidence of the identification parade.
What was important was whether the parade was conducted fairly.
Held :
(1)
The evidence of the identification parade had not been wrongly admitted.
The status of the HK Code was certainly not on a par with the UK Code, not
having been issued pursuant to any statute. In any event, even if one were to
accord the HK Code the same status as the UK one, what the English authorities
demonstrated was that under certain circumstances the breach could be so
serious that the identification evidence should be excluded. Each case must be
decided on its own facts;
(2)
Whether a breach or non-compliance with the HK Code rendered the
evidence of an identification parade inadmissible depended on the nature of the
breach and what had actually taken place during the particular parade. In the
present case, it was clear that there was indeed a breach of the relevant HK Code
though it was not apparent why such a breach occurred. The magistrate’s
attention was certainly not drawn to that aspect of the breach. Speculation as to
what the magistrate might or might not have done if he had been made aware of
such breach at the time of the trial was best avoided. The officers’ rights were
fully explained to them and they were told that they could refuse to participate.
The Appellant chose, which was his right, to remain silent so there was no
evidence to suggest that he had participated in the parade involuntarily or that he
felt compelled to take part. There was also positive evidence from another
officer, who had taken part in the parade, that he knew he could refuse to
participate and that he had participated voluntarily. The magistrate had
carefully compared the appearances of various officers and came to the
conclusion that there was no significant difference between the Appellant and
the other participants of the parade;
(3)
The mere fact that the rules had not been complied with did not mean
that there was a flagrant breach. It was not apparent why the relevant HK Code
had not been complied with, but there were no grounds to rule that there had
been a flagrant breach. There was no unfairness or injustice to the Appellant,
whether actual or perceived.
118
CCAB 2001
MA 273/2000
Toh DJ
(11.6.2000)
*V Chan
#E Laskey
Identification
HUI
Kin-fai
Identification an issue at trial/Turnbull direction required/ Appellant
convicted on uncorroborated evidence/Appropriate for magistrate to give
corroboration warning
辨認是審訊時的爭論點 - 需要 T urnb ull 指引 - 根據無佐證證據裁定
上訴人罪名成立 - 裁判官就佐證一事提醒自己始屬恰當
The Appellant was convicted after trial of indecent assault. The facts
showed that PW1 was crossing the road when someone pinched her buttock.
When she looked to the left, she saw the Appellant who was about an arm’s
length away from her. She said that the Appellant walked past her and she
walked parallel to him on the opposite side of the road. She did not lose sight of
the Appellant. The Appellant elected to testify at the trial. His defence was that
PW1 and her colleagues had framed him.
On appeal, it was submitted, firstly, that the identification of the
Appellant by PW1 was manifestly unsatisfactory. Secondly, the magistrate had
failed to give himself the Turnbull direction on identification. Thirdly, the
magistrate had failed to direct himself appropriately on the issue of
corroboration.
The Respondent submitted that the defence was one of frame-up, and as
it was not the defence case that it was a mistaken identification, it was not
necessary for the magistrate to give himself a Turnbull warning.
In the oral reasons for verdict, the magistrate said that:
She testified that she never lost sight of this person thereafter
until he was stopped leaving the Belgian Bank. She identified the
defendant as that person. I am satisfied that it is safe to rely on
her identification of the defendant as being that person.
In the Statement of Findings, the magistrate said that the identification of
the Appellant by PW1 was in no way a fleeting glimpse:
She saw his face as he passed her by. She observed his clothing.
She never lost sight of him during the time she followed him. He
was in her sight even when he was inside the bank as he was close
to the entrance. It was safe to rely on her identification of the
appellant.
Held :
(1)
It was clear from the transcript that the magistrate did not have in mind
the Turnbull directions when he was delivering his oral reasons for verdict. But
by the time he came to write his Statement of Findings, the Turnbull directions
were indeed in his mind and that was why he mentioned in his Statement of
Findings that he did not consider the identification to be one of a fleeting
glimpse;
(2)
The magistrate did not have to recite the principles in Turnbull’s case to
demonstrate that he was aware of them. However, he needed to demonstrate
that he was aware of the special need for care concerning identification evidence
in accordance with the principles set out in R v Turnbull [1977] QB 224. This
was especially so in a case of this nature where the main issue was one of
identification;
(3)
In R v Tsang Pak-ming MA 391/1988, it was held that
The call in R v Turnbull for caution when considering
identification evidence should not (have) been mere lip service.
That cautionary tone reflects the sobering experience of many
past instances of mistaken identification. It seems to me therefore
that it is at least desirable for magistrates dealing with
119
CCAB 2001
Identification
identification cases, and where it is appropriate to do so, to
clearly indicate that they have had regard to the principles
enunciated in R v Turnbull. Failure to do so, in appropriate
cases, may well cause the appellate tribunal to doubt that the
magistrate’s decision followed a proper consideration of all
relevant factors.
(4)
In R v Domincan (1992) 60 A Crim R 169, the High Court of Australia
held that:
a general warning of the dangers of identification evidence had
to be given whatever defence was being run at trial.
(5)
In HKSAR v Nguyen Lam Cr App 496/99, it was held that where a
magistrate did not expressly say that the court was aware of the dangers outlined
in the Turnbull guidelines, it was then open to the appellate court to examine the
evidence and its strength in determining how to dispose of an appeal on the
ground of a failure to give an express warning or to demonstrate awareness of
the concerns which underlined the guideline;
(6)
The magistrate should have warned himself of the risks of mistaken
identification. While it could be said that it was not a fleeting glance situation
but an observation under difficult circumstances, nevertheless the magistrate,
apart from saying that it was not a fleeting glance situation, had failed to warn
himself further on this matter. A mere general warning was insufficient;
(7)
At the time of the trial, a corroboration warning was still necessary. The
magistrate in his oral reasons for verdict had failed to mention explicitly or
implicitly that he had warned himself of the dangers of convicting on the
uncorroborated testimony of PW1. This defect was not cured until his
Statement of Findings where he did so warn himself. It was correct that a
magistrate did not have to mention every thought process that went through his
head, and an experienced magistrate was deemed to have the necessary relevant
law in his mind. However, a corroboration warning was important in this case,
particularly when the magistrate had found no corroboration. He should have
expressed in a few words that he had it in mind at the time when he convicted
the Appellant.
CA 210/2001
Stuart-Moore
&
Mayo VPP
Woo JA
(7.12.2001)
YU
Yat-leung (a)
YU
Chi-man
Identification evidence/District Judge in different position from jury/No
need for professional judge to set out everything in detail/Turnbull
guidance not to be slavishly followed by District Judge
認人證據 - 區域法院法官與陪審團處境不同 - 專業法官無須事事詳
細列明 - 區域法院法官不應盲目依循 T urnb ull 指引
The Applicant was convicted after trial in the District Court of five
charges alleging the use of false instruments, contrary to s 73 of the Crimes
Ordinance, Cap 200.
*Gavin Shiu
#Christopher
Grounds &
David Boyton
The offences were alleged to have occurred at three separate locations.
They all involved credit cards which were admitted to have been false
instruments bearing the name of Lai Sin-man as the cardholder. Four different
cards were used, all of which were counterfeit. At trial the issue focused on the
identification of the Applicant as the guilty culprit who had used the cards in
question.
On appeal, it was submitted that the Applicant’s convictions were unsafe
and unsatisfactory because the judge had failed to consider ‘fundamental
elements ’ about the evidence concerning the identification of the Applicant as
set out in R v Turnbull (1976) 63 Cr App R 132. Although it was conceded that
120
CCAB 2001
Identification
the judge had correctly identified that an honest and convincing witness might
be mistaken, and that the judge had stated that he had in mind all the principles
arising from Turnbull, he argued, however, that if the danger of mistaken
identification was to be avoided, there should be a strict compliance by a
District Court judge with the guidance given in Turnbull as to how juries should
be directed. It was also contended that the judge had allowed himself to fall into
the trap of becoming so impressed by the witnesses’ honesty that he had allowed
himself to think they must have been reliable.
Held :
(1)
The Applicant appeared to have laboured under the misapprehension that
the guidance given by Lord Widgery CJ in Turnbull as to how a jury should be
directed ‘to examine closely the circumstances in which the identification by
each witness come to be made ’, should be slavishly followed by a District Judge
before setting out, in a direction to himself, each circumstance to be taken into
account. There was a world of difference between a lay jury, who were to be
taken as having no knowledge of the guidelines and cautionary words expressed
in Turnbull, and a professional judge who had taken into account and kept in
mind what was set out in that case;
(2)
Provided that a judge had demonstrated, as this one had, that his reasons
for arriving at a particular verdict had taken into account all of the important
factors which went to the quality of the identification evidence, there was no
need for the judge to set out a check-list or set formula to himself of each
individual piece of evidence which he had looked at;
(3)
When a jury was given directions on its approach to evidence of
identification, the situation was often quite different. The jury had usually to be
given detailed guidance by the judge on their approach to the circumstances in
which a disputed identification had been made.
Result - Application dismissed. As the application was wholly unmeritorious,
3 months loss of time would be ordered.
MA 238/2001
McMahon DJ
CHEUNG
Lai-shuen
Indecent assault/Effect of delay/Initial identification less than
certain/Comments on contents of Statement of Findings
猥褻侵犯 - 延誤的影響 - 初次認人並不完全肯定 - 就裁斷陳述書的
內容作出評論
(9.11.2001)
*Lam Wingsai
#Cheng Huan
SC & Bernard
Chung
The Appellant, an anaesthetist, was convicted after trial of two offences
of indecent assault committed respectively on 20 May 1995 and 21 May 1995.
The victim in each charge was the same, a Japanese national living in Hong
Kong. The offences were committed while the victim was recovering from
childbirth in the maternity ward of the Adventist Hospital.
The evidence which the magistrate accepted indicated that the Appellant
had acted as the victim’s anaesthetist during the course of her child’s birth by
caesarean operation on 19 May 1995. Subsequently, on the two charged dates,
he examined her in the maternity ward of the hospital and, as the magistrate
found, he indecently assaulted her by unnecessarily touching her thigh and
vagina on 20 May 1995, and by unnecessarily touching her breasts on 21 May
1995.
The victim complained to the Hong Kong authorities some five years
after the event. She then attended a confrontation with the Appellant, and,
according to the police officer, she said ‘I believe that’s him ’. In her evidence,
however, the victim claimed to have said ‘It is him ’. She was adamant that her
identification was certain and that she had used those words. The only evidence
of assault against the Appellant came from the victim’s identification of him.
Although the magistrate accepted that the victim’s words ‘I believe it is him ’ fell
121
CCAB 2001
Identification
short of certainty, she nonetheless accepted the words as positive identification
of the Appellant.
On appeal, it was submitted, inter alia, that the magistrate had failed to
properly warn herself of the consequences of the delay in bringing the case to
trial. It was further said that the magistrate erred in law in accepting the
evidence of identification.
Held :
(1)
The magistrate obviously had firmly in her mind the potential difficulties
the defence case suffered as a result of the delay. She was not a juror, but a
professional jurist sitting alone;
(2)
The magistrate appreciated that the victim’s initial identification of the
Appellant fell short of certainty. Although she attempted to resolve that failure
by taking into account the certainties expressed in the victim’s subsequent
evidence and the fact that the Appellant had in fact been the treating anaesthetist
on the 19 May 1995, those were not matters which could resolve the underlying
uncertainty in the first identification of the Appellant by the victim. The
magistrate’s reasoning was fatally flawed. A witness was either sure or he was
not: R v Yip Moon-tung and Another [1984] HKLR 44. There was no half-way
house: R v Yeung Kuen-chi and Another [1984] HKLR 447.
Result -
Appeal allowed.
Obiter -
The magistrate’s Statement of Findings extended over 110 pages.
They recited all of the evidence and all of the submissions. They
incorporated her findings. But a very small proportion only of the
contents was given over to the reasons for her findings. It was not
greatly helpful to repeat counsels’ submissions and the evidence in
detail, only to follow that with a sometimes brief finding with even
briefer reasons being given for those findings. A Statement of
Findings should be as brief as possible and should be as much
concerned with the magistrate’s reasons for the findings arrived at as
with the detailed repetition of the evidence and submissions.
122
CCAB 2001
Immigration
Immigration
FACC 7/2000
Bokhary,
Chan &
Ribeiro PJJ
Litton &
Sir Anthony
Mason NPJJ
(6.3.2001)
*M
Blanchflower
& Lam Wingsai
#AA Bruce SC
& RJJ Pierce
LI
Li-mua
Breach of condition of stay by overstaying/Overstaying a continuing
offence/Prosecution not time-barred if commission of offence continued
within 3 years of initiation of prosecution
逾期逗留而違反逗留條件 - 逾期逗留屬於持續的罪行 - 在提出檢控
後3年內持續犯罪則檢控沒有喪失時效
The prosecution appealed against a judgment of the High Court (Gall J)
which quashed the Respondent’s conviction in the Magistrates’ Court (KA
Browne Esq) on a charge of breach of condition of stay, contrary to s 41, Cap
115.
The condition of stay concerned was a limit of stay. It was a limit on the
period for which Madam Li was permitted to stay in Hong Kong. This flowed
from s 2(1) of the Immigration Ordinance which defined ‘limit of stay’ to mean
‘a condition limiting the period during which a person may remain in Hong
Kong’. So the offence concerned was the one usually called ‘overstaying’. The
Respondent’s conviction followed her change of plea to one of guilty following
the magistrate’s ruling against her on a point of law. Her conviction was
quashed by the judge on the basis of his decision in her favour on that point. On
the prosecution’s application, the judge certified such point as one of great and
general importance. The point, as re-formulated, was whether a prosecution for
overstaying was time-barred under s 46 of the Immigration Ordinance where (i)
the prosecution was not initiated until 3 years after the time when the
commission of the offence first became known to the prosecuting authority but
(ii) the commission of the offence continued up to a time within 3 years of the
initiation of the prosecution?
The particulars of offence alleged that the Respondent ‘being a person
permitted to land in Hong Kong by an Immigration Officer by virtue of section
11 of the Immigration Ordinance, did contravene a condition of stay in respect
of yourself, namely, you were limited in your stay in Hong Kong until 3 October
1995, and you did remain in Hong Kong on 7 October 1999’. The Respondent
was charged on the basis that she had overstayed from the time when her limit of
stay expired until the time when she surrendered to the authorities on 7 October
1999.
The judge summarised the facts thus:
The facts were not in issue. It is the prosecution case that
[Madam Li] first came to Hong Kong as a visitor in 1991 on the
strength of her Swaziland passport. She subsequently applied for
a change of status from visitor to employment visa. Her
application was approved in February 1992 and she was allowed
to take up approved employment. She applied for extensions of
stay for several times and was last permitted to remain until 3
October 1995 to continue taking up the approved employment.
On 2 October 1995, before her limitation of stay expired, she
submitted another application for an extension of stay to take up
employment with another company. Supporting documents were
required from her new employer. Before any decision could be
made as to the extension of her stay, she disappeared. Repeated
reminders were sent by registered mail to her last known address
in 1995 and 1997 and were returned by the postal authorities
indicating that there was no such person at that address. She did
not reappear until 7 October 1999 when she applied for an
extension of her stay.
She gave an explanation to the
Immigration authorities that she had a problem in extending the
validity of her Swaziland passport in October 1995. She said she
did not report to the Immigration Department because she did not
123
CCAB 2001
Immigration
want to leave Hong Kong. Since then, she said she had since
cohabited with a Hong Kong resident. She had overstayed in
Hong Kong since 3 October 1995 for a period of about four
years. A charge was preferred on 22 November, charging her
with overstaying.
As regards the prosecuting authority’s knowledge, the judge said:
In the case before me, the Immigration authorities must have
known of the breach of condition of stay immediately the breach
occurred. This is not a case where a condition of stay relates to
employment with a particular employer or some other condition
not related to length of stay when the knowledge of the
authorities as to when the offence occurred may not coincide with
occurrence of the offence, or when an offence might take place
sometime after the grant of the right to stay. I do not propose to
deal with the arguments in respect of those offences. The facts of
the present case are that as soon as [Madam Li] was in breach,
those facts were known to the authorities.
Upon an analysis of the statutory provisions and cases which he
considered relevant, the judge formed this view of the law:
The offence under section 41 is a continuing offence. However,
in this case the Immigration authorities were aware of the breach
of the section immediately it occurred. From that point which
was both the time when it arose and the time when the authorities
first became aware of it, the authorities had three years in which
to bring a prosecution against [Madam Li]. For reasons which
were not the fault of the prosecution authority, they were unable
to do so but, nevertheless, their opportunity is lost.
Section 41 of the Immigration Ordinance created the offence of breach of
condition of stay, and provided that:
Any person who contravenes a condition of stay in force in
respect of him shall be guilty of an offence and shall be liable on
conviction to a fine at level 5 and to imprisonment for 2 years.
The time limit for initiating a prosecution was laid down by s 46(2) of the
Immigration Ordnance, which provided:
A complaint may be made or an information laid in respect of an
offence ..… within 3 years from the time when the matter of the
complaint arose.
Held :
(1)
This case did not call for a decision on whether the offence was a
continuing one where a condition of stay was breached by taking employment,
establishing or joining a business or becoming a student. The question was
whether overstaying was a continuing offence. The courts were slow to
conclude that an offence was a continuing one, but would do so if such a
conclusion was plain from express words, compelling implication or the nature
of the offence concerned. It was plain that overstaying was a continuing
offence, as it involved the situation where the material condition of a person’s
permitted stay in Hong Kong was a limit on the period for which he might
lawfully stay. If he exceeded that limit by remaining beyond that period, the
offence of breach of condition of stay which he committed was, by its very
nature, an offence committed continuously from the time when the overstaying
commenced to the time when it came to an end;
(2)
There were several ways in which the overstaying could come to an end.
The most obvious were where the overstayer left Hong Kong of his own accord,
124
CCAB 2001
Immigration
or where his presence in Hong Kong ceased to be due to his act or omission and
became instead due to his detention here by the authorities, pending removal or
trial or pursuant to a custodial sentence. It would also end upon the overstayer
surrendering to the authorities, and that was the footing on which the charge
against the Respondent was formulated;
(3)
The general position was that where a non-continuing offence was
concerned, a prosecution might be initiated as soon as the commission of the
offence had been completed or, subject to any time limit for initiating a
prosecution, at any time thereafter. Any such time limit ran from such
completion;
(4)
The general position was different where a continuing offence was
concerned. A prosecution might be initiated on any day during the period over
which the offence was continuously committed or, subject to any time limit for
initiating a prosecution, at any time after that period. Any such time limit would
not start to run until after such period had ended. In terms of s 46(2) of the
Immigration Ordinance, which used the word ‘arose’, a sufficient basis for
prosecuting arose each and every day falling within such period. In AG v
Cheung Kam-ping [1980] HKLR 602, to which Gall J was referred and would
have been bound, the Court of Appeal held that the word ‘first’ was to be read
into s 46(2) so that the time limit which it set ran from the time when the matter
of complaint or information first arose. There was no warrant for reading in the
word ‘first’ and the Court of Appeal’s decision that it was to be read in would be
overruled;
(5)
None of the foregoing involved the running of a time limit for initiating a
prosecution for a continuing offence being triggered by the prosecuting (or any
other) authority’s knowledge of its continuance so that such time limit started to
run during the period when the offence was still being continuously committed.
