Classified Criminal Appeals Bulletin 2000 Part 1

Transcription

CCAB 2000
Accomplice
Accomplice
CA 390/98
Stuart-Moore
ACJHC
Mayo VP
Beeson J
(15.2.2000)
*DG Saw, SC
N Lai
#J Mullick
(1) LEE Kaho
(2) TUNG
Shing-fei
(3) LAU
Ying-tat
Accomplice evidence/Discretionary warning a matter for judge Depending
on circumstances/Judge need not canvass all the evidence in the summingup
同黨證供 - 是否酌情給予警告由法官決定 - 視乎情況而定 - 法官毋
須在總結詞中將所有證據分開處理
The Applicants were convicted after trial of two counts of murder
involving the death of a total of 17 victims.
On 25 January 1997, the premises of Top-One Karaoke Box in TST were
subjected to a ‘petrol-bomb’ arson attack. It appeared that a total of three
petrol-bombs were thrown by two persons known as ‘Ah Ching’ and ‘Mei Mei’.
The prosecution case against the Applicants was that each of them was involved
in a joint enterprise with Ah Ching and Mei Mei to murder.
Revenge was the motive the prosecution attributed to all of those who
played a part in these murders. Before the fire-bombing incident, two abortive
attempts were made to carry out a revenge attack with knives.
The prosecution called direct evidence from accomplices, who gave
evidence under unconditional immunity from prosecution, that A1 had
participated in the unsuccessful attempt to attack with knives and that he knew
of the change in plan to fire-bomb Top-One’s premises instead. He was alleged
to have been at the scene when the arson attack took place. A2 was linked to the
participation in the earlier attempts of revenge and to the purchase of petrol and
the making of bombs. He was alleged to have been outside Top-One when the
fire-bombing took place and to have driven away the culprits after they had
thrown the bombs. A3 was identified amongst those who had planned the
revenge. He was said to have been present when the decision was made to use
fire-bombs, and to have given instructions to purchase the petrol which was
needed for that purpose.
Although A2 and A3 did not give evidence, their cases were presented,
as was that of A1, on the basis that witnesses who testified against them had lied
and had concocted a case against them having been prompted and manipulated
to do so by the police.
On appeal
Held :
(1)
With the abrogation of the old rule by s 60 of the Criminal Procedure
Ordinance, accomplices had not suddenly become more credible or less
dangerous as witnesses. The approach was now left to the discretion of the
judge. It was necessary that such discretion was unfettered so that he could
achieve a fair trial;
(2)
The circumstances and evidence in criminal cases were infinitely variable
and it was impossible to categorise how a judge should deal with them. But it
was clear that to carry on giving ‘discretionary’ warnings generally and in the
same terms as were previously obligatory would be contrary to the purpose of
abrogation. Whether, as a matter of discretion, a judge should give any warning
and if so its strength and terms must depend upon the content and manner of the
witness’s evidence, the circumstances of the case and the issues raised. The
judge would often consider that no special warning was required at all. Where,
however, the witness had been shown to be unreliable, he or she might consider
it necessary to urge caution. In a more extreme case, if the witness was shown
to have lied, to have made previous false complaints, or to bear the defendant
1
CCAB 2000
Accomplice
some grudge, a stronger warning might be thought appropriate and the judge
might suggest it would be wise to look for some supporting material before
acting on the impugned witness’s evidence: HKSAR v Law Hay-chung and
others Cr App 628/98; HKSAR v Chu Ip-pui [1997] HKLRD 549; R v
Malcanjuola [1995] 1 WLR 1348;
(3)
It was plain that no unfairness was caused to the defence by giving
directions to the jury which ignored the recent legislative change which had
abolished the requirement to give a warning about convicting on accomplice
evidence in the absence of corroboration. The jury could have been under no
misapprehension that they should look at the accomplice evidence with great
care before they acted upon it;
(4)
The judge dealt in his summing up with each of the accomplices’
evidence giving individual directions as to the credibility of each in turn. He
highlighted the principal inconsistencies and contradictions which emerged from
their evidence and the jury was reminded of the caution with which they should
approach each of those witnesses. There was no duty upon the judge to remind
the jury of every single issue which defence counsel had canvassed in their
speeches and which in any event would have been in the minds of the jury.
Result - Applications dismissed.
Appeal/Procedure
CA 67/96
Stuart-Moore
VP Mayo JA
Burrell J
(14.12.99)
*Kevin Zervos
#A B MitchellHeggs
CHAU
Kwok-hung
Application
to
withdraw
abandonment
of
appeal/Medway
considered/Thongjai not relevant when jury concerned with whether
answer given at all/Comments on propriety of ‘make-weight’ ground of
appeal
申請撤回放棄上訴 - 考慮 Med wa y 一案 - 如涉及被告究竟有否回答
的問題， T ho ng ja i 一案並非相關的判例 - 就提出 “ 無關重要 ” 的上
訴理由是否恰當一事作出評論
On 19 January 1996, the Applicant was convicted after trial of trafficking
in a crystalline solid containing 2.94 kg of methamphetamine hydrochloride
(‘ice’).
In a form dated 29 January 1996, the Applicant lodged notice of
intention to appeal against conviction and sentence. On 12 July 1996 legal aid
was refused in respect of conviction but granted for sentence.
When the applications were heard on 18 July 1996, the Applicant did not
pursue his application relating to conviction and that was dismissed. The appeal
against sentence proceeded and was allowed.
Almost 3½ years later, the Applicant sought to treat the abandonment of
the application for leave to appeal against conviction as a nullity. In an
affirmation, dated 30 June 1999, in which he set out his reasons for abandoning
the earlier application, he stated, inter alia, that when he was refused legal aid
his family was only able to raise $30,000, and that, he understood, was only
enough to cover an application relating to sentence. Although counsel had
advised him that he could conduct his conviction application in person if he so
desired, he was given no advice on the merits, and he felt ‘forced to abandon’
his appeal because he did not know much about the law. By December 1998,
his family had raised sufficient funds to brief counsel.
2
CCAB 2000
Appeal/Procedure
The Applicant submitted primarily that, when he was stopped at Kai Tak,
he should immediately have been cautioned once the Customs Officer realised
that he was carrying something attached to his body. He gave the Customs
Officer what proved to be a damaging answer and it was said that the absence of
a caution amounted to oppression and that a similar situation to that in Thongjai
and Another v R [1997] 2 HKC 109 had arisen, albeit a long time before the
judgment in that case had been delivered. No criticism was made of the way in
which counsel at trial advanced the case.
In order to determine whether any basis existed for an argument that the
abandonment in the present circumstances should be treated as a nullity, the
amended perfected grounds of appeal were heard de bene esse.
Held :
(1)
There was nothing in the Applicant’s affirmation which provided any
basis for treating the abandonment of his original application (or the dismissal of
that application) as a nullity. There was, as indicated in R v Medway (1976) 63
Cr App R 85, as followed in R v Chau Tat-kwong Cr App 134/83, and HKSAR v
Wong Wai-yip Cr App 287/95, no inherent jurisdiction to give leave to withdraw
an abandonment which was not a nullity, and the kernel of the ‘nullity test’ was
that the court was satisfied that the abandonment was not the result of a
deliberate and informed decision and that the mind did not go with the act of
abandonment;
(2)
As there was no allegation of incompetence on the part of counsel, there
was no basis for the principal ground of appeal. His counsel made it clear at a
pre-trial review that the oral admission said to have been made by the Applicant
would be challenged and at trial it was strongly challenged. Counsel had a wide
discretion as to how to run his case. The judge was never invited to exclude the
answer. Counsel had applied his mind to this aspect and taken a course which
he was perfectly entitled to take. It was never suggested that any form of
physical oppression took place to make him answer in the way he did. The
question to be decided was not in any way concerned with voluntariness but
rather with whether the answer was ever given at all. That was a matter for the
jury. Accordingly, Thongjai had no bearing upon the present case;
(3)
From the terms of the affirmation given by the Applicant, where he stated
he was forced to abandon his appeal because he did not know much about the
law or the procedures of appeal, his family having failed to raise sufficient funds
to represent him on an appeal against conviction, it was clear that his mind went
with the act of abandonment. It might have been different if he had been misled
by wrong legal advice to abandon a perfectly valid ground of appeal as occurred
in Wong Wai-yip (above).
Result - Application dismissed.
Obiter - At the hearing of the appeal, counsel ran a ground of appeal which was
described as a ‘make-weight’. Make-weight grounds, which were
effectively a complete waste of the court’s time, had no place
whatever in appellate proceedings, and counsel were to be reminded
of what was set out in the Practice Direction relating to criminal
appeals to the Court of Appeal. Paragraph 5 stated that where counsel
settled grounds of appeal, it was his duty to ensure that grounds were
not put forward unless they were reasonable, i.e. they afforded some
real chance of success.
3
CCAB 2000
FACC 6/99
Li CJ
Litton &
Ching PJJ
Nazareth &
Hoffmann,
NPJJ
(12.12.99)
*GJX McCoy,
SC &
Raymond
Pierce
(A1 & A2)
#A Ismail (R)
Appeal/Procedure
(1) New Chuan
Kong Kong
Investment
Co. Ltd.
(2) FOK
Hiu-tong
v Securities
& Futures
Commission
Appeal by way of case stated/Mandatory duty to enter
recognizance/Failure to comply deemed abandonment/Sections 3(1)(a) and
(2)(b)
of
Leveraged
Foreign
Exchange
Trading
Ordinance
(LFETO)/Indictable offences/Applicability of time limit
以案件呈述方式上訴 - 作出擔保是強制性責任 - 沒有遵從視作放棄
上訴 - 《槓桿式外匯買賣條例》第 3 ( 1 ) ( a ) 及 2 ( b) 條 - 可公訴罪行檢控時限是否適用
The Securities & Futures Commission (‘SFC’) brought two prosecutions
in the magistrates court. The first one was against the 1st Appellant for having
carried on a business of leveraged foreign exchange trading without being
licensed during the period from 1 August 1995 to 30 April 1996, contrary to
sections 3(1)(a) and 3(2)(b) of LFETO, Cap 451. The other was against the 2nd
Appellant for aiding, abetting, counselling and procuring the offence alleged
against the 1st Appellant contrary to the same two sections. The information
was laid on 5 August 1997, and the summonses were issued on the same day.
When the summonses came before the magistrate, the Appellants took a
preliminary objection that the prosecutions were out of time under s 67 of Cap
451.
The magistrate found that s 67 applied to all offences under Cap 451
whether they were summary offences or indictable offences. He therefore found
that he had no jurisdiction to hear the summonses and dismissed them.
The SFC then applied to the magistrate to state a case on a point of law
under s 105 of Cap 227. The magistrate, when signing the case, did not fix a
recognizance as required by s 110(1) of Cap 227, as he appeared to have
mistakenly believed that the SFC had already completed one. The Appellants
moved the judge in the Court of First Instance to declare that the SFC was
deemed to have abandoned its appeal as it failed to enter into a recognizance.
The judge refused the motion. Subsequently the case stated was heard by the
same judge. She found that the magistrate was wrong and remitted the
summonses back to him for them to be tried. She further refused to certify that
points of law of great and general importance were involved.
Leave to appeal against the decisions in both the Appellants’ motion and
in the appeal of the SFC was granted by the Appeal Committee and two
questions were certified:
(1)
Does section 110(1) of the Magistrates Ordinance impose on
an appellant (other than the Secretary for Justice) a legal
obligation to enter into a recognizance as stipulated in that
section?
(2)
Upon a proper construction of s 67 of the Leveraged Foreign
Exchange Trading Ordinance, Cap 451, has the magistrate
the jurisdiction to try an information alleging an offence
contrary to section 3(1)(a) and s 3(2)(b) of that Ordinance
laid more than 12 months after the first discovery of the facts
of the commission of the offence?
Held :
(1)
An appellant, other than the Secretary for Justice, wishing to avail
himself of an appeal by way of case stated must obviously comply with the
necessary conditions. The wording of section 110(1) was mandatory and there
existed no waiver. It was not for the magistrate to remind an appellant to apply
for the fixing of a recognizance. The fact that a magistrate or his clerk might
have mistakenly thought that a recognizance had already been entered into or
had even overlooked the question was irrelevant. It was the appellant’s duty to
4
CCAB 2000
Appeal/Procedure
ensure that the provisions of the Ordinance had been fulfilled: R v Mok Kit-wan
Cr App 32/1947, R v Lam Kuen [1954] HKLR 216 and Walker v Delacombe
[1894] 63 LJMC 77 considered;
(2)
One of the purposes of the recognizance was to ensure that an appellant
prosecuted his appeal with diligence. The importance of the recognizance was
emphasised by the provisions of section 110(3) which, on any reading, deemed
an appeal to be abandoned if default was made in entering into the recognizance;
(3)
The requirement to give a recognizance applied to the SFC. It was a
mandatory requirement and no provision existed empowering any magistrate or
other court to waive it. The judge in the Court of First Instance was wrong to
hold that because no recognizance had been ordered there was no recognizance
into which the SFC could enter;
(4)
Section 14A of the Criminal Procedure Ordinance, Cap 221, provided
only two types of offences, namely those which were summary and those which
were indictable. The category of the offence was established upon its
commission. While summary offences could only be tried in a summary way,
indictable offences might be tried either summarily or upon indictment.
Indictable offences were sometimes tried summarily when, for instance, the
gravity of the acts did not call for the process of, or heavier penalty that might
be imposed on, indictment. It had been clearly and rightly established that the
manner of trial did not determine whether the offence was a summary one or one
which was indictable: AG v Wong Chi-keung Cr App 1105/74;
(5)
Having regard to the provisions of s 14A of Cap 221, sections 3(1)(a)
and 3(2)(b) of LFETO, Cap 451 clearly created an indictable offence which
might be tried summarily. There was no time limit generally imposed for the
prosecution of indictable offences;
(6)
Section 67 of Cap 451 began with the words, ‘Notwithstanding section
26 of the Magistrates Ordinance …..’ That section dealt exclusively with
offences other than indictable offences which were mentioned only to remove
them from its ambit. What the section did in effect was to enlarge the time limit
of 6 months in s 26 of Cap 227 for the laying of informations in relation to
summary offences under the LFETO;
(7)
It was also to be noted that it appeared to have been the policy of the
legislature to extend the time for prosecutions under the LFETO having regard
to the complexities usually involved. Any construction of section 67 that it
included both summary and indictable offences necessarily meant that a time
limit had been introduced to the more serious offences fit to be tried on
indictment, which would presumably be even more complex, when none existed
before. That construction could not be accepted;
(8)
The first question certified had to be answered in favour of the
Appellants. They failed on the second question certified.
Result - Appeal allowed with costs.
5
CCAB 2000
MA 364/99
Stuart-Moore
VP Keith JA &
Woo J
Appeal/Procedure
(1)
CHAN
-chung
(2)
SHUM
u-wah
Pun
Hi
Conspiracy/Effect of creation of offence of statutory conspiracy/Pre-1996
common law conspiracy still triable/ Amendment of information on
appeal/Decision in Fai Ma explained
串謀 - 法例所定的串謀罪的效力問題 - 在1996年前所犯的普通法串
謀罪仍可審理 - 在上訴時修訂提控書 - 對 Fa i Ma 一案的判決加以
解釋
(3.2.2000)
*D G Saw SC
Simon Tam &
Gary Lam
#P Ross
[Reserved
pursuant to
s 118(1)(d)
Cap 227]
The Appellants, who were husband and wife, were convicted, after trial,
of conspiring, in 1994/1995, to obtain a pecuniary advantage by deception,
while the wife alone was convicted of using a forged identity card.
The charge sheet described the offence of conspiracy as being contrary to
s 18(1) of the Theft Ordinance and s 159A of the Crimes Ordinance. Section
18(1) created the offence of obtaining a pecuniary advantage by deception, but
the inclusion of s 159A in the charge gave rise to difficulty.
The problem posed by the appeal was that, before 1996, crimes of
conspiracy were a creature of the common law. However, common law
conspiracies, with the exception of conspiracies to defraud, were abolished in
1996. They were replaced by statutory conspiracies, which were created by
section 159A of the Crimes Ordinance. Since the charge of conspiracy alleged
that the offence which the Appellants had committed had been contrary to
s 159A, it was the statutory offence of conspiracy which they faced. The
problem was that that was an offence which they could not have committed
because the offence of conspiracy which they were alleged to have committed
occurred before 1996.
The Respondent contended that if the charge which the Appellants had
faced had been a common law conspiracy, the trial would have taken an
identical course, and the Appellants would have been convicted on that charge.
Such convictions could be substituted for the convictions recorded by the
magistrate. The Appellants, however, submitted that the proceedings against
them were commenced on 18 November 1998. The effect of the transitional
provisions in the Crimes Ordinance following the abolition of the offence of
common law conspiracy was, it was said, that proceedings could not be
commenced after the abolition of the offence of common law conspiracy for a
common law conspiracy alleged to have been committed prior to the abolition of
the offence. Secondly, it was submitted that even if such proceedings could
have been commenced, no procedural route existed for substituting, on the
hearing of an appeal against conviction by a magistrate, a conviction for an
offence in place of the offence for which the defendant was convicted.
The Appellants contended that since 2 August 1996, proceedings for the
offence of conspiracy at common law could only be sustained in the two
situations covered by the transitional provisions in s 159E(7), namely, that the
proceedings had commenced before the legislation came into effect, or, the
proceedings were commenced after that time against a person charged with the
same conspiracy as that charged in any proceedings commenced before that
time. It was said that neither of the transitional provisions were relevant to the
facts of this case.
Held :
(1)
Since the purpose of the new legislation was not to decriminalise certain
forms of conspiracy, but to put the crime of conspiracy on a statutory footing, it
could not have been the intention of the legislature to make conspiracies which
had been committed prior to 2 August 1996 unenforceable by prosecution if
proceedings had not been commenced by then. That would have put beyond the
reach of the criminal justice system criminal conspiracies which had been
committed before 2 August 1996 but which had not been detected by then or
which, though detected, had not been investigated sufficiently to warrant the
6
CCAB 2000
Appeal/Procedure
bringing of criminal convictions by then. It was unimaginable that the
legislature could have intended such a state of affairs to exist;
(2)
The fact was that the abolition of an offence merely meant that conduct
which would have amounted to the offence before its abolition would not
amount to an offence if the conduct had taken place after its abolition. Thus, the
abolition of an offence did not mean that conduct which would have amounted
to the offence before its abolition could not be prosecuted after its abolition. So
if the statute abolishing the offence was to be construed as preventing the
commencement of criminal proceedings after its abolition for an offence
committed before its abolition, the statutory language must be clear. The
language of s 159E(7) was not so clear as to disapply the normal effect of the
abolition of the offence. The sheer unlikelihood of the legislature intending a
conspiracy at common law to be unenforceable by a prosecution commenced
after 2 August 1996 led to the conclusion that s 159E(7) could not have been
intended to be the only situation in which proceedings for a conspiracy at
common law could be commenced after 2 August 1996. It followed that
s 159E(7) should not be construed as providing for the only situation in which
proceedings for a conspiracy at common law would be commenced after 2
August 1996. It would therefore not have prevented the Appellants from being
charged after 2 August 1996 with conspiracy to obtain a pecuniary advantage by
deception, contrary to s 18(1) of the Theft Ordinance and the common law;
(3)
If the fact that the offences were alleged to have been committed prior to
the offence of statutory conspiracy had been pointed out to the magistrate, and
the prosecution had applied to amend the information to substitute the offence of
conspiracy at common law for the offence of statutory conspiracy, the magistrate
would have had no option but to amend the information, pursuant to s 27 of the
Magistrates Ordinance;
(4)
The Court of Appeal, on an appeal reserved to it by a judge of the Court
of First Instance under s 118(1)(d) of the Magistrates Ordinance, could ‘exercise
all or any of the powers conferred on a judge by this Part’. Section 119(1)(d)
conferred upon a judge the power to ‘make such other order in the matter as he
thinks just, and by such order exercise any power which the magistrate might
have exercised’. So as the magistrate had the power to amend the information
under s 27, so too did the judge of the Court of First Instance under s 119(1)(d),
and so did the Court of Appeal under s 118(1)(d). In exercise of that power, the
information laid against the Appellants would be amended by deleting the words
‘and section 159A of the Crimes Ordinance, Cap 200’, and by substituting for
them the words ‘and to the common law’;
(5)
As regards the issue of whether the Court of Appeal was permitted to
substitute for the Appellants’ convictions for statutory conspiracy convictions
for conspiracy at common law, it was held in Fai Ma Trading Co Ltd v Lai
[1989] 1 HKLR 582, that if an information was amended on appeal, the court
had to direct that amended information be heard de novo by a magistrate. The
reason for that was that in most cases justice would not be done if an amendment
could be made on appeal without at the same time a new trial being ordered.
However, the court in Fai Ma was not addressing the issue of what would be the
appropriate course if the nature of the amendment sought was such that the
course of the original trial would not have been affected at all. There was no
point in ordering a new trial on an amended information where, had the
information been amended during the original trial, the course of that trial
would, having regard to the nature of the amendment, have been identical, and,
as such, the reasoning of Fai Ma was not applicable.
Result - Appeal dismissed.
7
CCAB 2000
CA 205/96
Stuart-Moore
VP
Mayo &
Wong JJA
Appeal/Procedure
SECK Kai-tong Application to restore abandoned application for leave to appeal/No
inherent jurisdiction to permit previous abandonment to be treated as
nullity/Test of whether mind went with act of abandonment
申請恢復已放棄的上訴許可申請 - 法庭無固有司法管轄權可准許將
以前已放棄的上訴視為無效 - 判斷申請人在放棄上訴時的思想和行
為是否一致
(6.1.2000)
The Applicant pleaded guilty in 1996 to two counts of trafficking in
heroin hydrochloride.
He received an overall sentence of 12 years’
imprisonment. The Applicant filed a notice of application for leave to appeal
against sentence but, after legal aid was refused, he decided not to pursue it and
the court dismissed it.
*Cheung Waisun
#I/P
Seventeen months later, the Applicant again filed for leave to appeal
against his sentence. In dismissing that application, the court observed:
It is well established that there is no inherent jurisdiction on the part
of the court to permit the previous abandonment of an application
for leave to appeal to be treated as a nullity unless it can be shown
that in some way the mind of an applicant had not gone with the act
of abandonment ... it is abundantly plain that the Applicant’s mind
did go with his act of abandonment.
CA 494/99
Nazareth
Stuart-Moore
VPP &
Wong JA
(24.12.99)
*Chan Fungshan
#I/P
(1) LEUNG
Yiu-ming
(2) CHAN
Tszkeung
Grant of leave to appeal out of time/Desirability of simultaneous sentencing
of co-accused
准許逾期上訴 - 同案被控人宜一同判刑
In disposing of an application for leave to appeal against sentence out of
time, the court endorsed that said in R v Wong Kai-kong [1990] 1 HKC 279,
namely, ‘that where an application is made out of time it is open to the court to
look at the grounds of appeal to see if they seem to be impressive and to check
whether, by refusing leave, a substantial and plainly arguable ground of appeal
would be shut out’. In that exercise, it was necessary for the court to bear in
mind that substantial grounds had to be shown for the delay before the granting
of the indulgence. The longer the delay, the more onerous was the duty on the
person making application.
The court also:
pointed to the desirability of all the defendants in a particular case
being sentenced at the same time. This application before us has
come about only because that was not done. Sometimes there is
good reason why simultaneous sentencing cannot be achieved. But
in this case, the two applicants pleaded guilty ... there does not
appear to have been any good reason for sentencing to have
immediately been carried out. The matter could have been deferred
until the co-defendants came up for sentence. Apparently, no
application to defer sentencing was made by the prosecution. It
would have been desirable for such an application to have been
made ... We also feel bound to say in the absence of any good reason
that would warrant that course, that it is unfortunate that the judge
decided not to defer sentencing.
8
CCAB 2000
CA 402/99
Appeal/Procedure
LI Ting-kit
Stuart-Moore
VP
Leong and
Wong JJA
Amendment of charges in Court of Appeal/No prejudice caused by
amendment/Ambit of s 83A, Cap 221
在上訴法庭修訂控罪 - 有關修訂沒有造成損害 - 第221章第83A條
所涵蓋的範圍
The Respondent conceded that the charges on which the Appellant was
convicted were inaccurately and insufficiently particularised. The Respondent
submitted an amended charge sheet containing 12 charges of theft and applied
under s 83A of the Criminal Procedure Ordinance, Chapter 221 to amend the
charges.
(23.2.2000)
*I C
McWalters
Held :
#J Marray
The amendment of the existing theft charges was necessary to reflect the
true state of the evidence and would not cause any prejudice or unfairness to the
Appellant. The power under s 83A to substitute a verdict of guilty of another
offence included the power to amend the particulars of an offence on which a
person was convicted.
MA 381/99
Stuart-Moore
VP
Wong &
Woo JJA
WONG
Chi-yuk
Appeal after guilty plea/When unequivocal guilty plea a nullity/When
misunderstanding of law invalidates guilty plea/ Law same for applications
to withdraw notice of abandonment and to reverse guilty plea/Role of Chief
Executive considered
認罪後提出上訴 - 明確的認罪在甚麼情況下才屬無效 - 在甚麼情況
下對法律有所誤解會使認罪無效 - 撤銷放棄上訴通知的申請與推翻
認罪的申請兩者所適用的法律相同 - 考慮行政長官的角色
(31.3.2000)
#C Remedios
The Appellant, with legal representation from the Duty Lawyer Scheme,
was convicted of two offences, namely, possession of a forged identity card,
contrary to s 7A(a)(1) of the Registration of Persons Ordinance, Cap 177, and
remaining in Hong Kong without the authority of the Director of Immigration
having landed unlawfully in Hong Kong, contrary to s 38(1)(b) of the
Immigration Ordinance, Cap 115.
[Reserved
pursuant to
s 118(1)(d),
Cap 227]
The ground of appeal was that although the Appellant pleaded guilty to
the charge of remaining in Hong Kong illegally without the authority of the
Director of Immigration having landed unlawfully in Hong Kong, he in fact had
entered Hong Kong lawfully.
*P S Chapman
&
Albert Wong
Held :
(1)
It was settled law that a person convicted of an offence by his own plea
of guilty could not appeal against his conviction pursuant to s 113(1), Cap 227.
However, it was common ground between the parties that the authorities were in
conflict with respect to the guilty pleas covered by s 113(1), or, in other words,
under what circumstances a guilty plea was not encompassed by s 113(1) so as
not to debar the person who was convicted upon the plea from appealing against
the conviction;
(2)
It was not right to say that any kind of mistake should be readily treated
as a ground for nullifying a guilty plea. The mistake must be fundamental. The
circumstances and the extent of the mistake must be sufficient to vitiate the
intent of the defendant in pleading guilty, making the act of the plea not his true
act;
(3)
A misunderstanding of the law was not sufficient to vitiate the intent of a
defendant in tendering a plea of guilty. A misunderstanding of the law would
nullify a guilty plea only in situations where the facts as admitted did not amount
to the offence in respect of which the plea was tendered or where the charge for
9
CCAB 2000
Appeal/Procedure
which the plea was entered was defective. In all other circumstances, a
misunderstanding of the law should not be treated as being able to nullify a plea,
just as a mistake of law on the part of a contractor in a contract did not vitiate
his intent in entering into the contract (Chitty on Contracts, 28th Ed., Chapter
5). Although the Recorder in HKSAR v Hui Chun-man MA 1229/98, decided
that as the appellant before him was not aware that an ‘unlawful entry’ was an
essential element of the offence under s 38(1)(b) of the Immigration Ordinance,
the guilty plea tendered because of a misunderstanding of the law amounted to a
nullity, he was wrong and Hui Chun-man would be overruled;
(4)
An unequivocal guilty plea could be rendered a nullity if any one of these
circumstances applied:
(a)
The facts admitted by the defendant did not amount to the
offence with which he was charged;
(b)
The admitted facts were equivocal as to guilt;
(c)
The plea was tendered to a charge which was defective on its
face or invalid or unclear;
(d)
The plea was tendered involuntarily, e.g., induced by duress
or misrepresentation or was not an exercise of free choice;
(e)
The plea was induced by fraud or made under a
fundamental mistake;
(f)
The plea did not result from a deliberate and informed
decision.
(5)
As indicated in HKSAR v Li Wa-san MA 379/99, a great number of
features were similar in the courts’ way in dealing with applications to withdraw
a notice of abandonment as with applications to treat a plea of guilty as
ineffective. The law should be the same regarding these two matters, namely,
whether the notice of abandonment or the guilty plea, as the case might be, was
vitiated by the lack of voluntary intent or by mistake of a fundamental nature.
Albeit that the circumstances surrounding each might differ vastly, both dealt
with an act of the accused, whether his act of abandonment was his true act or
whether his act of pleading guilty was his true act. If his mind did not go with
his act, then the act was a nullity;
(6)
Apart from the nullity test, the court had no inherent jurisdiction in any
other special or exceptional circumstances to grant leave to withdraw a notice of
abandonment, and the kernel of that test was that the court be satisfied that the
abandonment was not the result of a deliberate and informed decision, and that
the mind of the applicant did not go with his act of abandonment: R v Medway
(1976) 62 Cr App R 85. In Chan Tak-kwong v R [1983] HKLR 391, Medway
was followed when the court held that the fact that the applicant had received
erroneous advice from fellow prisoners was not a sufficient ground for
permitting an abandonment to be withdrawn, and that it would not be proper to
allow notices of abandonment to be withdrawn merely because, at the time of
abandonment, the applicant had received no legal advice, even if he
subsequently received legal advice to the effect that his chances of successful
appeal were good;
(7)
The Appellant’s plea made before the magistrate was not a nullity. He
was not entitled to appeal pursuant to s 113(1)(a) Cap 227. Although it
appeared that the Appellant was convicted of illegally remaining in Hong Kong
after having landed in Hong Kong unlawfully which he should not have been by
the strength of his entry with a two-way permit, no injustice had occurred in this
case and the Appellant could not harbour any legitimate grievance because the
conviction arose out of his own deliberate plea of guilty.
10
CCAB 2000
Appeal/Procedure
Per cur (1)
Although the Appellant asked the court to suggest that the Chief
Executive make a reference of this case to a judge of the Court of First Instance
so that the difficulty posed by s 113(1)(a) by reason of the guilty plea would not
debar the appeal from being considered by that judge, especially since the
Appellant had already petitioned the Chief Executive to do so, the s 113(1)(a)
route did not seem to help the situation where a guilty plea could not be treated
as a nullity, for s 113(1)(a) was expressly subject to s 113A(2) which
incorporated the Fifth Schedule. The Fifth Schedule made clear provision that a
case referred by the Chief Executive pursuant to s 113A(1)(a) ‘shall be treated
for all purposes as an appeal to the judge under s 113(1) or (2), as the case may
be, by the person in respect of whom the case is referred’. Where a person
appealed under s 113(1), as he should be so treated by virtue of the Fifth
Schedule on a reference by the Chief Executive under s 113A(1), this expressly
excluded an appeal against a conviction in respect of which he had pleaded
guilty. Such reference by the Chief Executive did not seem able to empower the
judge to disregard the Appellant’s guilty plea in considering the case so referred
to him, because it was incumbent upon him to treat the case for all purposes as
an appeal by the Appellant under s 113(1). The view to the contrary in HKSAR
v Li Wa-san was per incuriam;
(2)
The only avenue that appeared to be left open was for the Appellant to
petition to the Chief Executive for a pardon under Article 48(12) of the Basic
Law, but the court was disinclined to make any suggestion as to how the Chief
Executive should exercise his prerogative in that area, having regard to the
particular circumstances in this case.
MA 772/99
Pang J
(7.4.2000)
*Cheung Waisun & Poon
Oi-lin
#K B Egan
CHOW
Yuen-han
Appeal against conviction/Appellant seeking full transcript/No right to full
transcript/Good reasons to be shown for provision of full
transcript/Meaning of ‘depositions’
針對定罪的上訴 - 上訴人要求提供整份聆訊謄本 - 上訴人無權要求
提供整份聆訊謄本 - 要求提供整份聆訊謄本須具充分理由 - ‘供
詞’的含義
The Appellant was convicted before a magistrate of one charge of
soliciting for an immoral purpose, contrary to s 147(1)(a) of the Crimes
Ordinance. She appealed on 14 July 1999.
Prior to May 1999, the appeal bundle for all magistracy appeals included
a full set of transcripts of the proceedings in the court below. In May 1999, the
practice was changed, on a trial basis, so that the bundle would no longer
include a full transcript. The trial period was to last initially for six months and
was subsequently extended for a further six months. The streamlined appeal
bundle was modelled after the appeal bundles on appeals from the Court of First
Instance and the District Court.
Under the new arrangement, an appellant could still obtain a full
transcript of the proceedings or any part thereof on application to the Registrar if
he was able to support his application with reasons. If the Registrar considered
that sufficient reasons had been given, the transcript applied for would be
supplied free of charge and would be included as part of the appeal bundle.
On 22 September 1999, the Appellant had appeared in person before
Beeson J and, without giving specific reasons, had applied for a full transcript of
the proceedings. The judge had declined the application but granted an
adjournment so that she could seek legal advice generally on the appeal. She
was told she could renew her application for the transcript provided she could
give sufficient reasons to support her application.
11
CCAB 2000
Appeal/Procedure
In Mid-November 1999, the Appellant’s solicitor wrote to the Court and
stated why a full transcript was needed. Beeson J concluded that the reasons
advanced were not sufficiently cogent and refused the application. The appeal
was listed for hearing on 2 December 1999 and, in the meantime, no perfected
grounds of appeal had been filed.
On that appeal, it was submitted, as a matter of law, that the Appellant
was entitled to a full transcript of the proceedings by virtue of s 116(1), Cap
227. That being so, no grounds justifying why the transcript was necessary were
advanced.
On 13 December, Beeson J ruled that she was unable to resolve the
preliminary issue as an appeal and adjourned the appeal sine die and left it to the
wisdom of counsel for the Appellant ‘to take whatever steps he deems
appropriate in order to pursue his request for a transcript’. The issue of
whether an appellant was entitled to a full transcript of the proceedings as of
right, by virtue of s 116(1) or by any other provision under the Magistrates
Ordinance was in effect outstanding. [see CAB for January 2000: Ed]
The case was listed for mention on 31 January 2000. In the meantime,
the Appellant provided reasons for requesting the transcript, and these were
acceded to. However, the transcript was not made available on the basis that the
Appellant was entitled as a matter of right or by virtue of any enactment in the
Magistrates Ordinance. Nonetheless, the court resolved the issues raised by the
Appellant on the construction and the effect of the provisions of s 116(1), Cap
227.
The Appellant submitted that in every appeal brought under s 113 of the
Ordinance, the Appellant had a right, by virtue of s 116(1), to be supplied with a
full transcript of the proceedings. That section read:
As soon as possible after the Appellant has lodged a notice of
appeal, the magistrates’ clerk shall transmit to the Registrar the
notice of appeal, the depositions and such copies thereof as the
Registrar may require, and the statement by the magistrate of his
findings on the facts and other grounds of his decisions, and
thereupon the Registrar shall enter the appeal, and shall in due
course give notice, together with a copy of the depositions, to the
Appellant ...
The Appellant further submitted that the word ‘depositions’ should be construed
to mean that it included the transcript of the record of proceedings recorded by
mechanical devices in the court.
Held :
(1)
Nowhere in the Magistrates Ordinance was the term ‘depositions’
defined. Nothing in the Ordinance was capable of suggesting that the term
‘deposition’ included notes of proceedings taken by the magistrate or recorded
by the mechanical device. That view was reinforced by the provisions of s 34,
Cap 227, which read:
Minute of proceedings
(1)
In all proceedings under this Part the magistrate at the
hearing shall take or cause to be taken a full minute in writing,
or a record whether by means of shorthand notes or
mechanical means or otherwise, so far as circumstances
permit, of the following matters (a) ...
(b) ...
12
CCAB 2000
Appeal/Procedure
(c) the evidence or depositions of the witnesses;
Clearly ‘depositions of the witnesses’ was not the ‘evidence’ at the trial.
Likewise, in sections 81 and 86 of the Ordinance, both terms again appeared
together. Section 81(1) provided that the magistrate should:
in the presence of the accused proceed to take evidence for and on
behalf of the prosecutor.
In section 81(2), the section referred to:
the accused or his counsel shall be at liberty to put questions to any
witnesses produced against him ... the depositions or evidence of
the prosecutor and his witnesses shall, in the presence of the
accused, be read over to and signed respectively by the witnesses ...
It could readily be deduced that whatever meaning the term ‘deposition’ carried,
it could not be taken to mean that it included the transcript of the oral evidence
of the witnesses in the proceedings;
(2)
Section 116(1) only obliged the magistrates’ clerk to submit the notice
of appeal, the depositions and such copies thereof as the Registrar might require,
and a statement by the magistrate of his findings in order to compile the appeal
bundle. Nothing in the section or the Ordinance could be taken to say that the
term ‘depositions’ meant to include transcript of proceedings. Since the term
was not defined, it was for the Registrar to decide what should be included in the
standard appeal bundle. It could not have been the intention of the legislature
that the power of interpretation was to be vested with a clerk in the magistracy;
(3)
The present practice was that supplied in the streamlined bundle would
be part of the transcript including the closing submissions of the parties, the oral
reasons given by the magistrate at the end of the proceedings and the statement
of findings. If an Appellant required any other part of the transcript of
proceedings for the appeal, it would be open to him to write to the Registrar,
state his reasons and apply for these to be provided;
(4)
It had to be noted that depositions of witnesses or witness statements
were seldom used in the magistracy. In any event, not all depositions were
admissible as evidence at trial. What was of interest to most appellants would
be the transcript of the recording and not the depositions of the witnesses;
(5)
Section 35A gave the right to any party to inspect free of charge, the
minute taken by the magistrate and the right to obtain a copy of such minute on
the payment of a prescribed fee. If a party wished to obtain the transcript of the
notes of proceedings for the purpose of determining whether there was any
ground of appeal, he would have to make an application under section 35A and
obtain the transcript on the payment of the prescribed fee. If in due course he
wished to rely on any part of such transcript supplied for the purpose of appeal,
he had to indicate to the Registrar and also to inform the other party to the
appeal that such parts should be included in the appeal bundle. It would then be
for the Registrar to decide whether such parts would be included;
(6)
In so far as the present scheme was an attempt to bring the contents of
the magisterial appeal bundle in line with those of the District Court and the
Court of First Instance, the rights of an appellant were not compromised in any
way. Any party to the appeal could apply to the Registrar provided he could
give good reasons and the transcript so ordered would be supplied free of
charge;
13
CCAB 2000
Appeal/Procedure
(7)
It was to be hoped that this ruling would put to rest the long entrenched
misconception that an appellant in a magisterial appeal was entitled as of right to
a full transcript of the proceedings in every case on appeal.
Result - Application for transcripts allowed.
CA 375/99
CHAN Ho-kay
Stuart-Moore
VP
Leong &
Wong JJA
The Applicant appealed against his conviction for murder.
(29.3.2000)
At the outset of his submissions, counsel for the Applicant said he would
not be pursuing the first four grounds in the Perfected Grounds of Appeal. The
court observed:
*Peter
Chapman
While we do not expect worthless grounds of appeal as there
were ... to be pursued, we do expect to be accorded the courtesy of
being informed in advance of the abandonment of lengthy grounds
where there has been, as in the present case, ample time in which
to give proper notice. The court’s time and the Respondent’s time
have been considerably wasted in preparing for what were
believed to be lengthy submissions that were proposed and set out
in the four grounds now abandoned. We express the hope that this
kind of irresponsible attitude will not be repeated. It is simply not
good enough for counsel ... to simply stand up and glibly announce
‘I thought it would be dealt with quite easily this morning’. So it
can be, but this ignores the vast amount of work that has to be
done by the Respondent as well as by the court when counsel keeps
to himself the fact that he does not propose to argue the extensive
grounds set out in the papers.
#Ian Lloyd
CA 119/99
Stuart-Moore
VP
Wong &
Keith JJA
Abandonment of grounds of appeal/Court to be notified in advance of
hearing/Late notification wasted time of court and respondent
放棄上訴理由 - 應在聆訊前知會法庭 - 遲通知以致浪費法庭和答辯
人的時間
COADY
Maria
Remedios
Argument advanced on appeal not raised at trial/Reluctance of court to
permit new points to be taken on appeal/Appellate court ordinarily
benefited from knowing of view of trial judge/Circumstances such as to
allow argument to be advanced for first time on appeal
上訴時提出的論據在審訊時未提出過 - 法庭不願意准許上訴時提出
新論點 - 處理上訴的法庭知悉原審法官的見解通常可從中獲益 - 准
許上訴時提出新論據的情況
(11.4.2000)
*A A Bruce,
SC
& Vincent
Wong
#John Mullick
The Appellant was convicted of murder.
On appeal, the Appellant advanced an argument which was not raised at
trial. The court observed:
An appellate court is usually reluctant to permit new points to be
taken on appeal, but we were mindful of the importance of the
argument and of the devastating impact on the Appellant of her
conviction for murder. In the normal course of events, we would
have liked to have had the benefit of the trial judge’s view on the
topic, but it so happens that some months later the same judge was
confronted with this argument in another murder trial. She ruled
in favour of the conventional direction, and we have had the
advantage of reading her ruling ... in the circumstances we
unhesitatingly decided to permit the argument to be advanced.