For that, a special provision was needed; a prime example of such a provision
was to be found in s 46(3) of the Air Pollution Ordinance, Cap 311, where the
running of a time limit for initiating a prosecution was triggered by ‘notice’.
Examples of the running of time limits triggered by ‘knowledge’ or ‘discovery’
were to be found in s 140(2) of the Bankruptcy Ordinance; s 351A(1) of the
Companies Ordinance; s 58 of the Insurance Companies Ordinance; s 33 of the
Gas Safety Ordinance; and s 17U of the Television Ordinance. There was no
provision like any of those where prosecutions for breach of stay contrary to s
41 of the Immigration Ordinance were concerned;
(6)
The prosecution of the Respondent was not time-barred. The answer to
the certified point of law was that even though a prosecution for overstaying was
not initiated until after the time when the commission of the offence first became
known to the prosecuting authority, such prosecution was not time-barred under
s 46 of the Immigration Ordinance if the commission of the offence continued
up to a time within 3 years of the initiation of the prosecution.
Result - SJ’s appeal allowed and conviction restored.
125
CCAB 2001
CA 28/2000
Stuart-Moore
VP
Woo & Stock
JJA
(14.6.2001)
*Cheung Waisun &
Ko Po-chui
#Eric Kwok
Immigration
HUYNH
Bat-muoi
Aiding and abetting, counselling and procuring the using of forged travel
document/Meaning of forgery
協助、教唆、慫使和促致偽造旅行證件的使用 - 偽造的涵義
The Appellant was convicted of two charges of aiding, abetting,
counselling or procuring D1 to use a forged 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 s 89 of the Criminal Procedure Ordinance, Cap 221.
On 26 September, 1999, the Appellant and D1 together entered Hong
Kong from the Mainland at Lo Wu. D1 was in possession of a passport bearing
D1’s photograph in the name of Huynh Minh Hoa of Belgian nationality. The
Appellant was in possession of a valid Belgian passport in her own name. They
passed through Immigration Arrival Inspection. While in Hong Kong the
Appellant bought for herself and D1 air tickets for the USA, departing on 27
September for the USA via Vancouver. On that day at the airport, using the
same passports, they passed through Immigration Department inspection.
In a recorded interview, the Appellant admitted that in August, 1999, she
met a man called Ng in Beijing who specialized in producing forged passports
for Chinese to go to work abroad. Ng suggested to her that she could have a
remuneration of US$1,000 for taking each Chinese holder of a forged passport
to a foreign country and all her expenses for meals, accommodation and plane
tickets would be paid for. However, she had to look for her own clients and he
would supply the forged passports. She asked D1 if he would like to go to work
in a foreign country. She told D1 that she had a friend who could arrange a
forged passport for him to go to work overseas. She would accompany him to
go all the way. D1 agreed. The Appellant took D1 to have 10 photographs
taken. She passed them onto Ng. On 23 September, 1999, Ng told her to get
D1’s forged passport. When she was handed the passport, she found it to be a
Belgian passport and discovered that only the photograph was D1’s whilst the
other particulars in the passport did not relate to him. The record of interview
was admitted in evidence.
The Appellant gave evidence that all along she had never known that
there was any problem with D1’s passport. She was nevertheless convicted.
On appeal, the Appellant said that the passport was genuine. She
produced a letter from the Consulate General of Belgium in Hong Kong which
was to the effect that the passport was issued by the Townhall in Brussels and
that the only untruth contained in it was that the photograph in it did not show
Huynh Minh Hoa but instead D1. That letter was admitted into evidence
pursuant to s 83V of the Criminal Procedure Ordinance, Cap 221.
The Appellant argued that the passport was not a ‘forged’ document
within the meaning of s 42(2)(b) of the Immigration Ordinance, Cap 115.
The Respondent submitted that:
(1)
S 42(2)(b) of the Immigration Ordinance, Cap 115 provided, ‘Any person
who ….. uses ….. any forged, false or unlawfully obtained or altered travel
document ….. shall be guilty of an offence’. ‘False’ meant false in a material
particular and ‘forged’ had the meaning assigned to that term by Part IX of the
Crimes Ordinance, Cap 200;
(2)
S 68(2) of the Crimes Ordinance, Cap 200 provided that ‘forgery’ should
be construed in accordance with Part IX;
(3)
S 71 of the Crimes Ordinance, Cap 200 provided, ‘A person who makes
a false instrument, with the intention that he or another shall use it to induce
somebody to accept it as genuine, and by reason of so accepting it to do or not
126
CCAB 2001
Immigration
to do some act to his own or any other person’s prejudice, commits the offence
of forgery .....’;
(4)
S 69 of the Crimes Ordinance, Cap 200 provided, ‘(a) an instrument is
false if it purports to have been ….. (vii) made or altered on a date on which or
place at which or otherwise in circumstances in which it was not in fact made
or altered .....’;
(5)
S 69 of the Crimes Ordinance, Cap 200 had extended the meaning of
‘forgery’ to ‘false’. If any of the circumstances in s 69(a) were established, the
related instrument was a forged instrument under s 42(2)(b) of the Immigration
Ordinance, Cap 115. S 69(a)(vii) of the Crimes Ordinance, Cap 200 provided
that an instrument was false if it purported to have been made in circumstances
in which it was not in fact made. The circumstances in which a genuine passport
would have been made and issued by the authorities in Brussels were that the
photographs submitted were those of Huynh Minh Hoa, but these were not the
actual circumstances in which the passport was issued. The passport was
therefore a forgery.
Held :
(1)
The significant words in s 69(a)(vii) of the Crimes Ordinance, Cap 200
were ‘the circumstances in which’ the instrument was ‘in fact made’. The
passport purported to say that it had been issued by an official on such and such
a date, and at such and such a place, pursuant to the authority which that officer
had to issue it. The passport was in fact made in the form and upon the terms in
which the maker made it. It had not since been altered, and was made on the
date and place and in the circumstances in which it purported to have been
made. If it also purported to represent that it was made after an application for a
passport, then that too was an accurate representation about itself. The subject
passport contained no lie about itself, although it contained a lie. It also
contained no lie about the circumstances in which it was made, whether as to
time, or place, or authority. It did not qualify as a forgery under s 69(a)(vii) or
any of the categories of false instrument within the ambit of any other category
under s 69. The factual situation here was very different from those in Attorney
General’s Reference (No 1 of 2000) [2001] 1 WLR 331, R v Donnelly (Ian)
[1984] 1 WLR 1017, R v Jeraj [1994] Crim L R 595 and R v Warneford [1994]
Crim L R 753;
(2)
The two charges would be amended by replacing the word ‘forged’ with
the word ‘false’ wherever ‘forged’ appeared on the charge sheet: R v Chan
Chak-fan CA328/93 followed.
127
CCAB 2001
Immunity
Immunity
CA 96/2000
Woo &
Stock JJA
Tong J
(20.11.2001)
*John Reading
SC &
Beney Wong
#Andrew
Macrae SC
LEUNG
Kai-cheung
Form of immunity/Oral immunity given at trial/Practice to give written
immunity/Oral immunity to accomplice to testify in terms of his statement
objectionable/Immunity should require witness to give full and true
evidence
豁免起訴的形式 - 在審訊中給予口頭豁免 - 給予書面豁免的慣例口頭豁免中要求共同犯按照其供詞作供這做法值得質疑 - 給予豁免
時應規定證人提供詳盡真確的證供
The Applicant was convicted after trial of an offence of conspiracy to
traffic in heroin. He was sentenced to 36 years’ imprisonment.
On appeal, the key issue was whether the terms of immunities granted to
accomplice witnesses called by the prosecution, and the fact that, despite those
immunities, they were told by the court that they had no objection to giving
answers which might incriminate them, constituted material irregularities and, if
so, whether the conviction of the Applicant could nonetheless stand.
The co-conspirators named in the indictment, each of whom gave
evidence at the Applicant’s trial, were PW1, Wong Yut-wah, PW3, Law
Chong-wing, and PW4, Ko Lai-cheung. PW2, Tang Siu-mei, not named as
a co-conspirator, was the girlfriend of PW1, and her role was to launder the
proceeds of PW1’s drug trafficking. Each of these accomplice witnesses
had been arrested and tried and sentenced prior to the Applicant’s trial.
The first ground of appeal was that there was a material irregularity in the
conduct of the trial when prosecuting counsel purported to offer a verbal
immunity from the Bar table to the four principal prosecution witnesses in
almost identical terms, namely:
that provided the witness gives evidence in accordance with his
witness statement, he will not be prosecuted for any further
offences disclosed in those statements with the obvious exception
of perjury.
Held :
(1)
The practice by which law officers undertook to an accomplice that,
on given conditions, he or she would not be prosecuted for an offence
committed by the accomplice, in return for evidence in the trial of a
confederate for the same or an associated offence, was a practice of long
standing. It was in the public interest that criminals be brought to justice,
and the use of accomplice evidence, if necessary or helpful to that end, was
admissible. But the grant of an immunity was a serious matter, not to be
treated lightly, or, as in this case, loosely. A decision to grant an immunity
was a decision which should be made only by those authorised to make it,
and the terms of the immunity to be granted required careful attention. The
person to whom it was offered was entitled to know precisely what was
properly expected of him if the immunity was to hold good, and in respect
of precisely what conduct the immunity extended, subject to the overriding
consideration that what was expected was the full truth;
(2)
The long standing stated, as well as actual, policy and practice of the
Department of Justice had not been followed in this case. In a document
produced by the Department of Justice in 1998, it was stated:
Immunity from Prosecution
32.
The Director of Public Prosecutions will in appropriate cases authorize
the offering and granting of an immunity to a person who is to assist a Law
128
CCAB 2001
Immunity
Enforcement Agency in the detection or control of criminal activity, and who
may thereby in the course of so acting himself be a party to criminal offences.
In general an immunity will only be offered:
(i)
where the criminal activity under investigation is of a
serious kind or of a kind that poses a serious threat to law
and order or public safety within Hong Kong; and
(ii)
where conventional means of detection or control are
unlikely to prove effective.
The Director of Public Prosecutions and his Deputies are authorized to grant
full or partial immunity to persons suspected or accused of offences in return
for their undertaking to give truthful evidence on behalf of the Prosecution. The
immunity will be in writing and where necessary translated. A copy of the
immunity should be provided to the Court and the Defence at trial.
An examination of a standard immunity form indicated the reference, twice, to
the condition that the evidence to be given was ‘full and true’;
(2)
The significance of rendering an immunity conditional upon the giving of
true and full evidence should be obvious. So, too, should the danger of a naked
condition that the accomplice give evidence in accordance with a witness
statement: R v Lai Wai-kin [1989] 2 HKC 559;
(3)
Although it was not to be said that there could never be an acceptable
form of immunity which made reference to a witness statement made by the
immunity’s recipient, what was objectionable was the form of immunities
offered in this case which was to direct the witnesses to stick to their statements.
The assumption when an immunity in that stark form was given was that the
statements to the police were true; an assumption which in this case was a
particularly dangerous one to make given the taint which appeared to attend the
accuracy of earlier statements to the police provided by each of the four
witnesses. The additional assumption was that the statement contained the
whole truth. Even if the statement contained the full story which the accomplice
intended to offer, what of material which went beyond the boundaries of fact
covered by the statement, drawn out, say, in cross-examination?
(4)
As the witnesses were told to stick to their statements, in loose terms, this
amounted to an irregularity.
Result - Appeal allowed. Re-trial ordered.
129
CCAB 2001
Industrial Safety
Industrial Safety
MA 749/1999
Nguyen J
(18.5.2001)
*Thomas Law
& Henry Hung
#T R W
Jenkyn-Jones
Chun Wo
Building
Construction
Ltd
Factories
and
Industrial
Undertakings
Ordinance/Object
of
Ordinance/Strict
liability/‘Proprietor’
considered/Effect
of
subcontracting/Duty on head contractor not delegable
《工廠及工業經營條例》 - 條例的目的 - 嚴格法律責任 - 考慮‘東
主’的定義 - 分判的效果 - 總承判商的責任不可轉授
The Appellant, the second defendant, was convicted after trial of an
offence of being a proprietor of an industrial undertaking at Tsing Yi Station
Development, Tsing Yi, where, on 16 July 1998, a contravention occurred
involving a failure to ensure that the provisions of Regulation 9(1) of the
Factories and Industrial Undertakings (Electricity) Regulations were complied
with, in that, when work had to be carried out on a conductor, no adequate
precautions were taken, so as to ensure that the work might be carried out
without undue risk from electrical hazard, contrary to Regulations 31(1) and (2)
of the Regulations, and fined $15,000.
On 16 July 1998, a worker (the deceased) was instructed by a technician
of the first defendant, Chui Yick-hung, to work on conduit boxes at the second
floor of the construction site in question. The deceased had 5 years’ electrical
work experience. Later that same morning, the deceased, who was not a
registered electrical worker under the Electricity (Registration) Regulations
made under the Electricity Ordinance, Cap 406, was found electrocuted. The
Appellant was not a registered electrical contractor under s 33 of the said
Ordinance, whereas the first defendant was. The magistrate found these facts:
(a)
The Appellant was the principal contractor of the site in
question;
(b)
The Appellant subcontracted the whole of the electrical
works to Trident which in turn subcontracted the whole of
the works to Kingsbro which further subcontracted the
works to the first defendant;
(c)
The deceased was an employee of the first defendant. He
had five years’ electrical work experience yet he was not a
registered electrical worker under the law;
(d)
On the day in question, the deceased was instructed by
PW1, a technician of the first defendant, to work on
conduit boxes at the 2nd Floor. He carried out the work
on his own;
(e)
PW1 had reminded the deceased to be careful, and, apart
from that, it was left to the deceased to take necessary
precautions;
(f)
The cable ends coming out from the conduit box in
question could be traced all the way to a power
distribution board located at Meter Room C at the 2nd
Floor;
(g)
At the material time, there were two doors installed at
Meter Room C – a permanent door installed by the
Appellant and a temporary door installed by the first
defendant. The Meter Room C was used as a store-room
of tools and the temporary door was installed for security
purposes;
(h)
The temporary door to Meter Room C remained open
during working hours. After work, it was locked with a
combination lock. Only staff of the first defendant,
Kingsbro and Trident, knew the number of the
combination lock;
130
CCAB 2001
Industrial Safety
(i)
The power distribution board had a cover which could be
locked but was not locked at the material time. There was
a cardboard fixed on the cover with Chinese characters to
the effect that it was energised;
(j)
Cause of death of the deceased was electrocution and he
was electrocuted while working on the conduit box
labelled “N2CP-B8”.
The magistrate, relying on section 19 of Cap 1, which required the court
to give a fair, large and liberal construction and interpretation in order to ensure
attainment of the object of the legislation, ruled that the Appellant was ‘a
proprietor’ and that it had taken no precautions at all. The magistrate also ruled
that the duty on the Appellant could not be delegated to another and, therefore,
the fact that the Appellant had wholly subcontracted the electrical works to
Trident was no defence.
On appeal, the main ground of appeal was that, even assuming strict
liability attached to the offence, the Appellant was not a ‘proprietor’ within the
meaning of that word as it was used in the Factories and Industrial Undertakings
Ordinance, Cap 59. It was common ground that the construction site was an
industrial undertaking to which the regulations (Factories and Industrial
Undertakings (Electricity) Regulations) applied. The issues on appeal were
whether the offence was one of strict liability, whether the Appellant was a
proprietor, and whether the obligation on the proprietor was delegable.
Held :
(1)
In determining strict liability, regard had to be had to the test laid down
by Lord Scarman in Gammon (Hong Kong) Limited v AG [1985] AC 1, as
repeated by Bohkary JA in AG v Fong Chin-yue & Others [1995] 1 HKC 21,
29:
(i)
there is a presumption of law that mens rea is required
before a person can be held guilty of a criminal offence;
(ii)
the presumption is particularly strong where the offence
is ‘truly criminal’ in character;
(iii) the presumption applies to statutory offences, and can be
displaced only if this is clear or by necessary implication
the effect of the statute;
(iv)
the only situation in which the presumption can be
displaced is where the statute is concerned with an issue
of social concern, and public safety is such an issue;
(v)
even where a statute is concerned with such an issue, the
presumption of mens rea stands unless it can also be
shown that the creation of strict liability will be effective
to promote the objects of the statute by encouraging
greater vigilance to prevent the commission of the
prohibited act.
(2)
The purpose of the Ordinance was to enact laws to ensure that places of
work, including factories and industrial undertakings, should be safe for the
people working therein. The regulations made under the Ordinance applied to
quarries, construction sites, lifts, cargo and container handling, abrasive wheels,
work places in compressed air, work places where there might be spraying of
flammable liquids, guarding and operation of machinery, suspended working
platforms, confined spaces and safety management. Clearly the statute was
concerned with an issue of public safety, and it could readily be said that the
creation of strict liability for all offences created under this Ordinance would be
effective to promote the objects of the statute by encouraging greater vigilance
to prevent the commission of prohibited acts;
131
CCAB 2001
Industrial Safety
(3)
In relation to the offence in question, there was no statutory defence to
the offence, and the offence itself, under Regulation 19 of the Electricity
Regulations, was so wide that even if the conductor or apparatus to be worked
on were to become accidentally live, then a failure to provide adequate
precautions so as to ensure that the work might be carried out without undue risk
from electrical hazard breached the regulation. The offence in question was
clearly one of strict liability;
(4)
‘Proprietor’ was not defined as such in the Ordinance and the definition
section only indicated who could be included within the definition. ‘Proprietor’
was defined in the New Shorter Oxford English Dictionary as ‘a person holding
something as property; an owner, especially of a business, as a shop, restaurant
etc. or of land ’. As Huggins JA said in Tom K Engineering and Construction
Co Ltd v The Queen, Criminal Appeal No. 2/1978:
I emphasise that one word because quite clearly there may be
cases where the proprietor is what he purports to be – what
the very word conveys or connotes - that is the owner …
On the evidence before him, the magistrate was entitled to
rule that the Appellant was a proprietor;
(5)
The finding that the Appellant was a proprietor within the meaning of the
Ordinance was consistent with the obligations imposed upon it by the law, and
the finding sat comfortably with the provisions of section 13 of the Ordinance
which read as follows:
(i)
Except as may be otherwise provided by regulations made
under this Ordinance, the proprietor of every industrial
undertaking in, or in respect of which any offence against
this Ordinance has been committed, shall be guilty of a
like offence, and shall be liable to the penalty prescribed
for such offence.
(ii)
It shall be no defence to a prosecution of the proprietor of
an industrial undertaking for an offence against this
Ordinance, that the offence was committed without his
knowledge or consent or that the actual offender has not
been convicted of the offence.
(6)
The obligation imposed by the Ordinance on the Appellant was the
primary responsibility of ensuring that the works carried out on the site
complied with the Ordinance and the regulations made thereunder. The
Appellant was the registered contractor and the principal contractor of the works
at that site. The fact that the Appellant sub-contracted the work to others did not
relieve it of its responsibility imposed on it by the law. Such responsibilities
were not delegable. In Tom K Engineering and Construction Co Ltd v The
Queen, (supra) Huggins JA said:
… The purpose of this certificate – to ensure that a responsible
contractor was going to carry out the work in a responsible
manner – and the fact that he sub-contracts does not, and I
agree with the learned magistrate in this respect, relieve the
head-contractor of responsibility for ensuring that the work is
carried out in a proper manner in accordance with the
Ordinance and the Regulations. Indeed, I am satisfied that the
whole purpose of this form of certificate is to ensure that work
is done properly and in a manner which will take proper notice
of the dangers involved to workmen. …
Huggins JA further added:
… I have no doubt in my own mind that the sub-contractor
could equally have been prosecuted for this offence but it seems
to me that the object of having registered contractors is to
132
CCAB 2001
Industrial Safety
ensure that there is a responsible contractor who is primarily
responsible and it may or may not be proper to bring a
prosecution against sub-contractor as well.
In AG v John Lok & Partners and George Wimpey International Limited
trading as John Lok/Wimpey Joint Venture [1986] HKLR 325, Hooper J said:
… It would be ludicrous if a head contractor or principal
contractor having made himself responsible for the carrying out
of certain works could avoid liability under these provisions by
saying that though work had begun, he had not himself
performed any physical work or acted in accordance with his
contractual obligations. The whole purpose of this legislation
is to make sure that the person having the primary
responsibility under the contracts in relation to the carrying out
or carrying into practice or carrying through the construction
work, should be responsible for the site where that construction
work has commenced.
In AG v Chan Ka-kui [1984] HKC 569, Bewley J said:
… The draftsman has clearly made the distinction in order to
catch the principal contractor, in circumstances where danger
might be caused by a sub-contractor, who might not be easily
identifiable, but also to make it possible to prosecute a
sub-contractor in a proper case. Thus, reg 45, for example,
makes the contractor responsible for ensuring that only
competent workmen operate the machinery, but the subcontractor may also be prosecuted.
(7)
Although the Appellant argued that the scheme of interpretation did not
suggest equal responsibility, and that for the purpose of these regulations there
should be one, not two or more proprietors, that submission could not be
accepted. Even though in Regulation 31 of the Electricity Regulations, it was
the duty of ‘the proprietor of every industrial undertaking’ to ensure that the
provisions of certain regulations were complied with, that did not mean that
there could only be one person who could be held responsible but meant that the
duty fell on every person or company which could legally be held to be the
proprietor. The proprietor in this case was the Appellant and included the
sub-contractors who had the management or control of the business carried on in
such an industrial undertaking. It was known that the first defendant was
prosecuted for the same offence arising from the same accident. In AG v Shun
Shing Construction and Engineering Co Ltd [1986] HKLR 311, 314, the Court
of Appeal, in dealing with a provision in the Construction Sites (Safety)
Regulations, said:
… The whole scheme of the legislation is that the head
contractor shall have the same responsibility for some of the
statutory safety precautions when work is done by a subcontractor as if the head contractor had done the work itself.
The reasoning behind this is that it will assist in the
enforcement of the regulations by encouraging the head
contractor to do more ‘by supervision or inspection … or by
exhorting those whom [it] may be expected to influence or
control, which will promote the observance of the regulations’
Lim Chin-aik v Reg [1963] AC 160, 174.
It was also held in that case that the duty on the head contractor could not be
delegated and that was a duty under Regulation 37(2) of the Construction Sites
(Safety) Regulations.
133
CCAB 2001
Industrial Safety
香港特別行政區訴吳志犀
HKSAR v NG Chi-sai
高等法院原訟法庭 – 高院裁判法院上訴1 9 9 8 年第5 2 2 號
*冼佩霞
Sin Pui-ha
高等法院原訟法庭法官阮雲道
耹訊日期：二零零一年一月十一日
宣判日期：二零零一年五月十七日
#蘇惠德
V So
COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A C Y
Nguyen J
Date of Hearing: 11 January 2001
Date of Judgment: 17 May 2001
上訴人被裁定違反《工廠及工業經營(電力)規例》所訂罪行罪名成
立 - 該規例所訂的‘東主’的涵義
上訴人經審訊後被裁定三項工業傳票罪名成立，其中兩項
違反《工廠及工業經營條例》(第59章)制定的《工廠及工業經營
(電力)規例》第9條。另有一項違反規例第14(b)條。
據案情顯示，上訴人是金田裝修傢俬公司(‘金田’)兩位合
夥人之一。金田負責裝修工作及僱用了一名員工。在裝修工程期
間，這名員工觸電死亡。
上訴時，代表上訴人的律師提出此案並沒有充足證據令裁
判官證實在發生意外的時候，上訴人「管理或控制」該處所內進
行的裝修工程。根據規例第31(1)條，「東主」有責任確保規例
第9條及規例第14(b)條的條文尤其獲得遵守。有關條例第2條對
「東主」的定義如下﹕
「任何工業經營 ... 而言，包括當時管理或控制在工
業經營 ... 進行的業務的人 ...」。
裁決：
在審訊期間，唯一援引的證據是發生意外後，上訴人在意
外現場出現，並告知控方第二證人(即勞工處的職業安全主任)他
是金田的合夥人。他並說裝修工程由金田負責，而死者是由金田
聘用的。裁判官有權憑藉上訴人在意外後所作的事而得出結論指
上訴人管理或控制該工程，意即他是該工業經營的東主。
上訴駁回。
[English digest
of MA 522/98,
above]
Nguyen J
(17.5.2001)
NG
Chi-sai
Appellant convicted of offences under the Factories and Industrial
Undertakings (Electricity) Regulations/Meaning of ‘proprietor’ under the
Regulations
The Appellant was convicted on three summonses, two of which were in
contravention of Regulation 9 of the Factories and Industrial Undertakings
(Electricity) Regulations, made under the Factories and Industrial Undertakings
Ordinance, Cap 59, and one under Regulation 14(b) of the same Regulations.
*Sin Pui-ha
#V So
The facts showed that the Appellant was one of the two partners of Kam
Tin Decoration and Furniture Co (‘Kam Tin’) which was assigned to carry out
certain decoration work. A worker employed by Kam Tin was electrocuted
134
CCAB 2001
Industrial Safety
whilst the decoration work was being carried out.
On appeal, it was argued that the Appellant was not the proprietor of the
industrial undertaking because there was insufficient evidence to prove that he
had the management or control of the decoration work. According to
Regulation 31(1), it was the duty of the ‘proprietor’ to ensure that the provisions
of Regulations 9 and 14(b) were complied with. The word ‘proprietor’ was
defined thus:
In relation to any industrial undertaking ... includes the person
for the time being having the management or control of the
business carried out in such industrial undertaking.
Held :
The only evidence adduced at the trial was that the Appellant had arrived
at the scene and told PW2 (an Occupational Safety Officer of the Labour
Department) that he was a partner of Kam Tin. He also said that Kam Tin was
responsible for the decoration work and the deceased was employed by Kam
Tin. The magistrate was entitled to take into account the Appellant’s conduct
and to conclude that he had the management or control of the decoration work.
In other words, the Appellant was the ‘proprietor’ of the industrial undertaking.
Judge/Direction/Discretion/Summing Up
CA 378/98
Stuart-Moore
&
Mayo VPP
Stock JA
(6.4.2001)
*J Reading SC
&
J To
#GJX McCoy
SC & R Pierce
LUI
Questioning of accused by judge/Need for judge to acquire proper
Kin-hong, Jerry understanding of accused’s case/Need for judge to enquire into
ambiguities/Positive duty on judge not to sit silent where intervention
required
法官查問被告 - 法官有需要適當了解被告的案情 - 法官有需要查詢
含糊之處 - 法官在有需要干預時須主動履行職責而非坐視不理
The Applicant was convicted after trial of conspiracy to accept
advantages, contrary to common law and s 9(1)(a) of the Prevention of Bribery
Ordinance, Cap 201.
The Applicant was alleged to have conspired with the others named in
the conspiracy count to receive payments which amounted to about $21 million
together with two loans totally $10 million as bribes to ensure the sale and
supply of cigarettes from British American Tobacco to Wing Wah Company and
Giant Island Limited.
On appeal, the only ground of appeal was that the trial judge had
interrupted the Applicant’s evidence in all its stages with ‘an inordinate number
of questions’. It was said that the ‘timing, nature and tone’ of the questions
asked by the judge ‘transgressed the acceptable limits of judicial intervention’
in that these would have left the jury with an indication that the judge
disbelieved the Applicant’s evidence.
Held :
(1)
It was apparent from the transcript that the judge was concerned to gain
further clarification over aspects of the Applicant’s evidence which were as yet
far from clear. No prejudice flowed from the questions in themselves although
it might be that, by removing the ambiguities which had existed until they were
asked, the Applicant’s replies might not have been helpful to his case. It did not,
135
CCAB 2001
however, follow that the questions should not have been asked. Bearing in mind
that the judge had to sum up the case, these were important questions which, in
the circumstances, needed to be asked;
(2)
As the Applicant often gave convoluted answers which were far from
clear, and as he appeared to have contradicted himself or to have made obvious
mistakes, these matters required clarification, in a case of some complexity, for
the judge to gain a proper understanding of the Applicant’s evidence. The
Applicant was entitled to expect a fair summing up to the jury, based on what
the Applicant was saying rather than on what the judge thought he might have
been saying. It was not without significance that the summing up itself had not
been criticised;
(3)
This application provided a prime example of the importance of the
judge’s role at trial in ensuring that members of the jury were not left with
ambiguities in their minds on central issues in the trial. All too often situations
were seen where ambiguities had arisen on the evidence which cried out for
some explanation to be given. It might be that counsel had not thought it wise to
ask a particular question or, through inexperience, or forgetfulness or for some
other reason, it had not been asked. In such situations, whether sitting alone or
with a jury, it would more often than not be advisable for a judge to make the
enquiry that counsel had left untouched;
(4)
In HKSAR v Mohammad Jahangir and Others [1998] 1 HKC 455, 464,
the following passage from R v Saville Crim App 4181/91, 17 March 1992,
unreported, was referred to:
If the presiding judge perceives the risk of a case going off on a
wholly wrong basis, whether because of some legal technicality
which has been overlooked, or because of some lacuna in the
evidence, it is not incumbent on him to grit his teeth, remain
silent and watch justice miscarry - for it is no less a miscarriage
of justice when an accused person escapes conviction through
inefficiency or carelessness on the part of the Crown, than when
he is convicted as a result of a comparable error on the part of
the defence. Rather it is the duty of the judge to ensure that the
criminal proceedings are tried fairly and efficiently, and to
intervene as necessary to ensure that goal is achieved.
If a judge descended into the arena he lost the mantle of an arbiter and became a
combatant. However, it was the positive duty of a judge not to sit silently in
court where intervention was required.
CA 329/2000
Stuart-Moore
& Mayo VPP
Keith JA
(26.6.2001)
*B Ryan &
G Shiu
#L Lok SC
& K Chik
LEE
Kwok-wing,
Kevin
Duty on judge to put defence case to jury/Strong prosecution case/Weak
defence case
法官向陪審團指出辯方論據的職責 - 有力的控方論據 - 薄弱的辯方
論據
The Applicant was convicted after trial on an indictment containing 17
counts. Eleven of those charges involved acceptance of advantages as an agent;
three involved offering advantages as an agent; two involved conspiracy to
defraud.
The offences arose out of the Applicant’s employment by Rockefeller &
Co (Far East) Ltd. Rockefeller’s business involved the management of
investor’s funds.
On appeal, it was submitted, inter alia, that the judge did not spell out to
136
CCAB 2001
the jury, even if only in a sentence or two, what the Applicant’s case on each
count was.
Held :
(1)
In a case such as this, where the evidence against the Applicant was
strong, and the defences he advanced were weak, the need to maintain a proper
balance between the prosecution and the defence was at its most acute. As Lord
Lane CJ observed in R v Fraser Marr (1990) 90 Cr App R 154, 156:
It is ... an inherent principle of our system of trial that however
distasteful the offence, however repulsive the defendant, however
laughable his defence, he is nevertheless entitled to have his case
fairly presented to the jury both by counsel and by the judge.
Indeed it is probably true to say that it is just in those cases
where the cards seem to be stacked most heavily against the
defendant that the judge should be most scrupulous to ensure that
nothing untoward takes place which might exacerbate the
defendant’s difficulties.
(2)
Although there was some force in the broad criticism that the judge did
not spell out what the Applicant’s case on each count was, by examining each
individual count in detail, it was clear that that failure on the part of the judge
did not, in the particular circumstances of each count, deprive the Applicant of
his right to have his case sufficiently placed by the judge before the jury.
CA 78/99
Stuart-Moore
& Mayo VPP
Stock JA
(20.7.2001)
*A A Bruce
SC
& Simon Tam
#C Coghlan
(1)
R Donald (2)
M Moosdeen
(3)
D Percy (4)
J Haynes (5)
F Whitehouse
(6)
(1) HUI
Chi-wai
(2) MAK
Ka-ho
(3) NG
Mingchun
(4) CHAN
Tak-ming
(5) WONG
Kum-po
(6) FUN
Hin-chun
Murder/Withdrawal from joint enterprise/Directions to jury on defence
case/Judge entitled to comment on assertions in defence speeches/Exclusion
of defence evidence which did not assist jury/Status of mere allegation by
defence that prosecution could not rebut
謀殺 - 退出共同犯罪 - 就辯方論據向陪審團作出的指引 - 法官有權
評論辯方陳詞中所作聲稱 - 摒除對陪審團沒有幫助的辯方證據 - 辯
方僅作指稱而控方不能反駁時該指稱的效力
All the Applicants were convicted after trial of murder. The particulars
of offence were that ‘on or about 14 May 1997, at room 1508, Block 39, Sau
Mau Ping Estate, together with a man named Shek Tsz-kin, they murdered a
youth called Luk Chi-wai.’
The Applicants were all teenagers at the date of the killing of the victim,
nicknamed ‘Ah Kai’. A1 was aged 17 years; A2 was aged 17 years; A3 was
aged 17 years; A4 was aged 16 years; A5 was aged 14 years; A6 was aged 17
years.
The prosecution case was that over a period of about 2½ hours, all the
Applicants took part in a prolonged and almost incessant attack upon Ah Kai, aged
16 years, in room 1508 of Sau Mau Ping Estate; that in the course of that attack Ah
Kai was subjected to a constant barrage of kicks, punches, and blows with poles,
wooden sticks, folding stools and, finally, water pipes and a plastic stick; and that
in due course and in the presence of these Applicants, or most of them, he died. It
was further alleged that there then followed a course of action by which they
attempted to erase traces of their crime, that they set the body alight, put what was
left in bags, and disposed of what remained in a rubbish container. The body was
never discovered. All that was left, which was discovered, were bone fragments.
The prosecution case was not that the Applicants intended to kill Ah Kai, but that
they intended to cause him grievous bodily harm, and did so, and that in
consequence he died. Its case was that of a joint enterprise of such a nature that it
mattered not who struck particular blows or with what implement, since all
Applicants, it was contended, were present, assisting by their presence and by their
137
CCAB 2001
conduct in the escapade of terrible violence which they visited upon a solitary
youth who offered no resistance, and who ultimately perished in their presence.
It was conceded that the summing-up of the judge included an accurate
precis of the evidence of Shek and of the other eye witnesses who gave evidence
for the prosecution, and that that evidence largely accorded also with a summary
of facts which was used in the trial of Shek. Shek had pleaded guilty to
manslaughter, a plea accepted by the prosecution.
On appeal
Held :
(1)
As there was uncontradicted evidence that A2 left the premises at 10:30
pm, the judge should have, but did not sufficiently, made it clear that there was
evidence that there was a complete break in the enterprise, so that the true
question was whether a second phase was ever contemplated at all and, if so,
whether A2 was a party to that second or separate assault and whether the
injuries inflicted before that break were such as to lead inevitably to the
conclusion that they caused or contributed significantly to the death of Ah Kai:
R v Becerra, R v Cooper (1976) 62 Cr App R 212 distinguished. There was
clear evidence that at about 10:30 pm the assault had ceased; and that the
departure of those who did depart was not an escape from an ongoing escapade,
but rather a departure from premises in which an escapade had taken place, but
which then appeared to be over. The conviction of A2 for murder was not safe.
(2)
The duty of a judge was to fairly outline the defence to the jury. He must
place before them what was the substance of the defence. As Goddard LCJ
observed in R v Clayton-Wright (1948) 33 Cr App R 24, 29:
That does not mean to say he is to paint in the details or to
comment on every argument which has been used or to remind
them of the whole of the evidence which has been given.
What was necessary would depend on the case, whether the defendant had given
evidence and what the issues were. The test was whether the judge had fairly
reviewed the essential features of the evidence for the defendant: R v
Richardson (1994) 98 Cr App R 174. The trial judge had fairly put to the jury
the essential features of the defence of A3;
(3)
Judges were entitled in the course of a summing-up to make comments
about assertions made in speeches and, where the circumstances so warranted, to
make strong comment, the jury having been told, as they were in this case, that
they could take or leave such comment as they saw fit; although the formula
whereby a jury was told to ignore judicial comment, if they disagreed with it,
was not a formula that would save every comment. The judge who had sat
through a trial and heard speeches and the tone in which they were delivered,
was well placed to assess what could be left alone and what, on the other hand,
carried a danger of a fundamental misconception such that it should be the
subject of comment. It was well within the experience of those who conducted,
or appeared in, jury trials that comments about a point arising in counsel’s
speeches were regularly made without first giving counsel the chance to make
submissions about the proposed comment. There were some matters which a
judge would be wise to discuss with counsel before the summing-up, and it was
also open to a judge to invite counsel to correct himself, rather than be
corrected. But where a judge was confident, as clearly this judge was, about the
text or nature of a submission made by counsel in a speech, the judge might
make his comment, and it was always open to counsel, as happened in this case,
to invite the judge to qualify or correct himself;
(4)
The judge was correct to refuse A5 permission to call expert evidence
from Dr Ho, a psychologist, who would have given evidence to the effect that
A5 had been desensitised to violence depicted in comic books and films; he
138
CCAB 2001
could also have testified that A5 suffered from no psychological disturbance and
lacked ‘motivation for foresight’, and was a follower and not a leader. That
evidence was not relevant to the issue which the jury had to decide in relation to
A5, which was whether he was party to an attack intended to cause grievous
bodily harm, and whether he himself intended to cause grievous bodily harm. If
it was a fact, as Dr Ho suggested, that the comic book culture in which A5 found
himself was a culture which had a disregard for human life, that might be an
explanation for violence by youngsters. The point at issue, accepting that he
was a follower, and accepting that his group was a group of bullies acting out
their bullying culture by which they were surrounded, was whether A5 took part
in the attack which caused Ah Kai’s death and, if he did, whether he intended
that really serious harm be caused. There would be no question of a defence by
duress. There was no suggestion that he did not know that the pipes would
cause very serious harm. Nothing the psychologist said that was relevant to the
case of A5 was not said or could not be said by the Applicant. Nothing required
expert evidence to assist the jury in relation to issues before them that they were
not fully capable of assessing themselves;
(5)
The judge told the jury that in the absence of evidence from A6, a mere
allegation, which the prosecution was in no practical position to rebut, remained
just that, a mere allegation; and that given that the prosecution was in no
practical position to rebut it, and that the reason for not calling evidence had
been explained to him, the failure to call evidence did not raise suspicion in his
mind, and neither did the making of a mere allegation. What raised suspicion
was the failure to call evidence in the face of an allegation where it was possible
to call that evidence. If it was not possible, it was not to be thought that an
allegation of itself, no matter how vague, or unidentifiable the targets, could take
the place of evidence.