14
CCAB 2000
FACC 7/99
Li CJ
Litton PJ
Ching PJ
Bokhary PJ
Lord Cooke of
Thorndon NPJ
(17.5.2000)
*P Dykes SC
&
J Acton-Bond
#J Reading SC
& J To
Appeal/Procedure
POON
Chau-cheong
v
SJ
Review of acquittal/Whether alteration of original charge to alternative
charge open on review when charge otherwise time-barred/Ambit of s 104,
Cap 227/Test of whether amendment caused injustice
覆核無罪釋放的裁決 - 覆核時是否可以將原本的控罪改為另一項控
罪，而該項替代控罪在覆核時檢控時限已過 - 第227章第104條的
涵蓋範圍 - 判斷修訂是否導致不公正
This case concerned the power of a magistrate, on a review of his
dismissal of an information, to amend the information by substituting a charge of
a lesser offence, notwithstanding that at the date of the amendment a fresh
information charging that lesser offence would be time-barred.
The information laid in February 1998, with the prior consent of the
Secretary for Justice, charged the Appellant with an offence of soliciting an
advantage, contrary to s 4(2)(a) of the Prevention of Bribery Ordinance. The
particulars alleged that the offence had been committed in Hong Kong in or
about the middle of May 1996. It was alleged that the defendant, a public
servant, without lawful authority or reasonable excuse, solicited an advantage,
namely, a loan, fee, reward, or commission consisting of $50,000 Hong Kong
currency from Tai Man-na as an inducement or reward for or otherwise on
account of his performing or having performed acts in his capacity as a public
servant, namely carrying out or having carried out criminal investigations in his
capacity as a detective senior police constable of the then Royal Hong Kong
Police Force into deception allegations made by the said Tai Man-na to the then
Royal Hong Kong Police Force on behalf of Xing Ming Group Travel Service
Limited.
On 11 September 1998 the magistrate dismissed the information. The
substance of her reasons was that, although it was not challenged that when
acting as an investigation officer the defendant had asked Miss Tai for a loan of
$50,000, there was no evidence permitting the drawing of an inference that it
was an inducement to the performance of his duty. In the course of her reasons,
however, the magistrate said that there was evidence before her that police
officers had to comply with ‘various regulations of procedures and this, clearly,
the defendant did not do. He may have committed offences of a disciplinary
nature in regard to police regulations.’
No application was made to the magistrate for amendment of the charge.
But s 104 of the Magistrates Ordinance, Cap 227, authorised either party to
summary proceedings to apply to the magistrate, within 14 clear days after the
determination, to review his decision in the matter. Within the same period the
magistrate might re-open the case on his own initiative. In the present case, the
prosecution, within the 14 days, applied for a review.
At the hearing of the review, the prosecution made it plain that the
dismissal of the charge under s 4(2)(a) of the Prevention of Bribery Ordinance
was not being challenged, and that the purpose of the application was to seek an
amendment of the information under s 27 of the Magistrates Ordinance to
charge a lesser offence under s 3 of the POBO. The latter section formerly
provided simply ‘Any Crown servant who, without the general or special
permission of the Governor, solicits or accepts any advantage shall be guilty of
an offence’.
It was to be noted that the s 3 offence required no inducement as an
ingredient of the offence. Also the absence of the general or special permission
of the Governor was stipulated rather than ‘without lawful authority or excuse’,
as in s 4(2)(a). Another difference, and the one on which the present appeal
largely turned, was that, unlike s 4(2)(a), s 3 was one of the offences for which a
time limit of 2 years from the time when the matter of the information or
15
CCAB 2000
Appeal/Procedure
complaint arose was laid down by s 31A(1) of the POBO. In this case, the
original information, the amendment of which was sought by the prosecution,
had in fact been laid within that period of 2 years, although that time limit did
not apply to the original charge.
On 9 October 1998, the magistrate granted the review application, set
aside the acquittal under s 4(2)(a), amended the charge to one under s 3, and
read the amended charge to the defendant or caused it to be read to him. The
defendant pleaded not guilty to it. The matter was adjourned until 23 October
1998 for the defence to make an application for a trial de novo and an
application for costs.
The proceedings in the Magistrate’s Court were stayed when the
defendant was granted leave to apply for judicial review of the decision of 9
October 1998. The judicial review application was dismissed on 29 March
1999, and the appeal from that dismissal was rejected by the Court of Appeal on
9 July 1999. The Court of Appeal, however, certified that a point of law of
great general and public importance was involved in its decision, namely (as
subsequently amended by the Appeal Committee of the Court of Final Appeal):
Whether the provisions of s 27 of the Magistrates Ordinance, Cap
227 respecting the amendment of informations, may be used on a
review under s 104 of the Ordinance of a decision made by a
magistrate under s 19(2), and if they can, whether they permit the
substitution of the information with another offence which if laid
as a fresh information at the time of amendment, would be timebarred by virtue of the provisions of s 31A(1) of the Prevention of
Bribery Ordinance Cap 201.
Section 19(2) was the general provision that the magistrate, having heard what
each party had to say and the witnesses and evidence so adduced, should
consider the whole matter and determine the same, and should convict or make
an order against the defendant or dismiss the complaint or information, as the
case might be.
Section 32(1) and (4) of the POBO had the effect of dispensing with any
need of the consent of the Secretary for Justice to the amendment charging a s 3
offence if the amendment had been made during the original trial. The section
had the same effect when the amendment was made on a review of the original
decision.
Held :
(1)
Mindful that mistakes could be made, the legislature in Hong Kong had
provided a useful remedy of review within the summary jurisdiction. To set
aside the acquittal and to amend the charge upon the review would be to vary the
original decision. An application for that purpose fell prima facie within the
section. Subject to the time limit point, a reviewing magistrate would have by
virtue of s 104(8) the power of amendment under s 27;
(2)
The reviewing magistrate should have in mind that at the original trial
there would have arisen under s 27(1)(b)(i) a duty – the word was ‘shall’ - to
amend the information if he was satisfied that no injustice would be caused by
that amendment. Subsection (1) was subject to subsection (2), but (2) did not
apply where, although there was a material variance, the magistrate was satisfied
that no injustice would be caused by the amendment. Upon the review here the
magistrate, with that provision in mind, said that she was so satisfied. There
could be no ground, relating to costs or otherwise, on which the CFA could
possibly disturb that decision;
16
CCAB 2000
Appeal/Procedure
(3)
If an amendment was made during a trial, the proviso to s 27(3) of the
Magistrates Ordinance, which restricted the calling of further evidence by the
prosecution, would apply thereafter in that trial. But it could not limit a
magistrate in deciding under s 104 whether or to what extent there should be a
retrial;
(4)
In the present case the magistrate had granted a review and had embarked
on the review to the extent of setting aside the acquittal, amending the charge
and obtaining a plea to it. She had yet to decide whether she would rehear the
case wholly or in part or whether in the interests of justice the case should be
reheard before another magistrate. If the case was to proceed, the defence had
applied for a full rehearing before another magistrate.
It would be
understandable if, to avoid any appearance of injustice, the original magistrate
acceded to that application. Among other things that would enable the defence
to cross-examine more extensively on the question of a loan; it had been
suggested that at the original trial the cross-examination had been limited
because counsel concentrated on excluding the ingredient of inducement;
(5)
Section 104 did not limit the grounds on which a review might be
granted. The rectification of an omission of that kind to allow a lesser charge to
be put forward was prima facie a plain case for invoking the section. It did not,
in principle, make any difference that the time for lodging a new information for
the lesser charge had expired;
(6)
The prosecution on the original charge carried with it the magistrate’s
powers of review and amendment. At the time when the prosecution was
commenced the defendant in effect had notice that the proceeding might result in
his being convicted of a lesser charge arising out of the same facts. If at the time
of that commencement the lesser charge was not time-barred, there was nothing
in either Ordinance to rule out an exercise of these powers by the magistrate.
The amendment was fairly to be treated as retrospective to the date of
commencement. On the other hand it would be unjust - and an abuse of the
powers of the court - to amend the charge to a lesser one if a prosecution for the
lesser one would have been out of time when the prosecution was commenced:
Attorney General v Fung Si-tsou [1986] HKC 567. There might be other
circumstances which would make an exercise of the powers unfair, such as a
charge based on different facts, or the unavailability of a witness who might
have materially assisted the defence on the lesser charge;
(7)
The present case was straightforward. If the defendant wished to deny
soliciting an advantage the magistrate had power to order a rehearing at which
the defendant might put that in issue. There was no prospect of injustice. And
in R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd
[1976] 2 All ER 611, it was held that justices had power to allow an amendment
which had the effect of charging a different offence after the six months’
limitation had expired. It was striking that the English courts, without the aid of
express provisions such as s 27 of the Hong Kong Ordinance, had evolved a test
virtually identical with that under s 27, namely, whether the amendment could be
made without injustice. They had taken the view that where the misdoing was
the same, it was not necessarily unjust to a defendant to make an amendment;
(8)
The first limb of the amended point had to be answered ‘Yes’, and the
second limb had to be answered: ‘Yes, if the substituted information was based
on the same or substantially the same facts and would not have been timebarred when the prosecution was commenced.’
17
CCAB 2000
Appeal/Procedure
Obiter -
(1) At the original hearing evidence appeared to have been called
for the prosecution that the police departmental records had been
checked for evidence of some authority, and that none had been
found. The possibility of a permission from the Governor not carried
into the police departmental records was so remote that, in the
absence of some evidential foundation for such a suggestion, a
magistrate would be entitled to infer beyond reasonable doubt that
there had been no permission of the Governor;
(2) That the original magistrate upon review had already re-opened
the case to the extent of setting aside the dismissal of the original
information, amending the charge by substitution and taking the
defendant’s plea to the amended charge, could not be treated as
precluding her from considering the defendant’s application for a full
rehearing before another magistrate: to hold otherwise would be to
place an oppressive and impractical interpretation on ss 104 and 27.
But if a full rehearing was ordered, it would be desirable for the
magistrate presiding at the rehearing to have the amended
information read again to the defendant, and to give the defendant a
further opportunity of pleading to it.
CA 249/99
Stuart-Moore
& Mayo VPP
Woo JA
WONG
Fuk-tak &
15 others
Appeal/Unfounded complaints against judge/Proper basis to appeal
essential
上訴 - 對法官提出無理據的投訴 - 上訴必須基於恰當理據
In the course of dismissing applications for leave to appeal against
convictions for triad offences, the court observed that:
(11.4.2000)
*Peter
Chapman,
Jackson Poon
&
H Tse
(1)
A proper basis should be established before wild and unfounded
allegations were made against the judge;
(2)
Emotive language had no place in perfected grounds of appeal;
(3)
It was irresponsible to have proffered the present grounds in the court as
having a sufficient foundation for the court to grant leave upon them.
*P Cosgrove
(Ds
1,2,4,6,8,15
&16)
M Delaney
(D3 & D9)
W Allan
(D5, D19 &
D20)
G J X McCoy
SC &
V Rajwani
(D17)
D Boyton
(D18)
18
CCAB 2000
MA 340/2000
Gall J
(24.5.2000)
*I C
McWalters
#Daniel Fung
SC
& Dominic
Yeung
Appeal/Procedure
(1) TSOI
Kei-lung
(2) NG
Kam-fung
Right of appeal/Committal proceedings/No appeal against interlocutory
decision/Section 113(1) Cap 227 concerned with finality/Judicial review
only possible remedy
上訴的權利 - 交付審判程序 - 非正審的決定是不能提出上訴的 - 第
227章第 113(1)條適用於結案裁決 - 司法覆核是唯一可行的補救方
法
The Appellant was charged with various offences, contrary to the Trade
Descriptions Ordinance and the Copyright Ordinance.
On 9 March 2000, the parties appeared before the magistrate at Eastern
Magistracy. That was the return date for the summonses. The Appellants
contended that the magistrate had no jurisdiction to hear the summonses on the
ground that they were invalidly drawn and bad for duplicity.
On 10 March 2000, the magistrate ruled that the summonses were valid
and not duplicitous. The Appellant elected to have a preliminary enquiry
pursuant to s 80C(1) of the Magistrates Ordinance, and the committal hearing
was set down for eight weeks commencing on 3 July 2000. Other defendants,
the company (D1) and Defendants 4 to 6, had already been committed to the
Court of First Instance for trial without preliminary enquiry.
The Appellants sought to appeal against the ruling by the magistrate that
the summonses before him not be struck out for want of jurisdiction, and to
contend that some of the summonses were bad for duplicity.
Held :
(1)
The only avenue of appeal from the magistrates court was pursuant to
statutory provision, and that provision was to be found in section 113 of the
Magistrates Ordinance, Cap 227, which provided:
(1)
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.
(2)
Any person who after pleading guilty or admitting the truth
of the information or complaint is convicted of any offence
by a magistrate may appeal to a judge against his sentence
unless the sentence is one fixed by law.
(3)
After the hearing and determination of any complaint or
other proceeding which a magistrate has power to
determine in a summary way other than a determination or
proceeding relating to or in connection with an offence
either party thereto may appeal from such order or
determination of such magistrate to a judge.
In this case, there had not been a plea of guilty, nor had there been the hearing
and determination of any complaint or other proceedings which a magistrate had
power to determine in a summary way. The only section that could apply in
respect of this appeal was s 113(1);
(2)
The matter had been considered in R v Cheung Chi-kung [1986] HKC
653, where it was said, by Roberts CJ, at 655, that s 113 could not ‘have been
intended to be used to overturn rulings or determinations reached in the course
of the trial and before its conclusion. The only way of challenging interim
rulings is by way of judicial review.’ As O’Connor J made plain in R v Taj
19
CCAB 2000
Appeal/Procedure
Malook and Another [1992] HKLR 209, it could never have been intended that
every incidental decision or order made by a magistrate could immediately be
appealed, since it was the finality of the proceedings that mattered. O’Connor J
added that ‘the committal order is interlocutory in a real sense and does not fall
within s 113 of the Ordinance’;
(3)
The decisions made by the magistrate on the return day of the
summonses where matters necessary to the proper conduct of the committal
proceedings were heard were for the purpose of those committal proceedings,
and any decisions made by him were in the nature of interlocutory decisions.
Section 113(1) did not apply to interlocutory proceedings of a magistrate but
only to a final determination of the substantive matter before him.
Result – Jurisdiction declined.
CA 469/99
Stuart Moore,
ACJHC
Wong JA
Yeung J
(30.10.2000)
*Ian
McWalters &
Gary Lam
#Yeung
Yeuk-chuen
(1) CHAN
Pun-chung
(2) SHUM
Hiu-wah
Grounds of appeal/Duty of counsel settling grounds/Practice Direction
上訴理由 - 律師在擬定上訴理由時所擔負的責任 - 實務指示
The Applicants were convicted in the District Court of offences of doing
acts tending and intended to pervert the course of public justice.
The perfected grounds of appeal against conviction drafted by counsel
contained complaints alleging incompetence and/or misconduct on the part of
counsel who appeared for them at trial.
At the outset of the hearing, the court drew the attention of counsel to
paragraph 5(I) Practice Direction - 4.2 on Criminal Appeals to the Court of
Appeal:
Where solicitors or counsel settles grounds of appeal, it is his duty to
ensure that (a)
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;
(b)
grounds are not put forward unless they are ‘reasonable’, that
is, they afford some real chance of success;
(c)
grounds are not put forward unless they are supportable by
oral argument and are particularised;
(d)
the grounds put forward are settled with care and accuracy.
An identical practice direction was pronounced by the English Court of
Appeal in Doherty & Mcgregor [1997] 2 Cr App R 218.
Having consulted his clients, counsel informed the Court that he was
unable to argue the grounds on behalf of the Applicants.
20
CCAB 2000
FACC 4/2000
Li CJ
Bokhary &
Chan PJJ
Silke &
Lord
Hoffmann
NPJJ
(21.12.2000)
*John Griffiths
SC &
Graham Harris
#Andrew
Bruce SC &
Ian McWalters
Appeal/Procedure
WONG
Pui-shan
Appellant convicted of several offences/Convictions based on evidence of
same witnesses/Appeal succeeding on some charges due to doubts as to
credibility of witness/Need for appellate court to consider impact of doubts
on remaining conviction
上訴人被控的數項罪行都裁定罪名成立 - 法庭依據同一證人的證供
裁定各項控罪罪名成立 - 部分控罪因證人的可信性有疑問而上訴得
直 - 上訴法庭應考慮這方面的疑問會否影響餘下一項定罪
The Appellant, a Superintendent of the Customs and Excise Department,
was convicted after trial in the District Court on three charges, two contrary to
the Prevention of Bribery Ordinance, Cap 201 (‘the Ordinance’). The third was
that of doing an act tending and intended to pervert the course of public justice,
contrary to common law. He was sentenced to terms of imprisonment totalling
two years.
He appealed against those convictions to the Court of Appeal which
allowed his appeal in part, quashing the convictions on two of the charges.
Those were the second charge of being a public servant soliciting an advantage
contrary to s 4(2)(a) of the Ordinance and the common law offence. The Court
upheld the convictions on the first charge, that of being a government officer
accepting an advantage contrary to s 3 of the Ordinance and his sentence of 6
months’ imprisonment stood.
By leave granted by the Court - on the basis that it was reasonably
arguable that grave and substantial injustice had been done - he appealed against
his conviction on the first charge. He sought to place himself within the test
applicable to the provisions of s 32(2) of the Hong Kong Court of Final Appeal
Ordinance, Cap 484 – which referred to ‘substantial and grave injustice’. That
provision, in the words of Bokhary PJ in So Yiu-fung v HKSAR (1999)
HKCFAR 539, 541:
exists as a residual safeguard to cater for those rare and
exceptional cases in which there is a real danger of something so
seriously wrong that justice demands an enquiry by way of a final
criminal appeal despite the absence of any real controversy on
any point of law of great and general importance.
Bokhary PJ also set out the test to be applied for such an appeal to succeed as
this:
it must be shown that there has been to the appellant’s
disadvantage a departure from accepted norms which departure
is so serious as to constitute a substantial and great injustice.
The Appellant made two points:
(a)
The evidence of Peter Siu Sik-sum (‘Siu’), a businessman and friend of
the Appellant, was the only incriminating evidence against the Appellant. In
setting aside the convictions on the second and third charges the Court of
Appeal, as they felt unable to rely on the evidence of Siu, who was the main
witness in respect of all the charges at the Appellant’s trial, failed to consider
whether Siu’s evidence could safely be relied upon on the first charge;
(b)
The Court of Appeal fell into error in that it failed properly to analyse the
new position, or to consider the validity of the trial judge’s findings in light of
the new situation.
On behalf of the Respondent, it was submitted that it was incumbent on
the Court to proceed on the basis that the Court of Appeal had done its
constitutional duty. The findings of fact themselves were the province of the
trial court. It was not, therefore, for the Court to review the facts but simply to
consider whether the decision of the Court of Appeal was properly come to was not ‘a departure from accepted norms’. It was said that the Court of
Appeal did not so depart.
21
CCAB 2000
Appeal/Procedure
The Court of Appeal was of the view that the evidence of Siu on the first
charge:
was clear and there was nothing to contradict his evidence which
the judge accepted. It was a separate incident, not dependent on
the evidence of the ICAC officers, the notes, the surveillance and
PW10 and it took place more than a month earlier.
Siu’s evidence being crucial, the Appellant contended that the Court of Appeal
erred in the view they expressed and by taking the course they did.
Held :
(1)
The general approach of the trial judge was illustrated by two passages
from his Reasons for Verdict. The first:
The issue in the case was whether Mr Siu was telling the truth
about the loan and the tip off. Its resolution depended upon his
credibility.
The second, when considering what form a judge’s directions to a jury might
take:
Part of that help would be in the form of advice to keep an eye on
the essential question, which was can one be sure that Mr Siu
told the truth about the defendant in respect of the loan and the
tip off. It would also urge that the whole of the evidence be taken
into account in deciding that question and it would identify any
other evidence which supported Mr Siu in the relevant regard.
Following that advice he sought that supporting evidence and found it in the
evidence of the ICAC officers and made what he termed his ‘central finding’:
I judged that Mr Siu was telling me the truth about the defendant.
The false tip off point did not raise a reasonable doubt in my
mind about this. The support from my findings concerning the
ICAC was crucial. It was as if that evidence splinted a weak
bone and allowed the questionable limb to bear the weight of
certainty.
The Court of Appeal removed that splint.
(2)
The Court of Appeal did not appear to have taken the same global
approach to the charges as did the trial judge. Had he found himself without the
‘enormous support’ he thought himself to have would he have found Siu
credible in respect of all the charges? This was not a question the Court of
Appeal seemed to have asked itself;
(3)
Further, it was the norm for a Court of Appeal, where it formed a doubt
as to the reliability of a crucial prosecution witness’s credibility and set aside
some of the convictions based almost entirely on the evidence of that witness, to
consider whether such doubt also impacted on any remaining conviction which
was also dependent on the credibility of that witness. That course had not been
taken by the Court of Appeal.
Result - Appeal allowed.
Per cur -
The Court was not a trier of fact. As Bokhary PJ said in So Yiufung v HKSAR (above) ‘Reviewing convictions to see if they are
safe and satisfactory is entrusted to the intermediate appellate
court. If the matter proceeds further to this Court our task does
not involve repeating that exercise’.
22
CCAB 2000
Application for Discharge
HCCD 1/99
Jackson J
YAU
Heung-tong
Conspiracy to traffic in dangerous drugs/Leave required for amendment of
indictment/Application for Discharge/Principles applicable
串謀販運危險藥物 - 修訂公訴書需法庭許可 - 要求釋放申請 - 適用
的原則
(13.12.99)
*J To
#J Chandler
On 21 July 1999, the Applicant, with three other defendants, was
committed for trial on dangerous drugs offences. The indictment was filed on
11 August 1999 and contained 8 counts, four of which concerned the Applicant.
On 27 October, the Applicant filed the notice of his application under section 16
of Cap 221 in respect of counts 5 and 6.
Count 5 was against the Applicant and D4 alleging a conspiracy to traffic
in heroin ‘on divers days between early 1998 and July 1998’ together with
Tsang Chi-wah (‘Tsang’). Count 6 alleged against four defendants a conspiracy
to traffic in heroin ‘on divers days between January 1999 and 26 April 1999’
together with Li Mun-chung.
D1 and D2 were jointly charged with counts 7 and 8, respectively, for
manufacturing of, and substantive trafficking in, heroin, on 26 April 1999.
Held :
(1)
When the original indictment was not defective on its face, it could not
be amended without leave of the court. The application for amendment could
not be made in the absence of the defendants who were affected by the proposed
amendments and who were unaware of them;
(2)
Both offences were set out in the most general terms. It was not
appropriate nor was it a pre-requisite for the purpose of an application for
discharge to make application for further and better particulars. Rather it was
for the court having regard to the whole of the indictment, the papers served and
having heard submissions from both parties to determine whether the papers
disclosed a case to answer upon the two impugned counts;
(3)
In relation equally to primary facts and to inferences to be drawn from
such facts the judge’s concern was not with present proof to his satisfaction, but
with potential proof to a jury. Both primary facts and the inferences therefrom
were matters generally speaking within the province of the jury in the language
of Galbraith. Assuming all proper directions were given, the test was not what
the judge thought that jury ‘must’ conclude at that moment; but what the jury
‘could, may or might’ properly conclude in the future : AG v Li Fun-shin,
Ronald Cr App 3/90; AG v Phung Van-toan and others [1992] HKCLR 56 and
R v Tin Sau-kwong Application for Discharge 2/95 considered;
(4)
The essential point in dealing with this type of conspiracy charge was to
bring home to the minds of the jury that before they could convict anyone on
that conspiracy charge, they had to be convinced in relation to each person
charged that the person had conspired with another guilty person in relation to
that single conspiracy : R v Griffith & Others (1966) 49 Cr App R 279; R v
Au Yuk-keung [1980] HKLR 28; R v Abdul Rahman Bux & Others [1989] 1
HKLR 1; R v Ardalan & Others [1972] 2 All ER 257; R v Barratt & Another
[1996] CLR 495; R v Chrastny [1991] 1WLR 1381 considered;
(5)
The Applicant made no admission for count 5. The prima facie case, if
made out, was to be found in the statement of Tsang. The two acts, i.e. primary
facts or facts attributed to the Applicant, were to be found in Tsang’s statement,
which, viewed singularly or taken in combination, could not properly support an
inference to the criminal standard. There was no prima facie case;
23
CCAB 2000
(6)
For count 6, there was no admission in the Applicant’s record of
interview that he had any dealings whatsoever with D1 and D2 who had been
charged with both manufacturing of and trafficking in heroin on 26 April 1999.
Nor was there any admission linking the Applicant either with D1 and D2 or
linking him with the heroin being manufactured or trafficked by D1 and D2 as
alleged in counts 7 and 8. The jury quite plainly could not properly infer the
Applicant’s guilt. Such inferences would amount to nothing more than
speculation.
Result - Application allowed with costs.
Assault/Wounding
CA 269/99
Stuart-Moore
VP Mayo &
Wong JJA
(7.12.99)
LO Tak-chi
Causing grievous bodily harm/Elements of offence
導致身體受嚴重傷害 - 構成罪行的要素
The Applicant was convicted after trial of an offence of causing grievous
bodily harm with intent. He was sentenced to imprisonment for 2 years.
On appeal, it was submitted, inter alia, that the judge erred in deciding
that the injuries received by the victim were, in fact, grievous bodily harm.
*K P Zervos
The medical findings in relation to the victim were:
#J McGowan
Multiple bruise marks and abrasions over head, face, right
perriorbital region and back; a small cut wound over right side of
tip of the tongue and suturing wound of tongue was done: x-ray of
skull, chest, cervical spine and orbit revealed no fracture.
The tooth of the victim was chipped. He lost consciousness as a result of the
beating to which the Applicant, and others, subjected him.
Held :
(1)
The judge found the injuries suffered by the victim to be grievous bodily
harm without apparently having fully considered whether the nature of the
injuries amounted to really serious bodily harm;
(2)
In order to constitute grievous bodily harm it was not necessary that the
injury should be either permanent or dangerous, and, if it was such as seriously
to interfere with comfort or health, that was sufficient: R v Ashman (1858) 1 F &
F 88. In R v Smith [1961] AC 290, at 334, Viscount Kilmuir said that ‘grievous
bodily harm means no more and no less than really serious’ and that ‘bodily
harm’ needed no explanation;
(3)
Although it was a cause of much concern as to whether the injuries to the
victim could properly be described as grievous bodily harm, the court was not
satisfied that they were, even though it was the Applicant’s intention to cause
such harm to his victim.
Result - Appeal allowed. Conviction for assault occasioning actual bodily
harm, contrary to s 39, Cap 212, substituted.
24
CCAB 2000
MA 604/2000
Lugar-Mawson
J
Assault/Wounding
LIU
Man-kuen
Grievous bodily harm/Whether injuries ‘grievous’ or ‘actual’/ ‘Smith’ test
applicable/Question of fact for tribunal
對他人身體加以嚴重傷害 - 所加的傷害是‘嚴重身體傷害’還是
‘ 身體傷害 ’ - ‘ Sm ith ’ 一案的判斷標準適用 - 關乎事實的問題由
法院裁斷
(11.10.2000)
*Sin Pui-ha
#Kevin Egan
The Appellant was convicted after trial of an offence of inflicting
grievous bodily harm, contrary to s 19 of the Offences against the Person
Ordinance, Cap 212. She was sentenced to 18 months’ imprisonment.
The Appellant had originally been charged with an offence of assault
occasioning actual bodily harm, contrary to s 39 of Cap 212. However, on the
first day of trial it was substituted with the s 19 offence.
The facts of the case as found by the magistrate showed that the
Appellant, who was angry after her domestic helper ruined a nylon carnisole
while ironing it, used an iron to burn the back of the helper’s hands, saying ‘This
is the payment for what you have done’.
When medically examined, the domestic helper was found to have
suffered a secondary degree scalded wound to the back of each of her hands,
each measuring 6 cm x 7 cm. The doctor described them as ‘high temperature
thermal burns, which caused blistering’. At trial her hands were still scarred by
the wounds.
On appeal, the ground of appeal was that:
The trial magistrate erred in law in finding that the prosecution
had proved beyond reasonable doubt that the injuries sustained by
the victim amounted as a matter of law to ‘grievous bodily harm’
(ie really serious harm) as opposed to the lesser form of injury ‘actual bodily harm’ as originally charged.
It was further submitted that the magistrate failed to consider whether the
injuries inflicted could in law amount to grievous bodily harm.
Held :
(1)
The phrase ‘grievous bodily harm’ was not defined in the Offences
against the Person Ordinance. In R v Smith [1961] AC 290, it was said that
there was no warrant for giving the words a meaning other than that which they
conveyed in their ordinary and natural meaning. Viscount Kilmuir observed:
‘Bodily harm’ needs no explanation, and ‘grievous’ means no
more and no less than ‘really serious’.
There was no definitive list of the kind of injuries that might be considered as
‘really serious’ and the noun ‘harm’ could cover cases where there was no
wounding as, for instance, in R v Wood [1830] 1 Mood CC 278, where a broken
collar bone was involved;
(2)
In R v Saunders [1985] Crim LR 230, the victim suffered a broken nose
and other injuries, and the judge directed the jury that grievous bodily harm
meant ‘serious injury’, omitting the adverb ‘really’. That was held not to be his
direction. In his commentary to that report, Professor Smith QC said:
The word ‘really’ is, as the Oxford Dictionary has it, ‘used to
emphasise the truth or correctness of an epithet or statement’. It
means no more than ‘actually’ or ‘as a matter of fact’. In the
context it does not add anything to ‘serious’ but emphasises to the
jury that the harm caused must be - actually or really - serious.
25
CCAB 2000
Assault/Wounding
(3)
It was a question of fact in each case whether or not the injuries suffered
by the victim amounted to grievous bodily harm. Whereas common sense
indicated that some injuries would always be considered as amounting to
grievous bodily harm and some, obviously minor ones, would not, in the vast
majority of cases it was left to the tribunal, properly directed, to reach its own
conclusion. Previous cases which cited the nature of the injury were no more
than examples of a tribunal’s finding on this issue, and not definitions. That
point appeared to have escaped the Court of Appeal in HKSAR v Lo Tak-chi Cr
App 269/99, upon which the Appellant relied;
(4)
There was nothing in the magistrate’s reasons for verdict to indicate that
he was not aware of the test in Smith, or that he misapplied it. It was open to the
magistrate on the evidence to find that these were really serious injuries, and
there was no reason to doubt his conclusion.
Bail
CA 87/2000
Woo JA
(26.7.2000)
*Wong Sze-lai
#Wong Mankit
CHAN
Man-chung
Bail pending appeal/Criteria applicable/English approach relevant/Preconviction considerations not relevant/Grounds of appeal not impressive
准予保釋以候上訴 - 適用的準則 - 英國的處理方法適用於香港 - 未
被定罪前可考慮的因素並不適用 - 上訴理由未能顯示有機會上訴得
直
The Applicant was convicted after trial of three charges of wounding
with intent. He was sentenced on 16 February 2000 to concurrent terms of
imprisonment of 4½ years on each charge.
By application made on 1 March 2000, the Applicant sought leave to
appeal against both conviction and sentence. By summons dated 18 July 2000,
the Applicant sought bail pending appeal.
Under section 83R of the Criminal Procedure Ordinance, Cap. 221, the
Court of Appeal might admit an Appellant, including a person who had given
notice of application for leave to appeal, to bail pending the determination of his
appeal. The criteria for admitting an appellant to bail pending appeal were set
out in s 83Z of the Ordinance as follows:
(a) pending sentence, the likelihood of a custodial sentence;
(b) pending appeal against conviction or sentence, the likelihood
of a sentence being completed before the disposal of the appeal
or of the appeal being allowed; and
(c) any other matter that appeared to the court to be relevant.
Held :
(1)
The criteria in (a) and (b), above, were not satisfied as the Applicant had
been sentenced, and as the sentence was 4½ years’ imprisonment it was not
likely to be completed before the disposal of the appeal or of the appeal being
allowed. Since it appeared that the appeal could be fixed for hearing at the end
of August 2000, that lent further support to the view that criterion (b) was quite
irrelevant. That only left factor (c), namely, whether there was any other matter
26
CCAB 2000
Bail
that appeared to the court to be relevant to the consideration of whether bail
should be granted;
(2)
The practice in England regarding bail pending appeal was quite similar
to that in Hong Kong. The criteria were encapsulated in Archbold: Criminal
Pleading, Evidence and Practice 2000, para 7-187 as follows:
In deciding whether to grant bail pending appeal ‘the true question
is, are there exceptional circumstances, which would drive the
Court to the conclusion that justice can only be done by the
granting of bail?’: R. v. Watton, 68 Cr. App. R. 293, 297, CA. Such
circumstances will exist where it appears prima facie that the
appeals is likely to be successful or whether there is a risk that the
sentence will have been served by the time the appeal is heard:
ibid. In R. v. Landy, 72 Cr. App. R. 237 (unreported on this point),
the court granted an appellant bail pending appeal, having been
satisfied that there was ‘a substantial point’ to be argued on
misdirection and ‘and that it could result in the conviction being
quashed’. A further determining factor was that the hearing of the
appeal would be delayed for some months in order for the
transcript to be prepared.
(3)
That the Applicant had a fixed abode and his roots in Hong Kong, was
with his family and was in constant employment, were not even persuasive
grounds for bail at the stage where the Applicant had been convicted as they
would be under the criteria provided in section 9G of the Criminal Procedure
Ordinance for those accused who had not yet been convicted;
(4)
As regards the perfected grounds of appeal which were exhibited, they
did not impress the court as presenting a good opportunity of success.
Result – Application dismissed.
Bind Over
MA 825/2000
V Bokhary J
(21.11.2000)
*Cheung Waisun
#I/P
LAI
Lai-wah
Binding over/Order imposed after magistrate concluded Appellant suffered
from ‘persecutory delusion’/Defence not alerted to finding and order set
aside
簽保守行為 - 裁判官認為上訴人有‘受迫害的幻覺’後作出判令辯方未獲提醒會作出如此裁斷，因此判令予以撤銷
The police applied under s 61 of the Magistrates Ordinance, Cap 227, for
an order that the Appellant be bound over to keep the peace and to be of good
behaviour. The magistrate, after a hearing, bound her over in the sum of $2,000
to keep the peace and to be of good behaviour for 1 year.
The allegation against the Appellant was of fighting in a public place.
Her evidence was that she had acted in self-defence. As to the Appellant’s
reliability or otherwise, the magistrate said in his Statement of Findings:
My view of the Appellant was that her testimony was not reliable.
It was not because I thought her a dishonest witness. On the
contrary she impressed me to be sincere. I was sure however,
taking into account her demeanour and the content of her
testimony, that she was suffering from a persecutory delusion
which made her evidence unreliable. She claimed that PW1 and
27
CCAB 2000
Bind Over
DW3 were part of a malevolent organisation, perhaps a religious
group, set on doing malicious things to her. She testified that
DW3 had encouraged PW1 to assault her and even told others
not to interfere with the fighting women. I rejected this testimony.
Held :
There was no indication that the Appellant or the solicitor defending her
at the trial had been given any notice that the magistrate might find against her
on the basis that she was suffering from a ‘persecutory delusion’. As such, the
binding over order was neither safe nor satisfactory.
Result - Appeal allowed. Order set aside.
Bookmaking/Gambling
CA 524/99
Mayo VP
Leong &
Keith JJA
(24.5.2000)
*J R Reading
SC
& Alex Lee
#J Griffiths SC
Ching Y Wong
SC &
Peter Chow
(1) LAU
Wing-kun
(2) TSANG
Lim-cho
Conspiracy to engage in bookmaking/Whether charge alleging ‘engaging’
and ‘assisting’ duplicitous/Absence of averment that bookmaking being ‘by
way of trade or business’ qualified reference in Indictment Rules to absence
of prejudice or embarrassment/Existence of a secondary conspiracy of no
consequence
串謀從事收受賭注 - 控罪內指控被告 ‘ 從事 ’ 和 ‘ 協助 ’ 是否包含
多項罪行 - 罪行詳情內沒有聲言是‘以生意或業務形式 ’收受賭
注，只要不構成損害或妨礙，就沒有抵觸《公訴書規則》- 有另一
項串謀存在無關重要
The Applicants were respectively the 1st and 3rd defendants at trial.
They were charged together with five other defendants with a conspiracy to
engage in bookmaking. The re-amended charge read as follows:
Statement of Offence
Conspiracy to engage in bookmaking, contrary to Section 159A
of the Crimes Ordinance, Cap 200, and Section 7(1)(a) of the
Gambling Ordinance, Cap 148.
Particulars of Offence
Lau Wing-kun, Tse Ping-wang, Tsang Lim-cho, Ng Man-kin, Lau
Ka-fai, Chung Hiu-leung and Hui Chun-wah, between 1st day of
June 1997 and 10th day of June 1998, in Hong Kong, conspired
together and with Leung Man-hei, Tsang Hsiang-ching and Tong
Kin-wai, to engage in bookmaking by:
(1)
producing a computer programme designed to assist in the
receipt, storage, processing and settling of bets on overseas
football matches;
(2)
teaching members of the syndicate or learning how to use
the said computer programme;
(3)
renting premises for the purpose of receiving, processing
and settling bets on overseas football matches and
equipping the premises with a computer, telephones,
recording and other equipment for use in connection with
those purposes;
(4)
accepting bets on overseas football matches; and
28
CCAB 2000
Bookmaking/Gambling
(5)
using the computer and the installed programme to assist
them to receive, store, process and settle the said bets.
D2 was also charged with two offences of offering an advantage contrary
to s 4(1)(a) of the Prevention of Bribery Ordinance, Cap 201.
On the conspiracy count only D1 and D3 were convicted. The other
defendants were all acquitted. D1 and D3 sought leave to appeal against their
convictions.
On appeal, it was submitted, inter alia, that the judge erred in ruling that
charge 1 was valid because the charge was bad for duplicity in that the
particulars of offence included allegations both of acts of ‘engaging’ in
bookmaking and ‘assisting’ in bookmaking. Further, it was said that the judge
erred in law in finding the conspiracy between the two Applicants to be the
single conspiracy that was charged in that, by his own findings, the evidence
established another conspiracy between A2 and the 4th to 7th accused. It was
said that O’Connor J had been right in concluding in R v Fung Sik-chung [1985]
HKLR 387 that s 7(1)(a) and s 7(1)(c) of the Gambling Ordinance created
separate and distinct offences.
Held :
(1)
One of the factors which had been weighed by O’Connor J in Fung Sikchung had been the requirement in s 7(2) to obtain the consent of the then
Attorney General for a prosecution under s 7(1)(c) whereas there was no such
requirement for prosecution under s 7(1)(a). If the charge was read as a whole,
it was quite clear that what was being alleged was that the named conspirators
had conspired to engage in bookmaking contrary to s 7(1)(a). Although the
word ‘assist’ was used in items 1 and 5 it was manifest that that referred to the
computer function and not to the person using the computer. Even if that was
wrong, no question of duplicity could arise in the present case;
(2)
Section 159A(1) of the Crimes Ordinance - ‘The offence of conspiracy’ referred to ‘offence or offences’, and there was no reason to read into it, as had
been submitted, a requirement that the offences referred to in the section must be
of a kindred nature, on the basis that the legislature must have contemplated this.
Even had a contrary view been taken, engaging in bookmaking and assisting
another person so to do would undoubtedly be of a very similar nature. There
could be no question of the re-amended charge being duplicitous;
(3)
As to the complaint that Rules 3 and 4 of the Indictment Rules, Cap 221,
had not been complied with, as there was no averment in the particulars of the
charge that the bookmaking was by way of being a trade or business, the
requirement in the Indictment Rules to specify the essential elements of the
offence was qualified where the failure to specify did not prejudice or embarrass
the accused. There could be no question of prejudice or embarrassment in this
case, and the averment was not a material averment. Bookmaking was defined
in s 2 of the Gambling Ordinance as:
... the soliciting, receiving, negotiating or settling of a bet by way
of trade or business whether personally or by letter, telephone,
telegram or by any other means...
Having regard to the evidence at trial there could be no doubt that there was
ample evidence which if accepted would have amounted to the bookmaking
constituting a trade or business;
(4)
There was no substance to the complaint that the judge dealt with the
case on the basis that there was one single conspiracy when on his own findings
there was a subsidiary conspiracy. The fact that the evidence might disclose the
29
CCAB 2000
Bookmaking/Gambling
existence of some further conspiracy was of no consequence. As Lawton LJ
observed in R v Greenfield (1973) 57 Cr App R 849, 856:
A charge which is not bad for duplicity when the trial starts does
not become bad in law because evidence is led which is
consistent with one or more of the accused being a member of a
conspiracy other than the one charged.
It was very clear that on the evidence at trial there was one conspiracy, and that
there was continuity in the events which occurred.