Result -
Applications for leave to appeal of A1, A3, A4, A5 and A6
dismissed. Application of A2 allowed, and a conviction of inflicting
serious bodily harm substituted for conviction of murder.
139
CCAB 2001
Jury
Jury
CA 147/2000
Stuart-Moore
&
Mayo VPP
Seagroatt J
(19.3.2001)
*B Ryan &
G Shiu
#GJX McCoy
SC,
Alexander
King & Edwin
Choy
LAUNDER
Ewan Quayle
judge
counts.
Held :
140
CCAB 2001
Jury
Held :
Held :
(1)
(2)
141
CCAB 2001
Jury
(3)
Ground 3: Delay
years old ’.
Held :
(1)
(2)
(3)
142
CCAB 2001
Jury
Held :
other evidence;
the jury.
Held :
(1)
and (2)(b):
(2)
143
CCAB 2001
Jury
(a)
Held :
(b)
Held :
such circumstances;
(c)
Held :
out;
(d)
reach a verdict.
Held :
144
CCAB 2001
Leave (CFA)
Leave (CFA)
CA 40/2000
Stuart Moore
VP
Wong &
Stock JJA
(3.5.2001)
*Darryl Saw
SC & Bianca
Cheng
#Graham
Harris & Hylas
Chung
WONG
Wah-yee
Hong Kong Court of Final Appeal Ordinance/Application for certificate
out of time/Comments on non-compliance with Practice Direction
《香港終審法院條例》 - 申請逾期發給證明書 - 就不遵守法庭程序
指引作出評論
This was an application for a certificate under s 32 of the Hong Kong
Court of Final Appeal Ordinance, Cap 484, on the ground that certain points of
law of great and general importance were involved in a decision of the court
dated 17 November 2000. There was also an application that the certificate be
granted out of time.
The Applicant was convicted and sentenced in January 2000 in the
District Court of three charges. Whereas the application for leave to appeal
against conviction was dismissed by a judgment which was handed down on 17
November 2000, the notice of motion was dated 27 February 2001, more than
three months after the date of judgment.
The Practice Direction which governed criminal appeals to the Court of
Final Appeal stipulated that:
3. Applications for a certificate to the Court of Appeal or the
Court of First Instance that the decision involves a point of
law of great and general importance should be made
immediately after the judgment is given from which the appeal
is to be brought.
4. The applicant should provide the court with a written
statement of the point of law involved. Submissions on the
application will then be heard and determined.
5. If either party requests for time to prepare the written
statement or submissions and obtains an adjournment, an
early date will be fixed for the resumed hearing.
The Applicant said that the delay was due to an application for legal aid in
which a decision did not come for some time.
Held :
The rationale for the Practice Direction was fully explained in HKSAR v
Choi Wing-man [1999] 2 HKC 382. The reason given by the Applicant for the
delay did not justify a failure to take at least the initial step. It would have been
easy for leading counsel involved to have made the application forthwith,
accompanied if absolutely necessary by an application to adjourn the hearing of
the application for a certificate pending determination of the legal aid
application. For that reason alone, the application would be refused, although
the court was prepared to comment on the merits, and there were no arguable
points.
Result - Application refused.
145
CCAB 2001
CA 309/99
Stuart-Moore
&
Mayo VPP
Stock JA
(13.12.2001)
*MC
Blanchflower,
SC
#J Mullick
Leave (CFA)
(1) PUN
Ganga
Chandra
(2) GURUNG
Santosh
(3) GURUNG
Rajendra
Bikram
Section 32, Cap 484/Application for certificate that questions of great and
general importance involved/Application previously refused/New questions
sought to be certified/No jurisdiction in Court
第484章第32條 - 申請證明涉及具有重大而廣泛的重要性的問題申請較早前被拒絕 - 要求法庭證明新的問題 - 法庭無此司法管轄權
The Applicant sought to have five points of law certified as being of
great and general importance. There was, however, a complication.
On 4 September 2001 judgment was finally delivered by the Court of
Appeal. The appeal was dismissed by a majority. On 26 September 2001 the
Applicants made an application for a certificate to issue that questions of law of
great and general importance arose on the appeal. These questions did not
embrace the questions which were now posed. That application was rejected.
There was no good reason why the questions in respect of which certification
was now sought had not been included in the questions posed for consideration
on 26 September.
The issue the motion raised was whether it was within the jurisdiction of
the Court to entertain successive applications by the same applicants for a
certificate pursuant to s 32 of the Court of Final Appeal Ordinance, Cap 484.
That was a matter of statutory interpretation. There was nothing in either s 32 or
s 33 of the Court of Final Appeal Rules to indicate that more than one
application could be made for a certificate.
Held :
In R v Ashdown (1973) 58 Cr App R 339, it was stated that in the
interests of finality only one application for a certificate to obtain leave to appeal
to the House of Lords was permissible. Although the situation in Ashdown was
not identical to the instant case there was no valid justification not to follow the
principle enunciated. Although the statutory regime in the United Kingdom was
not exactly the same as in Hong Kong the overall scheme was designed to
achieve a similar objective. There was no jurisdiction to entertain the
application.
146
CCAB 2001
Lies
Lies
CA 527/2000
Mayo VP
Keith &
Stock JJA
CHAN
Che-keung
Adverse inference must be only inference consistent with evidence/Lies of
defendant of no avail if prosecution case not established
不利推論必須是與證供一致的唯一推論 - 如未能證明控方的案情，
被告人的謊言並無作用
The Applicant was convicted after trial of two charges of conspiracy.
(30.8.2001)
*David Leung
#M Panesar
The first charge alleged that the Applicant and Cheung Ka-chung
conspired with Wong Hung-fai and persons unknown to pass or tender as
genuine things resembling HK$100 and HK$500 notes, knowing or believing
them to be counterfeits of currency notes.
The second charge alleged that the Applicant and Kwok Kai-chin
conspired to make counterfeits of currency notes, namely, HK$100 and
HK$500, with intent to pass or tender them as genuine.
In convicting the Applicant of the second charge, the judge said:
I find as a fact that D1 lied when he denied having made the verbal
admission. He lied as to the extent of his acquaintance with D3
and PW1 and I find no reasonable or innocent explanation for
these lies. They lend support to the prosecution’s case.
I remind myself again that the prosecution must prove the
existence of all essential elements of the offences with which the 1st
defendant is charged. The proof must be beyond reasonable
doubt. The 1st defendant has to prove nothing. This requirement
does not prevent me from inferring from the facts that had been
subject of direct evidence the existence of further facts relating to
the knowledge and intent of D1 which constitute and show
elements of the crimes. The inference must be a compelling one
and the only one that no reasonable person can fail to draw from
the direct facts proved.
I have admitted as voluntary D1’s verbal admission and the second
video recorded interview. I find as a fact that a verbal admission
had been made. I give full weight to them.
In the present case, I have no hesitation in drawing the inference
that the 1st defendant, by his verbal admission, acknowledged that
he was party to the scheme to make and pass as genuine
counterfeit banknotes.
D1 denied being a close friend of D3’s. There is no evidence of
them being members of the family, or related in any way. From the
facts, D1 was in possession of the keys to D3’s home, in which
counterfeit notes and implements for the making of counterfeit
notes were found. D1’s China re-entry permit and bankbook were
in D3’s home. The only inference that could be drawn was that D1
was in close association with D3. The further inference arising
from that was D3 was in cohort (sic) with D1 in the enterprise.
On appeal, it was submitted that there was not sufficient evidence to
support the conviction on the second charge.
Held :
(1)
An adverse inference could only be drawn against a defendant if it was
the only reasonable inference consistent with the evidence. The evidence to
which the judge referred was equally consistent with his involvement in the
matters referred to in the first charge;
147
CCAB 2001
Lies
(2)
There was no evidence that the Applicant ever took part in the
manufacture of counterfeit notes and it was not possible to validly draw an
inference that he was. The fact that he might have told lies did not take matters
further as the prosecution had to make out a case of his involvement before that
could arise.
Result - Appeal allowed against conviction on the second charge.
Lurking Doubt
MA 341/2001
Lugar-Mawson
J
(21.6.2001)
*Paul Madigan
#Ian Polson
LEUNG
Wai-kwong
Trafficking in a dangerous drug/Demeanour a valid criterion for
evaluating evidence/‘Lurking doubt’ as basis of appeal
販運危險藥物 - 證人的言行舉止是評估證供的有效準則 - ‘潛在疑
點’作為上訴基礎
The Appellant was convicted after trial of an offence of trafficking in a
dangerous drug, contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance,
Cap 134. He was sentenced to 22 years’ imprisonment.
On appeal, criticism was made, inter alia, of the magistrate’s approach to
demeanour, both of the prosecution witnesses and of the defendant. It was also
submitted that there was a ‘lurking doubt’.
Held :
(1)
Demeanour was a valid criterion for a court to take into account when
evaluating evidence. In Powell v Stretton Manor Nursing Home (1935) AC
243, 247, Lord Wright said:
The judge will form his impression from the whole personality of
the witness. He can allow for the nervous witness standing up in
a crowded court or worried by the strain of cross-examination.
The judge may be deceived by an adroit and plausible knave or
by apparent innocence, for no man is infallible. But in the main,
a careful and conscientious judge with his experience of court, is
as likely to be correct in his impressions as any tribunal.
(2)
Although in R v Ng Wing-min [1994] 2 HKC 464, strong criticism was
made of the trial judge’s reliance upon demeanour, in this case the magistrate
did not use language as colourful, or as emotional, as that used by the judge in
Ng Wing-min;
(3)
In HKSAR v Hung Wai-tak [2000] 4 HKC 641, 649, the Court of Appeal
said of ‘lurking doubt’:
The basis on which this court may interfere is extremely narrow
and the hurdle is a very high one. It has long been recognised for
obvious and sound reasons that an appellate court which has not
had the advantage of seeing and hearing the witnesses should be
slow to interfere with the verdict returned by a tribunal which has
had that advantage.
(4)
There were no errors of law by the magistrate and his conclusions were
not in any way insupportable.
148
CCAB 2001
Magistrate
Magistrate
MA 903/00
Jackson J
(19.12.2000)
*P Madigan
LEE
Sze-chung
Possession of an offensive weapon in a public place/Going equipped for
stealing/Knives not offensive weapons per se/Wrong to equate an
implausible account with a lie
在公眾地方管有攻擊性武器 - 外出時備有偷竊用的物品 - 刀‘本
身’並非攻擊性武器 - 把不合情理的解釋等同謊話是錯的
The Appellant was convicted of an offence of possessing an offensive
weapon in a public place, and an offence of going equipped for stealing.
#Andy Cheng
The facts showed that at about 4 am on the 23 November 1999, the
police stopped a private car belonging to, and driven by, the Appellant. A search
of that vehicle revealed, inter alia, two knives inside a plastic box in the boot;
two screwdrivers in the glove compartment; two screwdrivers in a pouch behind
the front passenger seat; 21 white gloves in the boot and a 38 foot length of
rope, also in the boot. The two knives were the subject of the ‘offensive weapon’
charge and the other items were the subject of the ‘going equipped’ charge.
The Appellant, who was at that time a serving police officer, testified at
trial and gave explanations for his possession of the various items found in his
car, and also confirmed that he had given explanations to the police at the time
of the search. The Appellant also called two witnesses; one was his brother, a
Government servant of good character, who gave evidence about the family’s
recreational use of the knives; and the other, a serving police officer, who told
the court about his knowledge that the gloves had been used in a previous police
operation, and of the rope.
On appeal against conviction, it was submitted that the magistrate was
wrong to draw the inferences adverse to the Appellant which he did draw and, in
particular, to conclude that the Appellant had lied when giving evidence which
lies strengthened such inference.
Held :
(1)
The two knives were not offensive weapons ‘per se’, and before the
Appellant could be convicted of an offence contrary to section 33 of Cap 245,
the prosecution would have to prove that he was in possession of them to cause
injury to the person;
(2)
Whether or not the magistrate considered the Appellant’s evidence in
court and his explanations to the police to be implausible, there was no
justifiable basis upon which to conclude that he was telling lies. There was no
admission or independent evidence to show that he had lied: R v Simpson (1983)
78 Cr App R 115; R v Lucas [1981] 3 WLR 120; HKSAR v Mo Shiu-shing
[1999] HKLRD 155 and HKSAR v Chan Siu-sang HCMA 1003/98 considered;
(3)
The magistrate fell into error when he equated an implausible account
with a lie; when he inferred that such account was not made for an innocent
purpose; and when he then found that such account strengthened the inferences
adverse to the Appellant and did so to the extent of determining the intent
necessary to find him guilty of both offences.
149
CCAB 2001
MA 452/2001
Longley DJ
(13.9.2001)
Magistrate
CHUNG
Ying-fai
Interventions
by
magistrate/Duty
to
ensure
trial
fairly
conducted/Magistrate must avoid role of advocate/Effect of interventions
on impartial observer/Function of prosecutor to elicit evidence
裁判官的干預 - 確保審訊公平地進行的責任 - 裁判官必須避免擔當
出庭代訟人的角色 - 干預對中立的旁觀者的影響 - 檢控人員套問證
供的職能
*W Moultrie
#J
Mchanachan
The Appellant was convicted after trial of one charge of unlawful
wounding, contrary to s 19 of the Offences Against the Person Ordinance, Cap
212.
The principal ground of appeal was directed at interventions by the
magistrate during the trial. It was alleged that the magistrate compromised his
appearance of impartiality, and this resulted in the Appellant appearing to, and
receiving an unfair trial. It was further alleged that the magistrate took over the
conduct of the prosecution by his questions, and that he told the prosecutor what
questions to ask.
The Appellant relied on the five propositions stated in R v Yeung Maulam [1991] 2 HKLR 468:
(a) Interruptions by their number alone are not decisive;
(b) The quantity and quality of the interruptions must be looked
at as factors which react upon each other;
(c) Actual bias on the part of the judge need not be established,
it being enough if by his conduct he would be thought by the
informed bystander to be taking over the conduct of the case
from the prosecution;
(d) Where a judge sits without a jury, the appeal court must ask
itself whether a person listening to the case would justifiably
have had the impression that the judge had by his questions
entered the arena;
(e) The ultimate question for the consideration of an appellate
court is whether the judge’s conduct was such that it would
have caused the informed bystander listening to the case to
say that the defendant had not had a fair trial.
The Appellant argued that an informed bystander would have had the
impression that the magistrate had entered the arena and taken over the conduct
of the case for the prosecution and that therefore the Appellant had not had a fair
trial.
The magistrate himself acknowledged that this was a case in which he
had to ‘intervene persistently in order that the evidence could come out in a
coherent manner’.
Held :
(1)
That a judge or magistrate could intervene and ask questions during a
criminal trial, notwithstanding the fact that in common law jurisdictions there
was an adversarial system, was well established. In the case of a judge or
magistrate sitting alone, he could not properly perform his duty without fully
understanding the evidence that was placed before him. He might intervene in
order to ensure that he did. He also had a duty to ensure that trials were fairly
conducted and were not unduly protracted;
(2)
Lord Taylor CJ in R v Whybow TLR 14 February 1994, said:
150
CCAB 2001
Magistrate
Their Lordships wished to make clear that there were, of course,
circumstances in which and purposes for which it was entirely
appropriate for a judge to intervene during the evidence.
If a witness gave an ambiguous answer, the judge should have it
clarified as briefly as possible. If the answer was long or the
judge did not hear it clearly, he could certainly have it repeated
for the purposes of his note.
Furthermore, The Royal Commission and Criminal Justice Report
(Cm 2233 (1993) p 19) recommended that judges should be more
interventionist so as to prevent trials becoming protracted.
Their Lordships entirely supported that recommendation.
Judges should intervene to curb prolixity and repetition and to
exclude irrelevance, discursiveness and oppression of witnesses.
And Simon Brown LJ, in R v Saville (unreported) March 17, 1992,
Criminal Appeal 4181/91, said of the duty of a judge:
the defence. Rather it is the duty of the judge to ensure that
intervene as necessary to ensure that that goal is achieved.
(3)
Nevertheless, there were limits to what was permissible. The courts had
emphasised that the judge or magistrate must continue to preserve an appearance
of neutrality throughout a trial and must strive so as to conduct himself during a
trial that a neutral observer would be left in no doubt that the trial was conducted
fairly before a judge or magistrate who stood above the conflict and retained his
air of impartiality throughout. He must not, above all, assume the role of an
advocate. Should a judge or magistrate when sitting alone assume the role of an
advocate, not only was the appearance of neutrality lost but the judge or
magistrate being a judge of facts as well as law, there might be a very real
possibility that his judgment would be influenced by his conduct and the
defendant generally deprived of a fair and impartial trial: R v Lau Hing-on
[1987] 1 HKC 89;
(4)
Even if the interventions of the magistrate were prompted by the best of
motives, namely, his desire to ensure that the evidence emerged clearly and
expeditiously, the quantity and scope of his interventions resulted in him
trespassing beyond his function in an adversarial system. It was the function of
the prosecutor to elicit the evidence upon which he relied. Even if the
magistrate doubted the competence of the prosecutor in performing his role, it
was not for the magistrate to assume it;
(5)
An informed bystander hearing the evidence of the first two prosecution
witnesses would have been left with the impression that the magistrate by his
numerous interventions was assuming the role of prosecutor in this regard and
had entered the arena.
Result -
Appeal allowed.
151
CCAB 2001
Negative Averment
Negative Averment
MA 210/2000
CHENG
Chung-ming
(14.2.2001)
False accounting/Making of entries in invoices/Magistrate shifting burden
of proof to defence/Negative averment not relevant/Burden of proof on
prosecution throughout
偽造帳目 - 在發票上記入記項 - 裁判官把舉證責任轉移至辯方 - 由
被告提出證據證明並不合適 - 舉證責任自始至終在控方
*Frederick
Chung
The Appellant was convicted after trial of 21 charges of false accounting,
contrary to s 19(1)(a) of the Theft Ordinance, Cap 210.
#M K Wong
Save for the particulars, the 21 charges were identical. Charge 1 alleged
that the Appellant:
Barnes DJ
… dishonestly and with a view to gain for himself, falsified a
document made or required for an accounting purpose, namely a
commercial invoice of Express Stationery Supplies, numbered
39681 and dated 11.7.1996, by making or concurring in the
making of an entry thereon which was or may have been
misleading, false or deceptive in a material particular in that it
purported to show that the marker paper sold to Wanlee Fashion
Limited had a total weight of 2400 pounds whereas in fact it was
not.