Bribery/Corruption/ICAC
香港特別行政區訴林卓斌
HKSAR v LAM Cheuk-bun
*李紹強及
黎雅雯
R SK LEE &
L LAI
# 王正宇、
王熙曜及
葉瑞文
CY WONG,
SC,
HY WONG
& S YIP
高等法院上訴法庭 – 刑事上訴1 9 9 8 年第1 8 0 號
高等法院上訴法庭法官梁紹中
高等法院上訴法庭法官王見秋
高等法院原訟法庭法官胡國興
聆訊日期︰一九九九年十月二十六日
宣判日期︰一九九九年十一月十日
COURT OF APPEAL OF THE HIGH COURT
CRIMINAL APPEAL NO. 180 OF 1998
LEONG & WONG JJA, WOO J
Date of Hearing: 26 October 1999
Date of Judgment: 10 November 1999
選舉中舞弊行為 - 作出陳述的人知道其陳述虛假這點並非必需 - 法
官述明曾依循良好品格指引的責任
申請人被裁定四項選舉舞弊罪罪名成立，違反《舞弊及非法
行為條例》第 1 4 ( 1 ) ( aa) 條之規定，即 “ 任何人明知 … … 其他人，為
了在某項選舉中登記為選民或投票而作出(或已作出)據其所知在要
項上屬虛假的陳述……均不得在該選舉中……促請……該其他人投
票。 ”申請人被判入獄四個月。他就定罪及判刑申請上訴許可。
申請人是1994年9月18日東區區議會選舉炮台山選區的候選
人。 1 9 9 4 年 5 月至 6 月期間，申請人分別與五名選民接洽，邀請他們
登記成為選民或把選區轉至他的選區。他叫其中一名選民填寫辦事
處地址作為住宅地址，以便辦理轉換選區手續。至於另外四名選
民，申請人則把登記表格給他們簽署後，就替他們在表格上填上他
們的個人資料，其中包括住址。根據選舉事務處的紀錄，該五名選
民本應在他們主要居所的選區票站投票。由於他們宣稱辦事處地址
是他們的居住地址，他們作出了虛假聲明。
在投票當日，其中一名選民更成為申請人的助選人員，並前
往炮台山票站投票。另外四名選民則乘坐申請人安排的車輛前往同
一個投票站投站。
30
CCAB 2000
法官裁定申請人在各選民作出虛假陳述之前及之後的行為，
足以證明申請人明知陳述是虛假的，仍促請他們前往投票。
申請人提出多項上訴理由，其中一項指罪行的一個重要元
素，即陳述者要知道他在要項上作出虛假的陳述，控方沒有證明。
裁決︰
( 1 ) 第 1 4 ( 1 ) ( aa) 條的真正意思十分清楚，即是只須證明促請者明知
其他人有作出陳述，而據促請者所知，該陳述是虛假的。本條文的
目的是防止有人促請以虛假資料登記的選民投票，以保障公平選
舉。促請者基於陳述者不知道陳述是虛假的而無需負刑事責任，這
不會是立法意圖；
(2) 法官不必在判決理由中一字不漏地按判例指引列出對被告人良
好品格的考慮。如果判決理由能顯示出法官實質上有考慮被告人的
可信性及犯罪傾向這兩方面才作出判斷，這樣的判決是沒有不妥善
之處的︰ R v V ye & Oth ers [ 1 9 9 3 ] 1 W LR 4 7 1 、 HKS A R v Wo n g
Wa i- yee MA 8 4 0 /9 7 及HKS A R v Ta n g S iu - ma n [ 1 9 9 8 ] 1 HKC 3 7 1
等案予以考慮。
申請駁回。
[English digest
of CA 180/99
above]
Leong &
Wong JJA
Woo J
(10.11.99)
*R SK Lee &
L Lai
#CY Wong,
SC, HY Wong
& S Yip
LAM
Cheuk-bun
Corrupt practices at election/Knowledge of statement maker that statement
false not required/Duty of judge to state good character direction
The Applicant was convicted of four charges of corrupt practices at an
election contrary to s 14(1)(aa) of the Corrupt and Illegal Practices Ordinance,
namely, ‘No person shall ... invite any person to vote at an election ... knowing
that ... such other person, for the purpose of registering as an elector or voting
at that election, makes (or has made) any statement which to his knowledge is
false in a material particular ...’ He was sentenced to 4 months’ imprisonment.
He sought leave to appeal against both conviction and sentence.
The Applicant was a candidate for the Fortress Hill Constituency at the
Eastern District Board Election on 18 September 1994. In around May and June
1994, the Applicant approached five electors separately and invited them to
either register or transfer the registration to his constituency. He told one of the
electors to fill in the office address as his residential address for the transfer
procedure. For the other four electors, the Applicant gave them registration
forms for signature and then filled in the particulars, including the residential
address on their behalf. According to the Registration and Electoral Office
record, these five electors should have voted at the polling stations of the
constituencies in which they principally resided. By declaring the office address
as their residence, they made a false statement.
On the Election Day, one of the electors became the Applicant’s
campaigner and went to vote at the Fortress Hill polling station. The other four
electors went to vote at the same polling station by means of a car arranged by
the Applicant.
The judge found that the conduct of the Applicant both before and after
the electors made the false statements was sufficient to prove that the Applicant
had invited them to vote with the knowledge that those statements were false.
On appeal, it was submitted, inter alia, that the essential ingredient that
the statement makers had the knowledge that the statement was false in a
material particular, was not proved.
31
CCAB 2000
Held :
(1)
The true meaning of s 14(1)(aa) was clear. It only required proof that the
inviting person knew that such other person had made a statement, which, to the
inviting person’s knowledge, was false. The purpose of the provision was to
maintain a fair election and to prevent people from inviting voters who
registered with false information to vote. It would not be the legislative intent
that the inviting person could escape from criminal liability by relying on the
fact that the statement maker did not have knowledge that the statement was
false;
(2)
The judge was not required to state verbatim in his Reasons for Verdict
that he had followed the directions in considering the defendant’s good
character. If the Reasons for Verdict showed that the judge had considered the
two limbs of credibility and propensity before the ruling was made, there was no
material irregularity: R v Vye & Others [1993] 1 WLR 471, HKSAR v
Wong Wai-yee MA 840/97 and HKSAR v Tang Siu-man [1998] 1 HKC 371
considered.
FACC 2/99
Litton,
Ching &
Bokhary PJJ,
Fuad &
Hoffmann
NPJJ
(9.3.2000)
*John Reading
SC & Joseph
To
NG Siu-chau
Corruption/Section 4(1)(a) of POBO/Whether apprentice jockeys public
servants/Relationship between HKJC and apprentice jockeys
貪污 - 《防止賄賂條例》第 4(1)(a)條 - 見習騎師是否公職人員香港賽馬會與見習騎師的關係
The Appellant was convicted on seven charges of offering advantages to
public servants, contrary to s 4(1)(a) of the Prevention of Bribery Ordinance,
Cap 201. The charges were the same in each case, mutatis mutandis the details,
and alleged that he had offered advantages in 1996 to
a public servant ... an apprentice jockey employed by the Royal
Hong Kong Jockey Club. The Hong Kong Jockey Club was a
public body within Schedule 1 of the Ordinance while s 2(1)
defined a public servant as being
any employee of a public body ...
#Ching Y
Wong SC & M
Poll
At trial the judge found that the Appellant offered advantages to the apprentices
for the purposes stated and these findings were not challenged on appeal. The
sole question was whether the apprentices were employees of the Club.
The question was not raised at trial. In the absence of argument the
judge dealt with it briefly by saying that he was satisfied that the apprentices
were in fact employees of the Club and that accordingly they were public
servants for the purposes of s 4(1)(a). The only evidence to which he referred
was the evidence of the apprentices themselves and of a stipendiary steward
which said that the apprentices were employees of the Club. The Court of
Appeal, by a majority, agreed with the judge’s conclusion and relied on the same
evidence to which they added several other factors: the control exercised by the
Club over the apprentices, the provision of training, quarters and payment of
money to them and finally a purposive interpretation of the Ordinance.
The Club had a monopoly of horse racing activities in Hong Kong, which
it administered. Vast amounts of money were wagered on each race from the
earnings of which the Club made substantial payments by way of tax and, as a
non-profit organisation, made equally large if not larger donations to charity. It
was in consequence incumbent upon the Club to advance the standard of racing
in Hong Kong and to ensure that the racing was of high quality, clean and clear
of corruption. It had a duty to the owners to ensure that their valuable animals
32
CCAB 2000
were ridden only by those who were competent. No person might ride any of
the horses unless permitted by the Club.
Held :
(1)
The indentures of the apprentices were unfortunately not before the trial
judge. They were put before the Court of Appeal which found that the
indentures could not be considered in isolation and could not, by themselves, be
determinative. That was undoubtedly correct. They contained such provisions
as might be expected by which the master, a trainer licensed by the Club, was
given authority and control over the apprentices. The Club was not a party to
them. The provisions indicated nothing more than that the Club was exercising
administrative powers;
(2)
Although Clause 3(b) of the indentures provided that it was agreed
between the parties that the apprentice would be paid a monthly allowance of
which 25% would be paid by the master and 75% would be paid by the Club,
the payment by one person to another did not of itself mean that the latter was an
employee of the former. To construe the word ‘employee’ as including a person
who was paid for providing his services was to blur or obliterate the distinction
between employees properly so called on the one hand and agents or
independent contractors on the other. While an employee, agent or independent
contractor performed services for the benefit of or on behalf of the person
paying him, it was quite impossible to identify anything that apprentices did for
or on behalf of the Club. They did their stable work and rode in races for the
benefit of the owners or for the trainer, or both, but not for the Club. Although
it was not known why the Club paid 75% of the monthly allowances of the
apprentices it was not difficult to regard it as assistance to either the apprentice
or the trainer;
(3)
Very few other factors were put forward to show that the apprentices
were employees of the Club. Although restrictions were placed on the
apprentices to ensure they were protected from any undesirable influence, these
were conditions under which apprentices were allowed by the Club as the sole
horse-racing authority in Hong Kong to enter into the relationships. They
showed the Club acting in that capacity and did not show a relationship of
employer and employee. It was not stated in evidence that the Club assigned an
apprentice to a trainer but even if it had been it would only have shown a further
exercise of the Club’s administrative functions. So far as the requirement of
entering into indentures with a nominated trainer was concerned, it was
axiomatic that an apprenticeship required indentures. The riding fee and the
prize money paid to an apprentice came not from the Club but from the prize
money won by the owner of the horse although, as a matter of administration, it
was paid through the Club. It had not been shown that the apprentices were
employees of the Club at the relevant time;
(4)
Although construction of a statute in the purposive sense was something
that was well understood, there was no room for such in construction when the
words of the legislation did not allow it. Section 4 was concerned with
employees of a public body such as the Club. Section 9 dealt generally with
agents. It was not necessary, however, to decide whether, in the context of
section 4, ‘employee’ might include an agent. Both concepts involved an
engagement to do something for the employer or the principal.
Result – Appeal allowed.
33
CCAB 2000
MA 955/99
Gall J
(8.9.2000)
*B Ryan &
M Yang
#A Hoo SC &
Lee Waikeung
CHIM
Pui-chung
Corrupt and Illegal Practices Ordinance/Definition of ‘election
meeting’/Onus on accused not contrary to the Bill of Rights
Ordinance/Meaning of ‘election expenses’
《舞弊及非法行為條例》 - ‘選舉聚會’的定義 - 舉證責任在被告這
點並無違反《香港人權法案條例》 - ‘選舉開支’的涵義
The Appellant was convicted after trial of two offences, namely, treating
and failing to obtain written authorisation to incur election expenses, contrary to
s 7(a) and s 12(1), respectively, of the Corrupt and Illegal Practices Ordinance,
Cap 288.
The evidence showed that on 2 April 1998, there was to be an election to
select an Election Committee. One of the constituencies entitled to elect
members of that Committee was the Financial Services sector. The Appellant
was a member of the Provisional LegCo and had been elected to that position by
the Financial Services Constituency. He was not a candidate in the election of 2
April.
On 27 March 1998, the Appellant held a dinner which 90 people
attended. During the evening, the Appellant made a short speech and referred to
the election to be held on 2 April and asked people to refer to the handbill. He
told them that they should make their own choice when they voted. The
handbills giving the time, date of the election and number of candidates to be
elected were distributed to guests. A list of 11 recommended candidates
together with a further list of 3 candidates under the heading ‘Please choose
from one of the following three’ was also distributed.
The prosecution case was that the dinner was provided with the corrupt
intention to influence the voters in the election on 2 April, and that, by providing
it, the Appellant was incurring election expenses on behalf of the candidates
whose cause had been promoted, and this was without the authorisation of those
candidates.
The defence case was that the Appellant was generous and the dinner
was no different to others that he held for his constituents to keep them abreast
of what he was doing on their behalf and to solicit their views. On appeal, it
was submitted, first, that the magistrate erred in his definition of an ‘election
meeting’. Second, it was argued that s 7(ii), which provided ‘The serving of
meals of any kind incidental to an election meeting shall of itself prima facie be
deemed corrupt within the meaning of this section’, threw upon the Appellant
the obligation of proving, on the balance of probabilities, that the provision of a
meal incidental to the election meeting was not corrupt and that by placing that
onus upon him, he was deprived of his right to be presumed innocent as
enshrined in article 11 of the Bill of Rights Ordinance. Third, it was contended
that the magistrate erred in finding that ‘election expenses’ were incurred on
behalf of the candidates because it mattered not that he did so without their
prior knowledge or agreement. It was argued that knowledge or agreement of
the candidate to the incurring of election expenses was necessary to the
definition. If not, the words ‘on the candidates behalf’ would be otiose.
Held :
(1)
‘Election meeting’ meant a meeting organised by a person for election
campaigning purposes, or with a view to promoting the candidature of a person
either directly or indirectly. The intention of the legislature in the wording of s
7 must have been to strike at the practice of the serving of meals to a gathering
promoting the candidature of a particular person or persons so as to affect their
votes. To narrow that definition by restricting it to gatherings held by the
candidate himself or by any other person with consent on his behalf would
34
CCAB 2000
narrow the scope of the section unduly. The words ‘election meeting’ were to
be given their ordinary meaning;
(2)
It was the policy of the legislature that elections be kept free of
corruption and, given that an honest legislature was essential to the proper
governance of Hong Kong, measures to ensure that honesty were very
important. S 7(ii) did not contravene article 11 of the Bill of Rights Ordinance;
(3)
‘Election expenses’, as defined in s 2 of the Corrupt and Illegal Practices
Ordinance, meant ‘incurred by a candidate and by any other person on the
candidate’s behalf on account of or in respect of the conduct or management of
the election or for the purpose of promoting or procuring the election of that
candidate’. The words ‘on the candidates behalf’ re-enforced the intent of the
definition that the expenses incurred by another must be in the election of that
candidate and not the election at large or any other candidate. On the ordinary
construction of the definition, knowledge and/or agreement of the candidate
prior to the incurring of the expense was not necessary to the definition of
‘election expenses’ in the offence.
MA 455/2000
Beeson J
(1) CHEUNG
Shi-siu
(2) LAM
Hung-sai
Acceptance of advantage/Advantage must relate to principal’s
affairs/Effect of hearing impairment on confession
接受利益 - 所接受的利益必須與主事人的事務有關 - 聽覺受損對招
認的影響
(16.10.2000)
*K Zervos
#Yeung Shaknung
The Appellants were tried with the first defendant on various offences of
corruption and false accounting. The first defendant was the immediate superior
of both of the Appellants who were security guards employed by a security
company to work at night at a shopping mall. There were monthly furniture
exhibitions held in the mall, and the first defendant paid them sums of money to
look after the furniture. The security company did not permit its guards to
accept any advantage in the course of their employment.
A1 was charged and convicted of accepting an advantage as an agent and
offering an advantage to an agent, contrary to s 9(1)(a) and s 9(2)(a) respectively
of the Prevention of Bribery Ordinance, Cap. 201. A2 was charged and
convicted of accepting an advantage as an agent, contrary to s 9(1)(a) of the
same Ordinance.
On appeal, it was submitted, inter alia, that (i) the prosecution must
prove not only that an advantage was paid, but also that the act done was in
relation to, or aimed at, the principal’s affairs. It was said that the magistrate did
not use the test in Commissioner of the ICAC v Ch’ng Poh [1997] 2 HKC 128,
but applied the ‘Leonard test’ as stated in R v Kong Kam-piu [1973] HKLR 120,
which dealt with public servants only; (ii) if the magistrate had applied the test
in Secretary for Justice v Lam Tat-ming and Anor [2000] 2 HKC 643 properly,
and given proper consideration to the hearing impairment of the first Appellant,
the taped admissions which A1 made to the undercover agent should have been
excluded.
Held :
(1)
In the Statement of Findings, the magistrate found that the Appellants
had accepted monies in the performance of their duties as security guards for
watching over the furniture. The magistrate knew that the acts needed to be in
relation to the principal’s affairs or business and found that was the case. She
did refer to the ‘Leonard test’ but the context showed that she applied that test to
35
CCAB 2000
identify the nature of payments. According to the test, the payments were
advantages and a reward to the Appellants;
(2)
The magistrate understood the test in Lam Tat-ming and was satisfied
that the audio tapes were authentic and had not been tampered with and the
voices had been satisfactorily identified. The magistrate also understood the
significance of the hearing impairment of the first Appellant. When considering
the monitored audio tape recording, the magistrate assessed the audibility in
light of the hearing impairment.
CA 540/99
Stuart-Moore
Ag CJHC
Mayo VP &
Seagroatt J
(28.11.2000)
* J Reading
SC
& Joseph To
# Andrew
Macrae SC
(1) CHIN
Kin-ming
(2) YEUNG
Denise
Conspiracy to cheat at gambling/Offering an advantage to a public
servant/Status of apprentice jockeys/Inference drawn where no defence
testimony
串謀在賭博時作弊 - 向公職人員提供利益 - 見習騎師的身分 - 在辯
方不出庭作供的情況下作出推論
A1 was convicted in the District Court of conspiracy to cheat at
gambling, contrary to common law and s 16(1)(a) of the Gambling Ordinance,
Cap 148 (charges 1 and 5) and offering an advantage to a public servant
(charges 6, 9, 12, 15, 18 and 21). A2 was convicted of conspiracy to cheat at
gambling (charge 1) and offering an advantage to a public servant (charge 21).
Charges 8, 11, 14, 17, 20 and 23 were alternatives to charges 6, 9, 12, 15, 18
and 21. A2 was the girlfriend of A1 who was an apprentice jockey. PW10 gave
evidence of meeting A2 and of her introducing him to A1. He referred to
discussions when it was agreed that PW10 would on behalf of his associates in
Shenzen make payment of $300,000 which would be used to make payments to
apprentice jockeys so as to fix a horse race on 27 January 1996. Part of the
arrangement was that A1 would be permitted to win the race. The moneys were
paid into an account in the name of A2 shortly before the race. PWs 8, 12 and
13 gave evidence of receiving an approach from A1 to fix the race on 30 March
1996. There was evidence that apprentice jockeys PW11 and PW13 received
money not to place the horses they were riding.
On appeal, it was submitted, inter alia, that the judge erred in law in
finding that the apprentice jockeys cited in the charges were employed by the
Royal Hong Kong Jockey Club and were thereby ‘public servants’ within the
meaning of s 4 of the Prevention of Bribery Ordinance, Cap 201. It was also said
that the judge erred in drawing the inferences he did from the evidence.
Held :
(1)
While it was true that the Court of Final Appeal simply held in Ng Siuchau v HKSAR [2000] 2 HKLRD 239 that apprentice jockeys were not
employees of the Jockey Club, they made no decision as to who if anyone they
were employees of. As was pointed out by the judge there were before him
exhibited the Indenture Agreements under which the apprentice jockeys
performed their services. It was clear from these agreements that they were
made between the apprentice jockeys and their parents on the one part and the
relevant trainer on the other part. The Jockey Club was not a party to the
agreement. It was also clear that under these agreements the apprentice jockeys
were required to perform various functions which were in the nature of
employment. To be thoroughly old fashioned, a master and servant relationship
was clearly established. Over and above this, A1 did in his cautioned statement
make reference to various duties he performed. All of this was consistent with
employment such as to bring the apprentice jockeys’ relationship with their
36
CCAB 2000
trainers within the definition in s 2 of the Prevention of Bribery Ordinance,
Chapter 201;
(2)
It was clear that the judge carefully considered all of the evidence as a
whole. It was particularly within the province of the judge’s duties to weigh and
consider evidence and determine as a jury would whether it was right to draw
inferences from the evidence which was available. It was also necessary to bear
in mind the fact that the Applicants did not give evidence which might
contradict or call in question the prosecution evidence. It had not been
demonstrated that the judge failed to consider any relevant matter or could be
criticized for the conclusions he reached.
Result - Appeals allowed, in part.
C&E
MA 732/99
Nguyen J
(28.4.2000)
CHING
Chin-pang
Two trials for offences under Dutiable Commodities Ordinance and
Dangerous Goods Regulations/Plea of autrefois acquit/Admission ruled
inadmissible in first trial/Doctrine of issue estoppel inapplicable
就《應課稅品條例》及《危險品規例》所訂罪行進行兩宗審訊 - 以
曾就同一罪行獲裁定無罪作為答辯 - 所作的招認在第一宗審訊中被
裁定為不能接納 - 禁止推翻已裁決問題的原則並不適用
*E Tsang
#Alex Ng
On 9 January 1999, the Appellant was charged with an offence contrary
to section 17 of the Dutiable Commodities Ordinance, Cap 109 (‘DCO
offence’), namely, being in possession of goods for which duty had not been
paid. He was tried on 26 May 1999 and was acquitted.
A summons was issued on 7 April 1999 on the Appellant for an offence
under the Dangerous Goods Regulations made under the Dangerous Goods
Ordinance, Cap 295 (‘DGO offence’). He was convicted after trial and he
appealed against conviction. His appeal against sentence was allowed.
The facts of the two trials were that the Appellant was driving a vehicle
and it was intercepted by customs officers. The goods vehicle was found to be
carrying 11,000 litres of diesel oil in a compartment at the back of the lorry.
Attached to the ignition key of the goods vehicle was another key which opened
the padlock on the rear door of the compartment. Upon enquiry, the Appellant
told the customs officer the cargo on board was oil. The oil was subsequently
analysed by the Government Chemist who found that it was dangerous goods
under regulations made under Cap 295. The vehicle was not a licensed
dangerous goods vehicle approved by the Director of Fire Services and no duty
had been paid in respect of the oil.
On appeal, it was submitted that the plea of auterfois acquit should have
been entered in the trial of the DGO offence. Secondly, it was submitted that the
prosecution was estopped from tendering the verbal confession, which was ruled
inadmissible in the first trial. It was an abuse of process to re-litigate such an
issue.
37
CCAB 2000
C&E
Held :
(1)
To plead auterfois acquit, the charge in the first indictment must either
be the same or be substantially the same, or the charge on the second indictment
must not be one in respect of which the accused could have been lawfully
convicted. It was the charge, not the facts, which must be substantially the same
and the fact that the evidence called in the later trial was the same or similar to
the evidence called at the previous proceedings was not sufficient: para 130.750
of Criminal Law and Procedure, Halsbury’s Laws of Hong Kong, Vol 9. The
ingredients of the DCO offence were different from those of the DGO offence.
No such plea was founded;
(2)
The doctrine of issue estoppel had no place in English criminal law and
the determination at a first trial of an issue in favour of the accused was no bar
to the admission at a second trial of evidence given at the first trial: R v
Humphrys [1977] AC 1;
(3)
It was not an abuse of process for the prosecution to re-litigate the issue
of whether the Appellant was aware of the nature of the contents in the cargo
compartment of the vehicle. Two offences were disclosed on the same set of
facts and the two charges were instituted in separate proceedings. The issues in
the two trials were different as the charges required different elements of
offence: R v Cho To-chung [1995] 1 HKC 678 and R v Watson [1980] 1 WLR
991 considered.
MA 305/2000
Tong DJ
(9.10.2000)
*Anthony
Cheang
#Keith Yeung
LI
Chiang
Articles seized by police and passed to Customs/Whether valid
seizure/Subject to forfeiture under s 27(1) of the Import and Export
Ordinance, Cap 60/Meaning of ‘seize’
物品被警方檢取後再交予海關 - 檢取行動是否有效 - 根據香港法例
第60章《進出口條例》第27（1）條可予沒收 -‘檢取’的涵義
On 10 August 1999, police officers stopped an unlit motor sampan
heading towards mainland China. Two men onboard the sampan managed to
escape. The police found on the sampan cartons of articles and subsequently
handed them over to the Customs and Excise Department (C&E). The C&E
then issued a Notice under s 27(4) of the Import and Export Ordinance,
Cap 160. On 7 October, the Appellant served the Notice of Claim pursuant to s
27(5) of the same Ordinance. At the forfeiture hearing, he claimed that he was
the owner of the articles. The magistrate granted an order in favour of the C&E
that the articles be forfeited. The Appellant appealed against the order.
The grounds of appeal were (i) s 27(1) of Cap 160 confined ‘articles
liable to forfeiture’ to articles which had been seized by a member of the
Customs and Excise Service or an authorised officer. The articles in question
were seized by the police and could not effectively be seized again by the C&E;
(ii) the police were not, or alternatively, there was no evidence showing that any
of them were, authorised officers.
Held :
(1)
There was no statutory definition of the terms ‘seize’ or ‘seizure’. The
dictionary meaning appeared to be simply to take possession. It would be
unreasonable to suggest that the police must not deal with the goods and should
wait for the C&E to appear otherwise the latter would lose their right to claim
forfeiture under the Ordinance. This would be to apply too narrow an
interpretation to the meaning of the term ‘seize’;
38
CCAB 2000
C&E
(2)
Whatever label one applied to the police action vis-à-vis the goods i.e.
seizure or taking possession, the subsequent act by the C&E in taking over the
goods could constitute a valid seizure for the purpose of the forfeiture provision;
(3)
In R v So Tin MA 304/92, it was held that s 43(3) of the Interpretation
and General Clauses Ordinance, Cap 1 required the magistrate to assume that
the officer effecting a seizure was properly authorised to do so in accordance
with s 4 of Cap 60. An evidential burden was placed upon the person contesting
a forfeiture application to prove that the Commissioner of Customs and Excise
had not authorised in writing the officer effecting the seizure to do so. No such
issue was taken at the original hearing. The magistrate could assume that the
police officers were properly authorised unless there was some evidence to show
the contrary.
Character
香港特別行政區訴伍棟權
HKSAR v NG Tung-Kuen
*關偉傑
Simon Kwan
# 陳銚明
Chan Siu-ming
高等法院原訟法庭 - 高院裁判法院上訴1 9 9 9 年第1 1 9 6 號
高等法院原訟法庭暫委法官李宗鍔
聆訊日期：二零零零年四月八日
宣判日期：二零零零年四月二十日
COURT OF FIRST INSTANCE OF THE HIGH COURT
MAGISTRACY APPEAL NO. 1196 OF 1999
LI DJ
Date of Hearing : 8 April 2000
Date of Judgment : 20 April 2000
不小心駕駛 -《道路使用者守則》的適用範圍 - 未有提及被告人以
往的良好品格 - 區別特委裁判官和常任裁判官
上訴人經審訊後被裁定一項不小心駕駛罪名成立。
上訴人於1999 年3 月21 日下午1 時40 分駕駛私家車沿東京街
橫過荔枝角道。東京街與荔枝角道交界處有交通燈管制。上訴人指
稱他駕車橫過荔枝角道時，對其適用的交通燈號是綠色的。另一方
面，控方第一證人所駕駛的私家車與控方第二證人所駕駛之的士，
於同一時間沿荔枝角道橫過東京街。結果，控方第一證人的私家車
攔腰撞及上訴人的私家車。兩車均嚴重損毀，而控方第二證人之的
士亦與控方第一證人的私家車發生碰撞。據控方第一及第二控方證
人所說，他們於駕車橫過東京街時，對他們適用的交通燈號是綠色
的。
據以上案情，雙方都說對他們適用的交通燈號是綠色。然
而，控方傳召的一位專家證人則指出，現場交通燈的裝置及運作程
式不可能如此乖謬。這也就是說，有一方的證人的證供肯定是不真
確的。原審裁判官接納上述兩名控方證人的證供。
39
CCAB 2000
Character
上訴時，代表上訴人的律師提出多個理由，其中包括指原審
裁判官錯誤地引用《道路使用者守則》內的停車距離數據來推斷涉
案車輛的車速。他又指稱原審裁判官沒有考慮被告人的良好紀錄。
裁決︰
(1)
《道路使用者守則》的內容有一部分可作為駕駛標準的參
考。但是，關於安全停車距離的數據，則不可以作為推算個別車輛
的車速的參考，因為個別車輛的停車距離端視多個變數︰
W ilkinso n’s Ro ad T r affic Offences 第 1 9 版 3 .1 1 1 段、 R v
Chadwick (1975) Crim LR 105及R v Tsui Hung-wing [1990] 2
HKLR 6 0 3 予以考慮。原審裁判官的確憑藉《道路使用者守則》內
建議的安全停車距離推算有關車輛的車速。此舉實屬不當。
(2)
法庭必須考慮被告人以往的良好品格。原審法官如屬專業法
官，則即使他在裁決理由或在裁斷陳述書內沒有明言考慮過被告人
沒有前科的因素，但可以假定他身為專業法官，因熟曉法律，已依
法考慮所有必要考慮的因素： R v S tep h en so n [ 1 9 9 3 ] 3 All E R
2 1 4 及HKS A R v Wo n g Wa i- yee MA8 4 0 /9 7 等案予以考慮。
(3)
但是本案的原審裁判官是特委裁判官，有別於曾受專業法律
訓練及具備法律執業資格的常任裁判官。雖然許多特委裁判官均有
豐富司法工作經驗，但卻不可假設每一位特委裁判官都熟曉法律。
其次，原審裁判官有考慮控方證人的背景，但卻沒有考慮上訴人的
背景，使人有理由懷疑該位裁判官遺忘了另一方的有利因素或是故
意偏袒。
上訴得直。推翻原判和撤銷刑罰。
[English digest
of MA
1196/99
above]
NG Tung-kuen
Careless driving/Relevance of Road Users Code/Failure to mention
defendant’s previous good character/Lay magistrate and permanent
magistrate distinguished
The Appellant was convicted after trial of one charge of careless driving.
Li DJ
(20.4.2000)
*S Kwan
#S M Chan
At 1:40 pm on 21 March 1999, the Appellant was driving his private car
along Tonkin Street across Lai Chi Kok Road. The junction of Tonkin Street
and Lai Chi Kok Road was controlled by traffic lights. The Appellant alleged
that when he was driving across Lai Chi Kok Road, the traffic light for his
direction was green. At the same time, PW1 who was driving a private car, and
PW2, who was driving a taxi, were both crossing Tonkin Street along Lai Chi
Kok Road. As a result, PW1’s car hit the middle of the Appellant’s car. Both
cars were seriously damaged. PW2’s taxi also collided with PW1’s car. Both
PW1 and PW2 alleged that when they were driving across Tonkin Street, the
traffic light for their direction was green.
Both parties claimed that a green light was in their favour. However, an
expert witness called by the prosecution testified that the traffic lights at the
scene could not have been installed and operated in such a manner. In other
words, one party’s evidence must be untrue. The trial magistrate accepted the
evidence of PW1 and PW2.
On appeal, it was submitted, inter alia, that the magistrate erred in using
the stopping distance in the Road Users Code to deduce the speed of the
vehicles involved. It was further contented that the magistrate failed to consider
the good record of the Appellant.
Held :
40
CCAB 2000
Character
(1)
The Road Users Code might be used as a reference for the driving
standard, but the data for the safe stopping distance should not be used as a
reference for deducing car speed in individual cases as safe stopping distances
were subject to a number of variables: Para. 3.111 of Wilkinson’s Road Traffic
Offences 19th Edition; R v Chadwick (1975) Crim LR 105 and R v Tsui Hungwing [1990] 2 HKLR 603 considered. The trial magistrate did rely upon the
safe stopping distances proposed in the Road Users Code to deduce the speed of
the vehicles involved, which was clearly an improper way of handling the case;
(2)
The court must consider the defendant’s previous good character. If a
trial judge was a professional judge, even though he made no mention of having
given consideration to the defendant’s previous good character in his Reasons
for Verdict or written Statement of Findings, it would be assumed that he, being
a professional judge, well versed in law, had already given consideration to all
the factors he ought to have considered: R v Stephenson [1993] 3 All ER 214
and HKSAR v Wong Wai-yee MA 840/97 considered;
(3)
However, the trial magistrate in the present case was a lay magistrate,
who was different from the permanent magistrate who had legal training and
legal qualification. Although many lay magistrates had vast judicial experience,
it could not be assumed that each and every lay magistrate was well versed in
law. On the one hand, the trial magistrate took into account the background of
the prosecution witnesses, but on the other hand she had failed to consider that
of the Appellant. There were reasons to suspect that the magistrate had either
forgotten the factors favourable to one party or had been biased.
Result - Appeal allowed. Conviction quashed and sentence set aside.
香港特別行政區訴黃煥武
HKSAR v W ONG W o o n-mo
高等法院原訟法庭–高院裁判法院上訴2 0 0 0 年第3 0 6 號
*黎婉姬
Anna Lai
# 郭棟明
E r ic
Kwo k
高等法院首席法官陳兆愷
聆訊日期：二零零零年五月十二日
宣判日期：二零零零年五月十五日
MAGI ST RACY AP P E AL NO. 3 0 6 OF 2 0 0 0
CHAN, CJ HC
Date o f Hear ing : 1 2 May 2 0 0 0
Date o f J ud gment : 1 5 May 2 0 0 0
專業裁判官 - 沒有提及舉證標準 - 在律師陳詞時作出不正確的評語
- 有責任提及被告人沒有犯罪紀錄
上訴人被控一項在公眾地方管有攻擊性武器罪，違反香港法
例第 245 章第 33(1) 條，經審訊後被裁定罪名成立，判處入獄 4 個
月。
上訴人於 1 9 9 9 年 1 1 月 1 5 日晚上 8 時 1 5 分，在上環被警員截停
和搜查。當時上訴人帶一個紙袋，袋內有一些雜物和一個黑色尼
龍袋。黑色尼龍袋內發現一把通常用來露營的刀，長約12吋，放在
一個1 1 吋長的刀套內。上訴人被盤問時說該刀是用來自用的。
41
CCAB 2000
Character
在本案中，控方的事實並無多大爭議，最主要是上訴人就他
管有案中的刀有沒有合理的辯解。因此這方面的舉證責任當然在上
訴人身上，而舉證的標準是：兩者比對下較為可信（ B alance o f
P r o b ab ilities ）。裁判官在他的事實裁斷陳述書及判案時口頭所提
出的判決理由中，並沒有提及舉證的標準。不過，在雙方大律師結
案陳詞時，裁判官向大律師指出：
“ 聽落去話基於佢  解釋，覺得唔似，即係 n o t p ro b a b le ，
唔接受，咁就入罪，唔？”
裁判官以口頭方式判上訴人罪名成立，並解釋他為何不相信
上訴人的辯解。
上訴時，上訴人代表律師提出的其中一個上訴理由，是指裁
判官對於上訴人的舉證標準有錯誤的見解。此外，他又指裁判官在
作出判決時，錯誤地沒有給自己一個關於上訴人以往沒有犯罪紀錄
的全面指引。
裁決：
(1)
裁判官既是一個專業人士，因此就算在事實裁斷陳述書或判
決理由中沒有提及上訴人的舉證標準是什麼，亦不能說他犯錯，因
為法庭假定一位專業的法官會具備應有的法律知識，在一般的情況
下是會運用正確的舉證標準的。不過在本案中，裁判官在雙方律師
陳詞時所作的評語又似乎不是完全正確，使人懷疑他在判案時採取
何種舉證標準：R v Ho P in g - sh u n g [ 1 9 8 7 ] 1 HKC 9 3 ； R v Ch a n
S iu - ma n Cr im Ap p 1 5 4 /8 3 及 R v La w Ch i- keu n g Cr im Ap p 9 0 &
2 9 0 /8 3 等案予以考慮；
(2)
裁判官在判案中沒有提及被告人行為良好，除非在謄本中可
以證明裁判官有錯誤引導自己，否則上訴時應假定他會正確地就被
告人沒有犯罪紀錄這點，作出適當的指引： HKS A R v Wo n g Wa iyee MA 8 4 0 /9 7 。裁判官為專業人士，在一般情況下，可以假定他
在判案時對一名被告人沒有犯罪紀錄這一點，會提醒自己這點對被
告人有利。不過，如果在一些案件中被告人的口供及他的誠信可以
起決定性的作用時，他過往行為良好對於法庭應否接納他的證供是
非常重要的。因此裁判官一般來說應該在陳述書或判決理由中提及
這點，如果沒有，便會使人懷疑他是否忘記了這點。
上訴得直，推翻原判。
[English digest
of MA
306/2000
above]
Chan CJHC
WONG
Woon-mo
Professional magistrate/No reference to the standard of proof/Incorrect
comments made during submission/Duty to make reference to the clear
record of a defendant
The Appellant was convicted after trial of one charge of possession of
an offensive weapon in a public place contrary to section 33(1) of Cap 245 and
sentenced to 4 months’ imprisonment.
(15.5.2000)
*A Lai
#Eric Kwok
At 8:15 pm on 15 November 1999, the Appellant was intercepted and
searched by the police in Sheung Wan. At that time, he was carrying a paper
bag containing some sundries and a black nylon bag, inside which a knife of
about 12-inch long, kept in an 11-inch long sheath, was found. It was a type of
knife usually used for camping. The Appellant, upon being questioned, said that
the knife was for self-defence.
42
CCAB 2000
Character
In this case, most of the facts put forward by the prosecution were not
in dispute. The main issue was whether the Appellant had any reasonable
excuse for the possession of the knife in question. Hence, the burden of proof
should be placed on the Appellant while the standard of proof was proof on
balance of probabilities. Although the magistrate did not make any reference to
the standard of proof either in the Statement of Findings or in his Reasons for
Verdict, he said to counsel when they made their final submission:
Upon hearing his explanation, it seems not likely, that is, not
probable. If not accepted, he should then be found guilty, is
that right ?
The magistrate eventually convicted the Appellant and orally explained
why he did not accept the Appellant’s defence.
On appeal, it was submitted, inter alia, that the magistrate misapplied
the standard of proof. It was also contended that the magistrate erred in not
giving himself a full direction in relation to the Appellant’s clear record.
Held :
(1)
A magistrate, being a professional, could not be said to be wrong even
if he did not make any reference to the standard of proof on the Appellant, either
in the Statement of Findings or in the Reasons for Verdict, because the court
would assume that a professional judge had the necessary knowledge of law and
in normal circumstances should be able to apply the correct standard of proof.
However, in this case, the magistrate’s comments during the submission did not
seem quite right. That cast doubt on the correctness of the standard of proof he
applied in his ruling: R v Ho Ping-shung [1987] 1 HKC 93; R v Chan Siu-man
Crim App 154/83 and R v Law Chi-keung Crim App 90 & 290/83 considered;
(2)
If a magistrate made no mention of the defendant’s good character,
then, unless the transcript showed that he had misdirected himself, an appellate
court would assume that he did direct himself on the appellant’s clear record and
did so properly: HKSAR v Wong Wai-yee MA 840/97. A magistrate, being a
professional, could be assumed in normal circumstances to have reminded
himself that a defendant’s clear record was a favourable factor in reaching his
verdict. But in cases where a defendant’s evidence and credibility were the
determining factors, his previous good character was very important to the
admissibility of his evidence in court. Therefore, generally speaking, a
magistrate should make some reference to this factor in the Statement of
Findings or Reasons for Verdict. Failure to do so would lead to suspicions that
he had failed to bear this factor in mind.
43
CCAB 2000
Charges/Indictment/Summons/Amendments/Joinder/Severance
FACC 7/99
Li CJ
Litton PJ
Ching PJ
Bokhary PJ
Lord Cooke of
Thorndon NPJ
(17.5.2000)
*P Dykes SC
&
J Acton-Bond
#J Reading SC
& J To
POON
Chau-cheong
v
SJ
Review of acquittal/Whether alteration of original charge to alternative
charge open on review when charge otherwise time-barred/Ambit of s 104,
Cap 227/Test of whether amendment caused injustice
覆核無罪釋放的裁決 - 覆核時是否可以將原本的控罪改為另一項控
罪，而該項替代控罪在覆核時檢控時限已過 - 第227章第104條的
涵蓋範圍 - 判斷修訂是否導致不公正
This case concerned the power of a magistrate, on a review of his
dismissal of an information, to amend the information by substituting a charge of
a lesser offence, notwithstanding that at the date of the amendment a fresh
information charging that lesser offence would be time-barred.
The information laid in February 1998, with the prior consent of the
Secretary for Justice, charged the Appellant with an offence of soliciting an
advantage, contrary to s 4(2)(a) of the Prevention of Bribery Ordinance. The
particulars alleged that the offence had been committed in Hong Kong in or
about the middle of May 1996. It was alleged that the defendant, a public
servant, without lawful authority or reasonable excuse, solicited an advantage,
namely, a loan, fee, reward, or commission consisting of $50,000 Hong Kong
currency from Tai Man-na as an inducement or reward for or otherwise on
account of his performing or having performed acts in his capacity as a public
servant, namely carrying out or having carried out criminal investigations in his
capacity as a detective senior police constable of the then Royal Hong Kong
Police Force into deception allegations made by the said Tai Man-na to the then
Royal Hong Kong Police Force on behalf of Xing Ming Group Travel Service
Limited.
On 11 September 1998 the magistrate dismissed the information. The
substance of her reasons was that, although it was not challenged that when
acting as an investigation officer the defendant had asked Miss Tai for a loan of
$50,000, there was no evidence permitting the drawing of an inference that it
was an inducement to the performance of his duty. In the course of her reasons,
however, the magistrate said that there was evidence before her that police
officers had to comply with ‘various regulations of procedures and this, clearly,
the defendant did not do. He may have committed offences of a disciplinary
nature in regard to police regulations.’
No application was made to the magistrate for amendment of the charge.
But s 104 of the Magistrates Ordinance, Cap 227, authorised either party to
summary proceedings to apply to the magistrate, within 14 clear days after the
determination, to review his decision in the matter. Within the same period the
magistrate might re-open the case on his own initiative. In the present case, the
prosecution, within the 14 days, applied for a review.
At the hearing of the review, the prosecution made it plain that the
dismissal of the charge under s 4(2)(a) of the Prevention of Bribery Ordinance
was not being challenged, and that the purpose of the application was to seek an
amendment of the information under s 27 of the Magistrates Ordinance to
charge a lesser offence under s 3 of the POBO. The latter section formerly
provided simply ‘Any Crown servant who, without the general or special
permission of the Governor, solicits or accepts any advantage shall be guilty of
an offence’.
It was to be noted that the s 3 offence required no inducement as an
ingredient of the offence. Also the absence of the general or special permission
of the Governor was stipulated rather than ‘without lawful authority or excuse’,
as in s 4(2)(a). Another difference, and the one on which the present appeal
largely turned, was that, unlike s 4(2)(a), s 3 was one of the offences for which a
time limit of 2 years from the time when the matter of the information or
44
CCAB 2000
complaint arose was laid down by s 31A(1) of the POBO. In this case, the
original information, the amendment of which was sought by the prosecution,
had in fact been laid within that period of 2 years, although that time limit did
not apply to the original charge.
On 9 October 1998, the magistrate granted the review application, set
aside the acquittal under s 4(2)(a), amended the charge to one under s 3, and
read the amended charge to the defendant or caused it to be read to him. The
defendant pleaded not guilty to it. The matter was adjourned until 23 October
1998 for the defence to make an application for a trial de novo and an
application for costs.
The proceedings in the Magistrate’s Court were stayed when the
defendant was granted leave to apply for judicial review of the decision of 9
October 1998. The judicial review application was dismissed on 29 March
1999, and the appeal from that dismissal was rejected by the Court of Appeal on
9 July 1999. The Court of Appeal, however, certified that a point of law of
great general and public importance was involved in its decision, namely (as
subsequently amended by the Appeal Committee of the Court of Final Appeal):
Whether the provisions of s 27 of the Magistrates Ordinance, Cap
227 respecting the amendment of informations, may be used on a
review under s 104 of the Ordinance of a decision made by a
magistrate under s 19(2), and if they can, whether they permit the
substitution of the information with another offence which if laid
as a fresh information at the time of amendment, would be timebarred by virtue of the provisions of s 31A(1) of the Prevention of
Bribery Ordinance Cap 201.
Section 19(2) was the general provision that the magistrate, having heard what
each party had to say and the witnesses and evidence so adduced, should
consider the whole matter and determine the same, and should convict or make
an order against the defendant or dismiss the complaint or information, as the
case might be.
Section 32(1) and (4) of the POBO had the effect of dispensing with any
need of the consent of the Secretary for Justice to the amendment charging a s 3
offence if the amendment had been made during the original trial. The section
had the same effect when the amendment was made on a review of the original
decision.
Held :
(1)
Mindful that mistakes could be made, the legislature in Hong Kong had
provided a useful remedy of review within the summary jurisdiction. To set
aside the acquittal and to amend the charge upon the review would be to vary the
original decision. An application for that purpose fell prima facie within the
section. Subject to the time limit point, a reviewing magistrate would have by
virtue of s 104(8) the power of amendment under s 27;
(2)
The reviewing magistrate should have in mind that at the original trial
there would have arisen under s 27(1)(b)(i) a duty – the word was ‘shall’ - to
amend the information if he was satisfied that no injustice would be caused by
that amendment. Subsection (1) was subject to subsection (2), but (2) did not
apply where, although there was a material variance, the magistrate was satisfied
that no injustice would be caused by the amendment. Upon the review here the
magistrate, with that provision in mind, said that she was so satisfied. There
could be no ground, relating to costs or otherwise, on which the CFA could
possibly disturb that decision;
(3)
If an amendment was made during a trial, the proviso to s 27(3) of the
Magistrates Ordinance, which restricted the calling of further evidence by the
prosecution, would apply thereafter in that trial. But it could not limit a
45
CCAB 2000
magistrate in deciding under s 104 whether or to what extent there should be a
retrial;
(4)
In the present case the magistrate had granted a review and had embarked
on the review to the extent of setting aside the acquittal, amending the charge
and obtaining a plea to it. She had yet to decide whether she would rehear the
case wholly or in part or whether in the interests of justice the case should be
reheard before another magistrate. If the case was to proceed, the defence had
applied for a full rehearing before another magistrate.
It would be
understandable if, to avoid any appearance of injustice, the original magistrate
acceded to that application. Among other things that would enable the defence
to cross-examine more extensively on the question of a loan; it had been
suggested that at the original trial the cross-examination had been limited
because counsel concentrated on excluding the ingredient of inducement;
(5)
Section 104 did not limit the grounds on which a review might be
granted. The rectification of an omission of that kind to allow a lesser charge to
be put forward was prima facie a plain case for invoking the section. It did not,
in principle, make any difference that the time for lodging a new information for
the lesser charge had expired;
(6)
The prosecution on the original charge carried with it the magistrate’s
powers of review and amendment. At the time when the prosecution was
commenced the defendant in effect had notice that the proceeding might result in
his being convicted of a lesser charge arising out of the same facts. If at the time
of that commencement the lesser charge was not time-barred, there was nothing
in either Ordinance to rule out an exercise of these powers by the magistrate.
The amendment was fairly to be treated as retrospective to the date of
commencement. On the other hand it would be unjust - and an abuse of the
powers of the court - to amend the charge to a lesser one if a prosecution for the
lesser one would have been out of time when the prosecution was commenced:
Attorney General v Fung Si-tsou [1986] HKC 567. There might be other
circumstances which would make an exercise of the powers unfair, such as a
charge based on different facts, or the unavailability of a witness who might
have materially assisted the defence on the lesser charge;
(7)
The present case was straightforward. If the defendant wished to deny
soliciting an advantage the magistrate had power to order a rehearing at which
the defendant might put that in issue. There was no prospect of injustice. And
in R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd
[1976] 2 All ER 611, it was held that justices had power to allow an amendment
which had the effect of charging a different offence after the six months’
limitation had expired. It was striking that the English courts, without the aid of
express provisions such as s 27 of the Hong Kong Ordinance, had evolved a test
virtually identical with that under s 27, namely, whether the amendment could be
made without injustice. They had taken the view that where the misdoing was
the same, it was not necessarily unjust to a defendant to make an amendment;
(8)
The first limb of the amended point had to be answered ‘Yes’, and the
second limb had to be answered: ‘Yes, if the substituted information was based
on the same or substantially the same facts and would not have been timebarred when the prosecution was commenced.’
Obiter -
(1) At the original hearing evidence appeared to have been called
for the prosecution that the police departmental records had been
checked for evidence of some authority, and that none had been
found. The possibility of a permission from the Governor not carried
into the police departmental records was so remote that, in the
absence of some evidential foundation for such a suggestion, a
46
CCAB 2000
magistrate would be entitled to infer beyond reasonable doubt that
there had been no permission of the Governor;
(2) That the original magistrate upon review had already re-opened
the case to the extent of setting aside the dismissal of the original
information, amending the charge by substitution and taking the
defendant’s plea to the amended charge, could not be treated as
precluding her from considering the defendant’s application for a full
rehearing before another magistrate: to hold otherwise would be to
place an oppressive and impractical interpretation on ss 104 and 27.
But if a full rehearing was ordered, it would be desirable for the
magistrate presiding at the rehearing to have the amended
information read again to the defendant, and to give the defendant a
further opportunity of pleading to it.
CA 171/99
Stuart-Moore
& Mayo VPP
Keith JA
(11.4.2000)
*M C
Blanchflower
#I/P
NG Pak-yik
Framing of charge/Amendment of charges/Substitution of charges in the
Court of Appeal
擬定控罪 - 修訂控罪 - 在上訴法庭以別的控罪取代
The Applicant (D2) organized a fraudulent scheme to obtain money
through the unauthorized use of credit cards issued by the Standard Chartered
Bank. He enlisted the assistance of D1 and D3 and of two other people.
D3 worked for the bank. He would find out the particulars of some of
the bank’s existing credit card holders who had cards which were about to
expire. On the basis of that information, the bank would be informed that the
credit card holders had changed their mailing addresses. The bank would then
mail the new credit cards to the false mailing addresses which had been provided
to the bank, and the new credit cards and accompanying mail would be retrieved
from those addresses.
The accounts of the credit card holders whose new credit cards had been
retrieved from the false mailing addresses would be accessed by means of those
new credit cards. Once accessed, either money would be withdrawn from cash
dispensers or Jockey Club cash vouchers would be obtained from Jockey Club
outlets which could then be redeemed in cash.
The Applicant was originally charged with, inter alia, conspiring to steal
(a) money (belonging to named account holders) and (b) cash vouchers
(belonging to the Jockey Club). At the conclusion of the prosecution’s case, the
prosecution applied to amend those charges.
They were amended to
conspiracies to steal money belonging to the bank. The Applicant was
convicted and appealed on the ground that it was unfair for those amendments to
have been made.
Held :
(1)
There was no question of the Applicant being prejudiced in any way by
the amendments. He was merely being deprived of the windfall of which he
would unjustifiably have been a beneficiary if he had eventually had to be
acquitted on the basis that the wrong charges had been preferred against him.
The amendments did not require any new evidence or affect in any way the
thrust of the Applicant’s defence;
(2)
The amended charges on which the Applicant was convicted were still
not properly drawn. The cash vouchers were not money and they did not belong
to the bank. They were choses in action which were redeemable in cash and
they had belonged to the Jockey Club. The charges would have been properly
drawn if instead of referring to money belonging to the bank, they had simply
referred to ‘property belonging to another’. Such a formulation could also have
covered the cash to be obtained from the cash dispensers;
47
CCAB 2000
(3)
The combined effect of s 83A of the Criminal Procedure Ordinance,
Chapter 221 and s 83 of the District Court Ordinance, Chapter 336 was to
enable the Court of Appeal to substitute for the convictions on the amended
charges convictions for other offences if on the findings of fact made by the
judge the Applicant was guilty of those offences.
Result - Save for substitution of reworded charges, application dismissed.
Consent to Prosecute
MA 1249/98
V Bokhary J
(3.2.2000)
CHAN Yiu-wah Consent to bringing of prosecution/Late fresh consent/ Comments on
approach of prosecution
同意提出檢控 - 延遲重發同意書 - 就控方的處理手法提出意見
The Appellant was convicted after trial of a charge of accepting an
advantage, contrary to s 3 of the Prevention of Bribery Ordinance, Cap 201.
*Winnie Ho
#A Macrae SC
&
P Wong
The offence was one which required the Secretary for Justice’s consent to
the bringing of a prosecution. Such a consent accompanied the original charge
in which the advantage accepted was particularised as ‘a gift consisting’ of
certain shares. At the beginning of the trial, the magistrate acceded to the
prosecution’s application to amend the charge to particularise the advantage
accepted as ‘a loan being the capital contribution’ for those shares. The
prosecution undertook to obtain a fresh consent, but before that the evidence-inchief of the main prosecution witness was taken. The trial was then adjourned.
A fresh consent was then obtained before the resumed hearing.
On appeal, it was submitted, inter alia, that there was a material
irregularity in the conduct of the trial because that witness’s evidence-in-chief
was taken before the fresh consent had been obtained.
Held :
Although the conviction would be quashed on other grounds, as regards
the lateness of the fresh consent, reference would be made by the court to the
decisions of the Court of Appeal in R v Do Bing-hung [1998] 1 HKLR 558 and
R v Liu Cheung-hon [1994] 1 HKCLR 102 and without deciding the point as to
the lateness of the fresh consent, it pointed out the need for prosecutors to
exercise caution in these matters, and said:
What I will say is that it is not in anybody’s true interest for the
validity of a trial and its eventual result to be risked by the taking of
shortcuts even if well-motivated by a desire to save time and avoid
wasting costs. The consequences could well end up disastrously. R
v Do Bing-hung was about no fresh consent. The point in the
present case, which point I do not decide, is about a late fresh
consent. So long as the point remains undecided, prosecutors
should exercise caution to avoid the risk of the point being well
founded. If in any given case, a prosecutor appears to be
proceeding in ignorance of the risk, it would of course be
appropriate for the court to point it out.
48
CCAB 2000
Conspiracy
Conspiracy
MA 364/99
Stuart-Moore
VP Keith JA &
Woo J
(1)
CHAN
-chung
(2)
SHUM
u-wah
Pun
Hi
common law conspiracy still triable/ Amendment of information on
appeal/Decision in Fai Ma explained
串謀 - 法例所定的串謀罪的效力問題 - 在1996年前所犯的普通法串
謀罪仍可審理 - 在上訴時修訂提控書 - 對 Fa i Ma 一案的判決加以
解釋
(3.2.2000)
*D G Saw SC
Simon Tam &
Gary Lam
#P Ross
[Reserved
pursuant to
s 118(1)(d)
Cap 227]
The Appellants, who were husband and wife, were convicted, after trial,
of conspiring, in 1994/1995, to obtain a pecuniary advantage by deception,
The problem posed by the appeal was that, before 1996, crimes of
conspiracy were a creature of the common law. However, common law
occurred before 1996.
The Respondent contended that if the charge which the Appellants had
faced had been a common law conspiracy, the trial would have taken an
identical course, and the Appellants would have been convicted on that charge.
Such convictions could be substituted for the convictions recorded by the
magistrate. The Appellants, however, submitted that the proceedings against
them were commenced on 18 November 1998. The effect of the transitional
provisions in the Crimes Ordinance following the abolition of the offence of
common law conspiracy was, it was said, that proceedings could not be
commenced after the abolition of the offence of common law conspiracy for a
common law conspiracy alleged to have been committed prior to the abolition of
the offence. Secondly, it was submitted that even if such proceedings could
have been commenced, no procedural route existed for substituting, on the
hearing of an appeal against conviction by a magistrate, a conviction for an
offence in place of the offence for which the defendant was convicted.
The Appellants contended that since 2 August 1996, proceedings for the
offence of conspiracy at common law could only be sustained in the two
situations covered by the transitional provisions in s 159E(7), namely, that the
proceedings had commenced before the legislation came into effect, or, the
proceedings were commenced after that time against a person charged with the
same conspiracy as that charged in any proceedings commenced before that
time. It was said that neither of the transitional provisions were relevant to the
facts of this case.
Held :
(1)
Since the purpose of the new legislation was not to decriminalise certain
forms of conspiracy, but to put the crime of conspiracy on a statutory footing, it
could not have been the intention of the legislature to make conspiracies which
had been committed prior to 2 August 1996 unenforceable by prosecution if
proceedings had not been commenced by then. That would have put beyond the
49
CCAB 2000
Conspiracy
reach of the criminal justice system criminal conspiracies which had been
committed before 2 August 1996 but which had not been detected by then or
which, though detected, had not been investigated sufficiently to warrant the
bringing of criminal convictions by then. It was unimaginable that the
legislature could have intended such a state of affairs to exist;
(2)
The fact was that the abolition of an offence merely meant that conduct
which would have amounted to the offence before its abolition would not
amount to an offence if the conduct had taken place after its abolition. Thus, the
abolition of an offence did not mean that conduct which would have amounted
to the offence before its abolition could not be prosecuted after its abolition. So
if the statute abolishing the offence was to be construed as preventing the
commencement of criminal proceedings after its abolition for an offence
committed before its abolition, the statutory language must be clear. The
language of s 159E(7) was not so clear as to disapply the normal effect of the
abolition of the offence. The sheer unlikelihood of the legislature intending a
conspiracy at common law to be unenforceable by a prosecution commenced
after 2 August 1996 led to the conclusion that s 159E(7) could not have been
intended to be the only situation in which proceedings for a conspiracy at
common law could be commenced after 2 August 1996. It followed that
s 159E(7) should not be construed as providing for the only situation in which
proceedings for a conspiracy at common law would be commenced after 2
August 1996. It would therefore not have prevented the Appellants from being
charged after 2 August 1996 with conspiracy to obtain a pecuniary advantage by
deception, contrary to s 18(1) of the Theft Ordinance and the common law;
(3)
If the fact that the offences were alleged to have been committed prior to
the offence of statutory conspiracy had been pointed out to the magistrate, and
the prosecution had applied to amend the information to substitute the offence of
conspiracy at common law for the offence of statutory conspiracy, the magistrate
would have had no option but to amend the information, pursuant to s 27 of the
Magistrates Ordinance;
(4)
The Court of Appeal, on an appeal reserved to it by a judge of the Court
of First Instance under s 118(1)(d) of the Magistrates Ordinance, could ‘exercise
all or any of the powers conferred on a judge by this Part’. Section 119(1)(d)
conferred upon a judge the power to ‘make such other order in the matter as he
thinks just, and by such order exercise any power which the magistrate might
have exercised’. So as the magistrate had the power to amend the information
under s 27, so too did the judge of the Court of First Instance under s 119(1)(d),
and so did the Court of Appeal under s 118(1)(d). In exercise of that power, the
information laid against the Appellants would be amended by deleting the words
‘and section 159A of the Crimes Ordinance, Cap 200’, and by substituting for
them the words ‘and to the common law’;
(5)
As regards the issue of whether the Court of Appeal was permitted to
substitute for the Appellants’ convictions for statutory conspiracy convictions
for conspiracy at common law, it was held in Fai Ma Trading Co Ltd v Lai
[1989] 1 HKLR 582, that if an information was amended on appeal, the court
had to direct that amended information be heard de novo by a magistrate. The
reason for that was that in most cases justice would not be done if an amendment
could be made on appeal without at the same time a new trial being ordered.
However, the court in Fai Ma was not addressing the issue of what would be the
appropriate course if the nature of the amendment sought was such that the
course of the original trial would not have been affected at all. There was no
point in ordering a new trial on an amended information where, had the
information been amended during the original trial, the course of that trial
would, having regard to the nature of the amendment, have been identical, and,
as such, the reasoning of Fai Ma was not applicable.
50
CCAB 2000
MA 76/2000
Gall J
Conspiracy
WU, David
Conspiracy to defraud defined/Not essential for each conspirator to intend
to carry out the unlawful act/Not necessary for all particulars to be proved
串謀欺詐的定義 - 每名串謀者都有意圖作出不法作為這點並非必要
- 無須證明全部罪行詳情
(12.7.2000)
*John Reading
SC
& Maggie
Yang
The Appellant was convicted of a charge of conspiracy to defraud,
contrary to common law.
The particulars of the offence were that the Appellant, between 1
February 1995 and 13 January 1999, in Hong Kong, conspired with Sydney
Trestham Cunningham to defraud the Hong Kong Jockey Club, by dishonestly:
#C Y Wong
SC
& Peter Chow
(1)
withholding from and failing to inform the Club that the
Appellant’s interest in a racehorse to be imported into
Hong Kong from overseas (subsequently known as
Vintage), in an application for a Horse Import Permit
signed by Cunningham and submitted to the club;
(2)
causing and permitting the Club to award a Horse Import
Permit to Cunningham;
(3)
causing and permitting the Club to register Cunningham as
the sole owner of the said racehorse Vintage; and
(4)
withholding from and failing to inform the Club,
subsequent to the racehorse’s arrival in Hong Kong, of the
Appellant’s interest in and control of the said racehorse
Vintage.
On appeal, it was submitted, inter alia, that the magistrate erred in failing
to make any or sufficient findings (a) in respect of the essential elements of the
charge; and (b) in support of his findings that items (1) to (3) of the particulars
were proved. It was also said that the magistrate failed to take into account at
all, or sufficiently, certain elements of the prosecution, and that during the trial
the prosecution case did not emerge precisely in the manner opened by the
prosecution.
Held :
(1)
The law related to conspiracy to defraud was as set out in R v Wai Yutsang [1992] 1 AC 269:
… Welham v Director of Public Prosecutions [1961] AC 103 …
has however since been referred to as providing guidance in
cases of conspiracy to defraud: see Reg v Scott [1975] AC 819,
838, per Viscount Dilhorne, a proposition with which their
Lordships are respectfully in agreement. In Welham … The
House of Lords held that there was no warrant for confining the
words ‘intent to defraud’ to an intent to deprive a person by
deceit of an economic advantage or to inflict upon him an
economic loss, and further that such an intent could exist where
there was no other intention than to deceive a person responsible
for a public duty into doing something, or failing to do something,
which he would not have done, or failed to have done, but for the
deceit …
The question whether particular facts reveal a conspiracy to
defraud depends upon what the conspirators have dishonestly
agreed to do, and in particular whether they had agreed to
practise a defraud on somebody. … It is enough for example that,
the conspirators have dishonestly agreed to bring about a state of
51
CCAB 2000
Conspiracy
affairs which they realise will or may deceive the victim into so
acting, or failing to act, that he will suffer economic loss or his
economic interest will be put at risk … Of course, if the
conspirators were not acting dishonestly, there will have been no
conspiracy to defraud …
The essential element of the offence was that an agreement be reached for
the unlawful act to be done, and that each of the parties intended at the time
that the conspiracy came into existence that the unlawful act be carried out.
It was not a requirement of the offence that each of the conspirators
intended personally to carry out that unlawful act;
(2) The magistrate had in mind the element of the offence that some
economic harm or potential of economic harm had to come to the Jockey Club
to make this a conspiracy to defraud. The magistrate had those essential
elements of the charge in mind when he set out his findings, that items (1) to (3)
of the particulars were proved but that item (4) was not proved;
(3) It was not incumbent upon a magistrate to deal in his reasons with each
and every particular piece of the evidence, nor every detail argued before him.
The magistrate had a good and proper grasp of the facts led before him and was
alive to the differences between the case as it emerged and the case as first
stated by the prosecutor. The case remained essentially unchanged, although
some particulars were not borne out by the evidence, and the magistrate found
that some of the particulars of the charge were not proved. However, all the
particulars of a charge need not be proved so long as sufficient elements were
proved to satisfy the magistrate that the offence had been made out. The
magistrate was so satisfied.
FACC 3/2000
Bokhary, Chan
& Ribeiro PJJ
Sir Alan
Huggins &
Lord Nicholls
of Birkenhead
NPJJ
(24.11.2000)
*Darryl Saw
SC & Gary
Lam
#Gerard
McCoy SC
& P Ross
(1) CHAN
Puichung
(2) SHUM
Hiu-wah
common law conspiracy still triable/ Application of rectifying construction
to give effect to intent of legislature/Grave injustice to allow offenders to
escape
串謀罪 - 訂立法定串謀罪的影響 - 在1996年前所犯的普通法串謀罪
仍可審理 - 應用補救性的詮釋使立法機關的意圖得以實施 - 讓違法
者逃出法網會造成嚴重不公
The Appellants, who were husband and wife, were convicted after trial,
of conspiracy, in 1994/1995, to obtain a pecuniary advantage by deception,
The problem posed by the appeal was that, before 1996, the crime of
conspiracy was an offence at common law.
However, common law
occurred before 1996. The prosecution accepted that this could not be done.
Upon the application of the Appellants, which was supported by the
prosecution, the case was reserved for the consideration of the Court of Appeal
52
CCAB 2000
Conspiracy
under s 118(1)(d) of the Magistrates Ordinance, Cap 227. Having heard
submissions, the Court of Appeal amended the charge to an offence contrary to
the common law and substituted the conviction by one under the common law.
From that decision, the Appellants appealed to the Court of Final Appeal,
having obtained leave from the Appeal Committee under s 32 of the Court of
Final Appeal Ordinance, Cap 484.
The Appellants submitted that they could not be charged with statutory
conspiracy contrary to s 159A since it did not exist when the offence was
committed. They could not be charged with conspiracy contrary to the common
law either since such offence had been abolished for all intents and purposes in
1996 by s 159E(1) of the Crimes Ordinance. It was accepted that the
transitional provision (s 159E(7)) did not apply to them.
The Court of Appeal rejected that submission. Its reasons for upholding
the convictions were these. The 1996 Ordinance was not enacted to
decriminalise certain forms of conspiracy but to put the law of conspiracy on a
statutory footing. It was not the intention of the legislature to make conspiracies
committed before the operation of the 1996 Ordinance immune from
prosecution. The normal effect of abolition of an offence was that unless there
was an express provision in the legislation, this did not prevent proceedings to
be commenced after the abolition against such offence which had been
committed before its abolition. The transitional provision did not specify the
only situations where proceedings against common law conspiracies committed
before the operation of the 1996 Ordinance could be maintained after that date.
Hence, the Appellants could still be charged with and should be convicted of a
common law conspiracy.
The question certified as a point of great and general importance was:
Does the abolition on 2nd August 1996, of all common law
conspiracies in Hong Kong (other than the offence of conspiracy to
defraud) by section 159E(1) Crimes Ordinance Cap 200, preclude
an information being lawfully laid after that date, in relation to
conduct which occurred before that date, for a common law
conspiracy (other than for the offence of conspiracy to defraud)
not within the terms of the transitional provisions of section
159E(7) Crimes Ordinance?
Held :
(1)
In the absence of a clear and express transitional provision covering
criminal conduct committed before the new law came into effect (assuming that
this was the result of a conscious decision), s 159E(1) could be construed in two
alternative ways. First, the offence of common law conspiracy was abolished
for all intents and purposes and all conduct committed before 2 August 1996
could no longer be prosecuted. Second, the offence was abolished only insofar
as conduct committed after 2 August 1996 was concerned but conduct
committed before that date could still be prosecuted. Neither construction was
satisfactory: the first one not giving effect to the intention of the legislature and
the second one not doing full justice to the language of the provisions. Which
construction should be given by the court in order to give effect to the intention
of the legislature? Section 19 of the Interpretation and General Clauses
Ordinance required that an Ordinance should receive a fair and large and liberal
construction and interpretation as would best ensure the attainment of the object
of the Ordinance according to its true intent, meaning and spirit. Devlin LJ in
Gladstone v Bower [1960] QB 384, said at 395:
The court would always like to allow the intention of a statute to
override the defects in its wording, but its ability to do so is limited
by the recognised canons of interpretation. The court may, for
example, prefer an alternative construction which is less well fitted
to the words but better fitted to the intention of the Act.
53
CCAB 2000
Conspiracy
Mason and Wilson JJ in Cooper Brookes (Wollongony PTY Ltd) v Federal
Commissioner of Taxation (1980) 147 CLR 297 at 320 took a similar view:
But there are cases in which inconvenience of result or
improbability of result assists the court in concluding that an
alternative construction which is reasonably open is to be
preferred to the literal meaning because the alternative
interpretation more closely conforms to the legislative intent
discernible from other provisions in the statute.
There was no doubt that the second alternative fitted the intention of the
legislature better and would best ensure the attainment of the object of the
legislation and avoid a most undesirable result;
(2)
It was to be accepted for the present purpose that it was due to
inadvertence by the draftsman that there was no clear and express transitional
provision to cater for pre-abolition offences. If that was so, the provision sought
the application of a rectifying construction to s 159E to give effect to the
legislative intention in order to avoid an absurd result. The Appellants argued
that any attempt to remedy a defective provision would amount to judicial
legislation which was most undesirable;
(3)
In more recent cases, the courts had shown a willingness to move away
from the strict and literal approach to statutory construction where a piece of
legislation manifestly failed to achieve the intention of the legislature due to
inadvertence, errors or incorrect understanding on the part of the draftsman. As
Lord Hobhouse said in Salmon v Duncombe and Others (1886) 11 AC 627,
634:
It is, however, a very serious matter to hold that when the main
object of the statute is clear, it shall be reduced to a nullity by the
draftsman’s unskilfulness or ignorance of the law.
In Bennion on Statutory Interpretation, 3rd ed, at p 675, it was stated:
It is presumed that the legislator intends the court to apply a
construction which rectifies any error in the drafting of the
enactment, where it is required to give effect to the legislator’s
intention. This may be referred to as a rectifying construction.
That was approved in R v Moore [1999] 4 All ER 843, 850. Lord Denning MR
went further in Nothman v Barnet London Borough Council [1978] 1 WLR 220,
228:
Whenever the strict interpretation of a statute gives rise to an
absurd and unjust situation, the judges can and should use their
good sense to remedy it - by reading words in, if necessary - so as
to do what parliament would have done, had they had the situation
in mind.
In Inco Europe & Others v First Choice Distribution & Others [2000] 1 WLR
586, 592, Lord Nicholls provided some guidance as to when such a remedial
construction might be justified:
Before interpreting a statute in this way, the court must be
abundantly sure of three matters: (1) the intended purpose of the
statute or provision in question; (2) that by inadvertence the
draftsman and parliament failed to give effect to that purpose in
the provision in question; and (3) the substance of the provision
parliament would have made, although not necessarily the precise
words parliament would have used, had the error in the bill been
advised;
The alteration in language may be too far-reaching …the insertion
must not be too big, or too much at variance with the language
used by the legislature. Or the subject matter may call for a strict
interpretation of the statutory language, as in penal legislation.
54
CCAB 2000
Conspiracy
The intention of the legislature when the Crimes (Amendment) Ordinance 1996
was enacted was quite clear. It was never intended to give a general pardon to
offenders who had committed common law conspiracies before the law was
changed. No clear and express transitional provision had been enacted to deal
with such offenders. If s 159E had failed to give effect to the true legislative
intention as a result of the inadvertence of the draftsman, what had been omitted
would be a provision to the effect that conduct committed before the effective
date which amounted to a conspiracy at common law would continue to be
punishable after the effective date. Although this was a penal statute, no
injustice would be done to such offenders if they were to be prosecuted now for
the criminal conduct which they had committed and for which they would rightly
have been held liable if they had been discovered and charged before 2 August
1996. It would be a grave injustice to allow such offenders to escape the
criminal justice system. It was doubtful whether an amendment now to s 159(7)
would have the desired effect of rectifying the provision in view of the provision
in the Bill of Rights Ordinance against retrospective incrimination. It was not
too far-reaching to adopt a remedial construction in the interpretation of s 159E.
That was amply justified in this case to correct the errors of the draftsman and to
give effect to the intention of the legislature;
(4)
The certified question would be answered in the negative.
Contempt of Court
MP 1926/2000
Gall J
(22.11.2000)
SJ
v
(1) Apple
Daily Ltd.
(2) IP Yat-kin
Contempt of court/Inaccurate reporting of criminal trial/Need to deter
careless reporting/Fair trial must be safeguarded
藐視法庭 - 對刑事審訊作出失實報道 - 有需要阻嚇不小心的報道公平的審訊須予維護
This was a motion to commit the Respondents for contempt of court.
*Benjamin
Yu SC &
Yvonne Cheng
#Gerard
McCoy SC
On 4 October 1999, a trial began in the Court of First Instance of Yuen
Wing-kong (‘Yuen’) for the murder of a 5 year old child. The trial was before a
jury, and, on 5 October 1999, when the trial was under way, an article was
published in the Apple Daily, a newspaper published by R1, which purported to
be a report of the trial. The article was in Chinese and it described Yuen as a
paedophile or otherwise suggested that he had paedophilic tendencies. No such
evidence had been adduced at the trial, nor was it part of the case for the
prosecution. The article further suggested that Yuen had committed the murder
in order to silence the victim when no such allegations had been made during the
course of the trial up to the time of publication; and, further, that he had
committed the murder in cruel and callous circumstances before any jury had
convicted him of murder. At the time of publication, the Apple Daily had a
circulation of approximately 428,000 and a readership of approximately
1,736,000.
After the article came to the attention of counsel for the accused on 6
October 1999, there was an application for the jury to be discharged. The judge
granted that application and ordered a retrial.
On 5 May 2000, the Secretary for Justice was granted leave to apply for
an Order of Committal against R1 and R2.
55
CCAB 2000
Contempt of Court
The Respondents conceded that the publication of the article on 5
October was a criminal contempt and accepted that the only matter for
determination was the punishment. Responsibility for publication was admitted
and an apology was given.
Held :
(1)
The Respondents had not offended in this way before and had a clear
record. This was a case where the article resulted from a series of careless
actions by R1 and R2 rather than any deliberate, wilful, reckless or grossly
negligent act;
(2)
In DPP v John Fairfax & Sons Ltd. and Others [1987] 8 NSWLR 732,
747, Kirby JA said:
Whilst it is not necessary in this case to indicate the authority of the
Court, it is necessary emphatically to uphold the due observance of
the law of contempt, with the important public interests which that
law secures. It is also necessary to deter the first opponent and
others in a like position from a repetition of the carelessness which
led to the publication on this occasion. A finding by the Court and a
rebuke would not sufficiently reflect the high importance of
safeguarding the fair trial of persons facing charges before the
courts. That interest is only secured in this case by imposing a
fine …
The court echoed those sentiments. Taking into account the widespread
publication of the Apple Daily, the damage which the article caused, but
bearing in mind the early acceptance of responsibility by R1 and R2, each of
them were in contempt upon the charges contained in the Applicant’s
motion.
Result - R1 fined $100,000. R1 and R2 to pay the costs of the Applicant of,
and incidental to, the motion for contempt.
Costs
MA 560/99
Beeson J
(10.12.99)
*D Leung
#Armand
Souyave
WONG
Pak-nin
Refusal to award costs to acquitted defendant/Court’s jurisdiction to hear
the appeal/Relevance of an inadmissible cautioned statement in costs
application
法庭拒絕判訟費給獲判無罪釋放的被告人 - 法庭審理該宗上訴的權
力 - 不獲接納的供詞在訟費申請中是否相關事項
The Appellant was charged with one charge of managing a vice
establishment and one charge of living on earnings of prostitution. The only
evidence against the Appellant was his admission contained in the record of
interview. After the magistrate ruled the record inadmissible, there was no other
evidence against the Appellant and he was acquitted. The Appellant applied for
costs but his application was refused.
On appeal against such a refusal order, it was submitted, inter alia, that
once the record of interview was ruled inadmissible, it should be regarded as if it
had never been made. Hence the Appellant could not be said to have brought
suspicion on himself, nor could it be said he was acquitted on a technicality.
56
CCAB 2000
Costs
Held :
(1)
The court had jurisdiction to hear an appeal against an order refusing
costs: HKSAR v Coghlan [1999] 4 HKC 508 followed;
(2)
The Costs in Criminal Cases Ordinance, Cap 492, operative since
January 1997, governed costs in the magistracy. An order for costs should be
made unless there were positive reasons for refusing such an order. If the
accused had brought suspicion on himself, or if he was acquitted on a
technicality, those might be positive reasons for not making an order for costs:
Practice Direction [1981] 3 All ER 703;
(3)
On a costs application, a magistrate could take into account, for the
purposes of deciding the application, the contents or provenance of a statement
that had been ruled inadmissible. There might well be circumstances where
although the statement was ruled out, the evidence relating to its provenance or
contents might reveal that the accused brought suspicion on himself: R v
Lam Chi-ming [1991] 2 AC 212 and Cheung Bik-kwong [1999] 2 HKC 870
considered. But in this case, it was rather difficult to deduce from the ruling the
reason why the magistrate thought that the Appellant had brought suspicion on
himself, other than by his relying on the alleged admission which had been ruled
out. That attitude appeared to reward law enforcement authorities which
obtained a confession by improper means by protecting the prosecution from an
award of costs.
Result - Appeal allowed. Costs for this appeal and court below awarded.
MA 1245/99
V Bokhary J
(26.1.2000)
*Poon Oi-lin
#Andy Hung
CHUNG
Yun-hung
Obscene VCDs/Increased starting point appropriate due to
prevalence/Magistrates
best
placed
to
determine
scale
of
problem/Comments on non-viewing of tapes/Costs order appropriate
despite guilty plea
淫褻影像光碟 - 由於這類罪行普遍，法庭將量刑起點提高是恰當的
- 裁判官最適宜衡量問題的嚴重程度 - 就執法人員沒有觀看影碟一
事作出評論 - 雖然被告認罪，但法庭發出訟費命令仍屬恰當
The Appellant faced a charge of publishing obscene articles, contrary to s
21(1)(a) of the Control of Obscene and Indecent Articles Ordinance, Cap 390.
Initially he pleaded not guilty, and the case was set down for trial. On the trial
date, he changed his plea to one of guilty. Having taken 15 months’
imprisonment as his starting point, the magistrate sentenced him to 10 months’
imprisonment, and ordered him to pay $5,000 costs. The magistrate observed
that the time had come when more severe sentences were necessary in the public
interest.
The costs were ordered on the basis that by pleading not guilty initially it
had been necessary for the prosecutor to prepare for trial and court time had
been allocated. It had been necessary to take two police officers away from
their normal duties to give evidence. The late, non-notified plea of guilty meant
that all of those resources were wasted.
On appeal, it was submitted that the sentence was too severe, and that
costs ought not to have been ordered.
The facts were that on 2 June 1999 at a retail shop in Mongkok, the
Appellant sold eight VCDs to an undercover officer posing as a customer.
Those eight VCDs were the obscene articles which the Appellant admitted
publishing. There were, he admitted, a total of about 500 obscene VCDs in the
shop at the material time. As to that, the magistrate said, in his Reasons for
Sentence:
57
CCAB 2000
Costs
The Appellant was, as were most of the other similar offenders in
May, June and July, charged in relation to the sale of only a few
VCDs. However he admitted, as all do, that the sale was in a
retail situation and that there were about 500 other similar VCDs
for sale in the shop. When I enquired from the prosecution as to
why all the VCDs were not seized and a charge laid in relation to
all I was informed that police resources are being overwhelmed
by these offences and there is simply insufficient manpower to
allocate officers to view each VCD if a seizure is made of the
contents of the shop. Accordingly the current police practice is
to seize merely the items in the sale.
The magistrate explained that, notwithstanding the ‘admonition’ in AG v
Chow Kun-lap [1996] 2 HKC 600, (as to the need to view the tapes in order to
assess the degree of obscenity), this was not practicable as in Court 1 at North
Kowloon he was ‘required to deal with an average of 65-75 cases a day’.
Held :
(1)
One way of assessing the degree of obscenity without actually viewing
the material was by way of agreed descriptions of their contents. Viewing even
representative samples could be very time-consuming. If the contents of
obscene VCDs were dealt with by way of agreed descriptions, the sentencing
magistrate would have to take the view most favourable to the defendant
consistent with the description. The defendant was certainly not entitled to have
it assumed in his favour that the articles were of the least serious nature coming
within the concept of obscenity. He was only entitled to have it assumed in his
favour that the articles were of the least serious coming within their description
as obscene articles. The magistrate had followed that approach;
(2)
Although the magistrate had taken a higher starting point than those
taken in relevant past cases, experienced magistrates were in the best position to
discover, from the actual cases coming before them and their colleagues, what
the position was when it came to stable, decreasing or increasing prevalence.
Their views and the steps which they considered it necessary to take were very
worthy of respect, and the magistrate put his experience to careful use. In his
Reasons for Sentence he said:
1. The area over which this Magistracy has jurisdiction is
notorious as a seat of offences of this nature;
2. There are a number of premises in this area of Mongkok which
is notorious as a venue for the sale of obscene VCDs;
3. It is an offence of considerable prevalence: new instances of
these offences come before this Court every single day of the
week;
4. Until the beginning of May 1999 new offences came before
Court 1 North Kowloon at the rate of about 4-5 a week, or 20
a month. In the period from 3 May to the end of July 1999
over 240 new cases of this nature came before the court.
There has been a vast proliferation of the offence;
5. The numbers of VCDs involved, on a daily basis in this
Magistracy alone, range from a few hundred to several
thousand;
6. The continued incidence of these offences suggests that the
levels of deterrence are lacking in effectiveness.
The increased starting point taken by the magistrate was a proper response in the
public interest to the increased prevalence. The sentence of 10 months’
imprisonment was meant to be severe, and was justifiably severe;
58
CCAB 2000
Costs
(3)
There was nothing in the Costs in Criminal Cases Ordinance, Cap 492, or
elsewhere, which said that a convicted person must always have costs ordered
against him just because he was convicted after trial. Nor was there anything in
that Ordinance or elsewhere which said that a convicted person could never have
costs ordered against him just because he had pleaded guilty. Of direct
relevance was the decision in R v Maher & Others (1983) 5 Cr App R (S) 39,
the headnote of which read:
The cases showed that a plea of guilty was a factor to be taken into
account when deciding whether to order a defendant to make a
payment towards the costs of the prosecution. Matthews (1979) 1
Cr App R (S) 346 did not establish that such an order should be
made where there had been a plea of guilty only in special
circumstances. The weight to be given to a plea of guilty must
depend on the nature of the case and the stage in the proceedings
when it is offered. The nature of the present case was such that it
was appropriate to make orders against all the appellants,
including those who had pleaded guilty.
That said in Maher & Others represented good sense which could and should be
applied in Hong Kong. The magistrate was entitled to make the costs order.
MA 1061/99
Tong DJ
(28.1.2000)
*Agnes Chan
#T JenkynJones
RONACRETE
(FAR EAST)
LTD
Costs/Acquittal after trial/Magistrate erred in placing emphasis upon
status of prosecution witness
訟費 - 審訊後無罪釋放 - 裁判官重控方證人的身分是錯誤的
Although the Appellant was acquitted after trial of two summonses
issued under the Factories and Industrial Undertakings Ordinance, Cap 59, the
magistrate declined to order costs.