The case for the prosecution was that at the material time, the Appellant
was the sole proprietor of Express Stationery Supplies (‘Express’). Express
supplied marker paper for use in the garment and textile industry. Sun Cheung
Paper Company (‘Sun Cheung’) and Tai Fat Paper Hong (‘Tai Fat’) were the
only suppliers of marker paper to Express. Cash memos were issued by Sun
Cheung and Tai Fat in respect of their sales to Express. The marker paper came
in sizes of 36 inches, 46 inches and 60 inches in diameter; and their weight
would not have exceeded 300 pounds, 400 pounds and 500 pounds respectively.
Since 1996, Express had sold marker paper to Wanlee Fashion Limited
(‘Wanlee’).
The prosecution alleged that in the invoices to Wanlee, the Appellant had
marked up the weight of the marker paper to the extent of 100-200 odd pounds.
These formed the basis of the 21 charges against him.
On the issue of whether the prosecution had proved that the Appellant
was responsible for making the entries in the invoices, the magistrate, after
referring to the defence submission that there were other partners though in law
the Appellant was the sole proprietor, said:
It is not incumbent upon the prosecution to prove everything in a
criminal case. Propositions of this kind would have to be proved
by the defence in the form of a negative averment. If the defence
says that there are, in fact, partners, they have to call the evidence.
There is simply no evidence here.
On appeal, it was submitted, inter alia, that the magistrate erred in
shifting the burden of proof to the Appellant on the issue of whether he was the
sole proprietor of Express when he found the negative averment applicable to
the case.
Held :
(1)
Subject to certain exceptions, the prosecution in criminal cases bore the
burden of proof to the requisite standard that a defendant was guilty as charged.
Of the exception at common law, it was said in R v Edwards [1975] QB, 27, 39:
This exception … is limited to offences arising under enactments
which prohibit the doing of an act save in specified circumstances
152
CCAB 2001
Negative Averment
or by people of specified classes or with specified qualifications or
with the licence or permission of specified authorities. Whenever
the prosecution seeks to rely on this exception, the court must
construe the enactment under which the charge is laid. If the true
construction is that the enactment prohibits the doing of acts,
subject to provisos, exemptions and the like, then the prosecution
can rely on the exception … Two consequences follow … First, as
it comes into operation upon an enactment being construed in a
particular way, there is no need for the prosecution to prove a
prima facie case of lack of excuse, qualification or the like; and,
secondly, what shifts is the onus: it is for the defendant to prove
that he was entitled to do the prohibited act. What rests on him is
the legal, or it is sometimes called, the persuasive burden of proof.
It is not the evidential burden.
The common law rules concerning negative averments applied in Hong Kong: R
v Lam Yu-tung [1958] HKLR 140; R v Wong Sang [1964] HKLR 883. Section
94A of the Criminal Procedure Ordinance was both declaratory of and
supplementary to the common law: Bruce & McCoy: Criminal Evidence in
Hong Kong, Division III, paragraph 102;
(2)
Negative averments could only come into operation upon a statute being
construed in a particular way. They had no application for offences under s 19
of the Theft Ordinance or any other relevant statute. By saying that the
Appellant’s propositions that there were other partners needed to be proved ‘by
the defence in the form of a negative averment’, the magistrate erred in shifting
the legal burden of proof that the Appellant was the sole proprietor of Express to
the Appellant, when the prosecution bore the burden of proof throughout. The
magistrate’s finding that the Appellant was the sole proprietor of Express was
therefore based on a legal misdirection on the burden of proof, and amounted to
a material irregularity.
Offences Against Public Order
MA 548/1998
Pang J
(28.2.2001)
*RSK Lee &
Bianca Cheng
#L Lok SC &
Margaret Ng
(1) TAM
Chun-yin
(2) WONG
Shui-hung
(3) CHAN
Siu-ping
(4) WONG
Shui-ying
Disorderly conduct/Amendment of charge to wilful obstruction at close of
prosecution case/Ingredients of wilful obstruction/ Offender causing
situation in which arrest not possible
行為不檢 - 控方結案時將控罪修訂為故意妨礙 - 故意妨礙的要素犯案者造成一種情況令警務人員不可能執行拘捕
The Appellants were part of a group of demonstrators who participated in
a protest against the World Bank and IMF on 21 September 1997 when the
delegates of the participating nations met at the Hong Kong Exhibition and
Convention Centre in Wanchai. A1 organised the demonstration.
When the procession became confused, chaotic and noisy, after the
demonstrators sought to demonstrate at areas other than those designated by the
police, the Appellants were arrested and charged with offences of disorderly
conduct and assault on police.
At trial, at the close of the prosecution case, the prosecution applied to
amend the disorderly conduct charge against A1 and A4 to two charges of
obstructing a police officer in the due execution of his duty in respect of A1 and
A4. That application was made pursuant to s 27(1)(b), Cap 227, and, after
submissions, the amendments were made. A1 and A4 gave and called no
153
CCAB 2001
Offences Against Public Order
evidence, and both were convicted of the wilful obstruction charges at the end of
the trial.
A2 was convicted of one charge of assaulting a police officer acting in
the due execution of his duty, contrary to s 63 of the Police Force Ordinance,
Cap 232. A3 was convicted of three charges of assaulting a police officer,
contrary to the same Ordinance.
On appeal
Held :
(1)
As there was a clear variance between the original charge against A1 and
A4 of disorderly conduct in a public place, and the prosecution case against
them, and as the evidence suggested it was a case of wilful obstruction when the
Appellants were told to move back from the cordon, the magistrate was under a
duty to amend the charges when he was satisfied that the evidence was at
variance with the original charge: Poon Sau-cheong v Secretary for Justice
[2000] 2 HKC 279. The magistrate also considered and was satisfied that the
amendment gave rise to no injustice to the defendants. The Appellants must
have known the precise nature of the case they had to face at the end of the
prosecution’s case;
(2)
The question which the magistrate had ultimately to decide was whether
the conduct of A1 and A4 amounted to wilfully obstructing the police officer
specified in the amended charge. He was entitled to take a global view of the
evidence. In approaching the question, he reminded himself of the correct test
as formulated in Rice v Connolly [1966] QBD 414: whether a person’s act or
conduct amounted to an obstruction depended on whether it made it more
difficult for the police to carry out their duties? Applying that test, the
magistrate found that A1 and A4, by remaining at the cordon line and refusing to
leave despite repeated police requests, had made it more difficult for the police
to carry out their duties;
(3)
Although, on behalf of A2, it was submitted that the magistrate had
overlooked her subjective mind and erroneously concluded that she had no
reason to kick the police, and that he had not properly assessed her evidence
which was to the effect that she simply reacted to what she considered to be an
indecent assault on her by the police officer, the magistrate considered all the
relevant evidence and reached his conclusion on it;
(4)
Although A3 was never formally told she was under arrest, and although
it was stated in Christie v Leachinsky [1947] AC 573, that it was a condition of
lawful arrest that the party arrested should know on what charge or on suspicion
of what crime he was arrested, it was not open to A3 to complain of unlawful
arrest as the magistrate found that she had produced the situation in which the
police had to resort to forcibly removing her. When police tried to remove her,
she bit the three officers, and her actions clearly constituted assaults on them.
154
CCAB 2001
OSCO
OSCO
FAMC 1/2001
Bokhary
Chan &
Ribeiro PJJ
(16.2.2001)
*Kevin Zervos
& Winnie Ho
#Ching Y
Wong SC &
Katty Tsang
WONG
Ping-shui,
Adam
LEUNG
Chung,
Michael
Conspiracy to deal in proceeds of indictable offence/Section 25(1), Cap 455
and section 24(1), Cap 210 not truly alike/ Mental element in s 25(1)
directed at property being dealt with/Not plausible that legislature intended
proof of money laundering offence to require proof of underlying criminal
offences that generated money being sanitised
串謀處理從可公訴罪行的得益 - 第 455 章第 25(1) 條與第 210 章第
24(1)條並非真正相似 - 第25(1)條的犯罪意念元素所針對的是被處
理的財產 - 要證明干犯洗錢的罪行，就須先證明干犯了衍生涉案金
錢的罪行，這個要求不可能是立法機關的原意
The Applicants were convicted after trial in the District Court of
conspiracy to contravene s 25(1) of the Organized and Serious Crimes
Ordinance, Cap 455, and each was sentenced to 5 years’ imprisonment.
Section 25(1) provided:
... a person commits an offence if, knowing or having reasonable
grounds to believe that any property in whole or in part directly
or indirectly represents any person’s proceeds of an indictable
offence, he deals with that property.
The Applicants sought leave to argue, inter alia, that, contrary to the
judgment of the Court of Appeal in HKSAR v Li Ching [1997] 4 HKC 108, this
was an offence that required the prosecution to prove that the property dealt with
by the defendant did in fact represent the proceeds of an indictable offence. It was
submitted that the definition of the offence of handling stolen goods contained in s
24(1) of the Theft Ordinance, Cap 210 was identically structured and that, as found
by the House of Lords in Haughton v Smith [1975] AC 476, such a provision
should be construed as requiring the objective status of the goods to be proven. In
the case of handling stolen goods, the offence could only be committed where the
goods handled were not only believed to be stolen but actually continued to be
stolen at the moment of handling. The Applicants contended that, by parity of
reasoning, s 25(1) must be construed to require the property dealt with to be shown
actually to be the proceeds of an indictable offence.
Held :
(1)
The point was not reasonably arguable. It proceeded on a false premise.
Section 24(1) of the Theft Ordinance provided:
A person handles stolen goods if (otherwise than in the course of
the stealing) knowing or believing them to be stolen goods he
dishonestly receives the goods, or dishonestly undertakes or
assists in their retention, removal, disposal or realisation by or
for the benefit of another person, or if he arranges to do so.
Section 24 therefore defined the actus reus of the offence as the handling of
goods which were ‘stolen’ goods. It went on to define the mens rea as the
dishonest knowledge or belief that the goods were stolen. The quality or status
of the goods being stolen was therefore an element in both the actus reus and the
mens rea;
(2)
By contrast, s 25(1) of Cap 455 did not define the actus reus as dealing
with the proceeds of an indictable offence. It defined it as dealing with
‘property’ which the defendant knew or had reasonable grounds to believe
represented the proceeds of an indictable offence. The quality of the goods
being such proceeds was therefore an element in the mens rea but not the actus
reus;
155
CCAB 2001
OSCO
(3)
For the two sections to be truly alike, s 25(1) would have had to define
the offence as dealing with the proceeds of an indictable offence, knowing or
having reasonable grounds to believe that the property dealt with represented the
proceeds of an indictable offence. This it did not do;
(4)
The mental element to be proved, whether in terms of knowledge or
belief on reasonable grounds, was directed merely at the property being dealt
with. All the provisions of section 25 operated without difficulty on that basis;
(5)
Quite apart from those points of construction, it was wholly implausible
that the legislature could have intended proof of money laundering offences to
require proof of the underlying criminal offences that generated the money being
sanitised. There was the obvious likelihood that such activities would be
cloaked in secrecy and that they might well have taken place in one or more
foreign jurisdictions.
CA 420/2000
Stuart-Moore
VP
Woo JA
Lugar-Mawson
J
(27.11.2001)
*Michael
Blanchflower,
SC &
Raymond
Cheng
#Corinne
Remedios (D5)
James
McGowan
(D6)
LAU
Chung-yee
(D5)
HO
Chi-keung
(D6)
Conspiracy to defraud/Effect of OSCO Production Order/No obligation on
accused to make a statement/Sections 3 and 4 of OSCO
contrasted/Statement admitted with concurrence of trial counsel
串謀詐騙 - 根據《有組織及嚴重罪行條例》作出的提交令的效力被告沒有責任作出陳述 -《有組織及嚴重罪行條例》第3及4條的對
比 - 陳述在原審代表律師的同意下獲得接納
The Applicants were charged together with five other defendants with
conspiracy to defraud, contrary to common law and punishable under s 159C(6)
of the Crimes Ordinance, Cap 200. The particulars alleged that the seven
defendants, between 21 July 1999 and 12 August 1999, in Hong Kong,
conspired together with other persons unknown, to defraud such persons as
might be induced to give money to invest. There was a second charge against
D6 and D7 for failing to keep books of account, contrary to s 121(4) of the
Companies Ordinance, Cap 32, in that they, between 22 July 1999 and 12
August 1999, in Hong Kong, being directors of a company, Profit Style, failed
to take all reasonable steps to secure compliance by the company with the
requirements of s 121 of the Companies Ordinance.
All defendants pleaded not guilty to the first charge and D6 and D7
pleaded not guilty to the second charge. None of the defendants testified or
called evidence, and the judge convicted D1 to D6 of the first charge while
acquitting D7 of that charge and convicted D6 and D7 on the second charge.
D5 was sentenced to 3 years and 9 months’ imprisonment. D6 was
sentenced to 4 years’ imprisonment for the first charge and 3 months’
imprisonment for the second charge, suspended for 2 years, to run concurrently
with the sentence for the first charge.
D5 applied for leave to appeal against her sentence of 3 years and 9
months. D6 sought leave to appeal against his conviction on the first charge and
against his sentence on both charges.
On appeal against conviction on the first charge, the Applicant
submitted:
(a) He was convicted on the basis of admissions made during an
interview conducted under the Organised and Serious Crimes
Ordinance, Cap 455, section 4, such admissions being
provided under the threat of penal sanctions and therefore
involuntary, and thus inadmissible;
156
CCAB 2001
OSCO
(b) Further or in the alternative, the manner and circumstances in
which the admissions were made were such that the judge
should have intervened to exclude them in the exercise of his
common law discretion and/or obligation to ensure fairness to
him;
(c) Further or in the alternative, the judge should have excluded
the alleged admissions on the basis that their prejudicial effect
outweighed their probative value;
(d) Further and/or in the alternative, the judge erred in determining
that the contents of such interview were sufficient evidence of
his agreement, with the required knowledge and intention, to
participate in the common criminal design of the alleged
conspirators.
The admissions were made in the Applicant’s statement to the police in
response to a Production Order of 31 January 2000, made pursuant to s 4(2) of
the Organised and Serious Crimes Ordinance, Cap 455 (‘OSCO’ ). That was for
the production by a person who appeared to the court to be in possession or
control of the material to which the application resulting in the making of the
order related: s 4(2) ‘material’ included any book, document or other record in
any form whatsoever, and any article or substance: s 2(1). The person to whom
the order was directed was not excused from producing any material so ordered
on the ground that to do so might incriminate him - s 4(12)(a) - but he might
claim privilege: s 4(11)(a). Any person who without reasonable excuse failed to
comply with an order made under s 4(2) committed an offence and was liable to
a fine at level 6 and to imprisonment for 1 year: s 4(13). The Applicant
contended that s 4(13) hung over his head in making the admissions he did in his
statement dated 18 February 2000. It was said that this threat of liability to
criminal prosecution affected his right of silence and made his admissions
involuntary, so that the statement should not have been admitted.
The Applicant placed reliance upon that said in Secretary for Justice v
Lam Tat-ming & Another [2000] 2 HKLRD 431, 440:
The Judge has the overriding duty to ensure a fair trial for the
accused according to law. For this purpose, he has what should
be regarded as a single discretion to exclude admissible evidence,
including a voluntary confession, whenever he considers it
necessary to secure a fair trial for the accused. … The court’s
function is to consider whether it would be unfair to the accused to
use the confession though voluntary against him at his trial.
The test of unfairness is not that a game governed by a sportman’s
code of fair play. See R v Sang [1980] AC 402 at p. 456D-E; R v
Swaffield (1998) 192 CLR 159 at pp. 185-6, para. 35 (Brennan
CJ). Unfairness in this respect is judged against and only against
what is required to secure a fair trial for the accused. R v Sang at
p. 453C (Lord Scarman); Scott v The Queen [1989] AC 1242 at p.
1256A-B. However, it is important to observe that in a just society,
the conviction of the guilty is in the public interest, as is the
acquittal of the innocent. See R v Sang at p. 437B (Lord Diplock),
p. 456E-F (Lord Scarman); A-G v Lam Man Wah (No 2) [1992] 2
HKC at p. 72C.
The requirement of a fair trial for the accused involved the
observance of principles including the following which are
relevant in this appeal: (1) No man is to be compelled to
incriminate himself; his right of silence should be safeguarded. (2)
No one can be convicted except upon the probative effect of
admissible evidence. To ensure a fair trial for the accused, the
court will exclude admissible evidence the reception of which will
157
CCAB 2001
OSCO
compromise these principles. R v Sang [1980] AC 402 at pp.
436H-437D (Lord Diplock) and p. 455C-E (Lord Scarman).
It was submitted that as the Applicant might have been under the
impression of being compelled to provide the statement, it would not be fair for
the judge to have admitted the statement against him at the trial. Moreover, it
was said that the Applicant had given the statement to provide a reasonable
excuse for failing to produce documents in order to prevent prosecution under
OSCO so that the statement should not have been admitted against him and used
for the purpose of proving a different offence, ie, the first charge of conspiracy
to defraud.
Held :
(1)
Section 4(13) made the failure to comply with the Production Order
without reasonable excuse an offence. It did not impose any compulsion on the
Applicant to make any statement to the police. His attendance at the
Commercial Crime Bureau and making the statement to police was purely
voluntary. The Applicant attended with a solicitor, and must presumably have
been acting under legal advice. Even if he failed to comply with the Production
Order, it was not incumbent upon him, in order to prevent or avoid prosecution
under s 4(13), to give a statement to the police. Having a reasonable excuse or
not, he was never ordered or in any way obliged to provide any statement. If he
were charged for breaching the Production Order, he could provide the
reasonable excuse, if any, eg in court. The Production Order only required him
to produce material and documents, not that a statement be made by him. That
was different from what might be required under s 3 of the OSCO which
authorised the Secretary for Justice to require that the person to whom an order
made thereunder be directed to ‘answer questions or otherwise furnish
information with respect to any matter that reasonable appears to an authorised
officer to be relevant to the investigation ’: s 3(3)(c)(i). While s 3 similarly
excluded self-incrimination as a ground for not complying with an order made
under s 3(1)(a), accepted legal privilege as such a ground, and made failure to
comply without reasonable excuse an offence, it differed from s 4 in that it
excluded the use of the information and material provided under s 3 against the
ordered person in criminal proceedings. It was abundantly clear that as the
Production Order was made pursuant to s 4 and not s 3, there was no obligation
or compulsion for D6 to give a statement to the police. The question of
voluntariness did not even arise for consideration;
(2)
The Applicant made the admissions to police after he had been cautioned
and he answered questions put to him after a further caution. He knew full well
that he was not obliged to say anything or answer any questions and what he said
might be given in evidence. He was accompanied by a solicitor and there would
have been no misunderstanding that he was compelled to make the submissions;
(3)
The Applicant’s statement was admitted with the agreement of his trial
counsel. It was not suggested that trial counsel was incompetent. The statement
was voluntary and made in the presence of a legal adviser. Its contents afforded
strong proof of his involvement in the management of the company which was
the corporate façade of the conspiracy. It was not unfair for the judge to have
admitted the statement, and it would be odd for the judge to have interfered and
to have taken it upon himself to exclude the statement when the defence counsel
was anxious for this evidence to be admitted: Suresh v R (1998) 72 AJLR 769;
(4)
It was open to the judge to draw the irresistible inference that the
Applicant was an important member of the conspiracy to be operated under the
guise of a legitimate business run by Profit Style.