Having noted that there was a residual discretion in the award of costs,
the magistrate recognized that there must be positive reasons for not awarding
costs to an acquitted defendant. In the Statement of Findings, she said of her
main reason for refusing to grant the costs order:
As I have said, I came to the view that if it had not been for
PW4, Mr Leung, the appellant’s production manager, being
a prosecution witness (as opposed to a defence witness) the
outcome of the trial would have been different. I took the
view that the reasons why I acquitted were akin to a
technical acquittal …..
Based on that, the magistrate found there to be a positive reason why she
ought not to award costs. It appeared that the magistrate had given much
emphasis to the status of PW4 as a prosecution witness, and the implication was
that if PW4 had been a defence witness, she would have been able to disregard
his evidence. On appeal
Held :
(1)
Whether a witness was believable or not did not depend on whether the
witness was called by the prosecution or the defence. If the magistrate was
unable, at the end of the day, to say whether PW4 was a reliable witness after
hearing all the evidence, then it must mean that there was a reasonable doubt in
the case, whether PW4 was called as a defence witness or otherwise. Being a
defence witness alone was not a justifiable reason to disregard his evidence.
The contents and context of his evidence, together with the way he gave his
evidence, had to be taken into account in deciding whether what he said in the
witness box was true or not;
59
CCAB 2000
Costs
(2)
The magistrate erred in concluding that the acquittal was technical.
Result - Appeal allowed. Costs for the trial of the summonses awarded to
defence, and costs for the appeal. Quantum to be taxed, if not agreed.
MA 1157/98
Pang J
(14.3.2000)
*W L Cheung
#Terry Chan
YUEN
Ming-sing
Discretionary power of magistrate to award costs/Costs not automatic upon
conviction/Unnecessary prolongation of trial by defence may attract costs
order
裁判官判給訟費的酌情權 - 被定罪一方未必要承擔訟費 - 辯方無故
使審訊拖長可能招致法庭向辯方發出訟費命令
The Appellant was convicted of an offence of failure to comply with an
enforcement notice issued under s 23(1) of the Town Planning Ordinance, Cap
131.
After a trial which lasted for 7 days, the magistrate convicted the
Appellant and fined him $30,000. He also awarded costs against the Appellant.
The appeal against conviction - there was no appeal against sentence - was
dismissed.
Pursuant to section 11 of the Costs in Criminal Cases Ordinance, Cap
492, the magistrate ordered the Appellant to pay for the cost incurred by the
prosecution in the proceedings less the one and a half days during which the
defence had challenged the admissibility of the record of interview. In making
the costs order against the Appellant, the magistrate observed:
After the enactment of the Costs in Criminal Cases Ordinance, the
principles relating to the award of costs in criminal cases have
been changed. It seems that, subject to certain exceptions, the costs
should follow the event in a criminal prosecution. In the present
case, I cannot find any justification why the defendant should not
pay the costs of the prosecution.
Held :
(1)
Under section 11, Cap 492, a magistrate had a discretionary power to
award costs against a defendant who had been convicted. The section was not
worded in such a manner that costs should automatically follow the event. The
magistrate seemed to have approached the question of costs on the basis that a
convicted defendant should always be ordered to bear the prosecution’s costs
unless he could persuade the magistrate to do otherwise. A defendant had to be
allowed to present his case before the magistrate, and not subjected to the threat
of having to bear the prosecution’s costs should he be unsuccessful. It remained
the duty of the prosecution to prove the elements of the charge against the
defendant at all times: HKSAR v Chan Kwok-wah MA 668/98;
(2)
In cases where a defendant, either in person or through his legal
representative, unnecessarily prolonged the trial by requiring the prosecution to
prove matters which could not otherwise be justifiably challenged, a costs order
against an unsuccessful defendant would be appropriate.
Result – Costs order set aside.
60
CCAB 2000
MA 1109/99
Li DJ
(18.4.2000)
*Richard Ma
Costs
AU Chi-wai,
Alan
Costs award to prosecution/Basis of award against convicted defendant/
Discretion to award costs exercisable where defendant gave false version of
events at trial
訟費判給控方 - 判被定罪的被告人支付訟費的理據 - 如被告人在審
訊時歪曲事實，法官可行使酌情權判被告人支付訟費
The Appellant was convicted after trial of careless driving. He was
ordered to pay costs of $1,000.
#Walker Sham
On appeal, reliance was placed upon the judgment of Chan CJHC in
HKSAR v Chan Kwok-wah [1999] 697. The headnote of the judgment stated:
(1)
The Costs in Criminal Cases Ordinance (Cap 492) did
not specify the circumstances under which a magistrate
might order a defendant to pay the costs of the
prosecution. Not every defendant who was convicted
was required to pay costs. This had always been the
approach adopted by the court. A defendant was
presumed innocent until he was found guilty. It was the
duty of the prosecution to tender evidence and prove
beyond reasonable doubt that a defendant was guilty.
This was the fundamental constitutional right which
each defendant enjoyed. The defendant would be
deprived of this fundamental right indirectly if he was
penalised on costs because he did not plead guilty and
resulted in the prosecution tendering evidence to prove
the case, or because he raised a defence that was not
accepted by the court. R v Chan Chor [1968] HKLR
540 considered.
(2)
In applying the Costs in Criminal Cases Ordinance, a
magistrate had to consider whether there were any
special circumstances which caused the prosecution to
incur extra expenses, including the behaviour of the
defendant throughout the trial, like being deliberately
difficult to the prosecution witnesses, intentionally
delaying the case, or insisting on the prosecution
proving unimportant or undeniable facts. The
magistrate also had to consider the financial condition
of the defendant before deciding whether to impose a
costs order. R v Chan Chor [1968] HKLR 540
considered.
(3)
Although an unrepresented and verbose defendant
might cause the prosecutor or the court to think that he
was being deliberately difficult, the court should not
further penalise him for his behaviour, particularly
when he was exercising the fundamental constitutional
right granted to him.
The Appellant submitted that there were no special circumstances upon which to
base the order for costs.
Held :
(1)
As the Chief Judge observed, the Costs in Criminal Cases Ordinance,
Cap 492, did not specify the circumstances under which a court might order a
defendant to pay the costs of the prosecution. It therefore appeared to be a
gratuitous act of legislative amendment by judicial power to superimpose a
condition that a magistrate had to find special circumstances before making an
order for costs. There were older authorities in England and Hong Kong to the
effect that criminal courts should not normally order convicted defendants to pay
61
CCAB 2000
Costs
costs. The legislature must also be presumed to know of such authorities too.
Yet in enacting the Costs in Criminal Cases Ordinance, Cap 492, the legislators
did not see fit to insert an appropriate rider consistent with that which had fallen
from the Chief Judge. In the absence of express provision fettering the power to
order costs, the courts were left to entirely their own discretion;
(2)
If ordering a convicted defendant to pay costs amounted to deprivation
indirectly of a defendant’s constitutional rights to contest the case against him
and to require the prosecution to prove its case, one should be forgiven for
considering the situation in civil cases. Were defendants in civil cases not
entitled to contest the case against them? Were they not also entitled to require
the plaintiffs to prove their case? Yet it was a well established principle that, in
general, costs in civil cases should follow the event. So, in adopting the principle
that costs should follow the event and in commonly ordering costs against
defeated defendants in civil cases, had the courts routinely violated the
constitutional rights of defendants in civil cases?
(3)
An innocent accused had no cause to take into account the possibility of
an order for costs against him when considering whether to contest a criminal
charge. On the other hand, a guilty defendant might be discouraged from
making a vain attempt to try his luck when he had as a matter of principle to pay
the costs of successful prosecution. The constitution should not be taken as a
guarantee for an accused to try his luck. The constitution should also protect the
general public too. Why should the general public, harassed by crimes, be made
to bear the costs of prosecution of those who commit crimes?
(4)
Even if the discretion to order costs against a convicted defendant was
somewhat fettered, in R v Malkiat Singh [1982] 4 Cr App R (s) 38, 39, Drake J
said that:
It is well recognised and well settled and hardly needs saying
that it is not the position in law or in practice that every judge
should order a defendant, who pleads not guilty but who is
found guilty, to pay the costs of the prosecution. But it is also
well settled that there is a discretion which can be exercised
by the trial judge if he takes certain matters into account.
One of these matters is that the defendant had chosen to
contest a case which was a strong case against him. Another
matter is that it is a case where the truth must be known to the
defendant.
(5)
In the present case the truth must have been known to the Appellant and
the magistrate was therefore justified in ordering costs against him. What Drake
J meant by ‘the truth must be known to the defendant’ was that where an
accused was convicted after his evidence had been rejected, i.e. the accused
contested a case by uttering a false version of events, the trial court would be
justified in ordering him to bear the costs of the prosecution. That approach,
inconsistent as it was with that of Chan CJHC, accorded with that of the court;
(6)
The magistrate could not be criticised for ordering the Appellant to pay
costs.
62
CCAB 2000
MA 909/99
Costs
Everking
Holding Ltd.
(24.11.1999)
Costs
after
no
evidence
offered/Powers
of
court/Lawyers
instructed/Appellate costs appropriate notwithstanding indication that
appeal to be conceded
控方不提證據檢控後的訟費問題 - 法庭的權力 - 已延聘律師 - 控方
雖表示會接納上訴，把上訴所涉訟費判給上訴人仍屬恰當
*Cheung
Wai-sun &
Vinci Lam
The Appellant company was summoned by the Inland Revenue
Department (‘IRD’) for failing to make application to the Commissioner to
register a business and that summons was scheduled to be heard on 3 June 1999.
#Tang Kwokwai
On 3 June 1999, a not guilty plea was entered on behalf of the company,
and the case was set down for trial on 27 July 1999. On 22 July 1999, three
working days from the hearing date of 27 July 1999, the IRD faxed a letter to
the company, their solicitors and their counsel to inform them that no evidence
would be offered on 27 July 1999.
Nguyen J
On 27 July 1999, the company, represented by counsel, appeared before
the magistrate when no evidence was offered and the information was dismissed.
The company then sought, but was denied costs by the magistrate on the basis
that, since there had been no trial, he, the magistrate, had an absolute discretion
not to award costs to the Appellant.
The company appealed. Prior to the hearing of the appeal, its solicitors
wrote to the Department of Justice to ask if the appeal might be conceded. They
said that, if a reply was received by 17 November 1999, a brief to counsel would
not be delivered. On 16 November 1999, the Department of Justice advised the
solicitors that the appeal would not be opposed.
When the solicitors asked the Department of Justice to sign a duplicate
copy of the letter so that the appeal could be allowed and the hearing vacated,
thereby saving costs, it was pointed out to them that a criminal appeal was not
like a civil matter which could be settled between the parties, and the hearing
date vacated. A criminal appeal had to be argued in open court and to be
allowed or dismissed in open court.
The Respondent, at the hearing, conceded that the appeal should be
allowed, but contended that the costs of the appeal hearing should not be
allowed as the Appellant should have attended without lawyers as it was aware
that the Respondent would concede the appeal.
Held :
(1)
Section 3 of the Costs in Criminal Cases Ordinance, Cap 492, conferred
a jurisdiction on a magistrate to award costs where an information or complaint
which was laid before a magistrate was not proceeded with, or where, as here,
the magistrate dismissed the information or complaint or acquitted the
defendant. So the magistrate erred in deciding that because there had been no
trial, he had absolute discretion to refuse costs;
(2)
The discretion to award costs should have been exercised to award costs
to the company because the two main criteria for not awarding costs in favour of
the defendant were not made out, namely, that the Appellant’s own conduct had
brought suspicion upon it, and it had misled the prosecution into thinking that a
case against him was stronger than it was; or that there was ample evidence to
support a conviction which was quashed subsequently on a technicality. The
Appellant would be awarded its costs;
(3)
The order for costs would include the costs incurred by the Appellant up
to, and including the appeal. The reason for this was that the hearing on 27 July
1999 was necessitated by the IRD only effectively informing the company three
63
CCAB 2000
Costs
days before the hearing that it would offer no evidence. By that time, the
company had retained solicitors and instructed counsel, so the appearance by
counsel on 27 July 1999 was justified. And although the prosecution had
indicated that the appeal was to be conceded, it was still incumbent on the
Appellant to satisfy the court that the appeal should be allowed.
Result -
MA 752/99
Tong DJ
(6.5.2000)
YUEN
Moon-chung
Appeal allowed. Costs to be taxed, if not agreed.
Costs against prosecution/Nominal costs awarded at trial as defence did not
identify quantum/Need to give defence chance to be heard/Defendant not to
be penalised for conduct of solicitor
判控方支付訟費 - 由於辯方沒有說出所涉及的訟費數目，裁判官就
辯方所申請的審訊訟費判控方支付象徵式數額 - 需給予辯方申述的
機會 - 被告人不應因律師的行為而受罰
*Po Wing-kay
#E Laskey
The Appellant was summoned under ss 50(1)(a) and (2) of the Securities
Ordinance, Cap 333 and s 89 of the Criminal Procedure Ordinance, Cap 221.
The particulars of offence alleged that the Appellant, Yuen Moon-chung,
over the period from 1 October 1997 to 16 January 1998, in Hong Kong, aided
and abetted another to act as a dealer’s representative of CA Pacific Securities
Limited without being registered under the Securities Ordinance, Cap 333.
The Appellant pleaded not guilty but was convicted after trial. He was
fined HK$2,000.
There were two other summonses against the Appellant, but the
magistrate ruled that there was no case to answer on those and they were
dismissed. The Appellant then sought costs in relation to those summonses.
However, the magistrate eventually ordered the prosecution to pay a nominal
amount of HK$1 each for two summonses. The Appellant - whose appeal
against conviction was not successful - sought to appeal against the costs
order.
In making the nominal costs order, the magistrate gave these reasons:
As far as the defence application for costs on the two summonses
dismissed, I think reasonable time had been given to the defence
to indicate what sort of costs are involved here. In any event
there is still no such information. I am not minded to have the
matter adjourned or to send it for taxation. Those summonses
were dismissed and I think in principle the defence is entitled to
costs, but given the present situation I will order a nominal sum
to be awarded to the defendant on each of those summonses and
that nominal sum will be HK$1 on each.
The Appellant submitted that justice had not been done nor been seen to
be done. The magistrate should have allowed the costs to be taxed or else
adjourned the matter further for assessment, otherwise, the Appellant himself
would suffer. It was also said that the magistrate should have made his views
known so as to give the defence the opportunity to be heard.
On this issue, the Respondent gave the following reply in his written
submissions:
The Principles
23. Section 3(1)(c) of the Costs in Criminal Cases Ordinance
Cap. 492 gives a magistrate the discretion to allow costs for an
acquitted defendant.
64
CCAB 2000
Costs
24. Section 3(2) gives the magistrate a further discretion to
award costs of up to HK$30,000:
(2)
An order for costs under subsection (1)
shall not exceed HK$30,000, unless(a) the defendant and the prosecutor
have agreed upon the terms of any
order to be made by the magistrate
for costs exceeding that sum; or
(b) the magistrate, in the absence of
any such agreement, orders that
those costs be taxed.
25. It is submitted that the magistrate has full discretion to
award fixed costs of up to HK$30,000. That means, from HK$1
to HK$30,000.
26. It is further submitted that the magistrate has no power to
order taxation if the costs fall below HK$30,000. The discretion
to order taxation under Section 3(2)(b) arises only where the
costs applied for exceed HK$30,000 and in the event that there is
no agreement between the Prosecution and the Defence on the
amount.
Exercise of the Discretion
27. It is submitted that the discretion exercised by the learned
magistrate in awarding nominal costs of HK$1 for each of the
dismissed summonses was unimpeachable.
28. The Appellant was given an opportunity to indicate the costs
involved after a two-week adjournment for the purpose of
allowing the learned magistrate to make a costs order. The
Appellant failed to do so. He was not entitled to have a further
adjournment on the basis of his own default.
29. Neither was the Appellant entitled to an order for taxation.
In any event, it was not open to the learned magistrate to make an
order for taxation on 25th June 1999 in accordance with Section
3(2)(b).
30. In order to make an order for taxation under Section 3(2)(b),
the learned magistrate must first be satisfied that the costs
required exceed HK$30,000. Further he had to be satisfied that
there was no agreement between the Prosecution and the Defence
on the amount.
31. In the absence of any indication from the defence what the
costs were and whether they exceeded HK$30,000, the learned
magistrate’s discretion to order taxation under Section 3(2)(b)
was simply not triggered.
Held :
(1)
The court tended to agree with the Respondent’s analysis of the law. It
could be appreciated why the magistrate felt frustrated by what had transpired.
However, before imposing the HK$2 costs order, he could have made known his
views first and provided the defence with an opportunity to address the court on
that possible order. The Appellant should not have been penalised because of
what his solicitor had done or had not done;
65
CCAB 2000
Costs
(2) The appeal against the nominal costs order against the prosecution would
be allowed. The estimated amount of the costs was about HK$60,000 for all the
three summonses. There was no agreement on the exact amount. In the
circumstances, the order would be for the costs for the acquitted summonses to
the defence, to be taxed, if not agreed. There would be no order as to the costs
of the appeal.
Result - Appeal allowed. Order in terms.
[This was a prosecution initiated by the Securities and Futures Commission:
Ed.]
香港特別行政區訴張龍昌
HKSAR v CHE UNG Lung-cheo ng, E r ic
高等法院原訟法庭–高院裁判法院上訴2000年第255號
*萬德豪
Jonathan Man
高等法院原訟法庭暫委法官朱芬齡
聆訊日期：二零零零年八月三十日
宣判日期：二零零零年八月三十日
# 上訴人自辯
I /P
CHU DJ
Date o f Hear ing : 3 0 August 2 0 0 0
Date o f J ud gment : 3 0 August 2 0 0 0
判令被告支付訟費作為懲罰 - 判給訟費的恰當準則
上訴人經審訊後被裁定不小心駕駛，被判令支付訟費 1, 000
元。裁判官認為本案有特殊情況，指上訴人在意外後沒有即時停
車，並企圖駛離現場，是不負責任的行為，因而會判上訴人支付訟
費。裁判官遂根據《刑事案件訟費條例》第11(1)(a )條頒下支付訟費
命令。上訴人為此提出上訴。
裁決︰
犯案者在干犯罪行時的行為和表現，並不構成頒令支付訟
費的理由，因為訟費是不應以懲罰犯案者為出發點。法庭在考慮是
否作出支付訟費的命令時，應考慮被告人在抗辯時的方式和手法。
上訴得直。支付訟費命令予以撤銷。
[English digest
of MA
255/2000
above]
Chu DJ
(30.8.2000)
*J Man
CHEUNG
Lung-cheung,
Eric
Costs awarded against defendant as punishment/Proper basis to award
costs
The Appellant was convicted after trial of careless driving. He was
ordered to pay costs of $1,000. The magistrate considered it a special case in
which costs would be ordered against the Appellant for his failure to stop his car
and trying to escape from the scene after the accident. The Appellant was
considered to be irresponsible. The magistrate made an order of costs against
the Appellant under s 11(1)(a) of the Costs in Criminal Costs Ordinance, Cap
492. On appeal
#I/P
66
CCAB 2000
Costs
Held :
The behaviour of an offender when he committed the offence should not
be a factor to be considered in an order of costs. An order of costs was not
designed to punish the offender. The court should consider the manner in which
a defendant conducted his defence when making an order of costs.
Result - Appeal allowed. Order of costs set aside.
MA 727/2000
MOK
Chun-wing
Stock J
(15.9.2000)
*Ned Lai
Adjournment caused by late delivery of skeleton argument and
a ut ho rit ies/Co mment s
on
rea so ns
for
la t eness/Co st s
unnecessarily incurred
延遲提交論據大綱和案例導致聆訊延期 - 就延遲的原因作出評論招致不必要的訟費
The Appellant was convicted of offences under the Dutiable
Commodities Ordinance, and sentenced to 16 months’ imprisonment.
#Samson K M
Hung
On the morning of the appeal, the court was handed a skeleton
submission by the Respondent, together with some authorities. Those
authorities were particularly germane in so far as they dealt, albeit in the context
of other ordinances, with what was said to be a broad band approach for the
worst kind of cases where the maximum penalty provided by legislation was
low. They were cases which arose from offences of a different kind.
The Appellant applied for an adjournment on the basis that he wished to
consider the cases.
Held :
(1)
The application was reasonable, and the matter would be adjourned to a
date to be fixed. However, the issue as to whether costs had been unnecessarily
or improperly incurred under s 17 Cap 492 arose;
(2)
Although it was said that the Respondent’s skeleton submission and
authorities were late as a result of the Appellant only having served his
submissions on the afternoon of 12 September, that was no reason whatsoever
for handing to the Appellant authorities which were potentially so relevant on
the morning of the hearing. That counsel was hard-pressed and had to consult
his senior officers was an internal matter which did not impress;
(3)
The adjournment had been occasioned by an unnecessary omission on
behalf of the prosecution.
Result - Costs of and occasioned by adjournment to be paid by the prosecution
to the defence, to be taxed if not agreed.
MA 547/2000
Hartmann J
(20.10.2000)
*Winsome
Chan
#Walker Sham
(1) LI
Siu-tong
(2) LI
Wai-ming
(3) CHEUNG
Kwok-lan
Costs denial after acquittal/Relevance of accused’s conduct/ Conduct must
be relevant to charge/What conduct is ‘relevant’/Conduct attracting
suspicion
被裁定無罪後不獲判給訟費 - 被告的行為是否相關因素 - 行為必須
和控罪有關 - 什麼是‘有關’的行為 - 引起他人懷疑的行為
The Appellants were acquitted of a joint charge of common assault, and
one of them was acquitted of an additional charge of claiming to be a member of
a triad society. That was after the magistrate had found that each Appellant had
a case to answer. The magistrate refused to award costs to the Appellants, who
had been legally represented at trial, and they appealed against that refusal.
67
CCAB 2000
Costs
The Appellants were involved in the management of a guest-house in
Chung King Mansions. It was accepted at trial that touting for customers of the
guest-houses was active to the extent of sometimes being obtrusive. There was,
however, a convention that touting should cease if a customer had pre-booked
an establishment or had already been persuaded to choose one.
On 10 May 2000, several customers entered Chung King Mansions.
They had pre-booked a guest-house, but nevertheless received the active
attention of one or more of the Appellants. This led to a confrontation with the
manager of the guest-house into which the guests had pre-booked. Although a
member of the security staff of Chung King Mansions tried to settle matters, a
heated argument took place between him and the three Appellants. During the
course of the argument the security officer alleged that he was assaulted by the
Appellants and that one of them claimed, as a form of threat, that he was a triad
member.
In his reasons for refusing the Appellants their costs, the magistrate said:
I had acquitted the defendants on the evidence based on my
assessment of credibility, inconsistencies and the chaotic
circumstances which prevailed during this incident. I had found
and ruled that there was a case to answer. The Defendants did not
testify as was their right.
He then went on to say:
Although I found the criminal charges against the defendants not
proven, I found the evidence clearly established that the
Defendants were interfering with the visitors as the latter made
their way to the lift on the way to PW2’s guest-house. PW1 [the
security officer] attempted to deal with the situation which, from
his point of view as security supervisor, involved one tenant
complaining about the actions of other tenants. PW1’s inquiry of
the Defendants was entirely proper. The Defendants acted in an
unruly, impolite and thoroughly hostile and reprehensible manner.
There was a struggle between the Defendants and PW1 and they
were verbally abusive to him. Although I was left with the strong
opinion that PW1 could have handled the incident with more tact, I
found the responsibility for this incident was the direct result of the
defendants’ conduct. The visitors left and did not return. It was
clear on the evidence that they were not impressed with this
incident. The Defendants breached the agreed code for touting for
customers. It was the Defendants’ own actions and behaviour,
which attracted the attention of PW1, the police and the
prosecution.
The complaint made by the Appellants was that, in effect, the magistrate
denied them their costs for what he considered to be their general ‘anti-social
behaviour’, and not because their actions brought suspicion upon themselves in
respect of the alleged criminal offences. They contended that although they
might have breached the unwritten rules of the touting convention and their
conduct might have been anti-social, that, of itself, was no good ground for
denying them their costs. To do so there must be such a proximity between the
behaviour that was condemned and the alleged criminal conduct that it could
reasonably be said not just that the Appellants behaved badly but that their
conduct brought suspicion upon themselves in respect of their alleged criminal
conduct.
68
CCAB 2000
Costs
Held :
(1)
As a general principle, there must be a close and direct nexus between
the broader, general conduct of the Appellants and their alleged criminal
conduct;
(2)
The Costs in Criminal Cases Ordinance, Chapter 492, provided, in terms
of section 7, that, where a magistrate had acquitted a defendant, he might order
that costs be awarded to that defendant. In short, a discretion was vested in the
magistrate who had heard the evidence and had been able to assess the nature
and effect of the defendant’s conduct;
(3)
The Ordinance did not lay down the principles which governed the
exercise of the magistrate’s discretion. But guidance was obtained in that regard
from Tong Cun Lin v HKSAR [2000] 1 HKLR D 113, in which Litton PJ said:
What then are the governing principles? When a defendant has
been brought to trial upon particular charges and is then found not
guilty it is clearly right that he should normally be compensated
out of public revenue for the costs incurred in defending those
charges. In considering whether, despite this general rule, he
should be deprived of all or part of his costs, the judge exercising
the discretion must obviously look to his conduct generally, so long
as such conduct is relevant to the charges he faces. This cannot be
confined to any particular period of time. Since, however, the
discretion is being exercised in the context of an acquittal - the
averments constituting the charges having been found by the jury
as not amounting to the crimes alleged - it follows that, generally
speaking, the conduct most relevant to the matters under
consideration must be the defendant’s conduct during the
investigation and at the trial: How he first responded to the
investigators, the answers he gave when confronted with the
accusations, the consistency of those answers with his subsequent
defence, etc. Wrapped up with this is the strength of the case
against the defendant and the circumstances under which he came
to be acquitted: These too are relevant to the exercise of the
discretion to deprive him of his costs, so long as the judge is not,
indirectly, thereby punishing him by taking a view of the facts
palpably different from that taken by the jury and reflected in the
not-guilty verdict. The person in the best position to weigh those
matters is clearly the judge himself.
In the present case, the magistrate, therefore, had an obligation only to consider
that conduct which was ‘relevant’ to the charges faced by the Appellants. He
could not deny the Appellants their costs simply because their general disorderly
conduct did not meet with his approval. What amounted to ‘relevant’ conduct
would differ according to the circumstances of each and every case. While the
relevant conduct, generally speaking, would be the conduct of the Appellants
during the police investigation and at trial, that did not prevent the magistrate
from considering the Appellants’ actions directly surrounding the alleged
criminal conduct;
(4)
The magistrate was entitled to describe the background to the incident;
namely, the breach of the apparent touting convention. He did so to set the
matter in context. But the core of his reasoning was to be found in the following
words:
The Defendants acted in an unruly, impolite and thoroughly hostile
and reprehensible manner. There was a struggle between the
Defendants and [the security officer] and they were verbally
abusive to him.
69
CCAB 2000
Costs
The magistrate did not say who started the struggle. He was perhaps unable on
the evidence to determine that point. Nevertheless in respect of the
confrontation (and, therefore, the struggle too) he described the Appellants as
acting in an unruly and hostile manner. He further said that they were abusive;
(5)
The picture painted was of a menacing group, one which involved itself
in a physical struggle. On that description of how the Appellants acted at or
about the time of their alleged assault upon the security officer, there was no
ground for saying that the magistrate erred in principle. It was clearly the view
of the magistrate that the menacing physical conduct of the Appellants at that
critical time was such that it leant weight to the allegation that they committed
the criminal acts alleged even if, upon closer examination, the magistrate was
unable to find such acts proved beyond a reasonable doubt. In short, the
magistrate found that the Appellants, by their conduct at the relevant time,
brought suspicion upon themselves.
MAs 707714/2000
Yeung J
(21.10.2000)
CHAN
Kwok-hung
Prosecution costs/Costs order not usual after guilty plea/ Conduct of
defence relevant to exercise of discretion
控方的訟費 - 被告認罪而被法庭判令支付訟費，這個做法罕見 - 法
庭行使酌情權，辯方的態度是相關的考慮因素
*Anthony
Cheang
The Appellant pleaded guilty to seven charges of offering for sale
infringing copies of copyright works for the purpose of trade or business without
the licence of the copyright owner and the charge of possession of an obscene
article for the purpose of publication.
#Michael
Leung
The Appellant was ordered to pay costs of $5,000 for each of the 8
charges, making $40,000 in toto. He was also imprisoned for 3 years.
On appeal against the costs order
Held :
(1)
The prosecution had not applied for costs, and it was not a correct
approach to award costs to the prosecution every time when a defendant was
convicted either on his own plea or after trial. An order for costs against a
defendant should not normally be made when he pleaded guilty. An order for
costs should not be made as a means to impose an additional penalty on a
defendant or any other person. An award of costs should normally only be made
when in the opinion of the court the way in which the defendant approached the
investigation and/or the prosecution of the case constituted an abuse resulting in
the prosecution having to incur extra costs which, in the normal course of
events, would not or need not be incurred;
(2)
This approach, however, was not intended to be a strait-jacket, and an
element of discretion or common sense was called for depending on the facts of
each individual case;
(3)
There was no valid basis upon which the Appellant could have been
ordered to pay $40,000 in costs.
Result - Appeal allowed. Costs orders set aside. [See also Magistracy
Appeals/Against Sentence : Ed]
70
CCAB 2000
MA 929/2000
Beeson J
Costs
POON
Chi-hung,
William
Costs to prosecution/Unmeritorious appeal/Appellant refusing to advise
court of his means
判控方可得訟費 - 缺乏理據的上訴 - 上訴人拒絕向法庭透露經濟狀
況
(7.12.2000)
After the appeal of the Appellant had been dismissed, the prosecution
applied for the costs of the appeal, pursuant to s 13 of the Costs in Criminal
Cases Ordinance, Cap 492. The relevant part of that section provided that
where a defendant unsuccessfully appealed to a judge from any conviction,
order or determination of the magistrate and the judge was satisfied that the
appeal was without merit, the judge might order that costs be awarded to the
prosecution.
*Edmond Lee
# I/P
Held :
(1)
This appeal had no merit whatsoever. The Appellant had not put
forward any new proposition of law, or different material that needed to be
examined. The magistrate gave a proper ruling after assessing the evidence.
This was a proper case for costs to be made to the prosecution;
(2)
Although the Appellant had been given the opportunity to address the
court on this topic and as to his means, he responded that he did not wish to
give any information about his means.
Result -
Costs awarded to prosecution in the sum of $5,000, as costs of the
appeal, with 14 days to pay. [See also Criminal Appeals/Against
Conviction : Ed]
Counsel
MA 264/99
Tong DJ
NG Chung-wo
Forged trade mark offences/Counsel’s incompetence/Different options open
to counsel/Applicable principles
偽造商標罪行 - 律師失職 - 律師有不同的策略可予選擇 - 適用的原
則
(18.12.1999)
*D Leung
The Appellant was charged with two offences in relation to a forged
trade mark, contrary to section 9(2) and section 18(1) of the Trade
Descriptions Ordinance, Cap 362. The Appellant was convicted after trial.
#Duncan Percy
The prosecution called three witnesses. The admissibility of the
Appellant’s cautioned statement was challenged but was eventually
admitted into evidence. The trade mark certificate of ‘Prada’ was admitted
under section 84 of the Trade Mark Ordinance, Cap 43 and the business
registration of the Appellant’s premises was dealt with as agreed evidence.
Having carefully analysed the evidence, the magistrate came to the view
that he would accept the testimony of the prosecution witnesses and, in
particular, he found that he could rely on PW4’s expert evidence. He
rejected the Appellant’s evidence.
In considering the defence case, the magistrate was fully aware that
there were two broad issues raised. In his Statement of Findings he pointed
out, inter alia, that:
The Appellant through counsel relied mainly on two matters for
his defence. Firstly, in final submissions but not in the course of
71
CCAB 2000
Counsel
cross-examination of PW4, it was sought to cast doubt upon her
evidence of identification of the genuine/counterfeit items
produced as exhibits….
Secondly, it was said ‘the second limb of my argument is about
the statutory defence’…
On appeal, counsel’s incompetence in the conduct of the trial, especially
the way he had dealt with the prosecution expert’s evidence, became the main
complaint.
Held :
(1)
As a general rule an accused person was bound by the way the trial was
conducted by counsel regardless of whether that was in accordance with the
wishes of the client, and it was not a ground for setting aside the conviction that
decisions made by counsel were made without, or contrary to, instructions, or
involved errors of judgment or even negligence. Other than in cases of flagrantly
incompetent advocacy, the Court of Appeal would not interfere with a
conviction : R v Birks (1990) 48 A Crim R 385 and R v Mo Lee-kuen [1993] 1
HKCLR 78;
(2)
It was true that the magistrate had criticised trial counsel in that certain
matters should have been put to the expert, but it did not necessarily mean that
what counsel did was incompetent. If the magistrate considered there was any
merit in the point raised in the final submission, he could have invited the
defence to apply to recall the expert for further questions to be put to the expert.
In any case, according to the transcript, the magistrate did comment that he had
taken note of what counsel had submitted and, if he wanted to inspect the items,
he would do so later. That was what counsel was inviting the court to do;
(3)
Obviously there were different options open to counsel at the time and he
had, after explaining his concern and analysis to his client, taken one of the
possible courses of action. Although the magistrate eventually did not accept his
submission, and even if counsel’s approach was, in hindsight, erroneous, it was
not incompetence, let alone flagrant incompetence : HKSAR v Lui Kwong-fai
Crim App 672/97 considered. Counsel for the Appellant might well think that
there should be more attack on the expert or that he should have adopted a
completely different approach, but it could not be said that the other counsel
must have been incompetent.
CA 13/2000
Stuart-Moore
&
Mayo VPP
Keith JA
CHEUNG
King-shan
Court passing sentence in excess of statutory maximum/Duty of counsel to
alert court/Consequences of failure by counsel to act
法官判刑超逾最高法定刑期 - 律師有責任提醒法官 - 律師未能提醒
法官所引致的後果
The trial judge passed a sentence which was higher than the maximum
provided by statute.
(22.6.2000)
After allowing the appeal, the court observed:
*Louisa Lai
#Peter Ip
We emphasise the duty on counsel, and particularly prosecuting
counsel, not to stand idly by, ignoring the obvious error into
which the judge has fallen in such circumstances. It is counsel’s
duty on both sides of the courtroom… to be aware of the
maximum sentence to which a defendant is liable and if the
judge, through oversight or carelessness, exceeds the maximum,
it is counsel’s duty to ensure the matter is put right there and
72
CCAB 2000
Counsel
then. It is a pointless waste of time and resources to deal with
the matter in the way which has arisen in the present case when it
could so easily have been covered when the error was made…
We express the hope that counsel will in future have make sure
that they are fully acquainted with the statutory maximum and so
that there will be no recurrence of this kind in the future.
CA 469/99
Stuart-Moore
ACJHC
Wong JA
Yeung J
(30.10.2000)
*Ian
McWalters &
Gary Lam
#Yeung Yeukchuen
(1) CHAN
Pun-chung
(2) SHUM
Hiu-wah
Counsel’s conduct at trial as ground of appeal/No flagrant incompetence or
insupportable advice/Defence case put/High threshold required to succeed
on this ground
以律師在審訊時的行為作為上訴理由 - 沒有明顯失職或提供欠缺理
據的法律意見 - 辯方的論據已予陳述 - 這個上訴理由如要獲得接
納，需要極有力的證據
The Applicants were husband and wife. After a trial in the District
Court, the husband was convicted of five charges of doing an act tending and
intended to pervert the course of public justice, and the wife of three such
charges. The husband was sentenced to 3 years’ imprisonment on each charge,
and the wife to 2 years’ imprisonment on each charge, all sentences to be served
concurrently.
On appeal, complaints of incompetence and/or misconduct on the part of
counsel who appeared for the Applicants at trial were levelled.
Held :
(1)
It was well settled that it was only in wholly exceptional circumstances
such as flagrant incompetence or totally insupportable advice that the conduct of
counsel could form the basis for an appeal. Each case depended on its own
facts: R v Cheung Wai-kwong and another [1997] HKLRD 344. As P Chan J
said at 347:
We have carefully considered the written and oral submissions
presented to us. In our view, this is a typical case where the
Applicants have no other ground of appeal except to try to put
the blame on trial counsel. This is not a case where due to the
flagrant incompetence or totally insupportable advice of
counsel, the defence had not been put before the jury giving rise
to a doubt whether the Applicants had a fair trial or not.
That was precisely the position in the present case;
(2)
The threshold to establish a ground of appeal on the basis of flagrant
incompetence or insupportable advice was a high one and the Applicants had not
passed the test.
73
CCAB 2000
Criminal Intimidation
Criminal Intimidation
MA 437/99
YAU Yu-ming
Criminal intimidation/Definition of ‘intent to alarm’
刑事恐嚇 - “意圖使他人受驚”的定義
Tong DJ
(18.12.99)
*C Ko
#D
MacKenzieRoss
The Appellant was charged with one offence of criminal intimidation
contrary to section 24(1)(I) of the Crimes Ordinance, Cap 200. He was
convicted after trial and was sentenced to a suspended term of imprisonment and
a fine.
The prosecution’s case was simply that on the date in question, the
Appellant and his co-defendant went to PW1’s residence. They asked to see
PW1’s son. PW1 answered the door and, through the closed iron grille, he had
a conversation with the Appellant. The Appellant told PW1 that his son owed
him money. PW1 explained that his son was not in. Then in further exchanges
between them, PW1 said that the Appellant had threatened to chop him and to
burn his premises.
On appeal against conviction
Held :
(1)
The ‘intent to cause alarm’ was a distinct element of the offence of
criminal intimidation. There might not be a genuine intent to cause alarm
although the words used seemed threatening. The particular context and
circumstances needed to be considered;
(2)
If the words found to have been said by the Appellant at the time were
just ‘wild and whirling’, and uttered in exasperation, and signifying nothing
more than an instinctive outburst of spleen, then those words might not
constitute an ‘intent to alarm’. The threat had to be made with a genuine
intention to cause fear or else, in the circumstances of their utterance, it was
likely to produce that effect. That had been the judicial interpretation of the
element of ‘intent to alarm’: R v Lo Tong-kai Cr App 178/77 and R v
Chan Kai-hing MA 364/97 applied;
(3)
It appeared that the magistrate had not specifically addressed his mind to
these considerations. It was unclear as to whether he had evaluated the evidence
in light of the principles. In the absence of any finding that the threat was not
merely angry words and that there was indeed a genuine intent to alarm, the
conviction was unsafe.
74
CCAB 2000
Dangerous Drugs
Dangerous Drugs
HCCC 219/96
Lugar-Mawson
J
(1) SHING
Siu-ming
(2) KWONG
Po-yin
(28.4.2000)
*M
Blanchflower,
& Alex Lee
#A WatsonBrown
& Adonis
Cheung
(3) SENG
Yuet-fong
Confiscation order/Meaning of ‘payments or other rewards’ settled
law/Assumptions compatible with Bill of Rights Ordinance/Open to
prosecutor to invite jury to reject evidence not directly challenged
沒收令 -‘款項或其他酬賞 ’的含義法律已予確定 - 條例所訂的假
設沒有抵觸人權法案 - 檢控人員可促請陪審團拒絕接納未受直接質
疑的證據
Shing Siu-ming (D1) was charged with conspiracy to traffic in a
dangerous drug (Count 1) and dealing with property knowing or having
reasonable grounds to believe that it represented the proceeds of drug trafficking
(Count 4). Kwong Po-yin (D2) and Seng Yuet-fong (D3) were charged with
being concerned in an arrangement whereby the retention or control by or on
behalf of D1’s proceeds of drug trafficking was facilitated, knowing or having
reasonable grounds to believe that D1 carried on, or had carried on, drug
trafficking or had benefited from drug trafficking (Counts 2 and 3 respectively).
They were convicted of the offences. Before they were sentenced, prosecuting
counsel had made applications for confiscation orders against each defendant.
‘Proceeds of drug trafficking’ in the Drug Trafficking (Recovery of
Proceeds) Ordinance, Chapter 405 was defined, inter alia, as ‘any payments or
other rewards’ received by a person at any time in connection with drug
trafficking carried on by him or another. In England it had been held in R v Osei
[1988] Crim L R 775, that the phrase ‘any payments or other rewards’ did not
mean the profit to the drug trafficker, or money launderer. ‘Payment’ meant any
payment, whether by way of reward or in some other way in connection with
drug trafficking. The words ‘other rewards’ meant rewards in some form other
than payment. This interpretation was followed in R v Lo Chak-man and
Another Cr App 744/95.
The defendants submitted that the English Court of Appeal and R v Lo
Chak-man and Another acted in a wider manner than the case required and went
further than necessary. It took the law past its intended meaning and into
conflict with the Basic Law. The s 4(3) assumptions also offended Art 11(1) of
the Hong Kong Bill of Rights Ordinance, Chapter 383, as they placed an onus
upon a defendant to displace a presumption.
D1 also submitted that, as far as the application of the assumptions in s
4(3)(a)(ii) against him was concerned, no evidence was adduced that linked any
of the assets to drug trafficking. A great deal of the evidence given by D1 and
D2 relating to this issue essentially went unchallenged at trial.
Held :
(1)
The interpretation of ‘any payments or other rewards’ was well
established both in Hong Kong and England. The interpretation of legislation
was not governed by the strict grammarian approach for which the defendants
contended;
(2) The s 4 assumptions did not offend Article 11(1) of the Bill of Rights
Ordinance. Art 11(1) did not extend to confiscation proceedings such as these:
R v Ko Chi-yuen [1994] 2 HKCLR 65 followed;
(3) D2’s and D3’s proceeds of drug trafficking were the amounts
particularized in Counts 2 and 3, respectively. It was the aggregate value of the
payments they each received in relation to their money laundering activities. A
confiscation order would be made against D2 in the amount of $2,644,729.93,
2½ years’ imprisonment in default. A confiscation order would be made against
D3 in the sum of $2,141,291.46, 2½ years’ imprisonment in default;
75
CCAB 2000
Dangerous Drugs
(4) D1’s proceeds of drug trafficking was the aggregate gross value of the
payments or other rewards received by him in connection with drug trafficking,
together with any amounts determined by operation of the s 4(3) assumptions.
The assumptions in s 4(3) did not apply in respect of a s 25(1) money laundering
offence (Counts 2, 3 and 4). However, because D1 had been convicted of
conspiracy to traffic in dangerous drugs (Count 1) the assumptions in s
4(3)(a)(ii) could be applied against him. These assumptions included any assets
owned by him in the six years prior to the institution of the proceedings against
him. It was for the defendant to prove, on a balance of probabilities, that the
amount that might be realized under s 6(3) was less than the value of his
proceeds of drug trafficking under s 6(1). D1 had not proved, on a balance of
probabilities, that the amount that might be realized was less than his benefit
from drug trafficking. A confiscation order was made against D1 in the amount
of $29,688,272.67, 7 years’ imprisonment in default;
(5) As to the submission that the evidence given by D1 and D2 went
unchallenged, a prosecutor was entitled to invite the jury to reject the evidence
of a defence witness where he had adopted a ‘raised eyebrow’ approach, but had
not explicitly put to the witness that he was lying: R v Lovelock [1997] Crim LR
821.
Result - Confiscation orders made.
CA 208/2000
Stuart-Moore
ACJHC
Leong &
Stock JJA
(21.11.2000)
*Peter
Chapman
#I/P
AU
Yeung-fu
Trafficking in dangerous drugs/Judge entitled to take judicial notice of
average daily consumption of heroin addict/All the hallmarks of trafficking
present
販運危險藥物 - 法官有權對海洛英吸服者的每日平均吸服量予以司
法認知 - 案中販運危險藥物的種種跡象俱存
The Applicant pleaded not guilty in the District Court to a charge of
trafficking in dangerous drugs. The judge convicted him and sentenced him to 6
years’ imprisonment.
The facts showed that on 20 November 1999, the police stopped the
Applicant on a stop and search operation. In his left front trouser pocket they
found a plastic bag containing a white substance. He admitted that he had
purchased the drugs in Shenzhen for ¥8,600 that day, and asked for a chance.
The bag was found to contain 49.08 grammes of a mixture containing
31.1 grammes of heroin hydrochloride. The prosecution case was not contested
by the Applicant, who admitted that he had the drugs in his possession but
asserted they were for his own consumption. He gave conflicting evidence
which did not impress the judge about the place at which he had purchased the
drugs – whether in Shenzhen or in Hong Kong. He had told the police that he
had purchased the drugs that day in Shenzhen, and he told the court that he had
bought them in Hong Kong. The judge rejected his claim to consume 3 to 4
grammes per day, as that was considerably more than was consumed by addicts.
On appeal, it was submitted by the Applicant that the facts did not
warrant a conviction for trafficking as no money was made and he was originally
charged only with possession.
Held :
(1)
The judge was entitled to draw the obvious inference from the facts
which he found established. He referred to R v Cheng Ping-chiu Cr App
162/93, as entitling him to take judicial notice of the fact that the average
consumption of a heroin addict was between 0.25 and 0.7 gramme of heroin per
day, and he rejected the Applicant’s story that he consumed 3 to 4 grammes per
76
CCAB 2000
Dangerous Drugs
day. He was sure the Applicant had purchased the drugs in Shenzhen, and
commented as an aside that the importation of drugs constituted trafficking, and
concluded that the drugs which he had in his possession in Hong Kong were not
for his own consumption, but were for trafficking;
(2)
This was a significant quantity. The Applicant was carrying these drugs
in the street, and on his own admission he had spent over $8,000 for them that
day. This had all the hallmarks of trafficking. The judge was entitled to
conclude on the evidence that the Applicant had the drugs for the purpose of
trafficking.
Result -
Application dismissed.
Defendant Absent
CA 306/99
Stuart-Moore
ACJHC
Mayo VP
Leong JA
WONG Fung
Bias by court/Judge aware of pre-trial allegations against accused/Judge
professionally able to put such matters out of mind/No real danger of bias
法官持有偏見 - 法官在審訊前知悉對被告的指控 - 法官具備專業知
識有能力將這些事情置於腦後 - 確實持有偏見的危險並不存在
The Applicant (D5 at trial) was convicted after trial of two charges of
wounding with intent and two charges of common assault.
(1.2.2000)
*Louisa Lai
#A B MitchellHeggs
In an application for leave to appeal out of time, it was alleged that there
was an irregularity in the trial because of the judge’s refusal to stand aside to
allow another judge to try the case in circumstances where there was a danger
that the judge held a bias, or might be perceived to have held a bias, because of
certain pre-trial events which were known to her.
In her Reasons for Verdict, the judge referred to the application in these
terms:
I think it is appropriate at this point to say the 1st, 2nd, 3rd and 4th
defendants pleaded guilty to lesser charges against them than were
preferred against them on the original indictment. These pleas
were accepted by the prosecution. In their respective agreed facts,
there were references to D5 which were admitted to by the said
defendants when put to them in court. These procedures took place
before the trial against D5 started. (The defence solicitor) applied
to have D5’s trial before another judge on the basis that having
heard and seen the admitted facts identifying D5 in the said attack
by the other four defendants, I would be prejudiced against D5. I
assured him as a professional juror I would ignore those admitted
facts and refused the application. It would certainly have been
better if those admitted facts had not identified D5. (The defence
solicitor for D5) had not applied to (the prosecutor) nor any of the
defence counsel to omit identification of D5. The basic principle
remains the same; admissions only act against the maker. Those
admitted facts played no part in my deliberations on the evidence in
the trial of D5.
The Applicant argued that the perceived bias on the part of the judge
arose because she had knowledge, not only of the pleas of the four codefendants but, more importantly, of the agreed facts of those defendants in
whose cases it was common ground between prosecution and defence that they
had been allegedly led on and incited by the Applicant to commit the assaults on
77
CCAB 2000
Defendant Absent
the victims named in the charges. It was not alleged that there was actual bias
on the part of the trial judge.
Held :
(1)
The judge had found herself in a familiar situation where some
defendants in a multi-handed indictment had pleaded guilty and had blamed a
co-defendant who intended to contest the charges with involvement in those
offences. However, identification was the sole issue concerning the Applicant,
and this, to an extent, distinguished this case from others where broader
evidential considerations were involved;
(2) Although in these particular circumstances it might have been better if the
judge had not tried the Applicant, the fact remained that the judge was
professionally able to put out of her mind the allegations of the co-defendants,
just as she would have been able to do so if the trial had involved all the
defendants where the Applicant would have been blamed by the others in their
confession statements which were inadmissible as evidence against him;
(3) The evidence against the Applicant was provided by three witnesses, all
of whom happened to be police officers, who identified him after seeing him in
good lighting in close proximity. The Applicant absconded at the close of the
prosecution’s case so that the evidence was all one way. The trial continued in
his absence as he had voluntarily absented himself. The evidence was
overwhelming. The case against the Applicant was not concerned with or
affected by the admitted facts of his co-defendants. There was no real danger of
bias on the part of the judge: R v Gough (1993) 97 Cr App R 188.
Defendant’s Right to Remain Silent
CA 518/99
Stuart-Moore
VP
Leong &
Wong JJA
(17.7.2000)
*P Chapman
#R C Andrews
ROCHA
Ramirez
Luisa Del
Carmen
Right to remain silent at arrest/Effect of accused providing explanation for
first time at trial/Inference of guilt and impact on credibility
被告被捕時有權保持緘默 - 被告在審訊時才首次作出解釋會有何影
響 - 對有罪的推論以及對被告可信程度的影響
The Appellant was convicted after trial of one count of trafficking in a
mixture of almost 6 kgs of cocaine hydrochloride and over half a kilogram of
cocaine.
The prosecution case was that the Appellant caused a suitcase containing
the drugs to be brought into Hong Kong International Airport at the end of a
journey which had started in Bolivia and that she knew the contents of her
suitcase. The Appellant failed to collect her suitcase after she cleared Customs.
Instead, she went straight to a hotel and kept the key to the padlock on the
suitcase and her baggage identification tag.
As a result of a phone call from a ‘Mr Lau’, Customs Officers, disguised
as airline officials, delivered the suitcase to the Appellant’s hotel room. The
Appellant signed and accepted the delivery of it. On arrest, the Appellant
maintained her right of silence.
At trial, the Appellant admitted having control over the suitcase and she
said she believed the contents were a sample of coffee which were for her to
78
CCAB 2000
Defendant’s Right to Remain Silent
deliver in Hong Kong. She had been requested to do this by someone she knew
and she would be paid US$300 for this service. Later, she thought that the
suitcase might contain contraband and therefore she did not claim the suitcase.
While she was in her hotel she received a phone call from a man called ‘Taby’
who persuaded her that there was nothing wrong with the contents of the
suitcase. Hence, she accepted the delivery of her suitcase.
On appeal, it was submitted that the judge misdirected the jury in respect
of the Appellant’s exercise of her right of silence. It was contended that the
judge’s directions amounted to an invitation to the jury to form an adverse
opinion about the credibility of the Appellant’s evidence as a result of the
Appllent not having disclosed the totality of her defence at the first opportunity.
Held :
(1)
There was a clear distinction between drawing an inference of guilt from
silence and taking prior silence into account as diminishing the weight of any
explanation given by the accused for the first time in evidence at the trial : Para
299, 11th Halsbury’s Law of England (4th Ed.), Para 4-430, Archbold’s
Pleading, Evidence and Practice in Criminal Cases (41st ed. 1982), R v Gilbert
(1977) 66 Cr App R 237, R v Duffy [1979] 2 NZLR 432, R v Ryan [1973] 2
NZLR 611 considered;
(2)
In England, the position had generally been transformed by section 34 of
the Criminal Justice and Public Order Act 1994. Hong Kong had no equivalent
statutory provision to enable a jury to draw adverse conclusions from the fact
that a defendant had failed to disclose his defence at an opportunity when he
might have been expected to do so prior to trial;
(3)
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 was
something to be weighed in the scales when determining how much weight to
attach to a defence first raised at trial, common law precedent was generally
opposed to permitting the judge to make any comment which invited the jury to
use this feature of the evidence in this way. On the other hand, a jury was
entitled to know the defendant had remained silent after arrest and they would
inevitably have drawn their own conclusion about the story told for the first time
in 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 defendant’s silence, by
restricting their consideration of it to the sole issue of credibility;
(4)
In the absence of legislation permitting such a direction, the judge went
further than she was permitted by directing the jury that they could use the
Appellant’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’: R v Cho Chor-pak [1983] HKLR 174 considered. However, there
was no miscarriage of justice as a result of this misdirection and the proviso
would be applied.
Result : Appeal dismissed.
79
CCAB 2000
District Court
District Court
CA 126/2000
Mayo VP
Yeung &
Burrell JJ
(27.10.2000)
*Robert S K
Lee & Evelyn
Tsang
#Gary
Plowman SC
&
P Duncan (1)
(2) I/P
(1) CHOI
Man-wai
(2) LAM
ChinCheung
District Judge’s reasons for verdict/Extent of duty to analyse the
evidence/Speculation not desirable
區域法院法官的裁決理由 - 在分析證據方面所擔負的責任 - 不宜作
出揣測
A1 was convicted after trial in the District Court of one charge of
wounding with intent, contrary to s 17(a) of the Offences Against the Person
Ordinance, Cap 212, and one charge of criminal damage, contrary to s 60(1) of
the Crimes Ordinance, Cap 200. A2 was also convicted of those charges, and
another charge of reckless driving.
On appeal, it was submitted, inter alia, that the judge had failed to
analyse or resolve the issue as to how A1 had sustained his serious injuries, such
being a crucial part of his case.
Held :
(1)
The question of the amount of detail that a District Judge should give in
his reasons for verdict was considered in HKSAR v Choi Gin-ngon and others
[1998] 1 HKLRD 902. The Court referred there to these observations of BlairKerr J in Re Low:
It was contended by Mr How that a District Judge’s statement
of his reasons for verdict prepared in pursuance of s 30 of the
District Court Ordinance (Cap 336) was comparable to a
judge’s summing up to a jury. I do not agree with this view.
The District Judge’s only statutory duty is to record a short
statement of the reasons for the verdict. There is no duty cast
upon him to state the whole of the law applicable to the case or
to review the whole of the evidence. Of course, if he chooses to
state his views of the law, or any aspect of the law applicable to
the case, and that view is held to be wrong, the position is
precisely the same as when a judge misdirects a jury on a
matter of law. Similarly, if he chooses to review the evidence at
length and it is clear from his statement that he has
substantially misapprehended or misunderstood the true nature
of that evidence, or any important part of it, it may well be that
it would be open to an appellant to attack his conclusions on
the facts before this court. 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 dispute but also depend partly on the
credibility of witnesses and facts which were very much in
80
CCAB 2000
District Court
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.
That was an accurate statement of the requirements which had to be adhered to;
(2)
This question was not a matter of prime importance. There was no
necessity for the judge to make any determination as to how A1 received her
injuries. It would have been better had the judge not speculated as to the cause.
However, that speculation did not indicate any misunderstanding of the overall
situation.
Escape from Lawful Custody
MA 226/2000
Tong DJ
(7.7.2000)
CHONG
Ka-chun
Attempted escape from lawful custody/Common law offence still
extant/Issue of attempt a question of fact/Findings in trial of co-accused not
relevant to guilty plea of defendant
企圖逃離合法羈押 - 普通法罪行仍然存在 - 有否企圖的爭議關乎事
實的問題 - 法庭審訊同案被控人時對其所作出的裁斷與被告人認罪
兩者並不相關
*Gary Lam
#Cheung
Yiu-leung
The Appellant pleaded guilty to a charge of attempting to escape from
lawful custody, contrary to common law and s 159G of the Crimes Ordinance,
Cap 200.
The particulars of offence were that the Appellant, on 11 August 1999,
‘being a person in the lawful custody of O Pui Shan Boys’ Home … did attempt
to escape from the lawful custody of the said Boys’ Home’.
On appeal, it was firstly submitted that the common law offence of
attempting to escape from lawful custody did not exist in Hong Kong so the plea
of guilty was erroneously accepted by the magistrate and the conviction was a
nullity. Second, it was said that the facts admitted by the Appellant could not
support the charge; in that regard it was argued that as the confinement was in
contravention of the Reformatory School Rules, the Bill of Rights Ordinance
and the international instruments on human rights, the Appellant had been
placed under unlawful custody when the alleged offence took place. Third, the
Appellant contended that it was relevant to his case that his co-accused was
convicted in a trial at which it was ruled there was no case for him to answer.
Held :
(1)
As the common law offence of escaping from legal custody had not been
repealed by the Reformatory Schools Ordinance, the charge was valid.
Although the Appellant relied heavily on ss 28 and 29 to submit that the escape
of an inmate would only be a disciplinary matter as the sections stated that the
fugitive boy could be apprehended without warrant and taken back directly to
the reformatory school, after which the Director of Social Welfare could apply
to a magistrate for an order of detention if he felt the boy was unsuitable for
further detention in the school, the Ordinance was simply giving authority to a
police officer or the staff of the school to officially apprehend the boy and take
him back to the school. That was merely a procedural authority, and the
81
CCAB 2000
Escape from Lawful Custody
arrangement could not be taken to imply that a substantive common law offence
was to be taken as repealed. The Ordinance did not aim to remove all criminal
sanctions from the operation of the school and to leave everything to discipline;
(2)
In Craies on Statute Law, under the heading ‘where common law and a
statute conflict’, it was stated:
If it is clear that it was the intention of the legislature in passing a
new statute to abrogate the previous common law on the subject,
the common law must give way and the statute must prevail; but
there is no presumption that a statute is intended to override the
common law. In fact the presumption, if any, is the other way, for
‘the general rule in exposition is this, that in all doubtful matters,
and where the expression is in general terms, the words are to
receive such a construction as may be agreeable to the rules of
common law in cases of that nature, for statues are not presumed
to make any alteration in the common law further or otherwise
than the Act does expressly declare.’ ‘It is a well-established
principle of construction that a statute is not to be taken as
affecting a fundamental alteration in the general law unless it
uses words that point unmistakably to that conclusion.’ And if, as
Coleridge J said in R v Scott, there is ‘a seeming conflict between
the common law and the provisions of a statute,’ it is not right to
begin ‘by assuming at once that there is a real conflict and
sacrificing the common law’; we ought rather to proceed in the
first place ‘by carefully examining whether the two may not be
reconciled, and full effect given to both.’ ‘It is a sound rule,’ said
Byles J in R v Morris, ‘to construe a statute in conformity with the
common law rather than against it, except where and so far as the
statute is plainly intended to alter the course of the common law.
The summary procedure in ss 28 and 29 of the Ordinance did not support the
argument that the common law was therefore repeated. The Ordinance should
be construed in conformity with the common law;
(3)
Although it was submitted that the admitted facts did not support the
charge, as they only disclosed a case of preparation and not attempt, since things
remained at a preparatory stage until the boy reached the main gate, the admitted
facts disclosed that the Appellant had used some tools in order to get out of the
room. Although those facts did not state how far the Appellant had to go before
reaching the main gate, the clear inference would be that he had taken actual
steps to carry out his escape and was not simply preparing for it. In any event,
whether it was a case of ‘preparation’ or ‘attempt’ was a question of fact and
inference for the magistrate. The magistrate was satisfied when he accepted the
plea that it was a case of attempt;
(4)
The findings of the magistrate in relation to the other inmate were not
relevant to this case. The co-accused chose to contest his case, which was
decided upon the basis of the findings made upon the issues of law and of fact
raised before him. They only had application to the case of the co-accused.
What was important in the case of the Appellant was that it was established from
the admitted facts that he was attempting to escape from the school.
82
CCAB 2000
Evidence
Evidence
CA 218/99
Stuart-Moore
VP
Wong JA &
V Bokhary J
MARWITO
Sunami
Manslaughter/Case dependent upon irresistible inference/No duty to stop
case/Jury entitled to treat video recorded evidence of toddler as
meaningless/No obligation on prosecution to cross-examine toddler
誤殺 - 指控論據基於不可抗拒的推論 - 無責任中止控方的指控 - 陪
審團有權把幼童的錄影證據視作無意義 - 控方無責任盤問幼童
The Applicant was convicted of manslaughter after trial.
(2.3.2000)
*P S Chapman
The Applicant served a family of four consisting of a couple and their
two daughters. The elder daughter was a toddler then aged 3 years and 9
months. The younger daughter - the victim - was then a baby of 9 months.
#N Stirling
On 21 August 1997, when the parents were at work, and the two children
were at home under the Applicant’s care in the family flat, the baby sustained
severe head injuries from which she died four days later.
The case for the prosecution was that the only reasonable inference in the
circumstances was that the Applicant had deliberately assaulted the baby causing
the injuries which resulted in her death. The only person in the flat at the
material time apart from the Applicant and the baby was the toddler.
The Applicant denied in evidence that she ever assaulted the baby. She
suggested the baby must have been injured in an accident for which she was not
responsible and did not witness. It was an admitted fact that the Applicant had
told four different versions of the event to the police. She admitted that the last
three versions were lies.
When the toddler was interviewed by means of a video-recording on the
day the baby died, she said a number of things. One was that the baby had fallen
off the mother’s bed when the mother was at home. At first she said she saw the
baby fall. Later when asked how she knew the baby had fallen, she said she did
not know. Much later she said that she did not see the baby fall, and that there
was no school for her that day. Amongst the other things she said was that she
had seen the baby fall over ten times.
The defence said that what the toddler said suggested that the baby had
fallen from the bed in the main bedroom on the day she was admitted to
hospital. The prosecution, however, suggested that what the toddler said was
meaningless.
The judge directed the jury that:
You may not convict the defendant of manslaughter unless you
are sure (1) that the defendant committed an act which caused
the baby’s death; (2) that the act was intentional; (3) that the act
was unlawful; and (4) that the act was one which all sober and
reasonable people would realise must subject the victim to the
risk of some harm. All four elements must be proved. If there is
any one in respect of which you are unsure, the defendant must
be acquitted.
On appeal
Held :
(1)
On the issue of whether there was a case to answer, the present case,
where the only persons with the baby at the material time were the Applicant
and a toddler, was distinguishable from cases like R v Gibson (1985) 80 Cr App
83
CCAB 2000
Evidence
R 24; R v Lane (1986) 82 Cr App R 5; R v Russell (1987) 85 Cr App R 388; R v
Aston (1992) 94 Cr App R 180; and R v Stradwick (1994) 99 Cr App R 326,
where there were two adults with the victim at the material time;
(2)
There was no deficiency in the prosecution’s case even if the Applicant’s
lies were ignored, but in any event her lies were capable of lending support to
the prosecution’s case, and the jury were given a proper lies direction;
(3)
The toddler’s evidence given in the video-recorded interview as part of
the defence case did not mean that the judge should have directed the jury to
acquit. The jury were entitled to treat it as meaningless if they saw fit;
(4)
The prosecution were justified in saying that the toddler’s evidence was
meaningless, and they were therefore justified in not bothering to cross-examine
the toddler: R v Hart (1932) 23 Cr App R 202. As Lord Morris observed in
Browne v Dunne (1894) 6 R 67, 79:
But I can quite understand a case in which a story told by a
witness may have been of so incredible and romancing a
character that the most effective cross-examination would be to
ask him to leave the box.
There was no duty on the prosecution to put anything to the toddler out of
fairness to her. As far as fairness to the defence was concerned, it was clear to
the defence all along that the prosecution was contending that the toddler’s
evidence was meaningless. That was the sort of situation akin to Lord Morris’s
example of evidence of a romancing character.
CA 525/99
Stuart-Moore
&
Mayo VPP
Keith JA
LO
Hung-kwong
Drawing of inference/What must be proved/‘Strands in a cable’ and ‘links
in a chain’ contrasted/Silence of accused
作出推論 - 什麼是必須證明的 - 把‘像電纜中的導線般緊連的證
據 ’與‘像鏈條中的鏈環般扣連的證據 ’作出對比 - 被告保持緘
默
The Applicant was convicted of 38 charges of forgery after trial.
(22.6.2000)
*D G Saw SC
&
Derek Lai
#A C Macrae
SC & J
McGowan
All 38 charges were in the same form. They alleged that the Applicant
had applied for credit cards in the names of persons other than himself.
The evidence upon which the prosecution relied to prove that it had been
the Applicant who had forged the application forms was entirely circumstantial,
and the prosecution rested its case in part upon the 38 application forms which
had been completed in hand. As a result of the evidence of a handwriting expert
called by the prosecution, the judge found that the person who had written them
had ‘probably’ been the Applicant. On appeal, an issue arose of whether the
judge’s acceptance of the expert’s opinion that the application forms had
probably been written by the Applicant was capable in law of amounting to one
of the facts upon which the judge could infer that they had been written by the
Applicant. The Applicant, in reliance upon Chamberlain v R (1984) 157
CLR 521, contended that it was not. It was said that an inference could only be
drawn from primary facts if those facts themselves had been proved beyond
reasonable doubt.
Held :
(1)
The law had moved on since Chamberlain v R. It was clear from R v
Sorby (1985-86) 21 A Crim R 64, that what was important was that the case
must be proved beyond reasonable doubt before the defendant could be
84
CCAB 2000
Evidence
convicted. In Sorby the court accepted that when proof of an element essential
to guilt was left to be inferred, the primary facts from which the inference was to
be drawn had to be established beyond reasonable doubt; but it went on to hold
that what that meant was that the circumstances relied upon for the inference
must exclude any hypothesis consistent with innocence. It did not mean,
however, that every piece of evidence which did not by itself establish a fact
beyond reasonable doubt had to be disregarded. The court had to consider what
weight to give to the united force of all the circumstances together: one piece of
evidence might resolve a doubt as to another;
(2)
In R v Shepherd (No 5) (1990) 51 A Crim R 181, the court appeared to
have resiled from what it held in Chamberlain. In Shepherd, the majority held
that it was not necessary for the prosecution to prove each fact upon which an
inference of guilt was based beyond reasonable doubt. That requirement was
limited to those facts which were indispensable links in the chain of reasoning
towards such an inference. Where the evidence was analogous to strands in a
cable rather than to links in a chain, it would not be appropriate to give a
direction that all the facts which constituted those strands must themselves be
proved beyond a reasonable doubt;
(3)
It was unnecessary to resolve the debate, for if those statements
represented the law, the judge could not be criticised for taking his acceptance
of the expert’s evidence that the application forms had probably been written by
the Applicant into account. Since the only issue in the case was whether the
Applicant had forged the application forms, this was clearly a case in which the
evidence represented different strands in a cable rather than links in a causative
chain. The judge expressly treated his acceptance of the expert’s evidence in
precisely the way which Sorby said was permissible. Although he described his
acceptance of the handwriting expert’s evidence as a ‘fact’, he was in fact
treating it merely as supporting the inference which he was drawing from the
other primary facts which were either admitted or not challenged. No valid
criticism could be made of the reliance which the judge placed on the
handwriting expert’s evidence;
(4)
Although, as was his entitlement, the Applicant chose not to offer an
explanation as to where $20,000 came from, it made it less easy for him to
criticise the judge for inferring that he got the money by using two credit cards
to which the forged application forms related. As Lord Devlin put it in R v
Sharmpal Singh [1962] 2 WLR 238, 245:
When the prisoner, who is given the right to answer [a particular
point], chooses not to do so, the court must not be deterred by the
incompleteness of the tale from drawing the inferences that
properly flow from the evidence it has got nor dissuaded from
reaching a firm conclusion by speculation upon what the accused
might have said if he had testified.
85
CCAB 2000
Homicide
Homicide
CA 119/1999
Stuart-Moore
VP
Wong JA &
Keith JA
(11.4.2000)
COADY
Maria
Remedios
Rights of accused/Intents for murder/‘Grievous harm’ rule not arbitrary
被告的權利 - 謀殺的犯罪意圖 - “嚴重傷害”的規則並不是無理據
的
The Appellant was convicted of murder and sentenced to life
imprisonment. She appealed against conviction. In her summing-up, the judge
directed the jury that they could only convict the Appellant of murder if they
were sure
*A Bruce SC
&
Vincent Wong
(1)
that it was the Appellant who had killed the deceased, and
(2)
that at the time the Appellant had intended either to kill the deceased or
to cause him at least really serious bodily injury.
#John Mullick
The correctness of the latter direction (the ‘grievous harm’ rule) was challenged
on the ground that it was inconsistent with Art 5(1), Art 10 or Art 11(1) of the
Bill of Rights, and the Basic Law. The Appellant submitted that a person should
not be convicted of murder if he only intended to cause the deceased really
serious bodily injury. Art 5(1) 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.
The Appellant submitted that the ‘grievous harm’ rule infringed these rights
because a person could only be deprived of his liberty in consequence of the
application of a law which was not ‘arbitrary’, i.e., one which could be
objectively justified.
Art 10 was headed ‘Equality before courts and right to fair and public
hearing’. It provided:
All person shall be equal before the courts and tribunals….
The Appellant submitted that equality before the courts required persons of the
same degree of culpability to be treated in the same way. Since the ‘grievous
harm’ rule resulted in persons of different degrees of culpability being treated in
the same way, the principle of equality was infringed.
Art 11 provided:
Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
The Appellant submitted that the ‘grievous harm’ rule infringed this right
because it presumed that which the law would otherwise have required the
prosecution to prove. Where a defendant was charged with murder, the law
recognised that the prosecution should be required to prove that the defendant
intended to kill the deceased. However, the prosecution was relieved of proving
that because the law conclusively presumed that the defendant intended to kill
the deceased if it was proved that he intended to cause the deceased really
serious bodily injury.
Held :
(1)
The ‘grievous harm’ rule could not be described as arbitrary. The 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 a defendant charged with murder, and one charged
with attempted murder. There was no compelling reason for assigning to the
86
CCAB 2000
Homicide
category of murder only those persons who killed their victims with an intent to
kill or with some awareness that death might result from their actions. The
‘grievous harm’ rule did not infringe Art 5(1);
(2)
Art 10 did not relate to the substance of the criminal law. It related to the
criminal process. It provided guarantees for a fair trial and required all persons
involved in the criminal process to be treated in terms of procedure on terms of
equality. Art 10 was not relevant to the argument;
(3)
The rationale underlying the modern law of murder was that an intention
to cause really serious bodily injury should be regarded as sufficient in its own
right. The modern law of murder proceeded on the premise that a conviction for
murder could justifiably rest upon an intention to cause the deceased really
serious bodily injury, rather than on the premise that an intention to cause the
deceased really serious bodily injury should be regarded as an acceptable
method of proving that the defendant intended to kill the deceased;
(4)
The Basic Law added nothing of substance to the articles in the Bill of
Rights which were relied on.
Result - Appeal re-listed for hearing on a date to be fixed for the other grounds
of appeal to be addressed.
CA 646/2000
Stuart-Moore
VP
Leong JA &
Yeung J
(13.6.2000)
*A A Bruce
SC
& V Wong
#J Mullick (1)
J Haynes (2)
LAU Cheong
alias LIU
Hung-yuk (1)
LAU Wong
(2)
Murder/Inference to be drawn from evidence/Judge urging jury to convict
of manslaughter/Murder properly left to jury to consider
謀殺 - 從證據作出推論 - 法官向陪審團力陳可判被告犯誤殺罪 - 交
由陪審團考慮是否犯謀殺罪的做法恰當
The Applicants were jointly charged with one count of murder and one
count of robbery. A2 was convicted after trial of both counts whereas A1 was
convicted after trial of the murder count and, on his own plea, of the robbery
count.
The prosecution case was that the Applicants acted together in the
murder and robbery of Kei Wau-heung (‘the victim’) at the Tai Po Industrial
Estate on 26 July 1997. The robbery involved a trivial amount of property,
namely, a watch, a purse and an ETC card. The evidence revealed a violent
encounter between the victim, who must have tried to fight back, and the
Applicants, who eventually gained the upper hand, before robbing and tying him
up. It was the recent possession of the ETC card which provided an important
first link between A2 and these crimes. This was found after it had fallen out of
his underpants when he attended Queen Elizabeth Hospital for treatment to
numerous injuries inflicted while he warded off a knife attack with his hand.
Later blood matching the DNA sample taken from the victim’s body was found
on the ETC card.
In the case of A1, the issue was a narrow one. Having regard to his plea
in relation to the robbery, the jury only had to address his intention at the time
when, by his own admission, he did an unlawful and dangerous act which caused
the victim to die by strangulation. A1 had tied up the victim after robbing him.
At trial, A1 testified that he attempted to rob the victim by threatening
him with two knives. However, he encountered resistance because the victim
had managed to get hold of one of the knives which he used to defend himself.
A1, whilst defending himself from the victim’s (lawful) response, asked A2 to
give assistance. They then got the victim to the ground where he was pinned
down and punched with fists. When the property was taken by him, A2 fainted
leaving A1 alone to tie up the victim. He testified that he had tied the victim
because he was afraid he might get away and take revenge.
87
CCAB 2000
Homicide
On appeal, it was submitted on behalf of A1, inter alia, that, in view of
the evidence of the pathologist, Dr Shum, the tying up of the victim was more
consistent with someone who was trying to prevent the victim from escaping
than a deliberate killing. The judge should not have left ‘intent’ as an issue for
the jury to consider. It was also contended that the judge should have directed
the jury to acquit the Applicant of murder. On behalf of A2, it was submitted,
inter alia, that it was the judge’s duty to withdraw the charge of murder against
A2 from the jury’s consideration.
Held :
(1)
The directions given to the jury as to how they should approach
inferences and as to the ingredients of murder and manslaughter were
impeccable. Bearing in mind the obvious force used to tie the rope around the
victim’s neck, there was the plainest evidence for the jury’s consideration that
A1, at the very least, intended to cause the victim grievous bodily harm;
(2)
There could be no question that the judge, in summing up to the jury,
allowed her feelings to be known to them, namely that in her view manslaughter
was a more appropriate verdict than murder. However, the law did not permit a
judge, where there was a case to answer, to usurp the functions of the jury by
directing an acquittal during the summing up. The judge was entitled, on the
other hand, to put forward, forcefully if necessary, everything that could be said
in favour of a manslaughter verdict. In the present case, given that the
prosecution was as much entitled as the defence to a fair trial, the judge
undeniably urged the jury to convict of manslaughter. This was done in a way
which was just within the limits of what she was permitted to do;
(3)
There was strong evidence that A2 had been in a violent struggle with the
victim. Immediately following the struggle, the victim had been dragged to
bushes and tied up. He had in his possession part of the proceeds of the
robbery. Whether or not death or really serious injury was intended by A2, if
and when he rendered assistance or encouragement to A1, was entirely a matter
for the jury.
Result : Applications dismissed.
CA 465/99
Stuart-Moore
VP
Leong &
Wong JJA
(18.7.2000)
*Robert S K
Lee & Evelyn
Tsang
#Phillip Ross
TANG
Kwok-wai
Attempted murder/Temporary disposition induced by drugs not a ‘disease
of the mind’/No requirement to leave insanity and involuntariness to
jury/Issue one of intent to kill
企圖謀殺 - 由藥物暫時引發的行為傾向並不屬於‘精神病 ’ - 無
須把是否精神錯亂以及不受意志控制的問題交由陪審團裁定 - 關鍵
在於是否有意圖殺人
The Applicant was convicted after trial of one count of attempted
murder. The particulars alleged that the Applicant ‘on or about 19 January
1999 outside Room 1817, Shun Wo House, Wo Che Estate, Shatin, attempted to
murder Au Wing-sze’.
The Applicant’s evidence at trial was to the effect that while he had
indeed attacked Au, and sought to push her over a balcony at one stage, he did
not intend to kill her. He had been taking ‘ice’ so much that he had become
more and more exhausted and started to hear voices. After she returned from
the Mainland, he began to have hallucinations and to hear voices. On 19
January 1999, he heard voices telling him to drag Au outside to take off her
clothes and put her on show to the public. He said he remembered he kicked
open the door and dragged Au outside to the corridor. At the corridor he saw an
old woman who told him that Au had betrayed him and he should strip her and
throw her out. He did that and Au hanged onto the railings. The woman then
told him not to pull Au up. That was why he stepped back. When he heard the
88
CCAB 2000
Homicide
voices telling him to throw her over the railings, he knew he was told to kill her
and he obeyed the voices.
Two psychiatrists examined the Applicant after he was arrested. Dr
Yuen was of the opinion that the Applicant was capable of forming an intent to
kill ‘although the decision was based on a wrong judgment resulting from a
mental disorder’. Dr Yuen also said that the reason why the Applicant wanted
to throw Au over the balcony was because he was angry with her. Dr Yuen said
the Applicant knew what he did was wrong and he knew if Au did fall to the
ground he would have thrown himself out and killed himself as well.
Dr Chung, a defence psychiatrist, was of the opinion that ‘the Applicant’s
action was dictated by abnormal thinking process and perception. The
Applicant could not control his behaviour voluntarily’. Dr Chung did not think
the Applicant was capable mentally of forming an intention to kill at the material
time. He added that there was no doubt that the Applicant’s state of mind was
disordered and what he did on 19 January 1999 was dictated by an abnormal
process and therefore it followed that he was not capable of forming the
necessary intent for the charge.
On appeal, it was submitted, first, that the judge should have directed the
jury on the involuntariness of the Applicant’s acts of lifting Au over the railings
and tramping on her hands and, if these were not his voluntary acts, he should be
acquitted. Second, it was submitted that the judge should have also directed the
jury on the verdict of not guilty by reason of insanity. It was said in essence that
there was evidence that the Applicant did what he did because of his delusions
and that was not his ‘willed’ act. There was evidence that the Applicant was
suffering from psychosis induced by taking ‘ice’ and that caused his delusions
and he did not know the nature and quality of his acts at the material time. ‘Ice’
induced psychosis, so it was said, was a disease of the mind, and it was therefore
wrong for defence counsel at trial to have conceded that insanity was not a
defence.
Held :
(1)
The two grounds could be taken together. There was no evidence that
the Applicant at the material time was in a state of automatism by reason of his
‘ice’ induced psychosis nor was there some occurrence of an incident outside the
Applicant’s control, such as muscle reflex, as in R v Ryan (1967) 121 CLR 205,
or an unforeseen brake failure, as in Barns v Bidder [1966] 2 QB 227;
(2)
According to Dr Yuen and Dr Chung, although the Applicant’s judgment
was markedly impaired and he was labouring under a defect of reason, he was
not intoxicated at the time and there was no evidence of any memory
impairment. Dr Yuen’s conclusion was that the Applicant knew what he was
doing and he knew what he did was wrong. Dr Chung’s evidence was that the
Applicant was able to describe the physical nature and the quality of his acts and
knew what he was doing to Au at the material time and Dr Chung did not rule
out that the Applicant knew what he did was wrong. That being so, the
Applicant’s acts must be acts of his choice and not acts he had carried out under
his delusions. The only difference in the two experts’ opinions was that Dr
Yuen considered that the Applicant was capable of forming the necessary intent
to kill despite his defect of reason, whereas Dr Chung held the contrary view;
(3)
The Applicant’s defect of reason was the result of his ‘ice’ induced
psychosis which, on the expert’s evidence, would subside spontaneously on
withdrawal of the drug. It was transient in nature and caused by an external
factor. There was nothing internal in the Applicant’s body that was a disease. A
mere temporary disposition or phenomenon displayed by the Applicant as a
result of taking drugs could not, without more, be regarded as a ‘disease of the
mind’ within the M’Naughten Rules: R v Quick [1973] QB 910 considered. It
89
CCAB 2000
Homicide
was different from that which had been developed into a mental condition
similar to schizophrenia and continued despite stopping taking drugs. The
condition of the Applicant did not qualify within the definition of ‘disease of the
mind’. There was insufficient basis for the question of insanity and the question
of the involuntariness of the Applicant’s acts to be left to the jury and the judge
was correct in not doing so. The complaint against defence counsel at trial over
his concession was unfounded;
(4)
Since the question was whether the Applicant had the intention to kill,
the judge had correctly directed the jury that they should consider whether the
Applicant was capable of forming that intent having regard to the medical
evidence regarding the disordered state of his mind at the time. There was no
ground for the verdict to be disturbed.
CA 119/99
Stuart-Moore
VP Wong &
Keith JJA
(23.8.2000)
*Andrew
Bruce SC &
Wong Wingsum
#Gerard
McCoy SC &
John Mullick
COADY
Maria
Remedios
Murder/Manslaughter by reason of provocation to be left to jury even
when defendant objected if evidence supported that course/Course of
conduct leading to loss of self-control/Denial by defendant of
killing/Evidence of provocation from other sources
謀殺 - 如果有證據支持，即使被告人反對，也應交由陪審團裁定可
否以受激怒為理由而判以誤殺 - 行為的過程導致失去自控 - 被告人
否認殺人 - 從其他方面的證據證明被告人受激怒
The Appellant was convicted of murder after trial.
On appeal, it was submitted, inter alia, that the judge erred in failing to
leave the issue of provocation to the jury.
Although at trial the issue of provocation was discussed between the
judge and counsel, neither counsel pointed to any evidence on which the jury
could find provocation, and neither counsel suggested to her that the issue
should be left to the jury. The defence case was that the Appellant was not the
assailant at all. So although there was some evidence relevant to the issue of
provocation, the judge ruled that this issue should not be left to the jury to
consider. The Appellant contended, however, that this ruling was wrong, and
the jury should have been directed that, if they were sure that it had been the
Appellant who had stabbed the deceased, it was open to them to convict her of
manslaughter on the basis that she had been provoked.
Held :
(1)
Although at first blush it was not readily apparent why a judge should be
criticised for not doing something which she was not urged at trial to do, it was
decided in R v Cambridge [1994] 1 WLR 971, that the issue of provocation
should be left to the jury if there was evidence to support it, even if the defence
had not sought to rely on it. That principle, which was also stated in the opinion
of the Privy Council in Bullard v R [1957] AC 635, applied not merely to cases
in which the defence had not sought to rely on provocation, but also to cases in
which the defence expressly disavowed provocation and positively did not want
the issue of provocation to be left to the jury: Von Starck v R [2000] 1
WLR 270;
(2)
Even if the deceased’s conduct on the evening of the killing was not, by
itself, capable of provoking the Appellant to lose her self-control, it became
capable of provoking her to lose her self-control when seen against the turbulent
nature of her relationship with the deceased to which she testified. The
deceased’s conduct on the evening in question, even if unprovocative in itself,
was capable of constituting the proverbial straw which broke the camel’s back
and which finally provoked the Appellant into losing her self-control;
90
CCAB 2000
Homicide
(3)
As stated in Bullard, if there was evidence to support provocation, the
issue of provocation had to be left to the jury ‘whether or not the accused has
said in terms that he was provoked’. Evidence that the deceased’s conduct
caused the Appellant to lose her self-control did not have to come from the
Appellant and could come from other sources. The evidence did not have to be
direct, and it would suffice if there had been evidence of primary facts from
which the loss of self-control on the part of the Appellant as a result of the
deceased’s conduct could have been inferred. Whilst there was no direct
evidence that the Appellant had lost her self-control, this was one of those cases
from which a jury could reasonably infer such loss of self-control from the
deceased’s injuries.