Result -
Application dismissed [See also Criminal Appeals/ Against
Sentence: Ed]
158
CCAB 2001
Plea
Plea
MA 896/2001
Gill DJ
LI
Shu-mau
Guilty plea/Reversal of plea/Gravamen of involuntary plea/ Admitted facts
not supporting offence charged/Facts equivocal as to guilt
承認控罪 - 推翻認罪 - 非自願認罪的要點 - 控辯雙方承認的事實並
不支持控罪 - 證明有罪的事實並不清晰
(6.12.2001)
*Alex Lee
#James
Chandler
The Appellant pleaded guilty on 19 January 2001 to two offences. The
first was conspiracy to offer advantages to an agent, contrary to ss 9(2)(a) and
12(1) of the Prevention of Bribery Ordinance, Cap 201, and ss 159A and 159C
of the Crimes Ordinance, Cap 200. The second was conspiracy to steal,
contrary to s 9 of the Theft Ordinance, Cap 210, and ss 159A and 159C of the
Crimes Ordinance, Cap 200. Sentencing was adjourned to be dealt with by the
magistrate appointed to try his co-defendants after that trial.
On 27 July 2001, the Appellant applied to reverse his pleas on three
bases. First, it was said that the facts in support of the first charge did not
amount to an offence. Second, it was said that the facts in support of the other
charge were equivocal. Third, it was said that the pleas were made
involuntarily.
The Appellant testified in relation to the third ground. He said that
during the investigation ICAC officers had told him that his role was a minor
one and that he should plead and testify against the others and, if he did so, he
would not go to prison. He believed them and instructed his solicitors that he
would plead. He denied that his decision to apply to reverse his plea was
arrived at because of the spectre of a prison sentence.
The magistrate ruled that the Appellant’s pleas were not involuntary and
that the facts as submitted proved the offences charged. She refused the
application and sentenced the Appellant to concurrent terms of imprisonment of
6 months.
On appeal, it was submitted that the pleas of guilty were nullities. It was
said, first, that the tendered pleas were involuntary, as they were induced by
duress or misrepresentation or were not made in the exercise of a free choice.
Second, it was said that the admitted facts did not amount to the offence charged
and/or, alternatively, that the admitted facts were equivocal as to guilt. Reliance
was placed upon HKSAR v Wong Chi-yuk [2000] 3 HKLRD 125.
Held :
(1)
The gravemen of an involuntary plea was that at the time it was given the
accused was under the influence of improper advice or instruction and was not
exercising his free will in making his plea. It could not be accepted that he was
still under the influence of the ICAC officers, having been exposed on a number
of occasions, in the months following the investigation, to those legally qualified
and appointed to represent his interests. His decision to plead was freely made.
The magistrate’s decision to reject the application to reverse plea under this
head was a proper exercise of discretion;
(2)
The magistrate erred in saying that the words ‘agreement ’ and ‘stole ’, as
used in the brief facts, were simple ordinary words that any layman would
understand, and that the Appellant understood them, and that further argument
on the point should have been pursued not before her but in the High Court. It
was her duty to deal with the application on the basis that it was a decision for
her to take, and not to pass it on to another court R v Li Tung-ling [1992] 2 HKC
427;
(3)
An essential ingredient of an offence under s 9(2)(a), Cap 201, was that
the offer must be made for a corrupt purpose. The offence was committed once
159
CCAB 2001
Plea
the offer was made, regardless of what happened next. So the guilty intent of
the offender was to be judged independently as at the time of the making of the
offer. Thus a s 9 offence focused on the mind of the offender: HKSAR v Su
Kam-tin [1997] HKLRD 1123;
(4)
A conspiracy charge required therefore the element of an agreement
between the accused and at least one other to pursue the course of conduct
which amounted to a corrupt offer on his part under s 9(2)(a). There was
nothing in the agreement to show conclusively that there was a corrupt intent on
the part of the Appellant. A corrupt intent could not be inferred. The plea on
charge 1 was a nullity as the facts did not support the charge. The facts were
also equivocal as to guilt as it was not clear as to whether a reward or
inducement offered to induce acts of theft by others from their employer could
be said to be an inducement for them to do an act in relation to the employer’s
affairs or business;
(5)
The facts pertaining to the other charge were insufficiently precise and,
as they were equivocal as to guilt, that charge was also a nullity.
Result - Appeal allowed. Case remitted to magistracy for trial before another
magistrate.
POOW
MA 903/00
Jackson J
(19.12.2000)
*P Madigan
LEE
Sze-chung
Possession of an offensive weapon in a public place/Going equipped for
stealing/Knives not offensive weapons per se/Wrong to equate an
implausible account with a lie
在公眾地方管有攻擊性武器 - 外出時備有偷竊用的物品 - 刀‘本
身’並非攻擊性武器 - 把不合情理的解釋等同謊話是錯的
The Appellant was convicted of an offence of possessing an offensive
weapon in a public place, and an offence of going equipped for stealing.
#Andy Cheng
The facts showed that at about 4 am on the 23 November 1999, the
police stopped a private car belonging to, and driven by, the Appellant. A search
of that vehicle revealed, inter alia, two knives inside a plastic box in the boot;
two screwdrivers in the glove compartment; two screwdrivers in a pouch behind
the front passenger seat; 21 white gloves in the boot and a 38 foot length of
rope, also in the boot. The two knives were the subject of the ‘offensive weapon’
charge and the other items were the subject of the ‘going equipped’ charge.
The Appellant, who was at that time a serving police officer, testified at
trial and gave explanations for his possession of the various items found in his
car, and also confirmed that he had given explanations to the police at the time
of the search. The Appellant also called two witnesses; one was his brother, a
Government servant of good character, who gave evidence about the family’s
recreational use of the knives; and the other, a serving police officer, who told
the court about his knowledge that the gloves had been used in a previous police
operation, and of the rope.
On appeal against conviction, it was submitted that the magistrate was
wrong to draw the inferences adverse to the Appellant which he did draw and, in
particular, to conclude that the Appellant had lied when giving evidence which
lies strengthened such inference.
160
CCAB 2001
POOW
Held :
(1)
The two knives were not offensive weapons ‘per se’, and before the
Appellant could be convicted of an offence contrary to section 33 of Cap 245,
the prosecution would have to prove that he was in possession of them to cause
injury to the person;
(2)
Whether or not the magistrate considered the Appellant’s evidence in
court and his explanations to the police to be implausible, there was no
justifiable basis upon which to conclude that he was telling lies. There was no
admission or independent evidence to show that he had lied: R v Simpson (1983)
78 Cr App R 115; R v Lucas [1981] 3 WLR 120; HKSAR v Mo Shiu-shing
[1999] HKLRD 155 and HKSAR v Chan Siu-sang HCMA 1003/98 considered;
(3)
The magistrate fell into error when he equated an implausible account
with a lie; when he inferred that such account was not made for an innocent
purpose; and when he then found that such account strengthened the inferences
adverse to the Appellant and did so to the extent of determining the intent
necessary to find him guilty of both offences.
Practice & Procedure
MA 635/2000
(1) CHIU
Teresita
Tong J
(18.12.2000)
*Gary Lam
#1-3, absent
Peter Duncan
(4)
(2) MUKKANAN
Lalana
(3) WONG
Sawandecha
(4) YIP
Bun-keung
Ruling of case to answer/No obligation on magistrate to give
reasons/Reasons desirable in some cases
裁定須作答辯 - 裁判官無責任就裁定給予理由 - 在某些案件中給予
理由是可取的
A4 was convicted after trial of an offence of breaching a licence
condition, contrary to s 46(1) of the Dutiable Commodities Ordinance, Cap
109.
On appeal, A4 submitted, inter alia, that there was a material
irregularity at trial as the magistrate gave no reasons for his finding that there
was a case to answer. This, so it was said, meant that the Appellant was not
able to make an informed decision as to whether to give or call evidence.
Held :
There was no duty upon the magistrate to give reasons in finding a case
to answer. It might well be necessary or a good practice to give reasons in
some cases, but the failure to do so in this particular case did not constitute a
material irregularity. The Appellant had not been prejudiced.
161
CCAB 2001
FAMC 3/2001
YIP
Bun-keung
Bokhary
Chan &
Ribeiro PJJ
Magistrate not required to give any reason for ruling of case to
answer/Point of law sought to be certified case specific
裁判官無須就須作答辯的裁定給予理由 - 要求法庭證明的法律論點
屬本案的個別情況
The Applicant was convicted after trial by a magistrate of an offence
contrary to s 46(1) of the Dutiable Commodities Ordinance, Cap 109, that was,
being the holder of a liquor licence, contravened a licensing condition, namely
clause 7, by permitting the premises in respect of which the licence was granted
to be used for an immoral purpose.
(9.3.2001)
*Peter
Chapman &
Lam Wing-sai
One of the questions which the Applicant sought to have certified, on the
basis that it involved a point of law of great and general importance, concerned a
challenge to the magistrate’s ruling that there was a case to answer at the end of
the prosecution case. It was suggested that at the end of the prosecution case,
and before the Applicant gave evidence admitting that he was in the premises on
the day in question, there was no evidence that he was present in the premises
and hence there was no case for him to answer.
#Peter Duncan
Held :
(1)
The magistrate was not obliged to give any reason for his ruling;
(2)
The magistrate was entitled to find there was a case to answer. Under
clause 4 of the licensing conditions, the Applicant was under a personal duty to
supervise the premises. In the absence of any suggestion to the contrary, it was
open to the magistrate to infer from the evidence that there was a prima facie
case at the end of the prosecution case that the Applicant was present in the
premises, that he must have known what was happening and that he had
permitted such activity to take place inside the premises;
(3)
The question sought to be certified was case specific and involved no
point of law of great and general importance.
Result - Application for extension of time to apply for leave to appeal
refused.
AR 8/2000
Stuart-Moore
VP
Stock JA &
Lugar-Mawson
J
(13.3.2001)
*Stanley Chan
#Suen Kamhee
SJ
v
CHAN
Kit-bing
Suspended sentence qualifying period/Court not functus officio until
sentence perfected/Unexplained delay between arrest and charge/Delay an
exceptional circumstance such as to justify suspension of sentence
緩刑適用期 - 法庭在判刑完畢前權責並未終結 - 由拘捕至起訴期間
的延誤未予解釋 - 延誤屬於一項令判處緩刑合理的例外情況
The Respondent was convicted on 1 November 2000 of an offence of
conspiracy to defraud. She was sentenced on 15 November 2000 to 3 years’
imprisonment, suspended for 3 years.
The evidence showed that the Respondent had played a secondary role
in a series of ‘Long Firm Frauds’ in 1994. Orders amounting to $1.5 million
were placed with seven suppliers between September and November 1994. The
goods were duly delivered, but they were paid for by means of post-dated
cheques which on presentation were not honoured. The instigator of the
enterprise had earlier been sentenced to 2½ years’ imprisonment. The instigator
had hired the Respondent as his merchandiser and supplier.
The Respondent was interviewed by police in November 1994 and in
April 1995 was given unconditional bail. Five years elapsed before she was
rearrested. As there was a gap of 5 years between arrest and charge, the judge
gave the Respondent a discount to reflect her frustration at being unexpectedly
charged. He therefore deducted one year from the starting point of 4 years. He
162
CCAB 2001
suspended the sentence of 3 years in consideration of the personal circumstances
of the Respondent.
On review, it was submitted, first, that the sentence was not authorised by
law. Second, it was said that the sentence was manifestly inadequate.
Held :
(1)
The sentence imposed was contrary to s 109B of the Criminal Procedure
Ordinance, which provided that a court which passed sentence for a term of no
more than two years might suspend the sentence for not less than one year and
not more than three years. A suspended sentence of 3 years’ imprisonment was
wrong in law and had to be quashed;
(2)
Although counsel at trial pointed out to the judge the error he had made,
and that, as he was not at that stage functus officio, he might consider altering
the sentence to one which was lawful, the judge, who had not perfected the
sentence, and had only to make the sentence lawful by reducing its length to two
years suspended for three years, pronounced himself unable to do anything
about his order and left it to the appellate court to sort out the problem;
(3)
No good reason had been advanced for the delay. The Respondent was
38 years old, and 31 years old at the time of the offence. The delay was a most
powerful circumstance making the suspension of the sentence an appropriate
method of disposal on the special facts of this case, notwithstanding that in the
normal course of events the Respondent could not have complained at an
immediate sentence of imprisonment. The delay constituted an exceptional
circumstance.
Result
- SJ’s application allowed. Sentence of 2 years’ imprisonment
substituted, suspended for 3 years.
香港特別行政區訴胡名堅
HKSAR v Wu Ming-kin
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 0 年第1 2 0 3 號
*張維新
Cheung
Wai-Sun
#楊若全
Y C Yeung
高等法院原訟法庭法官彭鍵基
耹訊日期：二零零一年三月廿七日
宣判日期：二零零一年三月廿七日
PANG J
Date of Hearing: 27 March 2001
Date of Judgment: 27 March 2001
上訴人被裁定犯盜竊罪 - 裁判官把舉證的責任放在被告 - 辯方沒有
責任在平衡可能性的情況下證明案情
上訴人經審訊後被裁定干犯了一項盜竊罪名。審訊時，上
訴人選擇作證，並傳召了一位醫生作為辯方專家證人。本案的主
要爭論是上訴人是否當時有犯罪的意念。辯方聲稱當時上訴人是
在藥物的影響下，他並不知道事發時他犯了盜竊的行為。
上訴時，上訴人代表律師指出裁判官錯誤地把舉證責任放
在辯方。裁判官於裁斷陳述書說‘上訴人是沒有責任去證明控罪
的任何內容和元素的。在考慮是否接納辯方的案情，上訴人的證
163
CCAB 2001
供和醫生的意見等，測試的準側只是平衡可能性 (balance of
probability)的測試水平而已。’
裁決：
(1) 上訴人是沒有責任去證明控罪內的任何元素。法庭不能理
解為何裁判官需要在平衡可能性的情況下考慮辯方提出的辯解﹔
(2) 本案並不涉及任何法律上推定的元素或精神錯亂的問題，
因此裁判官對辯方證據的處理方法，有違舉證責任在控方的原
則，在運用法律方面明顯犯錯。上訴人被要求負上了不應肩負的
責任。
上訴得值。
[English digest
of MA
1203/2000,
above]
Pang J
(27.3.2001)
*Cheung
Wai-sun
#Y C Yeung
WU
Ming-kin
Appellant convicted of theft/Magistrate placed the burden of proof on
accused/No onus on defence to establish case on balance of probability
The Appellant was convicted after trial of one charge of theft. At the
trial, the Appellant elected to give evidence and called a doctor as a defence
expert witness. The main issue in the trial was whether the Appellant had the
mens rea at the time of the offence. It was the defence case that the Appellant
was under the influence of drugs so that he did not realize he was doing an act of
stealing.
On appeal, it was submitted that the magistrate had erroneously placed
the burden of proof on the defence when he stated in his statement of findings
that ‘[t]he onus of proving the content and elements of the offence does not rest
with the appellant. When considering whether to accept the defence case, the
appellant’s evidence and the doctor’s opinion etc., the test is only one of
balance of probability’.
Held :
(1)
The Appellant was under no duty to prove any elements of the offence.
It could not be understood why the magistrate had to consider the defence raised
on the balance of probability;
(2)
There were no presumptions in this case and insanity was not an issue.
Therefore the magistrate’s way of dealing with the defence evidence was
contrary to the principle that the burden of proof should always be on the
prosecution. The magistrate had applied the law wrongly. The Appellant had
been required to shoulder a burden that should not have been shouldered by him.
164
CCAB 2001
CA 469/2000
WONG
Kam-wo
Stuart-Moore
VP
Wong &
Stock JJA
In the course of pronouncing sentence, the judge made what he termed
‘slips of the tongue’, which were pointed out to him by prosecuting counsel.
(30.3.2001)
*D G Saw SC
&
Chan Fungshan
In dealing with the subsequent appeal against sentence, the court
observed:
Perhaps these ‘slips of the tongue’ serve to illustrate the desirability
of having a written note of some kind prior to delivering judgment
or, as in this case, passing sentence. The procedure is a solemn one,
often with serious consequences for the offender. It cannot be
treated lightly or as a matter of routine.
#I/P
HCAL
763/2001
Hartmann J
(24.7.2001)
*Darryl Saw
SC
& Richard Ma
#James
Chandler
&M
Richmond
Pronouncement of sentence a solemn procedure/Desirability of judge
having a written note before passing sentence/Sentencing not to be treated
lightly or as a matter of routine
宣判刑罰是一項嚴肅的程序 - 法官宜在判刑前先準備書面摘要 - 判
刑不可掉以輕心或視作例行事務
CHOW
Shun-chiu
Conviction in District Court a nullity/No retrial order after conviction
quashed/Case re-listed for trial in Magistrates Court/Original trial a
nullity/Judicial review not appropriate where alternative remedies
available
區域法院的定罪無效 - 定罪被推翻後無重審命令 - 案件在裁判法院
再排期審訊 - 原審無效 - 倘有其他補救方法則司法覆核並不恰當
On 30 August 1999, the Applicant was charged with an offence of
possession of infringing copies of copyright works for the purpose of trade or
business, contrary to ss 118(1)(d) and 119(1) of the Copyright Ordinance, Cap
528.
The magistrate transferred the case to the District Court, where the
Applicant was convicted and sentenced to 20 months’ imprisonment.
The Applicant succeeded in his appeal against conviction. That was on
the basis of the decision in HKSAR v Tang Siu-kwong and Another [2000]
2HKL 313, wherein it was held that offences under s 118(1) of the Copyright
Ordinance could only be tried summarily as the words ‘upon indictment’ or ‘on
indictment’ did not appear in s 119(1) which provided penalties for these
offences. There was therefore no jurisdiction within the provisions of s 88(1) of
the Magistrates Ordinance, Cap 227, for a magistrate to transfer such matters to
the District Court when a defendant was also accused of an indictable offence.
That being so, the transfer of the cases to the District Court had been in error
and was a nullity.
In allowing the appeal of the Applicant, the Court did not, as in Tang
Siu-kwong (above), order a retrial.
On the understanding that the Magistrates’ Court remained competent to
exercise its jurisdiction in the matter, in June 2000 the prosecuting authorities
requested the Magistracy in Fanling to fix a date for trial in that court. No new
information was laid or fresh charges brought. The request was complied with
and, on 16 January 2001, the matter was listed for trial.