Result -
CA 424/99
Stuart-Moore
ACJHC
Leong &
Wong JJA
(20.11.2000)
*Darryl Saw
SC
#Gerard
McCoy SC &
Sher Hon-piu
(1)
W Stirling (2)
Gary Plowman
SC (3)
(1) MOK
Tsan-ping
(2) SEE
Cheungshun
(3) CHENG
Po
Appeal allowed. [Subsequently, the court substituted a conviction
for manslaughter after the Appellant had admitted to the killing: Ed]
Murder after gang attack/Joint enterprise/One accused carrying
knife/Need to direct on whether one accused knew another carried knife
and might use it to do serious harm/Foreseeability by secondary party
糾黨襲擊他人後被控謀殺 - 共同犯罪 - 其中一名被告攜刀 - 有需要
就被告是否知道另一名被告刀並會用之嚴重傷害他人這點作出指
引 - 從犯是否預見事情發生
The Applicants were tried on a single charge of murder. The jury
convicted A1 and A3 of murder and A2 of the alternative of manslaughter.
The case for the prosecution was that the Applicants, acting together,
murdered LI Man-tik, aged 19 years, in a fairly typical, triad-styled revenge
attack. There was a large volume of evidence that A3 carried the large knife
used to stab the deceased. Whether or not A1 and A2 knew that A3 was doing
so was a crucial matter for the jury’s consideration. On appeal
Held :
(1)
The jury were never told that in order to convict A1 of murder they had
to be sure that he knew that A3 was carrying a knife and might use it to do
serious harm. The importance of the judge’s omission to focus the jury’s
attention as to whether A1 had knowledge that A3 was carrying a knife based on
an inference which could be drawn to that effect, was illustrated in R v Uddin
[1998] 2 All ER 744. Beldam L J distilled the principles to be applied to such a
case, in the light of the decisions in R v Powell, R v English [1997] 4 All ER
545, and went onto say:
Whilst the jury were, as we have said, carefully directed to consider
whether the actions of any of the accused went so outside the
common purpose that they were not foreseen by the others, the
jury’s attention was not specifically focused on the use of the knife
by Abdul Tahid and whether on the evidence they were sure that the
others were aware that he might use it. As we have said, there was
evidence from which the jury would conclude that those of the
accused who took part after the shout of ‘stab him’ must have been
aware that one of them had a knife and might use it with intent to
do serious harm. Lord Hutton stressed the lethal nature of a knife
as a weapon; it was for the jury to say whether its use in this attack
was so different from the concerted actions of hitting the deceased
with clubs and kicking him with the shod foot that Tahid’s actions
went beyond the common purpose;
It was also for the jury to say in each case whether those taking
part were aware, whether from the shout or otherwise, that one of
91
CCAB 2000
Homicide
their members might use a knife. In the absence of a clear
direction A2’s murder conviction could not stand;
(2)
The omission in respect of A1 also affected the position of A2,
notwithstanding that he was only convicted of manslaughter. A2 may have been
deprived of the opportunity to be acquitted at the hands of the jury by the
absence of a direction that to be guilty at all, even to the limited extent of
manslaughter, he had to have been aware that A3 was carrying a knife and might
use it to do some harm albeit not serious harm. Only then could A2’s actions
properly be said to have been part of a concerted attack on the deceased where it
must have been with in his contemplation that A3 might use the knife. If, on the
other hand, the prosecution was unable to prove this to the jury’s satisfaction,
A2 was entitled to be acquitted.
Result - Appeals of A1 and A2 allowed. Re-trial ordered for both on a fresh
indictment for manslaughter, on the basis that no reason for the
seemingly extraordinary decision of the jury to acquit A2 of murder
could be identified when, for all practical purposes, on the same
evidence they convicted A1. It was necessary to achieve consistency
between the two Applicants in the trial which would follow. Appeal
of A3 dismissed for other reasons.
CA 565/99
Stuart-Moore
ACJHC Keith
& Stock JJA
(27.10.2000)
*Andrew
Bruce SC &
Marco Li
#John
McNamara
SHAM
Ying-kit
Murder/Nedrick direction on foreseeability rarely required/ Simple
direction on intent usually sufficient/Desirability of discussing with counsel
the leaving to jury of alternatives to murder and wounding with
intent/Explaining significance of joint enterprise direction
謀殺 - 極少須要就後果是否可以預見這點作出 Ned rick 一案的指引
- 在一般情況下就意圖一點作出簡單指引已經足夠 - 就謀殺及有意
圖而傷人的控罪而言，法官是否宜先與律師商討，然後才交由陪審
團裁斷是否改以他罪定罪 - 法官就共同犯罪這點作出指引時宜闡釋
當中的涵義
Having granted the Applicant leave to appeal against his conviction for
manslaughter, the court dismissed his appeal.
The court then indicated that it wished to spell out some of the lessons to
be learned from this case. These were threefold:
(1)
At trial, the judge directed the jury that either an intent to kill or an intent
to cause really serious bodily injury had to be proved on the count of murder.
He then gave the jury a direction based on R v Nedrick [1986] 1 WLR 1025, in
order to assist it in that task. He said:
When determining whether the defendant had the necessary
intent ... it may ... be helpful for you to ask yourselves two
questions. One, how probable was the consequence which
resulted from the defendant’s voluntary act? Two, did he foresee
that consequence? If he did not appreciate that death or serious
bodily harm was likely to result from his act, he cannot have
intended to bring it about. If he did appreciate but thought that
the risk to which he was exposing the person kill was only slight,
then it may be easy for you to conclude that he did not intend to
bring about that result. On the other hand, if you are satisfied
that at the material time the defendant recognised that death or
serious bodily harm would be virtually certain, barring some
unforeseen intervention, to result from his voluntary act, then that
is a fact from which you may find it easy to infer that he intended
to kill or do serious bodily harm, even though he may not have
had any desire to achieve that result.
92
CCAB 2000
Homicide
A Nedrick direction would usually not be necessary. In Nedrick, Lord Lane CJ
said that the direction should only be given ‘in the rare cases where the simple
direction [on intent] is not enough’. This was not an appropriate case for a
Nedrick direction. Where a man armed himself with a view to attacking another,
and then deliberately stabbed or slashed him with it, cutting him in several
places to the bone, directions about foreseeability were quite unrealistic;
(2)
Not every case of murder and wounding with intent required the
alternatives of manslaughter and simple wounding to be left to the jury. If the
judge proposed to leave those alternatives to the jury, he should discuss the
matter with counsel in the absence of the jury before hand. Not only would such
a discussion make his decision to leave those alternatives to the jury a more
informed one, but counsel would be able to tailor their closing addresses to the
jury in the knowledge of the directions which the judge would be giving;
(3)
When a judge gave a direction about joint enterprise, it was sensible to
explain to the jury the significance of such a direction. For example, the
consequence of a finding by the jury in this case that the defendants had
participated in a joint enterprise to attack the deceased’s group using weapons
which they had all known about would have been that it did not matter which of
the defendants had inflicted the injuries sustained by the deceased and the other
victims. Although the jury would have understood that from the tenor of the
judge’s summing-up, it might have been better for the judge to have spelled that
out.
Identification
CA 496/99
Stuart-Moore
VP
Mayo &
Wong JJA
NGUYEN Lam District judge not giving himself Turnbull warning/Evidence
overwhelming/Comments on professional judge sitting alone
區域法院法官沒有提醒自己 T urnb ull 一案的指引 - 證據確鑿 - 就專
業法官單獨審案一事作出評論
The Applicant was convicted of burglary and sentenced to 18 months’
imprisonment after trial.
(6.2.2000)
*Cheung Waisun
#I/P
The case depended solely upon PW1 having correctly identified the
Applicant as an intruder who she had caught in the act of ransacking desk
drawers in a room used at the Tung Chau Street temporary market as a rest and
changing room, and who thereafter rushed off. When later apprehended in the
pump room, the Applicant was searched, found not to have stolen anything, and
said of what he was doing in the pump room ‘nothing’.
Although the case rested entirely on identification evidence, the judge in
his Reasons for Verdict made no reference to R v Turnbull and Others [1977] 1
QB 224. On appeal
Held :
(1)
The judge should have warned himself about the special need for caution
before convicting the Applicant and warned himself as to the reasons. That said,
a professional judge sitting in the District Court would be expected to know the
law in this respect. There was no requirement for a judge to refer to Turnbull by
name, provided it was clear from the context of the Reasons for Verdict that all
caution had been exercised by the judge and that the evidence about the
circumstances in which the identification was made had been closely examined
by him. As it had been put in Turnbull, at 231C:
93
CCAB 2000
Identification
A failure to follow the guidelines is likely to result in a conviction
being quashed and will do so if in the judgment of this court on all
the evidence the verdict is either unsafe or unsatisfactory.
(2)
Although the judge did not appear to have warned himself about the
special need for caution this was perhaps because the circumstances were so
overwhelmingly indicative of the Applicant being the guilty culprit that he
overlooked this direction to himself. This resulted from the judge being
satisfied that there was no one else with whom the Applicant could have been
confused at the scene of the crime;
(3)
As the judge had accepted PW1’s evidence that the Applicant had been
in her view up to the time he was arrested, the omission to direct as to the
special need for caution did not constitute a material irregularity. The case was
utterly overwhelming against the Applicant.
Result - Application for leave to appeal allowed, but appeal dismissed.
Immigration
MA 290/2000
Gall J
(15.6.2000)
*P Madigan
#J
McLanachan
LI Li-mua
Breach of condition of stay/Continuing offence/When the limitation period
starts to run
違反逗留條件 - 持續的罪行 - 時效期限由何時起計
The Appellant was convicted of one charge of breach of condition of
stay, contrary to section 41 of the Immigration Ordinance, Cap 115. She was
sentenced to one month’s imprisonment. She appealed against that conviction.
The prosecution case was that the Appellant 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 to employment visa and such application was
approved. She applied for extensions of stay several times and was last
permitted to remain until 3 October 1995. On 2 October 1995, she submitted
another application for an extension to stay to take up employment with another
company. Before any decision could be made as to the application, she
disappeared. Repeated reminders were sent by registered mail to her last known
address in 1995 and 1997 but were returned. She did not reappear until 7
October 1999 when she applied for an extension of her stay. She had overstayed
in Hong Kong since 3 October 1995 for a period of about four years. A charge
was preferred on 22 November 1999, charging her with overstaying.
On appeal, the issue was whether section 41 of Cap 115 was a continuing
offence so that the period of three years, being the period within which a
prosecution could be brought, was a period which ran from each succeeding day
during the continuation of the offence.
Held :
(1)
In AG v Cheung Kam-ping [1980] HKLR 602, 620, Power J commented:
How then does the limitation section apply itself to this continuing
offence? The answer lies in the fact that this is a continuing
offence of a particular kind which has both a static element and a
continuing element. I am satisfied that what s 45 lays down, as
regards offences against s 3(1)(b), was that the offence must be
prosecuted within twelve months after the time when the matter of
94
CCAB 2000
Immigration
the complaint or information respectively first arose. It seems to
me clear that the Legislature intended that a person could only be
prosecuted within the period of twelve months after he first
committed that offence. This was not to say that he did not
thereafter remain in breach of the first element and continue to be
in breach of the second element, only that he could not be
prosecuted for the offence.
The comments applied to the present situation and the offence under section 41
was a continuing offence: R v Li Tim-fuk [1981] HKLR 122 considered;
(2)
This was not a case where a condition of stay related to employment with a
particular employer or some other condition not related to the length of stay, when
the knowledge of the authorities as to when the offence occurred might not
coincide with the occurrence of the offence, or when an offence might take place
sometime after the grant of the right to stay. The facts of the present case were that
as soon as the Appellant was in breach, those facts were known to the authorities.
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 the Appellant. The prosecution was time-barred.
Result
MA 606/2000
Beeson J
MA
Man-hung
- Appeal allowed. [As to (2), the judgment would appear to be
incompatible with the judgment of the Court of Appeal in R v Li
Tim-fuk [1981] HKLR 122: Ed.]
Appeal against conviction after guilty plea/Unequivocal plea/ Appellant no
stranger to court/Plea not a nullity
在承認控罪後對判罪提出上訴 - 被告的認罪全不含糊 - 上訴人並非
首次涉足法庭 - 認罪並非無效
(5.9.2000)
*Cheung Waisun
The Appellant pleaded guilty to an offence of remaining in Hong Kong
without the authority of the Director of Immigration, after having landed
unlawfully in Hong Kong, contrary to s 38(1)(b) of the Immigration Ordinance,
Cap 115.
#I/P
The Appellant admitted the prosecution facts, which indicated that after
his arrest he admitted he was an illegal immigrant and that he had been
convicted of previous unlawful entries into Hong Kong in 1988, 1992, 1996 and
1999. The most recent previous entry involved an offence of breach of
condition of stay, which attracted a 3 month sentence of imprisonment
suspended for 2 years.
On appeal, the Appellant said that he was the holder of a two-way permit
between April and May of 2000, and it was on the basis of that permit that he
came to Hong Kong. He produced a Chinese passport with a visa chop which
apparently showed that he was allowed to enter Hong Kong between 20 and 27
May 1999. He also produced a temporary Chinese ID card. The Appellant said
that he was very confused in court before the magistrate, and that he did not
know what was happening. He did not tell the police, or the magistrate, that he
was in Hong Kong on a two-way permit, because he had given his passport to a
friend who had gone to China. He did not know the name of the friend.
Held :
(1)
In HKSAR v Wong Chi-yuk [2000] 2 HKC 158, the Court of Appeal held
that an appeal against a conviction in respect of which there had been an
unequivocal plea to a charge which was not a nullity was not one which could be
entertained by the court;
95
CCAB 2000
Immigration
(2)
The plea of the Appellant was an unequivocal plea of guilty. The
Appellant was not a stranger to the courts, and he knew exactly what he was
doing and what he was facing when he went before the magistrate. He chose to
conceal information from the police and also from the magistrate, and proceeded
on the basis of an unequivocal plea of guilty to the offence with which he was
charged.
Industrial Safety
MA 1255/99
Suffiad J
Leighton
Contractors
(Asia) Ltd.
Construction
Sites
(Safety)
Regulations,
Chapter
59/Strict
liability/Defences
香港法例第59章《建築地盤（安全）規例》 - 嚴格法律責任 - 免責
辯護
(8.3.2000)
*Alex Lee
#Osmond Lam
The Appellant was the contractor of a construction site. It was convicted
of failing to ensure that an opening through or from which a person on the site
was liable to fall a distance of more than two metres, was provided with either a
suitable guardrail of specified dimensions or a covering constructed so as to
prevent the fall of persons, materials and articles, contrary to R 38P(1), 68(1)(a)
and 68(2)(g) of the Construction Sites (Safety) Regulations, Chapter 59.
On appeal, it was submitted that (1) the magistrate erred in law or
misdirected himself in ruling that the defence of due diligence was not available
to the Appellant in respect of an offence of strict liability, (2) the magistrate
erred in law or misdirected himself in concluding that it was reasonably
foreseeable that the workers might enter the 13/F and there was no evidence to
support such conclusion, (3) the magistrate erred in concluding that the absence
of a guardrail or covering was not necessary to proceed with any permanent
filling in, covering or enclosure when he had accepted that the workers could not
align the formwork panels they were installing if such a guardrail or covering
was in place.
Held :
(1)
There was a vast difference between a ‘due diligence defence’ and a
‘defence of honest but mistaken belief’. The honest but mistaken belief defence
was such that the mistaken belief, if true, would be that the provisions of the
Ordinance would have been complied with and therefore no offence committed,
whereas, for the due diligence defence, a defendant was saying ‘Although I have
not fully complied with the Ordinance, I took all reasonable steps which is the
best that could be done in the circumstances’. In the first case, the defendant
believed that the statutory provisions had been complied with, albeit mistakenly.
In the second case, the defendant knew as a fact that the statutory provisions had
not been complied with. Short of appropriate words in the Ordinance allowing
for the defence of due diligence, that would not be a defence open to a
defendant. The magistrate was correct in so ruling: Attorney General v Fong
Chin-yue [1995] 1 HKC 21 and HKSAR v Paul Y-ITC Construction, Ltd. [1998]
3 HKC 189 distinguished. Even if the due diligence defence had been open to
the Appellant, it would be difficult to see how it could avail the Appellant on the
facts of the case. The mistaken belief, even if it turned out to be true, which in
the process it did not, did not result in the provisions of R 38P(1) being
complied with. It was not a mistaken belief that a suitable guardrail or covering
as required by the Regulation had been provided for this opening;
96
CCAB 2000
Industrial Safety
(2)
The evidence coming from the defence was that a signboard was erected
at the entrance to the 13/F saying ‘Danger; Do not Enter’. The very fact that
such a sign had to be erected with these words must in itself indicate that it was
reasonably foreseeable that workmen would enter the 13/F area - otherwise there
would be no need for such a sign. This, therefore, was the evidence upon which
the learned magistrate was entitled to come to the conclusion that he did;
(3)
The learned magistrate took the view that because of the 45 minutes’ teabreak when the opening was left with neither guardrail nor covering, this took it
out of the statutory defence provided for by R 38P(2). Since no works were
going on during the tea-break, it could not have been necessary during that time
for such guardrall or covering to be removed or remain unerected.
Joint Enterprise
CA 375/99
Stuart-Moore
VP
Leong &
Wong JJA
(29.3.2000)
*Peter
Chapman
#Ian Lloyd
CHAN
Ho-kay
Murder/Joint
enterprise/No
withdrawal
from
enterprise
communicated/Test of what accused himself contemplated
謀殺 - 共同犯罪 - 被告並無表示退出犯罪計劃 - 對被告本身意圖所
做的事作出判斷
The Applicant was convicted after trial of a charge of murder and a
charge of wounding with intent. He tendered a plea of guilty to a further count
of wounding with intent just before the trial began.
On appeal, it was said that the conviction for murder was unsafe and
unsatisfactory. It was submitted that the court should be left with a lurking
doubt as to the murder conviction because there was insufficient evidence to
prove his participation in it.
The prosecution case was that the victim had undergone a terrible beating
having, as the Applicant admitted, been hit ‘indiscriminately’ with a baseball
bat. The victim was then tied up with wire by ‘Chung’ with help from the
Applicant. When the victim shouted out in pain, he was injected on two
separate occasions with heroin in the presence of the Applicant. By the time he
was untied, the victim was only half-conscious. It was necessary for the victim
to be helped into the back seat of the Honda Civic car. The Applicant assisted
in closing the door of the car. The Applicant maintained, despite the victim’s
condition, that he went with Chung in order to find a taxi to take the victim
home. However, Chung drove the car to a refuse collection point instead. The
Applicant was present while Chung set the victim on fire. The two men then
returned from whence they came, travelling together in the Honda Civic car. All
of these events were in the early hours of the morning and related to evidence
which the Applicant accepted in the course of his testimony. The admitted facts
also revealed that the Honda Civic belonged to Chung, and that Chung had told
police, following his arrest, that ‘a can of thinners had been taken from the boot
of his car’. Bloodstains which could have come from the victim were
discovered in that car on the nearside rear panel and seat.
The judge directed the jury on joint enterprise in these terms:
It is the law that when two or more persons embark on a joint
enterprise or a common design, each is liable for the acts done in
pursuance of that joint enterprise or common design. That
97
CCAB 2000
Joint Enterprise
includes liability for unusual consequences if they arise from the
execution of the agreed joint enterprise. However, if a participant
in the venture goes beyond what has been expressly or tacitly
agreed as part of the joint enterprise or common design, then the
other participant or participants are not liable for the
consequences of such unauthorised acts. It is for you the jury to
decide whether the thing done was surely part of the joint
enterprise or common design, or whether it was or may have been
an unauthorised act and therefore outside the scope of the joint
enterprise or common design.
Let me now give you this direction as to how the law of joint
enterprise or common design works in the present case. If two
persons are acting jointly in setting a person on fire with the
intent to kill him or at least cause him really serious injury, then it
matters not which of them performs the acts by which that is
ultimately carried out. You see the position is this: where two or
more persons take part in a joint enterprise or common design to
set the victim on fire with such intention, each sharing a common
intention to engage in the crime, and each prepared to assist if
and as the need arises, then both are equally guilty.
So where they both have the necessary intent, a man who was
there supporting or encouraging the other person when that
person was setting another on fire, standing by, thus lending
support and encouragement, and ready to give assistance if
required, he is as guilty as the one who actually pours the
inflammable liquid on the victim and sets the victim on fire.
Also if both participants have the necessary intent and a man
accompanies the other when the victim was put in the car and
accompanies the other in carrying the victim to the place where
the victim is to be set on fire, accompanying the other while
knowing what they are going there to do, and accompanying the
other so that they may do it, then he may be convicted of the crime
charged on the basis of that participation.
The judge reminded the jury of the general nature of the defence case in these
terms:
As to the murder count, there is no dispute that the deceased had
inflammable liquid poured over him and was set on fire. Nor is
there any dispute that the accused was present at the time. But he
denies that he participated in setting the deceased on fire.
According to him, he did not know that Chung Wing-ching was
going to do that. So far as the murder count is concerned, the
ultimate issue is whether you are sure that the accused took part
in burning the deceased and did so with the intent to kill him or at
least cause him really serious injury. You may think that the most
important part of this issue is whether the accused participated in
the burning. If he did, it may be that you would have little
difficulty in concluding that he acted with intent to kill or at least
to cause really serious injury. This was after all the dousing of a
human being with inflammable liquid and then setting him on fire.
You have already received my directions as to the law of joint
enterprise or common design relevant to the issue of the
accused’s participation in regard to the murder count.
Held :
(1)
The Applicant did not at any stage communicate withdrawal from the
enterprise: R v Rook (1993) 97 Cr App R 327. The evidence was all the other
way. Even if, which he did not, the Applicant had testified to such effect, the
98
CCAB 2000
Joint Enterprise
jury were fully entitled to find that he had lent himself to a criminal enterprise
involving the infliction, if necessary, of grievous bodily harm. On any view, the
circumstances were wholly inconsistent with a desire on the Applicant’s part to
find a taxi to take the victim home. Furthermore, he made no attempt to rescue
the victim when he saw what Chung was doing or to help him afterwards. The
victim was simply left to die, while the Applicant returned with Chung in the car
after the deed was done;
(2)
As Sir Robin Cooke made clear in Chan Wing-siu v R [1985] AC 168,
177, ‘It is what the individual accused in fact contemplated that matters. As in
other cases where the state of a person’s mind has to be ascertained, this may
be inferred from his conduct and any other evidence throwing light on what he
foresaw at the material time, including of course any explanation that he gives
in evidence or in a statement put in evidence by the prosecution. It is no less
elementary that all questions of weight are for the jury.’ The directions given
by the judge were impeccable;
(3)
The evidence was amply sufficient to convict if the jury accepted the
prosecution’s version of events from which the inferences to be drawn were
irresistible. It was clear that they did so.
CA 424/99
Stuart-Moore
ACJHC
Leong &
Wong JJA
(20.11.2000)
*Darryl Saw
SC
#Gerard
McCoy SC &
Sher Hon-piu
(1)
W Stirling (2)
Gary Plowman
SC (3)
(1) MOK
Tsan-ping
(2) SEE
Cheungshun
(3) CHENG
Po
Murder after gang attack/Joint enterprise/One accused carrying
knife/Need to direct on whether one accused knew another carried knife
and might use it to do serious harm/Foreseeability by secondary party
糾黨襲擊他人後被控謀殺 - 共同犯罪 - 其中一名被告攜刀 - 有需要
就被告是否知道另一名被告刀並會用之嚴重傷害他人這點作出指
引 - 從犯是否預見事情發生
The Applicants were tried on a single charge of murder. The jury
convicted A1 and A3 of murder and A2 of the alternative of manslaughter.
The case for the prosecution was that the Applicants, acting together,
murdered LI Man-tik, aged 19 years, in a fairly typical, triad-styled revenge
attack. There was a large volume of evidence that A3 carried the large knife
used to stab the deceased. Whether or not A1 and A2 knew that A3 was doing
so was a crucial matter for the jury’s consideration. On appeal
Held :
(1)
The jury were never told that in order to convict A1 of murder they had
to be sure that he knew that A3 was carrying a knife and might use it to do
serious harm. The importance of the judge’s omission to focus the jury’s
attention as to whether A1 had knowledge that A3 was carrying a knife based on
an inference which could be drawn to that effect, was illustrated in R v Uddin
[1998] 2 All ER 744. Beldam L J distilled the principles to be applied to such a
case, in the light of the decisions in R v Powell, R v English [1997] 4 All ER
545, and went onto say:
Whilst the jury were, as we have said, carefully directed to consider
whether the actions of any of the accused went so outside the
common purpose that they were not foreseen by the others, the
jury’s attention was not specifically focused on the use of the knife
by Abdul Tahid and whether on the evidence they were sure that the
others were aware that he might use it. As we have said, there was
evidence from which the jury would conclude that those of the
accused who took part after the shout of ‘stab him’ must have been
aware that one of them had a knife and might use it with intent to
do serious harm. Lord Hutton stressed the lethal nature of a knife
99
CCAB 2000
Joint Enterprise
as a weapon; it was for the jury to say whether its use in this attack
was so different from the concerted actions of hitting the deceased
with clubs and kicking him with the shod foot that Tahid’s actions
went beyond the common purpose;
It was also for the jury to say in each case whether those taking
part were aware, whether from the shout or otherwise, that one of
their members might use a knife. In the absence of a clear
direction A2’s murder conviction could not stand;
(2)
The omission in respect of A1 also affected the position of A2,
notwithstanding that he was only convicted of manslaughter. A2 may have been
deprived of the opportunity to be acquitted at the hands of the jury by the
absence of a direction that to be guilty at all, even to the limited extent of
manslaughter, he had to have been aware that A3 was carrying a knife and might
use it to do some harm albeit not serious harm. Only then could A2’s actions
properly be said to have been part of a concerted attack on the deceased where it
must have been with in his contemplation that A3 might use the knife. If, on the
other hand, the prosecution was unable to prove this to the jury’s satisfaction,
A2 was entitled to be acquitted.
Result - Appeals of A1 and A2 allowed. Re-trial ordered for both on a fresh
indictment for manslaughter, on the basis that no reason for the
seemingly extraordinary decision of the jury to acquit A2 of murder
could be identified when, for all practical purposes, on the same
evidence they convicted A1. It was necessary to achieve consistency
between the two Applicants in the trial which would follow. Appeal
of A3 dismissed for other reasons.
CA 565/99
Stuart-Moore
ACJHC Keith
& Stock JJA
(27.10.2000)
*Andrew
Bruce SC &
Marco Li
#John
McNamara
SHAM
Ying-kit
Murder/Nedrick direction on foreseeability rarely required/ Simple
direction on intent usually sufficient/Desirability of discussing with counsel
the leaving to jury of alternatives to murder and wounding with
intent/Explaining significance of joint enterprise direction
謀殺 - 極少須要就後果是否可以預見這點作出 Ned rick 一案的指引
- 在一般情況下就意圖一點作出簡單指引已經足夠 - 就謀殺及有意
圖而傷人的控罪而言，法官是否宜先與律師商討，然後才交由陪審
團裁斷是否改以他罪定罪 - 法官就共同犯罪這點作出指引時宜闡釋
當中的涵義
Having granted the Applicant leave to appeal against his conviction for
manslaughter, the court dismissed his appeal.
The court then indicated that it wished to spell out some of the lessons to
be learned from this case. These were threefold:
(1)
At trial, the judge directed the jury that either an intent to kill or an intent
to cause really serious bodily injury had to be proved on the count of murder.
He then gave the jury a direction based on R v Nedrick [1986] 1 WLR 1025, in
order to assist it in that task. He said:
When determining whether the defendant had the necessary
intent ... it may ... be helpful for you to ask yourselves two
questions. One, how probable was the consequence which
resulted from the defendant’s voluntary act? Two, did he foresee
that consequence? If he did not appreciate that death or serious
bodily harm was likely to result from his act, he cannot have
intended to bring it about. If he did appreciate but thought that
the risk to which he was exposing the person kill was only slight,
then it may be easy for you to conclude that he did not intend to
bring about that result. On the other hand, if you are satisfied
100
CCAB 2000
Joint Enterprise
that at the material time the defendant recognised that death or
serious bodily harm would be virtually certain, barring some
unforeseen intervention, to result from his voluntary act, then that
is a fact from which you may find it easy to infer that he intended
to kill or do serious bodily harm, even though he may not have
had any desire to achieve that result.
A Nedrick direction would usually not be necessary. In Nedrick, Lord Lane CJ
said that the direction should only be given ‘in the rare cases where the simple
direction [on intent] is not enough’. This was not an appropriate case for a
Nedrick direction. Where a man armed himself with a view to attacking another,
and then deliberately stabbed or slashed him with it, cutting him in several
places to the bone, directions about foreseeability were quite unrealistic;
(2)
Not every case of murder and wounding with intent required the
alternatives of manslaughter and simple wounding to be left to the jury. If the
judge proposed to leave those alternatives to the jury, he should discuss the
matter with counsel in the absence of the jury before hand. Not only would such
a discussion make his decision to leave those alternatives to the jury a more
informed one, but counsel would be able to tailor their closing addresses to the
jury in the knowledge of the directions which the judge would be giving;
(3)
When a judge gave a direction about joint enterprise, it was sensible to
explain to the jury the significance of such a direction. For example, the
consequence of a finding by the jury in this case that the defendants had
participated in a joint enterprise to attack the deceased’s group using weapons
which they had all known about would have been that it did not matter which of
the defendants had inflicted the injuries sustained by the deceased and the other
victims. Although the jury would have understood that from the tenor of the
judge’s summing-up, it might have been better for the judge to have spelled that
out.
Judge/Direction/Discretion/Summing Up
CA 306/99
Stuart-Moore
ACJHC
Mayo VP
Leong JA
WONG Fung
Bias by court/Judge aware of pre-trial allegations against accused/Judge
professionally able to put such matters out of mind/No real danger of bias
法官持有偏見 - 法官在審訊前知悉對被告的指控 - 法官具備專業知
識有能力將這些事情置於腦後 - 確實持有偏見的危險並不存在
The Applicant (D5 at trial) was convicted after trial of two charges of
wounding with intent and two charges of common assault.
(1.2.2000)
*Louisa Lai
#A B MitchellHeggs
In an application for leave to appeal out of time, it was alleged that there
was an irregularity in the trial because of the judge’s refusal to stand aside to
allow another judge to try the case in circumstances where there was a danger
that the judge held a bias, or might be perceived to have held a bias, because of
certain pre-trial events which were known to her.
In her Reasons for Verdict, the judge referred to the application in these
terms:
I think it is appropriate at this point to say the 1st, 2nd, 3rd and 4th
defendants pleaded guilty to lesser charges against them than were
preferred against them on the original indictment. These pleas
were accepted by the prosecution. In their respective agreed facts,
there were references to D5 which were admitted to by the said
101
CCAB 2000
defendants when put to them in court. These procedures took place
before the trial against D5 started. (The defence solicitor) applied
to have D5’s trial before another judge on the basis that having
heard and seen the admitted facts identifying D5 in the said attack
by the other four defendants, I would be prejudiced against D5. I
assured him as a professional juror I would ignore those admitted
facts and refused the application. It would certainly have been
better if those admitted facts had not identified D5. (The defence
solicitor for D5) had not applied to (the prosecutor) nor any of the
defence counsel to omit identification of D5. The basic principle
remains the same; admissions only act against the maker. Those
admitted facts played no part in my deliberations on the evidence in
the trial of D5.
The Applicant argued that the perceived bias on the part of the judge
arose because she had knowledge, not only of the pleas of the four codefendants but, more importantly, of the agreed facts of those defendants in
whose cases it was common ground between prosecution and defence that they
had been allegedly led on and incited by the Applicant to commit the assaults on
the victims named in the charges. It was not alleged that there was actual bias
on the part of the trial judge.
Held :
(1)
The judge had found herself in a familiar situation where some
defendants in a multi-handed indictment had pleaded guilty and had blamed a
co-defendant who intended to contest the charges with involvement in those
offences. However, identification was the sole issue concerning the Applicant,
and this, to an extent, distinguished this case from others where broader
evidential considerations were involved;
(2) Although in these particular circumstances it might have been better if the
judge had not tried the Applicant, the fact remained that the judge was
professionally able to put out of her mind the allegations of the co-defendants,
just as she would have been able to do so if the trial had involved all the
defendants where the Applicant would have been blamed by the others in their
confession statements which were inadmissible as evidence against him;
(3) The evidence against the Applicant was provided by three witnesses, all
of whom happened to be police officers, who identified him after seeing him in
good lighting in close proximity. The Applicant absconded at the close of the
prosecution’s case so that the evidence was all one way. The trial continued in
his absence as he had voluntarily absented himself. The evidence was
overwhelming. The case against the Applicant was not concerned with or
affected by the admitted facts of his co-defendants. There was no real danger of
bias on the part of the judge: R v Gough (1993) 97 Cr App R 188.
102
CCAB 2000
CA 225/99
Stuart Moore
VP
Wang &
Woo JJA
(18.2.2000)
*MC
Blanchflower
#C Grounds
LEUNG
Ka-yin
Police evidence/Desirable not to mention consequences of witness
fabricating evidence/Results of false testimony same for all witnesses
警方的證供 - 法官不宜提到證人造證供的後果 - 作虛假證供的證
人都會面對相同的後果
The Appellant was convicted, firstly, of claiming to be a member of a
triad society, contrary to s 20(2) of the Societies Ordinance, and, secondly, of
making an unwarranted demand with menaces, contrary to s 23(1) and (3) of the
Theft Ordinance, Cap 210.
On appeal, it was submitted that the judge erred in that he wrongly
directed himself upon the manner in which he should evaluate the evidence of
witnesses and/or wrongly took into account irrelevant considerations when he
was evaluating the evidence of the police officers involved in the investigation
and/or wrongly regarded the police officers involved in the investigations as a
special category of persons as distinct from other members of the public or
witnesses when he evaluated the evidence and/or wrongly considered that police
officers were less likely than other members of the public to tell lies. The
passage complained of in the Reasons for Verdict was:
In relation to the defence suggestion that the police involved in the
investigation had gone beyond their duty to help out an old friend
and former colleague and resort to perjury in the process, I find it
difficult to believe or accept. They had nothing to gain while risking
their careers and possibly exposing themselves to prosecution. This
is the more so as, having considered the testimony of the police
officers, particularly DSPC 16808, I find that they have each given
truthful accounts of what they had done.
It was submitted that police officers were not in any special category as
witnesses so that they were less likely to be telling lies by virtue of their position
or indeed by virtue of the consequences which might or would flow from their
giving false evidence. It was submitted that the Judge wrongly considered or
entertained the notion that the police witnesses were in a special category and/or
that ‘police impropriety is a rarity and that it could safely be disregarded as a
highly improbable occurrence….’
Held :
(1)
From the authorities, it could be discerned that:
(a)
it was desirable for a judge not to mention the consequences
of a witness, including a police witness, fabricating evidence,
such as his being liable to be prosecuted for a criminal
offence or a serious criminal offence, or liable to lose his job;
(b)
a trial judge must not indicate to the jury that the police as a
category or otherwise were unlikely to fabricate evidence, or
were more unlikely than other witnesses to fabricate
evidence; and
(c)
words which might lead the jury to believe that the police
were less likely to tell lies, or give any due weight to police
evidence, or not to consider defence allegations in an
impartial manner must be avoided.
103
CCAB 2000
(2)
A District Judge sitting alone without a jury was most unlikely to think
that the police were less likely to lie than other witnesses. His position had to be
treated differently to that of a jury who had little legal training or experience in
dealing with the testimonies of witnesses;
(3)
Despite the passage complained of, it could not be established that it had
affected the judge’s assessment of the witnesses or the evidence in the case so as
to make the convictions unsafe or unsatisfactory. He never used words to put
the police witnesses in the case in any special position or out of reach of his
own conviction. He never compared the police evidence with the evidence
given on behalf of the defence. He never said the police witnesses were less
likely to lie.
Obiter - Judges were to be reminded that it was undesirable to mention, let alone
emphasise, consequences of fabrication that a witness might face,
whatever job or position the witness did or occupied. Whether a
witness was a police officer did not matter. Whenever a person bore
false witness, he was liable to be prosecuted for perjury and, if
convicted, likely to lose his job. It was generally purposeless to make
that kind of comment either in a verdict or in a summing-up to a jury,
because the consequences from giving false evidence affecting the
witness’ criminal liability, career or reputation were normally not a
fact-finder’s proper concern.
CA 390/98
Stuart-Moore
ACJHC
Mayo VP
Beeson J
(15.2.2000)
*DG Saw, SC
N Lai
#J Mullick
(1) LEE Kaho
(2) TUNG
Shing-fei
(3) LAU
Ying-tat
Accomplice evidence/Discretionary warning a matter for judge Depending
on circumstances/Judge need not canvass all the evidence in the summingup
同黨證供 - 是否酌情給予警告由法官決定 - 視乎情況而定 - 法官毋
須在總結詞中將所有證據分開處理
The Applicants were convicted after trial of two counts of murder
involving the death of a total of 17 victims.
On 25 January 1997, the premises of Top-One Karaoke Box in TST were
subjected to a ‘petrol-bomb’ arson attack. It appeared that a total of three
petrol-bombs were thrown by two persons known as ‘Ah Ching’ and ‘Mei Mei’.
The prosecution case against the Applicants was that each of them was involved
in a joint enterprise with Ah Ching and Mei Mei to murder.
Revenge was the motive the prosecution attributed to all of those who
played a part in these murders. Before the fire-bombing incident, two abortive
attempts were made to carry out a revenge attack with knives.
The prosecution called direct evidence from accomplices, who gave
evidence under unconditional immunity from prosecution, that A1 had
participated in the unsuccessful attempt to attack with knives and that he knew
of the change in plan to fire-bomb Top-One’s premises instead. He was alleged
to have been at the scene when the arson attack took place. A2 was linked to the
participation in the earlier attempts of revenge and to the purchase of petrol and
the making of bombs. He was alleged to have been outside Top-One when the
fire-bombing took place and to have driven away the culprits after they had
thrown the bombs. A3 was identified amongst those who had planned the
revenge. He was said to have been present when the decision was made to use
fire-bombs, and to have given instructions to purchase the petrol which was
needed for that purpose.
104
CCAB 2000
Although A2 and A3 did not give evidence, their cases were presented,
as was that of A1, on the basis that witnesses who testified against them had lied
and had concocted a case against them having been prompted and manipulated
to do so by the police.
On appeal
Held :
(1)
With the abrogation of the old rule by s 60 of the Criminal Procedure
Ordinance, accomplices had not suddenly become more credible or less
dangerous as witnesses. The approach was now left to the discretion of the
judge. It was necessary that such discretion was unfettered so that he could
achieve a fair trial;
(2)
The circumstances and evidence in criminal cases were infinitely variable
and it was impossible to categorise how a judge should deal with them. But it
was clear that to carry on giving ‘discretionary’ warnings generally and in the
same terms as were previously obligatory would be contrary to the purpose of
abrogation. Whether, as a matter of discretion, a judge should give any warning
and if so its strength and terms must depend upon the content and manner of the
witness’s evidence, the circumstances of the case and the issues raised. The
judge would often consider that no special warning was required at all. Where,
however, the witness had been shown to be unreliable, he or she might consider
it necessary to urge caution. In a more extreme case, if the witness was shown
to have lied, to have made previous false complaints, or to bear the defendant
some grudge, a stronger warning might be thought appropriate and the judge
might suggest it would be wise to look for some supporting material before
acting on the impugned witness’s evidence: HKSAR v Law Hay-chung and
others Cr App 628/98; HKSAR v Chu Ip-pui [1997] HKLRD 549; R v
Malcanjuola [1995] 1 WLR 1348;
(3)
It was plain that no unfairness was caused to the defence by giving
directions to the jury which ignored the recent legislative change which had
abolished the requirement to give a warning about convicting on accomplice
evidence in the absence of corroboration. The jury could have been under no
misapprehension that they should look at the accomplice evidence with great
care before they acted upon it;
(4)
The judge dealt in his summing up with each of the accomplices’
evidence giving individual directions as to the credibility of each in turn. He
highlighted the principal inconsistencies and contradictions which emerged from
their evidence and the jury was reminded of the caution with which they should
approach each of those witnesses. There was no duty upon the judge to remind
the jury of every single issue which defence counsel had canvassed in their
speeches and which in any event would have been in the minds of the jury.