Before the magistrate, the Applicant contended that the Magistrates’
Court had no jurisdiction to hear the matter. The magistrate ruled that the court
did possess jurisdiction and that the trial should proceed. Therefore, the
magistrate was asked to review his decision. The Applicant submitted that as he
had been convicted in the District Court of the same offence with which he was
now charged and had successfully appealed against that conviction, there was no
jurisdiction for a new trial to take place, and the Court of Appeal had not
165
CCAB 2001
ordered a retrial. The magistrate ruled on review that there was no reason to
change his earlier ruling ‘on jurisdiction’.
On judicial review, the Applicant sought an order of certiorari removing
the decisions of the magistrate to the court and quashing them. The result
sought to be achieved was either a declaration that the Magistrates’ Court did
not have jurisdiction to hear the charge or that the plea of autrefois acquit was a
bar to further proceedings.
Held :
(1)
It was clear that in recent years the Hong Kong courts had increasingly
adhered to the principle that the collateral proceeding of judicial review was not
to be employed when alternative and entirely appropriate remedies existed by
way of appeal: Jetex HVAC Equipments Ltd v Commissioner for Labour and
Another [1995] 2 HKLR 24, 29; Secretary for Justice v Lee Wai-man and others
HCAL 13 of 1999. As Stock J observed in Ng Pak-min v HKSAR HCAL 70 of
1999:
Judicial review is supposed to be an avenue of last resort, and it
will only be in the most exceptional circumstances that a court
would stop criminal proceedings in limine ...
(2)
The remedies provided by administrative law, namely, declaration,
injunction, certiorari, prohibition and mandamus, were discretionary, and, in this
case, the court had a discretion, taking into account all relevant factors, whether
to entertain or refuse the application. If it was to be entertained, then, when
alternative remedies existed within the structure of the criminal process, the
grounds had to be exceptional;
(3)
When, as in Tang Siu-kwong (above), the acts made without jurisdiction
were declared null and void, what remained was what had been extant
immediately before the purported transfer; namely, a set of criminal proceedings
validly brought before the magistrate which at all times he was competent in law
to try and determine. In the result, there was no need for any specific direction
to the magistrate to empower him to try the matter, for he was already vested
with that power: R v West (1964) 46 Cr App R 296;
(4)
Whereas an appeal related essentially to the merits of a matter, judicial
review was concerned with the legality of a whole process. That rulings were
said to be wrong in law and ultra vires did not, of itself, bring the matter within
the ambit of judicial review. The remedies sought by the Applicant lay fully
within the criminal process. The validity of a plea of autrefois acquit had
historically rested with the courts of criminal appeal. It would be wrong for the
court to allow itself to become a collateral court of appeal to which recourse
might be had by obtaining a stay of proceedings. That would add to delay, add
to costs, result in a proliferation of proceedings and rather than ensuring the
integrity of the criminal process would go towards undermining it. The matter
would be returned to the magistrate for trial and, if the Applicant was convicted,
other courts might in due course be called upon to pronounce on the matter.
Result -
Application for judicial review dismissed.
Respondent.
166
Costs awarded to
CCAB 2001
香港特別行政區訴黃清陽
HKSAR v WONG Ching-yeung
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 0 年第1 1 1 9 號
*李鏡鏞
Robert
K Y Lee
#上訴人自辯
I/P
高等法院原訟法庭暫委法官杜麗冰
耹訊日期：二零零一年六月廿日
宣判日期：二零零一年六月廿日
Toh DJ
Date of Hearing: 20 June 2001
Date of Judgment: 20 June 2001
盜竊罪 - 被告人沒有向控方證人指出其案情 - 有關盤問證人的規定
並非法律規則
上訴人被控從百佳超級市場內盜取貨品，經審訊後被裁定
盜竊罪名成立。控方的證據主要來自控方第一證人，即超級市場
的一名保安員。他看見上訴人手持膠袋進入百佳超級市場，然後
從超級市場的貨架上取去某些貨品，放入膠袋內，在沒有付款的
情況下離開超級市場。該保安員在截停上訴人後，告知上訴人他
尚未付款，上訴人便說：「而家畀番錢喇」。
上訴人否認曾說這些話。他作證時表示他在當日較早前曾
在百佳超級市場購物，後來又再次進入百佳超級市場是因為他想
購買清水。但是他改變了主意，沒有買任何東西便離開了。上訴
人同意他是在法庭上才首次提及他在同日大約下午六時購買該批
貨品;及有關貨品的收條已在所走。
裁判官認為上訴人的証言違反了在Browne v Dunn (1894)
6 R 67的原則。有關Browne v Dunn一案的規則，是指盤問一方
有責任向對方證人提出其案情。裁判官稱：
本席在這一方面不賦予任何比重。以上一番說話除了違
反rule in Browne v Dunn之外，本席裁定這一番說話
完全沒有說服力和簡直亳不相信。
裁決：
(1) 有關Browne v Dunn一案的規則，是指盤問一方有責任向
對方證人提出其案情。此規則適用於正規法律專業者，旨在確保
審訊得以公平進行，此規則不屬於法律規則。裁判官錯誤地用了
Browne v Dunn一案的規則，因此欠缺公允﹔
(2) 看來指稱違反了規則這點在裁判官心中佔重要的比重，他
因此作出不相信上訴人的結論。雖然裁判官有好的理由而不相信
上訴人的版本，但因他錯誤地用了Browne v Dunn一案的規則，
因而令人懷疑他在得出結論的過程中，可能過份強調此規則，以
致未能達到公平公正﹔
(3) 在此情況下，原有的定罪並不穩妥及令人滿意。不過由於
裁判官若非這點錯誤，也有證據或可恰當地裁定上訴人有罪，因
此本席將本案發回裁判法院重審。
上訴得直，原有定罪撤銷，並下令重審。
167
CCAB 2001
[English digest
of MA 1119 of
2000 above]
Toh DJ
(20.6.2001)
*Robert K Y
Lee
#I/P
WONG
Ching-yeung
Theft/Defendant not putting case to prosecution witness/ Requirement of
cross-examination not a rule of law
The Appellant was convicted after trial of one charge of theft in the
Park’N Shop supermarket. The prosecution mainly relied on the evidence of
PW1, who was a security officer of the supermarket. He testified that he saw the
Appellant enter the supermarket with a plastic bag in his hand, remove from the
rack certain items and put them into the plastic bag. He then left the
supermarket without paying. When the Appellant was intercepted by PW1 and
told that he had not paid, the Appellant allegedly replied ‘I am paying now’.
The Appellant denied having said these words. He testified that he had
shopped at Park’N earlier that day and purchased certain items. He then went
back to the supermarket again intending to buy drinking water. However he
changed his mind and left without buying anything. He agreed that he had never
mentioned before, he testified that it was at about 6pm the same day when he
had made the earlier purchases, and that the sales receipt for those purchases had
been flushed into the toilet.
The magistrate found the Appellant was in breach of the rule of evidence
in Browne v Dunn (1894) 6 R 67, which required that a party should crossexamine a witness on his case. He said:
I am not going to attach any weight to this evidence. The above
testimony, apart from contravening the rule in Browne v Dunn,
is, in my view, totally incredible and unconvincing.
On appeal
Held :
(1)
Under the rule in Browne v Dunn, the party who cross-examined should
put his case to the witness. The rule applied to professional legal practitioners
so that fair trials could be ensured. It was not however a rule of law. The
magistrate had misapplied the rule in Browne v Dunn, and the fairness of the
trial was affected;
(2)
It appeared that the magistrate had placed much importance on the
alleged contravention of the said rule, and it was on such a basis that he had
concluded that the Appellant was unreliable. Although the magistrate had good
reason to disbelieve the version put forward by the Appellant, his wrong
application of the rule in Browne v Dunn caused doubts. During the process of
arriving at the conclusion, he might have over-emphasized the rule;
(3)
The conviction was unsafe and unsatisfactory. As there were sufficient
grounds for the magistrate to have convicted the Appellant had he not erred, the
case would be remitted back to the magistrate for re-trial.
Result - Appeal allowed. Re-trial ordered.
168
CCAB 2001
CA 181/2001
Stuart-Moore
Mayo VPP
Stock JA
(31.8.2001)
*Darryl Saw
SC
#Nicholas
Adams
OI SAN
KOK LO
Oi-ho
Possession of imitation firearm and unlawful remaining/ Summary offences
erroneously transferred to District Court/ Transfer a nullity/Nature of
summary offences/Quashing of conviction without prejudice to jurisdiction
of magistrate
管有仿製火器及非法留港 - 簡易程序罪行的案件錯誤移交區域法院
- 移交無效 - 簡易程序罪行的性質 - 在不影響裁判官的司法管轄權
的原則下推翻定罪
The Appellant pleaded guilty in the District Court to charges of
possessing an imitation firearm, contrary to s 20(1) of the Firearms and
Ammunition Ordinance, Cap 238, and remaining in Hong Kong without the
authority of the Director of Immigration, after having landed unlawfully in Hong
Kong, contrary to s 38(1)(b) of the Immigration Ordinance, Cap 115. He was
sentenced to 32 months’ imprisonment on the first charge and to a consecutive
term of 16 months’ imprisonment on the second, making four years in all.
After conviction, the Department of Justice realised that there had been a
procedural error. The Department informed the Appellant that ‘it has now been
determined that these charges were erroneously transferred from the
Magistrates’ Court to the District Court when the proceedings should in fact
have been dealt with in the Magistrates’ Court’. The Appellant was invited to
appeal against his conviction. He was also informed that if he succeeded in his
appeal, the Court of Appeal ‘may conclude that your case will need to be
referred back to the Magistrates’ Court for resumption of the hearing in that
court’.
The Appellant was caught hiding under a truck as it passed through the
border crossing point at Lo Wu. The Appellant had hidden a starting pistol,
designed to discharge 0.22 blank ammunition, near the spare tyre. He admitted
he had the pistol with him ‘for fun’ and that he had landed in Hong Kong
unlawfully.
The first charge was brought under section 20(1) of the Firearms and
Ammunition Ordinance, Cap 238, which provided:
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.
Although subsections (2) and (3) had no relevance, nowhere in the
section was there any reference to this offence being triable upon indictment.
As regards the second charge, section 38(1)(b) of the Immigration
Ordinance, Cap 115, provided that:
(1)
Subject to subsection (2), a person who,
(b) having landed in Hong Kong unlawfully, remains in Hong
Kong without the authority of the Director,
shall be guilty of an offence and shall be liable on conviction to a
fine at level 4 and to imprisonment for 3 years.
Subsection (2) had no relevance to the proceedings, but once again there
was no reference anywhere in the section to this offence being triable upon
indictment.
Part IV of the Magistrates Ordinance, Cap 227, made provision for the
transfer of offences to the District Court. Section 88(1), so far as was relevant
for present purposes, provided:
(1)
Notwithstanding anything contained in any other provision of
this Ordinance ….. whenever any person is accused before a
magistrate of any indictable offence not included in any of the
169
CCAB 2001
categories specified in Part III of the Second Schedule, the
magistrate, upon application made by or on behalf of the
Secretary for Justice (a) shall make an order transferring the charge or
complaint in respect of the indictable offence to the
District Court; and
(b) may, if the person is also accused of any offence
triable summarily only, make an order transferring
the charge or complaint in respect of the summary
offence to the District Court.
The definition of ‘indictable offence’ found in section 2 of Cap 227
provided that it meant:
any crime or offence for which a magistrate is authorized or
empowered or required to commit the accused person to prison for
trial before the court.
If an offence which was triable summarily only was to be transferred to
the District Court it had to be accompanied by an indictable offence.
The jurisdiction of the District Court in criminal proceedings was
provided for by sections 74 and 75 of the District Court Ordinance, Cap 336.
Those sections gave the District Court jurisdiction to try a charge or complaint
transferred to the court by a magistrate in accordance with the provisions of Part
IV of the Magistrates Ordinance (sections 88-90) and proceedings under section
65F of the Criminal Procedure Ordinance, Cap 221, where the Court of First
Instance had transferred the case to the District Court.
The ground of appeal was that suggested to the Appellant by the
Department of Justice, namely, that the proceedings in the District Court were a
nullity as both charges were summary offences and should not, therefore, have
been transferred to the District Court.
Held :
(1)
The issue which had arisen was not new. In R v Tong Yuen Cr App
19/1988, the Applicant had been dealt with in the District Court for possession
of an imitation firearm. It was pointed out in argument in Tong Yuen that
sections 19 and 21 of the Firearms and Ammunition Ordinance had made the
intention of the Legislature clear in that they each referred to a penalty following
‘conviction upon indictment ’, whereas no corresponding words were to be
found for a s 20 offence;
(2)
The court in Tong Yuen went on to consider the terms of section 89(1) of
the Interpretation and General Clauses Ordinance, Cap 1, which read:
Where any provision in any Ordinance creates, or results in the
creation of, an offence, the offence shall be triable summarily only,
unless (a)
the offence is declared to be treason, felony or
misdemeanor;
(b)
the words ‘upon indictment’ appear; or
(c)
the offence is declared to be a ‘misdemeanor triable
summarily’; or
(d)
the offence is transferred to the District Court in
accordance with Part IV of the Magistrates Ordinance.
The court in Tong Yuen accepted argument that a section 20(1) firearms charge
clearly did not come within categories (a), (b) and (c) of section 89(1) of the
170
CCAB 2001
Interpretation and General Clauses Ordinance. The court, having considered
paragraph (d), also accepted that this did not create any new category of offence
triable in the District Court because it was:
in reality, a provision dealing only with offences transferred from
the Magistrates’ Court to the District Court which must, or they
could not have been properly transferred under section 88(1) of the
Magistrates Ordinance, have been designated indictable offences.
The court went on to conclude that this offence was:
prima facie an offence that was triable summarily and was not one
which by virtue of section 89 could be tried otherwise than
summarily and that the District Court did not, therefore, have
jurisdiction to hear the matter. Jurisdiction remained vested in the
magistrate.
(3)
It was abundantly plain in the present case that the Legislature intended
the section 20(1) offence of possession of an imitation firearm to be triable
summarily. Firstly, there was no indication in section 20(1) to the contrary.
Secondly, the maximum sentence for the offence was set at two years’
imprisonment which was within the powers of punishment of a permanent
magistrate provided for under section 92 of the Magistrates Ordinance:
Provided that nothing in this section shall affect any greater or
lesser punishment specifically provided for in any other Ordinance.
Thirdly, whilst not relying on the specific argument adopted in Tong Yuen that
section 89(1) of the Interpretation and General Clauses Ordinance had
application, because that section had now been repealed, this was, however, reenacted in a slightly amended form in section 14A(1) of the Criminal Procedure
Ordinance, to take into account the abolition of the distinction between a felony
and a misdemeanour. Apart from this, there was no change of any substance
which had been made to the legislation so that the reasoning in Tong Yuen
remained valid for present purposes;
(4)
The question which then arose was whether the other offence, brought
under section 38(1)(b) of the Immigration Ordinance, and carrying a maximum
penalty of three years’ imprisonment, was to be regarded as a summary offence.
Again, there was no suggestion in the wording of this part of section 38 that the
offence was triable on indictment. Section 38(1)(b) of the Immigration
Ordinance provided:
(1)
Subject to subsection (2), a person who……………
(b) having landed in Hong Kong unlawfully, remains in
Hong Kong without the authority of the Director,
shall be guilty of an offence and shall be liable on
conviction to a fine at level 4 and to imprisonment for 3
years.
(5)
Section 38(1)(b) was to be contrasted with an offence under section
38(4) which provided:
(4)
If a person lands from a ship in contravention of subsection
(1)(a)(a) the captain of the ship; and
(b) the owner of the ship and his agent,
shall be guilty of an offence and shall be liable(i)
on conviction on indictment, to a fine of $600,000
and to imprisonment for 7 years; and
171
CCAB 2001
(ii) on summary conviction, to a fine of $600,000 and to
imprisonment for 3 years, …..
The reasoning in Tong Yuen had application to the immigration offence in the
second charge. Unlike a charge brought under section 38(4), where there was
specific reference to a penalty following ‘conviction upon indictment’, there
were no such words for the section 38(1)(b) offence. The offence in charge 2
was a summary offence.
Result - Appeal allowed. Following Attorney General v Nunns (Permanent
Magistrate) and Anor [1987] 2 HKC 294, at 296, it was clear that a
magistrate who had acted in excess of his jurisdiction was thereafter
competent to exercise his jurisdiction properly. The charges in this
matter had at all times remained within the jurisdiction of the
Magistrates’ Court and it followed, as it did in Tong Yuen, that the
quashing of these convictions was without prejudice to the jurisdiction
of the magistrate.
香港特別行政區訴李德麟
HKSAR v LEE Tak-lun
高等法院原訟法庭– 高院裁判法院上訴2 0 0 1 年第3 2 6 號
*劉少儀
Virginia
Lau
#吳政煌
Alex Ng
高等法院原訟法庭暫委法官杜溎峰
耹訊日期：二零零一年八月三十一日
宣判日期：二零零一年八月三十一日
To DJ
Date of Hearing: 31 August 2001
Date of Judgment: 31 August 2001
危險駕駛 - 上訴人在原審時不作供 - 辯方沒有作最後陳詞 - 《裁判
官條例》第19條賦予法定權利作最後陳詞 - 裁判官有責任提醒律師
作最後陳詞
上訴人被控一項危險駕駛控罪，違反香港法例第 374 章
《道路交通條例》第37(1)條。這是一宗十分嚴重的危險駕駛罪
行。控方案情顯示上訴人可能因與控方第一證人爭用道路，而蓄
意在道路上危險駕駛，罔顧控方證人的安全，導致控方證人車內
一名小童乘客受驚及受輕傷。
在原審時，當控方舉證完畢後，代表上訴人的大律師表示
上訴人選擇不作供並結案。裁判官稍作停頓約半分鐘。雙方代表
律師沒有作任何陳述。裁判官沒有邀請辯方作最後陳詞，便退庭
考慮案情，繼而把上訴人定罪。上訴人被判罰款$5,000及停牌6
個月。
上訴時，代表上訴人的大律師指裁判官的定罪於程序及法
理上不妥當。答辯人指上訴人在審訊時有律師代表，原審裁判官
也沒有禁止或不讓他的律師作出最後陳詞。
裁決：
(1) 在R v Au Yeung Tat-shing，Cr App 19/85上訴法庭裁定
《裁判官條例》第19(1)條內的「被告人所作證供」與第19(2)條
內的「每一方」有區別，從而裁定無論被告人選擇作供或傳召證
172
CCAB 2001
人與否，第19(2)條賦予被告人法定權利作最後陳詞﹔
(2) 被告人有法定權利作最後陳詞，而裁判官亦有責任確保被
告人得到一個公平的審訊。這樣公義才能彰顯於人前。裁判官不
可對這個責任掉以輕心。若然代表被告人的律師沒有表示要作最
後陳詞，裁判官有責任向他詢問以提醒代表律師有關被告人的權
利或確定被告人放棄這權利。若被告人沒有律師代表，他更應該
邀請被告人作最後陳詞﹔
(3) 原審裁判官明顯地忽視了上訴人的法定權利。這對上訴人
不公平。基於這理由，上訴得直。上訴人的定罪及吊銷駕駛執照
命令擱置。
結果：上訴得直。
[English digest
of MA
326/2001,
above]
To DJ
(31.8.2001)
*Virginia Lau
LEE
Tak-lun
Dangerous driving/Appellant not testifying at trial/Defence made no closing
speech/Statutory right to make a closing speech under s 19 of the
Magistrates’ Ordinance/Duty on magistrate to remind counsel to make
closing speech
The Appellant was convicted after trial of dangerous driving, contrary
to s 37(1) of the Road Traffic Ordinance, Cap 374. The facts showed that it
was a very serious offence of dangerous driving. The Appellant might be vying
with PW1 in using the road, and he had deliberately driven in a dangerous and
reckless manner, thereby causing shock and slight injury to a child-passenger
inside PW1’s car.
#Alex Ng
At trial, counsel for the Appellant indicated that the Appellant elected
not to testify and he then closed the defence case. The magistrate then paused
for about 30 seconds. Counsel representing both parties made no further
submissions, and the magistrate retired into his chambers to consider the case
without inviting the defence to make a closing speech. The Appellant was
subsequently convicted and fined $5,000 and disqualified from holding a driving
licence for 6 months.
On appeal, it was submitted that there was a procedural error in law.
The Respondent contended that the Appellant was legally represented at trial,
and his counsel had neither been forbidden nor disallowed to make a closing
speech.
Held:
(1)
In R v Au Yeung Tat-shing Cr App 19/1985, the Court of Appeal held
that ss 19(1) and (2) of the Magistrates Ordinance, Cap 227 made a clear
distinction between ‘evidence on oath’ and what each party had to say. Section
19(2) gave each party the right to make a closing speech, and in no way limited
this right to cases where a defendant himself gave evidence and called witnesses;
(2)
A defendant had the statutory right to make his closing speech whilst a
magistrate had the duty to ensure that the defendant had a fair trial. A magistrate
should not treat this duty lightly. If counsel representing the defendant had not
indicated that he would make a closing speech, then the magistrate had the duty
to make enquiries of him. This was to remind him of the defendant’s right or to
confirm that the defendant had given up his right. If the defendant was
unrepresented, the magistrate should even invite the defendant to make his
closing speech;
(3)
Apparently, the magistrate had overlooked the statutory right of the
173
CCAB 2001
Appellant. This was unfair to him. For this reason, the Appellant’s conviction
and the order of his disqualification from holding a driving licence should be set
aside.
Result
- Appeal allowed.
Prosecutor/Prosecutions
HCCC
179/2000
Lugar-Mawson
J
(8.2.2001)
*Arthur Luk &
Ned Lai
#Andrew
Raffell
LING
Kam-wah
Witness on back of indictment/Prosecution declining to call
witness/Principles applicable/Decision not to call witness taken for proper
reasons/Extent of court’s power to invite or direct prosecution to call
witness/Duty of prosecution to make witness available to defence
公訴書背頁上的證人 - 控方不傳召證人 - 適用的原則 - 不傳召證人
的決定基於適當理由 - 法庭邀請或指示控方傳召證人的權限 - 控方
有責任讓辯方傳召證人出庭
At the trial of the defendant for murder, the prosecution indicated that
they did not intend to call a witness whose name appeared on the back of the
indictment and whose statements were contained in the committal bundle. That
was because the prosecution took the view that the witness, though available,
was not reliable.
The defence indicated that they wanted the witness called as he had
material evidence to give. If the prosecution declined to call the witness, the
court, so it was submitted, must either invite or direct the prosecution to do so.
If they failed to comply with any such invitation or direction, the judge, so it was
said, was obliged to call the witness himself.
Held :
(1)
The principles to be derived from Brown and Brown [1997] 1 Cr App R
112, and Russel-Jones [1995] 1 Cr App R 338, were as follows:
(a)
The prosecutor had a discretion which witnesses to call;
(b)
He was expected to call those witnesses who gave direct
evidence of the primary facts of the case;
(c)
It was for him to decide what the primary facts of the case
were;
(d)
Under the adversarial system of criminal justice the
prosecutor did not need to call witnesses whose evidence
was inconsistent with, or contrary to, the case he was
prosecuting, since such witness’s evidence would be
unworthy of belief if his case was correct;
(e)
The prosecutor would, and was expected to, form his own
view of which witnesses he regarded as reliable and which
he regarded as unreliable;
(f)
The prosecutor did not need to call a witness on whom he
did not rely merely to give the defence the opportunity to
attack the credibility of other witnesses on whom he did
rely;
(g)
The prosecutor must make available to the defence all
witnesses named on the back of the indictment and whose
statements were included in the committal bundle whom he
decided not to call as witnesses. He must disclose to the
defence all statements that they had made and all information
174
CCAB 2001
in the prosecution’s possession pertinent to them. This was in
order that the defence might make an informed decision
whether or not to call them as part of the defence case.
(2)
It followed, as a matter of practical logic, that if the prosecutor harboured
doubts about the reliability of a witness who was to give direct evidence of the
primary facts of the case he would be forced to consider whether or not the case
could be successfully mounted without that witness’s evidence. In many cases
that might lead to the abandonment of the prosecution;
(3)
The decision by the prosecution not to call the witness was taken for
proper reasons, and was a proper exercise of the discretion of the prosecution.
Although the court could invite the prosecution to call the witness, it was not
appropriate for it do so;
(4)
It was equally not appropriate for the court itself to call the witness. The
exercise of that power was an exceptional act: Archbold 2001, para 4-345.
However, the prosecution had to make the witness available to the defence, and
to make full disclosure to the defence of all material and information they had
which related to him.
Result - Defence submissions rejected.
Obiter -
MA 452/2001
Longley DJ
(13.9.2001)
CHUNG
Ying-fai
From the state of the authorities it was doubtful if the court had the power
to direct the prosecution to call the witness.
Interventions
by
magistrate/Duty
to
ensure
trial
fairly
conducted/Magistrate must avoid role of advocate/Effect of interventions
on impartial observer/Function of prosecutor to elicit evidence
裁判官的干預 - 確保審訊公平地進行的責任 - 裁判官必須避免擔當
出庭代訟人的角色 - 干預對中立的旁觀者的影響 - 檢控人員套問證
供的職能
*W Moultrie
#J
Mchanachan
The Appellant was convicted after trial of one charge of unlawful
wounding, contrary to s 19 of the Offences Against the Person Ordinance, Cap
212.
The principal ground of appeal was directed at interventions by the
magistrate during the trial. It was alleged that the magistrate compromised his
appearance of impartiality, and this resulted in the Appellant appearing to, and
receiving an unfair trial. It was further alleged that the magistrate took over the
conduct of the prosecution by his questions, and that he told the prosecutor what
questions to ask.
The Appellant relied on the five propositions stated in R v Yeung Maulam [1991] 2 HKLR 468:
(a) Interruptions by their number alone are not decisive;
(b) The quantity and quality of the interruptions must be looked
at as factors which react upon each other;
(c) Actual bias on the part of the judge need not be established,
it being enough if by his conduct he would be thought by the
informed bystander to be taking over the conduct of the case
from the prosecution;
(d) Where a judge sits without a jury, the appeal court must ask
itself whether a person listening to the case would justifiably
have had the impression that the judge had by his questions
175
CCAB 2001
entered the arena;
(e) The ultimate question for the consideration of an appellate
court is whether the judge’s conduct was such that it would
have caused the informed bystander listening to the case to
say that the defendant had not had a fair trial.
The Appellant argued that an informed bystander would have had the
impression that the magistrate had entered the arena and taken over the conduct
of the case for the prosecution and that therefore the Appellant had not had a fair
trial.
The magistrate himself acknowledged that this was a case in which he
had to ‘intervene persistently in order that the evidence could come out in a
coherent manner’.
Held :
(1)
That a judge or magistrate could intervene and ask questions during a
criminal trial, notwithstanding the fact that in common law jurisdictions there
was an adversarial system, was well established. In the case of a judge or
magistrate sitting alone, he could not properly perform his duty without fully
understanding the evidence that was placed before him. He might intervene in
order to ensure that he did. He also had a duty to ensure that trials were fairly
conducted and were not unduly protracted;
(2)
Lord Taylor CJ in R v Whybow TLR 14 February 1994, said:
Their Lordships wished to make clear that there were, of course,
circumstances in which and purposes for which it was entirely
appropriate for a judge to intervene during the evidence.
If a witness gave an ambiguous answer, the judge should have it
clarified as briefly as possible. If the answer was long or the
judge did not hear it clearly, he could certainly have it repeated
for the purposes of his note.
Furthermore, The Royal Commission and Criminal Justice Report
(Cm 2233 (1993) p 19) recommended that judges should be more
interventionist so as to prevent trials becoming protracted.
Their Lordships entirely supported that recommendation.
Judges should intervene to curb prolixity and repetition and to
exclude irrelevance, discursiveness and oppression of witnesses.
And Simon Brown LJ, in R v Saville (unreported) March 17, 1992,
Criminal Appeal 4181/91, said of the duty of a judge:
the defence. Rather it is the duty of the judge to ensure that
intervene as necessary to ensure that that goal is achieved.
(3)
Nevertheless, there were limits to what was permissible. The courts had
176
CCAB 2001
emphasised that the judge or magistrate must continue to preserve an appearance
of neutrality throughout a trial and must strive so as to conduct himself during a
trial that a neutral observer would be left in no doubt that the trial was conducted
fairly before a judge or magistrate who stood above the conflict and retained his
air of impartiality throughout. He must not, above all, assume the role of an
advocate. Should a judge or magistrate when sitting alone assume the role of an
advocate, not only was the appearance of neutrality lost but the judge or
magistrate being a judge of facts as well as law, there might be a very real
possibility that his judgment would be influenced by his conduct and the
defendant generally deprived of a fair and impartial trial: R v Lau Hing-on
[1987] 1 HKC 89;
(4)
Even if the interventions of the magistrate were prompted by the best of
motives, namely, his desire to ensure that the evidence emerged clearly and
expeditiously, the quantity and scope of his interventions resulted in him
trespassing beyond his function in an adversarial system. It was the function of
the prosecutor to elicit the evidence upon which he relied. Even if the
magistrate doubted the competence of the prosecutor in performing his role, it
was not for the magistrate to assume it;
(5)
An informed bystander hearing the evidence of the first two prosecution
witnesses would have been left with the impression that the magistrate by his
numerous interventions was assuming the role of prosecutor in this regard and
had entered the arena.
Result -
CA 403/2000
Stuart-Moore
VP
Stock JA
Lugar-Mawson
J
(26.10.2001)
*Peter
Chapman
& Simon Tam
#F C
Whitehouse
CHAN
Sau-man
Appeal allowed.
Rape/Recent complaint evidence/Admissibility of complaint not made at
first opportunity/Prosecutor entitled to make final speech notwithstanding
election of accused not to testify/ Comments on prosecutor offering own
views
強姦 - 早期投訴的證據 - 並非在第一時間作出的投訴可否接納為證
據 - 儘管被告選擇不出庭作供檢控人員仍有權作最終發言 - 就檢控
人員表達自己的意見作出評論
The Applicant was convicted after trial of rape.
The complainant, aged 26, alleged that she was raped in the New San
Diego Hotel. She had willingly gone to the hotel with the Applicant after they
had spent the evening together. Consensual sexual intercourse, when the
Applicant had been using a condom, had taken place twice before the alleged
rape.
The complainant said that after intercourse had begun to take place with
her consent on the second occasion, a stage was reached when the Applicant
removed the condom he was using. She said she had made it plain to him
throughout that she would only have sex if he was wearing a condom. It was her
concern that unprotected sex with a relative stranger, who she had only met three
times before, might infect her with AIDS. She therefore resisted and struggled
with the Applicant, when he attempted to have intercourse without a condom.
The Applicant insisted on unprotected sex and used force and threats to get his
way. Despite her resistance, he eventually succeeded in penetration for a short
time. After that, the complainant was subjected to threats and violence for a
number of hours before being allowed to leave.
As the complainant was leaving the hotel she went first to the reception
counter, but made no reference to the receptionist about having been raped. She
explained this on the basis that she was intending to go straight to Yaumatei
police station to report the rape. That she did.
On appeal
177
CCAB 2001
Held :
(1)
Although it was submitted that the complainant’s report to a police
officer had not been made at the first opportunity which had offered itself after
the offence, and that this should not have been admitted as evidence of ‘recent
complaint ’, defence counsel raised no objection to its admission at trial. Even
had he done so, the judge could not properly have excluded this evidence on the
ground that it was inadmissible or that he should have exercised a discretion to
exclude it;
(2)
There was no rule of law which stated that for evidence of recent
complaint to be admissible it had to relate to a complaint which had effectively
been made at the first available opportunity: R v Cummings [1948] 1 All ER
551, R v Steven Warner [1995] 78 A Crim R 383. This was, in any event, a
complaint made very soon after the complainant had regained her liberty from
the Applicant who had detained her for several hours following the alleged rape;
(3)
Although prosecuting counsel had made a final speech after the
Applicant had decided not to testify, this was to be expected bearing in mind the
prolonged cross-examination of the complainant.
Result -
Application dismissed.
Obiter -
It was most unfortunate that the prosecutor had, from time to time,
expressed her own opinion, or views, about the evidence. That was
most unfortunate and should not have occurred. Counsel for the
prosecution was perfectly entitled to make her submissions. She was
not entitled to make her personal views known to the jury.
178
CCAB 2001
Proviso
Proviso
CA 313/2000
Stuart-Moore
VP
Stock JA &
Cheung J
(1) POON
Hoi-wing
(2) POON
Kwok-hung
Mixed statement wrongly treated as exculpatory/Judge not relying on
inculpatory parts/Appropriate to apply proviso
混合供詞被錯誤地視為開脫罪責的供詞 - 法官沒有依據認罪部分適宜應用但書
The Applicants faced one charge of conspiracy to defraud. After trial in
the District Court, they were each convicted and imprisoned for 2 years.
(2.2.2001)
*Peter
Chapman
#C Grounds
(1)
D Boyton (2)
On appeal, the Applicants submitted that the judge misdirected himself in
stating that the statements they made upon arrest were entirely exculpatory
whereas, so it was said, they were mixed statements; and that, by so misdirecting
himself, the judge wrongly failed to take into consideration the exculpatory parts
of those statements, a step he should have taken since the Applicants did not
give evidence. In the alternative, it was contended that if the statements were
wholly exculpatory the judge failed properly to consider the reaction of the
Applicants when they were first taxed about the alleged offence.
Held :
(1)
As a matter of law both the inculpatory and the exculpatory parts of a
mixed statement were admissible as evidence of their truth: R v Sharp [1988] 1
WLR 7; R v Aziz [1996] 1 AC 41; R v Chan Chi-wai [1992] 1 HKCLR 1. That,
however, did not mean that both parts carried the same weight. A tribunal might
well take the view that the inculpatory part was more likely to be true and
therefore give it great weight, and the exculpatory part, being self-serving,
worthy of less, or even little, or even no weight. It was important to appreciate
that the exculpatory part was admissible as evidence of its truth not in some
vacuum. It was admissible to that end because without it the tribunal of fact was
less able fairly to evaluate the facts admitted: R v Donaldson (1976) 64 Cr App
R 59;
(2)
The judge ought to have treated the statements as mixed. He did not,
however, rely on any admissions in the statements in convicting the Applicants.
The categorization by a judge of a statement as wholly exculpatory when it
ought to have been categorized as mixed would almost inevitably constitute a
material irregularity, and it did so here. But it did not inevitably follow in every
case that the verdict would be set aside. It depended on the case, the evidence,
and the judgment. There had been no miscarriage of justice and the proviso in s
83 of the Criminal Procedure Ordinance could justly be applied: Western v DPP
[1997] 1 Cr App R 475. Each case had to be examined on its own facts, the
nature of the admissions and excuses, the central issues in the case, the admitted
facts, whether the exculpatory part of a statement was in truth forwarded by way
of explanation or qualification to an inculpatory statement or stood on its own,
the weight of the evidence, what weight, if any, the exculpatory part should
carry, and so on. HKSAR v Kong Siu-ming [2000] 2 HKLRD 449, was not
authority for the proposition that the proviso was inappropriate in all such cases.
Since the judge would inevitably have arrived at the same verdict no miscarriage
of justice had occurred and this was an appropriate case in which to apply the
proviso.
Result - Leave to appeal against conviction granted, proviso applied, and
appeals dismissed.
179
CCAB 2001
CA 356/2000
Stuart-Moore
VP
Wong &
Keith JJA
Proviso
CHENG
Chun-ming
Silence of defendant when interviewed/Adverse comment by judge on
silence an error of law/Ample evidence attracting application of proviso
被告人在會面時保持緘默 - 法官對於被告人保持緘默提出不利評論
是法律上犯錯 - 有充足證據令但書適用
The Applicant was convicted after trial of one charge of handling stolen
goods.
(3.8.2001)
On appeal
*Sin Pui-ha
#Andy Hung
Held :
(1)
It was clear that, in commenting, not only extensively, but also
adversely, on the Applicant’s silence when he was interviewed or confronted by
the police, the judge had clearly overstepped the prohibited boundary and
thereby committed an error of law. A similar situation arose in HKSAR v Del
Carmen [2000] 3 HKC 431, and, at 443, Stuart-Moore VP observed:
Whilst common sense might dictate that the failure on the part of
a defendant to reveal a defence at an opportune moment prior to
trial is something to be weighed in the scales when determining
how much weight to attach to a defence first raised at trial, it
seems that common law precedent is generally opposed to
permitting judge making any comment which invites the jury to
use this feature of the evidence in this way.
In the present case, the judge directed the jury that they could use
the applicant’s silence on material aspects of her defence as
factors they could ‘take into account in assessing the credibility
of the account that she gave (in evidence at her trial)’. This, it
seems to us, was inviting the jury to take an adverse opinion of
the applicant’s evidence.
That a judge may not comment, even to the limited extent to be
found in the present case, seems to us to be far from satisfactory.
The jury was entitled to know that the applicant had remained
silent after her arrest and they would inevitably have drawn their
own conclusions about the story she told for the first time in her
evidence at trial. All the judge had sought to do was to limit the
extent to which the jury could deploy the evidence about the
applicant’s silence, by restricting their consideration of it to the
sole issue of credibility. To that extent, while having every
sympathy for the judge’s motives in directing the jury in this way,
we have reluctantly come to the conclusion, in the absence of
legislation permitting such a direction, that the judge went
further than she was permitted to go and thereby misdirected the
jury. However, we are satisfied that no miscarriage of justice has
actually occurred as the result of this misdirection. We have
borne in mind that this was a case based upon strong
circumstantial evidence and, putting aside the misdirection, we
are satisfied the jury would inevitably have come to the same
conclusion.
(2)
Notwithstanding the misdirection, there remained ample evidence to
justify the judge coming to the conclusion he reached. No miscarriage of justice
had actually occurred and the proviso to s 83(1) of the Criminal Procedure
Ordinance, Cap 221, would be applied.
Result -
Appeal dismissed. [See also Criminal Appeals/Against Sentence: Ed]
180

Classified Criminal Appeals Bulletin 2001 Part 1

Transcription

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