105
CCAB 2000
香港特別行政區訴王媽梓
HKSAR v WONG Mar-Sun
*張維新
CHEUNG
Wai-sun
#林國輝
LAM Osmond
高等法院上訴法庭 – 高院刑事上訴1 9 9 9 年第1 9 3 號
高等法院上訴法庭法官王見秋
高等法院上訴法庭法官胡國興
聆訊日期：二零零零年三月二十一日
宣判日期：二零零零年三月三十一日
COURT OF APPEAL OF THE HIGH COURT
CRIMINAL APPEAL NO. 193 OF 1999
CHAN CJHC, WONG & WOO JJA
Date of Hearing : 21 March 2000
Date of Judgment : 31 March 2000
猥褻侵犯弱智者 - 法官加入戰團
申請人被控四項猥褻侵犯弱智者罪，違反香港法例第200章
《刑事罪行條例》第122（1）條。經審訊後，被告三項控罪罪名成
立，每罪判監禁兩年，同期執行。他不服判刑而提出的上訴許可申
請被駁回。
在本案中，控方主要的證據來自受害人 ‘ 亞芬’ 及被告人的
招認。控辯雙方對‘ 亞芬’ 是弱智人士這方面並無異議。
在不服判罪的上訴許可申請中，申請人提出的其中一個理
由，是指法官加入戰團，向‘亞芬’問了100 條問題，又向申請人
問了9 0 條問題。
裁決︰
(1)
法官向 ‘ 亞芬 ’ 及申請人問話的原因，是因為他覺得控辯雙
方問‘亞芬’各事件的次序紊亂，他很難掌握實際發生的事情。
‘亞芬’輕度弱智，故說話並不如一般正常人有系統。法官向她問
話以求澄清事件的次序及事件的詳細情況，在此案特殊的環境中，
並無不妥。至於申請人，法官向他問話的原因，亦是給他解釋為甚
麼他與警方會面時作出了招認。這都是為了公平起見。
(2)
法官應該只當有任何事項被忽略或不清楚時，才向證人發問
加以澄清。另一方面，如法官看到案件有完全走錯方向的危險，他
並不一定要咬緊牙關，靜悄地看公義被埋沒。法官問題的多少並
不是關鍵所在。最重要的是他提出問題的內容和方式，有沒有使一
個知情及中立的旁聽者感到被告會因此而得不到公平的審訊：
Jones v National Coal Board [1957] QB 55； R v Lau
Hing-on [1987] 1 HKC 89 ； R v Yeung Mau-lam
[1991] 2 HKLR 468 ； HKSAR v Jahangir (Crim App
3 5 / 9 7 ) 及 R v S a v i l l e ( C r i m A p p 4 1 8 1 / W / 2 / 9 1 ) 等案予以考
慮；
(3)
無論如何，各級原審法官，在審訊時應多些忍耐，盡量避免
發問，非必要時則不應發問，以免對與訟各方有不公平的影響，或
被視作存有偏頗。
申請駁回。
106
CCAB 2000
[English digest
of CA 193/99
above]
WONG
Mar-sun
Indecent assault on a defective/Judge descending into the arena
The Applicant was charged with four charges of indecent assault on a
defective contrary to section 122(1) of the Crimes Ordinance. After trial, he was
convicted of three charges and was sentenced to concurrent sentences of 2 years’
imprisonment. His application for leave to appeal against sentence was
dismissed.
Chan CJHC
Wong &
Woo JJA
In this case, the evidence of the prosecution mainly came from ‘Ah Fan’,
the victim, and the admission made by the Applicant. It was not in dispute that
Ah Fan was a defective.
(31.3.2000)
*Cheung Waisun
In the application for leave to appeal against conviction, it was
submitted, inter alia, that the judge had descended into the arena as he had put
100 questions to Ah Fan and 90 questions to the Applicant.
#Osmond Lam
Held :
(1)
The judge questioned Ah Fan and the Applicant because he found the
questions put to Ah Fan by both parties were disorganized and that it was
difficult for him to have a good understanding of what actually happened. Ah
Fan was mildly mentally defective and could not speak coherently like an
ordinary person. Under these exceptional circumstances, it was not improper for
the judge to question her in order to clarify the sequence and details of the
events. As regards the Applicant, the judge questioned him so as to let him
explain why he confessed when he was interviewed by the police. All this was
done in the interests of fairness;
(2)
A judge should only ask questions of the witness when it was necessary
to clear up any point which had been overlooked or left obscure. On the other
hand, if a judge perceived the risk of a case going off on a wholly wrong basis, it
was not incumbent on him to grit his teeth, remain silent and watch justice
miscarry. The essential point was not the number of questions the judge asked,
but whether the substance of the questions and the manner of the questioning by
the judge were such that they would have caused an informed and neutral bystander listening to the case to say that the defendant had not had a fair trial:
Jones v National Coal Board [1957] QB 55; R v Lau Hing-on [1987] 1 HKC
89; R v Yeung Mau-lam [1991] 2 HKLR 468; HKSAR v Jahangir Crim App
35/97 and R v Saville Crim App 4181/W/2/91 considered;
(3)
Nevertheless, judges of all levels of courts should be more patient and
refrain from asking questions as far as possible. Unless it was really necessary,
no question should be asked so as to avoid any unfair influence to either party
and to avoid appearing biased.
CA 230/99
Mayo VP
Leong &
Wong JJA
(17.5.2000)
*Peter
Chapman
#C Grounds
HUI Lap-kei
Balance in summing-up to jury/No special duty on judge when prosecution
case strong
向陪審團作出持平的總結 - 控方論據充分時法官在總結時也無特別
責任
The Applicant was convicted of two counts of trafficking in a dangerous
drug after trial.
On appeal, it was submitted that the convictions were unsafe and
unsatisfactory in that the judge’s summing-up to the jury failed to achieve the
requisite degree of balance that would have ensured the defendant a fair trial.
Reliance was placed upon that said in R v Fraser Marr (1990) 90 Cr App R 154,
156:
107
CCAB 2000
It is, however, 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.
Held :
(1)
There was, as Power VP made plain in R v Chai Chung-lam and others
Cr App 92/92, nothing in that passage from Fraser Marr which imposed upon
the court any special duty where the prosecution case against a defendant was
particularly strong;
(2)
The summing-up was sufficiently balanced and the Applicant’s defence
was put properly to the jury.
CA 449/99
Stuart-Moore
&
Mayo VPP
Keith JA
(19.6.2000)
*D G Saw, SC
& Gary Lam
#J McNamara
HO
Kin-sang
Legal directions given to jury to be tailored to circumstances of case/Need
for judge to discuss directions on alternative offences with
counsel/Responsibility of counsel to seek guidance as to how judge
proposed to sum up
給予陪審團的法律指示須切合案情 - 法官需與律師討論有關交替控
罪的指示 - 律師有責任就法官建議的總結尋求指引
The Applicant was convicted after trial of manslaughter (by way of
alternative to murder in count 1) and wounding with intent (count 2).
The written directions which the judge handed to the jury in the course of
his summing up were not entirely tailored to the case under consideration by the
jury. The legal directions as to murder contained a passage related to
provocation which was never before the jury as an issue in the trial. The judge
pointed this out and said that the jury were to ignore the offending passage.
The court indicated:
(1)
It was not sufficient or desirable for the judge simply to have told the
jury to ignore the words related to provocation. When legal directions were
given to a jury, they should be specifically tailored to the circumstances of the
case before them without the added complication of directions which had no
relevance to the case in hand;
(2)
It was noted with dismay that the judge did not discuss his intended
directions to the jury concerning the less serious alternative offences which were
open to them on both counts before the summing up commenced. This was a
simple precaution when there was any doubt as to what was proper to leave to
them for their consideration;
(3)
It was often important for counsel to know, before they made their
speeches, what issues they should address. If alternative verdicts were only
raised for the first time in the summing up, this could cause injustice. That said,
there was also a responsibility on trial counsel to raise issues such as this with
the judge when they required guidance as to how the judge proposed to sum up
the case.
108
CCAB 2000
Leave (CFA)
Leave (CFA)
MA 554/99
LIEM Hung &
8 others
Woo J
Certificate pursuant to s 32, Cap 484/Point of law of great and general
importance/Point raised not involved in the decision of the court
依據第484章第32條申請證明 - 具有重大而廣泛的重要性的法律論
點 - 法庭的裁決並無牽涉所提出的法律論點
(22.12.99)
By a Notice of Motion, the Appellants sought a certificate that the
questions raised in it were of great and general importance and therefore fit for
submission to the Court of Final Appeal, pursuant to section 32(2) of the Hong
Kong Court of Final Appeal Ordinance, Cap 484.
*Cheung
Wai-sun
#Simon Yip
Section 32, Cap 484, provided:
(1)
No appeal shall be admitted unless leave to appeal has been
granted by the Court;
(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 may be, that a point of law of great and general
importance is involved in the decision or it is shown that
substantial and grave injustice has been done.
Held :
The Appellants only sought certification that ‘a point of law of great and
general importance is involved in the decision’. The ‘decision’ here meant ‘any
final decision’ contained in the judgment, as was clearly borne out by section
31, Cap 484. As the first question was based on a matter that had not been
raised before the court or covered by its judgment, and was not a point of law
involved in the decision, the court would not allow it to be argued.
MPs 32 &
33/99
Litton
Ching &
Bokhary PJJ
(11.1.2000)
*P Dykes SC
& Philip Wong
#J Reading SC
& K Zervos
LAM
Ting-chung &
others
Application for leave to appeal to Court of Final Appeal out of
time/Comments on effect of lateness upon meritorious application
向終審法院申請逾期上訴許可 - 就逾期上訴對有理據的申請的影響
作出評論
The Applicants were convicted of conspiracies to offer advantages,
contrary to section 159A of the Crimes Ordinance, Cap 200, and section 4(1)(a)
of the Prevention of Bribery Ordinance, Cap 201, and to accept advantages,
contrary to the same section 159A and section 4(2)(a) of the Crimes Ordinance.
Application was made for leave to appeal to the Court of Final Appeal on
the basis that there had been a substantial and grave injustice. In dismissing that
application, the Appeal Committee observed:
If the single point put forward were arguable we would have been
inclined to overlook the fact that the applications are out of time.
109
CCAB 2000
FAMC 29/99
Leave (CFA)
LIEM Hung &
8 others
Litton
Ching &
Bokhary PJJ
Court of Final Appeal/Format of questions for certification/ Short and
precise statement required/Commentson amendment of original questions
終審法院 - 提交終審法院證明的問題的形式 - 陳述的問題必須簡短
精確 - 就修訂原來問題一事作出評論
The Applicants were convicted of failure to comply, without reasonable
excuse, with orders issued under section 27A of the Buildings Ordinance, Cap
127. Their appeal to the Court of First Instance was not successful. That court
also declined to certify that their case involved questions of law of great and
general importance. The Applicants then amended their questions, and the
prosecution objected that it was wholly unsatisfactory that different questions
should be put forward and sought a ruling on the issue.
(31.1.2000)
*Cheung Waisun & Simon
Kwan
#Eric Lau
In dismissing the application for leave, the Appeal Committee observed:
The amended version is also of three pages and consists largely of
arguments and assertions of facts, sometimes clearly erroneous,
couched in language which is almost impossible to understand.
There can be no excuse for this. If there are questions which are
said to be questions of law of great and general importance they
should be readily apparent to those representing applicants who are
applying for leave to appeal and they should be easily susceptible of
a short and precise statement of the questions involved ... In the
end, it is a question of the importance of the questions, their
relevance and the degree of the differences which are important
although, as pointed out in argument, the applicant can generally
expect little sympathy if he changes the questions. It would be
inapposite to give any more than that indication in the present
application.
CA 254/98
MAN
Wai-ming
Mayo ACJHC
Leong JA
Beeson J
Application to Court of Appeal for certificate under Cap 484/Comments on
effect of delay in making application/ Application unmeritorious
根據第484章向上訴法庭申請證明 - 就延誤提出申請的事實作出評
論 - 申請欠缺理據
The Applicant sought, many months out of time, a certificate pursuant to
s 32 of the Court of Final Appeal Ordinance, Cap 484.
(26.9.2000)
*Peter
Chapman
In rejecting the application, the Court indicated that not only was it
without merit, but also that the explanation provided by the Applicant for the
delay was not such as to justify the granting of leave to proceed out of time.
#I/P
CA 457/2000
Tong J
SOONG
Roong-sheng
S 32(2) of the Hong Kong Court of Final Appeal Ordinance, Chapter
484/Points to be certified not engaged at trial or on appeal
香港法例第484章《香港終審法院條例》第32(2)條 - 要求法庭證明
的法律論點，從未在原審或上訴時提出
(16.10.2000)
* Cheung Waisun
# Ching Y
Wong
SC &
Barbara
Cheng
The Applicant was charged with five offences of indecent assault,
contrary to s. 122(1) of the Crimes Ordinance, Cap 200. He pleaded not guilty
and was convicted and sentenced to 12 months’ imprisonment. He appealed
against his convictions and sentence. His appeal was dismissed by Tong J. He
applied to the judge for a certificate that a point of law of great and general
importance was involved in the decision, under s 32(2) of the Hong Kong Court
of Final Appeal Ordinance, Chapter 484. The questions sought to be certified
were:
110
CCAB 2000
Leave (CFA)
WHEREAS the Magistrate had found the Applicant guilty of the first
four charges without considering the possibility that he may have been
incompetent rather than indecent,
WHEREAS the Court of First Instance (in its appellate jurisdiction)
has confirmed the convictions on the first four charges on the basis, inter
alia, that since the issue of incompetence was not raised at the instant trial
the Magistrate did not have to consider the issue of incompetence.
(1)
Whether or not a trial Magistrate was duty bound to consider
and determine a point of law or an issue of fact which was not
raised during the trial but was an essential issue to be
determined in order that a conviction may be safe and
satisfactory,
(2)
Whether or not an Appellate court, in upholding a conviction
as being safe and satisfactory, was duty bound to consider and
determine an essential point of law or issue of fact where such
issue was neither raised during trial nor considered by the
trial Magistrate in coming to his decision to convict, but raised
only on appeal.
Held :
(1)
The issue of incompetence was never really raised at the trial. The
magistrate was not duty bound to consider and eliminate this possibility before
he could make the necessary inference of indecency. If it was necessary to
eliminate incompetence, one might suggest that there could be many other
possibilities that needed to be eliminated also: R v Chan Yiu-chee MA 650/1992
followed, Ng Siu-chau v HKSAR FACC 2/1999 distinguished;
(2)
The scope of the two questions was too wide and did not really arise
from the case or the judgment of the Court of First Instance: HKSAR v Liem
Hung and Others MA 554/1999 followed.
Lies
CA 63/2000
Stuart-Moore
ACJHC
Leong &
Wong JJA
(1) TSANG
Chiuwong
(2) CHEUNG
Yau-fat
Use to be made of lies/Lies relevant to credibility/Lie not of itself capable of
establishing guilt
可利用謊言作出推斷 - 謊言與可信程度有關 - 謊言本身並不能用來
判定說謊者有罪
The Applicants were convicted after trial of a charge of attempted
robbery.
(6.12.2000)
*David Leung
#Ip Takkeung, Peter
On appeal, it was submitted, inter alia, that the judge erred in finding
that A1 said in evidence that he was only at the scene of crime after 12 pm, and
that she further erred in finding that such an alleged lie told by A1 in court was
within the ambit of R v Lucas [1981] 1 QB 720, in that:
(i)
there was no independent evidence to show that it was
not true;
111
CCAB 2000
Lies
(ii)
there was no evidence to show that A1 told such an
alleged lie because of his consciousness of guilt and to
give himself an alibi; and
(iii)
such an alleged lie was corroborative or supporting
evidence of the identification of A1 by PW2, an eye
witness.
Held :
(1)
The leading authority on ‘lies’ in Hong Kong was HKSAR v Mo Shiushing [1999] 1 HKC 43, which considered, explained and modified the tests laid
down in Lucas. At p44, the court held:
(a)
The evidence of a proved lie or admitted lie that was
material to the case had never in modern times been
sufficient in itself to establish guilt. The most a lie could
do, where the jury found that no innocent explanation
existed for the lie, was that it might lend support to the
prosecution case;
(b)
Where an allegation had simply been made against the
defendant that he had been lying, the judge could direct
the jury in terms that it was an issue which related solely
to credibility, namely, that it was for the jury to decide
whose evidence they believed. Nothing more needed to be
said.
(2)
The judge was obviously not aware of the decision in Mo Shiu-shing, nor
was her attention drawn to it by counsel. But it was plain from the tenor of her
judgment that the judge had not relied on the lie to prove guilt. What she really
meant was that she treated the lie as an issue of credibility to reject the evidence
of A1 that he was not up on the trial during the attempted robbery. In that
context, she was clearly referring to Lucas in loose terms.
Magistrate
MA 367/99
Recorder CY
Wong, SC
(22.12.99)
*Winnie Ho
#Kevin Ho
TONG
Hung-kwok
Statement of findings/Duty to resolve difficult discrepancies/ Method of
resolution
裁斷陳述書 - 有責任去解決證據中難以處理的差異 - 解決方法
The Appellant was convicted after trial of the offence of reckless driving,
contrary to s 37(1) of the Road Traffic Ordinance, Cap 374. He was sentenced
to 14 days’ imprisonment and disqualified from driving all vehicles for 3
months.
The magistrate in his Statement of Findings noted the various
discrepancies in the evidence of PW1 between his statement to the police and
his oral testimony and with the evidence of PW3. In respect of the discrepancies
with the evidence of PW3, the magistrate said, inter alia :
PW1 also said he saw the traffic light at point 3 on exhibit 3 was
yellow, and at that time the goods vehicle was 5-6 private car
spaces from this traffic light. He believed from his experience that
the light controlling the goods vehicle must be red and he saw the
112
CCAB 2000
Magistrate
pedestrian light at point 10 on exhibit 3 was green. He later said
he looked at the pedestrian light first at point 10 and then at the
light of point 3. However it was clear from PW3’s evidence that
the light at point 3 should be red for one second before the light at
point 10 turned green. I considered this inconsistency carefully
but found the witness was mistaken as to which light he saw first.
On appeal, it was submitted that :
When assessing the credibility and reliability of PW1, particularly
in resolving the inconsistencies of the account about the accident
that he gave to the police and the court, the learned magistrate did
not or did not give sufficient consideration to the evidence of PW3
and exhibit P7 (the light plan) regarding the light sequence.
Held :
(1)
It was trite law that when there were difficult discrepancies, it was the
duty of a tribunal of fact to indicate how such difficulties had been satisfactorily
resolved. Simply to say that the key witness was ‘mistaken’ was not a
satisfactory way of resolving such difficulties; especially when the witness
himself had indicated that he was not sure of that particular piece of evidence
which he was giving and that piece of evidence went to the root of whether his
evidence was accurate and reliable;
(2)
Since PW3’s evidence as to the time it took for Stage A to be completed,
namely 26 seconds, was accepted, this should have raised at least reasonable
doubts about the reliability of PW1’s evidence as to what he did, what he saw
and how he drove. For the Appellant’s vehicle to have gone through the red
light, the lights would have had to be at Stage B which meant that the whole of
Stage A had been completed. However, according to PW1, the time span from
the point he drove into the pocket (which was at the beginning of Stage A) to the
collision was but a few seconds. The difference between a few seconds and 26
plus seconds was too great a discrepancy to be ignored even on the basis that
PW1’s evidence of time was necessarily only a rough estimate. Half a minute
was a long time for negotiating a turn at the lights without stopping for any
appreciable period. Having taken all the above into consideration, there was a
lurking doubt.
113
CCAB 2000
Magistrate
香港特別行政區訴中國建築工程總公司
HKSAR v China State Construction Engineering Corporation
高等法院原訟法庭 – 裁判法院上訴1 9 9 9 年第9 9 0 號
*曾若珩
Evelyn
Tsang
高等法院原訟法庭法官彭鍵基
聆訊日期：一九九九年十二月二十一日
宣判日期：一九九九年十二月二十一日
發下宣判理由書日期：二零零零年一月四日
#黃達華
Richard
Wong
PANG J
Date of Hearing : 21 December 1999
Date of Judgment : 21 December 1999
Date of Handing Down Reasons For Judgment : 4 January 2000
由裁判官進行審訊 - 就裁斷陳述書對事實的裁決是否足夠提出討論
上訴人被票控三項違反《工廠及工業經營條例》下的《工廠
及工業經營（電力）規例》第6 5 ( 1 ) 和1 5 ( b ) 條。
經過歷時六日的審訊之後，上訴人被裁判官裁定三項控罪全
部成立，合共罰款 3 5 ,0 0 0 元。審訊時，控辯雙方總共傳召了十三位
證人，其中包括控辯雙方的專家證人。上訴人提出上訴。
裁決：
在審訊的時候，裁判官是身兼法律和案中事實的裁決者，但
是在整份裁斷陳述書內，他對三張傳票控罪的法律舉證要求和他的
定罪基礎竟然隻字不提。裁判官在本案沒有作過任何一項的事實裁
決，亦沒有提到為何接受控方的專家，而拒絕接受辯方專家的理
由。不論在他口述判詞和事實裁斷書內，他都沒有對證供和證據作
任何分析，單憑他籠統地說自己已仔細和慎重考慮了雙方證據和陳
詞，並不足以使別人相信他確曾考慮過有關的案情。
上訴得直，擱置罰款和堂費命令。
[English
digest of
MA 990/99,
above]
China State
Construction
Engineering
Corporation
Trial by a magistrate/Adequacy of the statement of findings discussed
The Appellant was summoned for three offences, contrary to regulations
65(1) and 15(b) of the Factories and Industrial Undertakings (Electricity)
Regulations, made under the Factories and Industrial Undertakings Ordinance.
Pang J
*E Tsang
After a trial lasting for six days, the magistrate convicted the Appellant of
all three charges and imposed a total fine of $35,000. At trial, both the
prosecution and the defence had called a total of thirteen witnesses, including an
expert witness for each side. On appeal
#R Wong
Held :
(21.12.99)
At trial, a magistrate was a tribunal of both law and fact. However,
throughout the magistrate’s statement of findings, there was not a single word on
the legal requirement for proof or the reasons for conviction of the offences
named in the three summonses. The magistrate did not make any finding of
facts in this case, nor did he explain why the prosecution expert was accepted
while the defence expert was rejected. In both his oral judgment and his
114
CCAB 2000
Magistrate
statement of findings, he had not analysed the testimony and the evidence. A
mere general statement to the effect that he had carefully and cautiously
considered the evidence and submissions of both parties was not sufficient to
convince others that he had considered the relevant issues of the case.
Result - Appeal allowed. Order for fine and costs set aside.
MA 956/99
MAK
Kwok-keung
Statement of findings/Duty of magistrate to evaluate evidence
裁斷陳述書 - 裁判官有責任衡量證供
Gill DJ
The Appellant was convicted after trial of an offence of common assault.
(27.1.2000)
On appeal, it was submitted that the magistrate’s findings were
inadequate and failed to deal with conflicts and inconsistencies, or to explain to
what extent and why the Appellant’s evidence rather than that of the victim was
not accepted.
*J Man
#C Grounds
Held :
(1)
There were no ‘findings’ in the accepted meaning of the word as required
by s 114B of the Magistrates Ordinance, Cap 227. As O’Connor J put it in R v
Lam King-ming Cr App 601/79:
The reasons for verdict should, in manner appropriate to the
circumstances of the case, illustrate the salient points in the
case and demonstrate that the evidence has been evaluated.
Significant inconsistencies and conflicts should be dealt with in
such manner as to indicate how those matters were resolved.
There is no simple formula for what ought to be in a judgment
as it must be related to the circumstances of the particular case.
The magistrate should state his reasons to such an extent as will
inform the parties as to how and why the particular verdict was
arrived at and furthermore will enable an appellate court to
perform its duty.
(2)
The magistrate should have taken time to set out by analysis what
findings of fact he came to and why, and in particular why it was he rejected the
evidence of the Appellant. As the findings were wholly inadequate the
conviction was unsafe.
MA 1221/99
CHU
Chi-man
Statement of findings/Extent of magistrate’s duty in dealing with evidence
裁斷陳述書 - 裁判官在處理證據方面的責任範圍
Beeson J
(24.3.2000)
The Appellant was convicted after trial of one charge of offering an
advantage to an agent and was sentenced to six months’ imprisonment. She
appealed against conviction and sentence.
*K Zervos
#G Plowman
SC
& T Cheng
The prosecution evidence showed that the Appellant was the managing
director of a company and the supervisor of the main prosecution witness, PW2.
She had told PW2 to remove two boxes of electronic components from stock
without making a stock movement entry, it being his duty to record such stock
movement. She allegedly gave him $1,000 as payment for doing so. PW2
reported the matter to the ICAC and later took part in a monitored conversation
with the Appellant at the direction of the ICAC, in which reference was made to
PW2’s obeying the Appellant and to the $1,000.
The Appellant’s case was that there was no payment to PW2 for the
115
CCAB 2000
Magistrate
removal of items and that any reference of $1,000 related to a loan by her to
PW2 on an earlier occasion. In relation to the movement of stock items, it was
common practice in the industry for electronic components to be lent by one
company to another and that was what happened.
On appeal, it was submitted, inter alia, that the magistrate failed to
consider various issues which were crucial to a proper determination of the
credibility of PW2. Furthermore, it was argued that the magistrate failed to
consider properly the defence witnesses and that none of their evidence was
dealt with by the magistrate in his Statement of Findings.
Held :
(1)
A magistrate was not required to go into minute detail as to his thought
processes in relation to each and every item of evidence. He was required to
show in his Statement of Findings that he was aware of the issues raised by the
charges before him and the important matters of evidence raised during the trial.
He was required to show that he had taken account of such matters in reaching
his decision and, where appropriate, to show why he had done so. He must also
demonstrate that he had acted with due circumspection in dealing with evidence,
such as that given by PW2 in this case, which might be tainted in some way, or
which might not be worthy of belief for reasons that were developed either in the
defence case, or which were manifest from the prosecution case itself;
(2)
Although the magistrate might not have reiterated in his findings the
detailed evidence of the defence witnesses other than that of the Appellant
herself, it was quite clear that he was aware of the matters raised by their
evidence and that he had noted it in considering the defence case and the case as
a whole. Implicit in his acceptance of the evidence of PW2 was his rejection of
the evidence of those defence witnesses.
香港特別行政區訴伍棟權
HKSAR v NG Tung-Kuen
*關偉傑
Simon Kwan
# 陳銚明
Chan Siu-ming
高等法院原訟法庭 - 高院裁判法院上訴1 9 9 9 年第1 1 9 6 號
高等法院原訟法庭暫委法官李宗鍔
聆訊日期：二零零零年四月八日
宣判日期：二零零零年四月二十日
LI DJ
Date of Hearing : 8 April 2000
Date of Judgment : 20 April 2000
不小心駕駛 -《道路使用者守則》的適用範圍 - 未有提及被告人以
往的良好品格 - 區別特委裁判官和常任裁判官
上訴人經審訊後被裁定一項不小心駕駛罪名成立。
上訴人於1999 年3 月21 日下午1 時40 分駕駛私家車沿東京街
橫過荔枝角道。東京街與荔枝角道交界處有交通燈管制。上訴人指
稱他駕車橫過荔枝角道時，對其適用的交通燈號是綠色的。另一方
面，控方第一證人所駕駛的私家車與控方第二證人所駕駛之的士，
於同一時間沿荔枝角道橫過東京街。結果，控方第一證人的私家車
攔腰撞及上訴人的私家車。兩車均嚴重損毀，而控方第二證人之的
116
CCAB 2000
Magistrate
士亦與控方第一證人的私家車發生碰撞。據控方第一及第二控方證
人所說，他們於駕車橫過東京街時，對他們適用的交通燈號是綠色
的。
據以上案情，雙方都說對他們適用的交通燈號是綠色。然
而，控方傳召的一位專家證人則指出，現場交通燈的裝置及運作程
式不可能如此乖謬。這也就是說，有一方的證人的證供肯定是不真
確的。原審裁判官接納上述兩名控方證人的證供。
上訴時，代表上訴人的律師提出多個理由，其中包括指原審
裁判官錯誤地引用《道路使用者守則》內的停車距離數據來推斷涉
案車輛的車速。他又指稱原審裁判官沒有考慮被告人的良好紀錄。
裁決︰
(1)
《道路使用者守則》的內容有一部分可作為駕駛標準的參
考。但是，關於安全停車距離的數據，則不可以作為推算個別車輛
的車速的參考，因為個別車輛的停車距離端視多個變數︰
W ilkinso n’s Ro ad T r affic Offences 第 1 9 版 3 .1 1 1 段、 R v
Chadwick (1975) Crim LR 105及R v Tsui Hung-wing [1990] 2
HKLR 6 0 3 予以考慮。原審裁判官的確憑藉《道路使用者守則》內
建議的安全停車距離推算有關車輛的車速。此舉實屬不當。
(2)
法庭必須考慮被告人以往的良好品格。原審法官如屬專業法
官，則即使他在裁決理由或在裁斷陳述書內沒有明言考慮過被告人
沒有前科的因素，但可以假定他身為專業法官，因熟曉法律，已依
法考慮所有必要考慮的因素： R v S tep h en so n [ 1 9 9 3 ] 3 All E R
2 1 4 及HKS A R v Wo n g Wa i- yee MA8 4 0 /9 7 等案予以考慮。
(3)
但是本案的原審裁判官是特委裁判官，有別於曾受專業法律
訓練及具備法律執業資格的常任裁判官。雖然許多特委裁判官均有
豐富司法工作經驗，但卻不可假設每一位特委裁判官都熟曉法律。
其次，原審裁判官有考慮控方證人的背景，但卻沒有考慮上訴人的
背景，使人有理由懷疑該位裁判官遺忘了另一方的有利因素或是故
意偏袒。
上訴得直。推翻原判和撤銷刑罰。
[English digest
of MA
1196/99
above]
NG Tung-kuen
Careless driving/Relevance of Road Users Code/Failure to mention
defendant’s previous good character/Lay magistrate and permanent
magistrate distinguished
The Appellant was convicted after trial of one charge of careless driving.
Li DJ
(20.4.2000)
*S Kwan
#S M Chan
At 1:40 pm on 21 March 1999, the Appellant was driving his private car
along Tonkin Street across Lai Chi Kok Road. The junction of Tonkin Street
and Lai Chi Kok Road was controlled by traffic lights. The Appellant alleged
that when he was driving across Lai Chi Kok Road, the traffic light for his
direction was green. At the same time, PW1 who was driving a private car, and
PW2, who was driving a taxi, were both crossing Tonkin Street along Lai Chi
Kok Road. As a result, PW1’s car hit the middle of the Appellant’s car. Both
cars were seriously damaged. PW2’s taxi also collided with PW1’s car. Both
PW1 and PW2 alleged that when they were driving across Tonkin Street, the
traffic light for their direction was green.
Both parties claimed that a green light was in their favour. However, an
expert witness called by the prosecution testified that the traffic lights at the
117
CCAB 2000
Magistrate
scene could not have been installed and operated in such a manner. In other
words, one party’s evidence must be untrue. The trial magistrate accepted the
evidence of PW1 and PW2.
On appeal, it was submitted, inter alia, that the magistrate erred in using
the stopping distance in the Road Users Code to deduce the speed of the
vehicles involved. It was further contented that the magistrate failed to consider
the good record of the Appellant.
Held :
(1)
The Road Users Code might be used as a reference for the driving
standard, but the data for the safe stopping distance should not be used as a
reference for deducing car speed in individual cases as safe stopping distances
were subject to a number of variables: Para. 3.111 of Wilkinson’s Road Traffic
Offences 19th Edition; R v Chadwick (1975) Crim LR 105 and R v Tsui Hungwing [1990] 2 HKLR 603 considered. The trial magistrate did rely upon the
safe stopping distances proposed in the Road Users Code to deduce the speed of
the vehicles involved, which was clearly an improper way of handling the case;
(2)
The court must consider the defendant’s previous good character. If a
trial judge was a professional judge, even though he made no mention of having
given consideration to the defendant’s previous good character in his Reasons
for Verdict or written Statement of Findings, it would be assumed that he, being
a professional judge, well versed in law, had already given consideration to all
the factors he ought to have considered: R v Stephenson [1993] 3 All ER 214
and HKSAR v Wong Wai-yee MA 840/97 considered;
(3)
However, the trial magistrate in the present case was a lay magistrate,
who was different from the permanent magistrate who had legal training and
legal qualification. Although many lay magistrates had vast judicial experience,
it could not be assumed that each and every lay magistrate was well versed in
law. On the one hand, the trial magistrate took into account the background of
the prosecution witnesses, but on the other hand she had failed to consider that
of the Appellant. There were reasons to suspect that the magistrate had either
forgotten the factors favourable to one party or had been biased.
MA 163/2000
Pang J
(11.7.2000)
*Alex Lee
#Cheng Huan
SC & Albert
Luk
FONG
Chun-kwok
Statement of Findings/No clear finding that prosecution case
accepted/Magistrate in error in balancing prosecution and defence
evidence
裁斷陳述書 - 沒有明確裁斷接納控方所提的證據 - 裁判官在衡量控
方與辯方的證據時犯錯
After a trial the Appellant was convicted of a charge of theft, contrary to
s 9 of the Theft Ordinance.
On appeal, it was submitted that the Statement of Findings was
fundamentally flawed as the magistrate indicated that he preferred the evidence
of the prosecution to that of the Appellant on five occasions. The effect of such
liberal use of loose terminology created, it was argued, an impression that the
magistrate had applied a wrong standard of proof. Reliance was placed upon
that said in Chan Wing-yuen v R [1977] HKLR 186, 191:
Although an appellate court must be slow to find the possibility of
error in the application of a fundamental principle, this
particular principle suffers from the difficulty that in applying it
where the issue is purely or principally one of credibility of
witnesses the most experienced magistrate or judge may
118
CCAB 2000
Magistrate
sometimes be insensibly drawn through the necessary rise of
evaluating the quality of the testimony of each witness (which
inevitably involves some degree of comparison between them), to
a balance of two stories. There may then be some danger of a
failure to keep in mind that the prosecution case must stand upon
its own feet and is not to be accepted merely because the other is
accepted.
Held :
(1)
Apart from using the term ‘preferred’ on five occasions, the magistrate
also resorted to using such terms as ‘high possibility’, ‘high probability’ and
‘inherently probable’. He performed a very detailed and thorough analysis of
the evidence and apparent inconsistencies in the evidence of the case. It was
unfortunate that he chose to resort to using equivocal terms. The result it
created on the mind of a reader must be that he was trying to balance the defence
and prosecution accounts of the events against each other and that, since he
preferred the evidence of the key prosecution witnesses, the Appellant’s account
had to be rejected. This was hardly a style to be expected of an experienced
professional magistrate;
(2)
The magistrate made no clear finding that he had found and accepted the
prosecution evidence could stand on its own. The impression given was that he
could have misapplied the standard of proof.
MA 325/2000
Nguyen J
WONG
Kwok-leung
Duties of magistrate in evaluating evidence/Simple case where no
difficulties or contradictions to resolve
裁判官在評估證據過程中的責任 - 沒有困難或矛盾須予解決的簡單
案件
(13.6.2000)
*David Leung
#M Delaney
The Appellant was convicted after trial of an offence of possession of a
dangerous drug.
On appeal, it was submitted, inter alia, that because the magistrate had
found that the Appellant and his witness supported each other, this was all the
more reason for the magistrate to give reasons to say why that evidence was not
credible.
In dismissing the appeal, the court observed that:
(1)
In R v Sheik Abdul Rahman Bux & Others [1989] 1 HKLR 1, the Court
of Appeal had quoted from and approved the judgment of Blair-Kerr J in R v
Low [1961] HKLR 13,82:
Similarly if he [a District Judge] chooses to review the evidence
at length and it is clear from his statement that he has
substantially misapprehended or misunderstood the true nature
of that evidence, or any important part of it, it may well be that it
would be open to an appellant to attack his conclusions on the
facts before this Court. But it must be remembered that the
District Judge is himself the jury. He has heard the whole of the
evidence and he 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.
(2)
The case was fairly simple. The magistrate accepted the evidence of the
119
CCAB 2000
Magistrate
main prosecution witness, and he was entitled to reject the evidence of the
Appellant and his witness. It was not always easy for a tribunal of fact to
enumerate the reasons why it disbelieved a particular witness. It was only when
there was evidence before the court which, on its face, gave rise to difficulties
for the prosecution or important contradictions that the tribunal had to either
deal with the difficulties or the contradictions or at least show that it was aware
of those difficulties and had endeavoured to resolve them. In the instant case
there was no such difficulties raised by the evidence.
MA 609/2000
Tong DJ
WAN Yim
Interventions in trial by magistrate/Functions of prosecution
usurped/Effect on informed bystander
裁判官在審訊中多次介入 - 控方的職能被侵奪 - 使知情的旁觀者有
審訊不公的看法
(22.8.2000)
*C Ko
#J Pickavant
The Appellant was convicted after trial of an offence of keeping premises
as a vice establishment, contrary to s 139(1)(a), Cap 200.
On appeal, it was submitted that the magistrate had entered the arena and
intervened to such an extent that there was not a fair trial. A perusal of the
transcript revealed that the magistrate intervened quite extensively, both when
the main prosecution witness gave evidence, and also when the Appellant and
her witness testified. It was submitted that after the defence witness had
completed the evidence-in-chief, the magistrate questioned the witness at such
length that he did not even invite the prosecution to cross-examine. Reliance for
the proposition that the intervention had crossed the bounds of what was
reasonable was placed upon Jones v National Coal Board [1957] 2 QB 55, 64,
and R v Yeung Mau-lam [1991] 2 HKLR 468.
Held :
The court formed the same conclusion as did Gall J in R v Chan Waifong MA 466/96:
By his intervention an informed bystander would have taken the
view that the magistrate had usurped the function of the
prosecution and although I am satisfied that there was no intention
on the part of the magistrate to support the prosecution by an
intention to achieve a conviction, an informed bystander listening
to the case would say that a fair and proper trial had not been
conducted.
120
CCAB 2000
Magistrate
香港特別行政區訴吳偉強
HKSAR v NG Wai-keung
高等法院原訟法庭 - 高院裁判法院上訴2 0 0 0 年第2 3 7 宗
聆訊日期︰二零零零年九月二十七日
宣判日期︰二零零零年九月二十七日
*陳淑文
Alice Chan
# 梁鴻谷
Leung Hungkuk
CHU DJ
Date of Hearing: 27 September 2000
Date of Judgment: 27 September 2000
裁斷陳述書 - 裁判官沒有就證據是否適用一事作出交代 - 需述明思
考過程
上訴人經審訊後被裁定不小心駕駛罪名成立，被判罰款
3, 000 元和取消駕駛執照 3 個月。上訴人提出了一些上訴理由，包括
指特委裁判官在審訊過程中作出不適當的行為和言論，致使審訊不
公或使人覺得公義未能得以彰顯。
裁決︰
(1)
特委裁判官自行要求控方證人將其警員記事冊內容讀出和
在辯方反對下強行查閱警員的證人供詞，這並不恰當和有違證據法
規；
(2)
特委裁判官在其口述的判案理由或書面的裁斷陳述書中，
均沒有交代她如何看待和處理該些文件的內容，又或是她在衡量本
案的案情和證人證言時，是否已將該等內容撇除不顧；
(3)
法庭不能排除一個可能性，就是特委裁判官的定罪決定曾
受該些不應被參照的文件所影響。
上訴得直。
[English digest
of MA
237/2000
above]
NG
Wai-keung
Statement of findings/Magistrate failing to indicate relevance of
evidence/Need to indicate thought process
(27.9.2000)
The Appellant was convicted of careless driving after trial. He was fined
$3,000 and disqualified from driving for 3 months. On appeal, it was submitted,
inter alia, that the special magistrate had done and said something improper
during the trial and that this had either rendered the trial unfair or caused others
to have the impression that justice had not been done.
*Alice Chan
Held :
#Leung Hungkuk
(1)
The special magistrate, on her own volition, asked the prosecution
witness to read out the content of his police notebook and sought to inspect the
witness statement of the police witness despite objection from the defence that
this was improper and contrary to the rules of evidence;
Chu DJ
(2)
The special magistrate failed to indicate how she evaluated and dealt
with the evidence from these documents in either her oral reasons for verdict or
121
CCAB 2000
Magistrate
her written statement of findings. She failed to mention whether such evidence
had been disregarded when she considered the facts of this case and assessed the
evidence of the witnesses;
(3)
The court could not rule out the possibility that the special magistrate
might have been influenced by the documents, which she should not have
referred to, when she decided to convict the Appellant.
Mens Rea
FAMC
15/2000
Bokhary,
Chan &
Ribeiro PJJ
BARNES,
Stephen Daryl
Construction of s 46 of Cap 159/Wilful pretence that qualified to act as
solicitor/Whether ‘wilful’ includes ‘reckless’/Concept of recklessness
applicable to acts of pretence/Questions of fact not giving rise to questions
of law of great and general importance
第 159 章第 46 條的詮釋 - 故意冒充合資格以律師身分行事 - ‘ 故
意 ’是否包括‘罔顧後果 ’- 罔顧後果的概念適用於冒充的行為事實問題不會引出具有重大而廣泛重要性的法律問題
(14.9.2000)
*Peter
Chapman
& R K Y LEE
#Clive
Grossman SC
& Paul
Stephenson
The Applicant was convicted of three offences contrary to s 46 of the
Legal Practitioners Ordinance, Cap 159.
The first offence charged the Applicant with ‘being an unqualified
person on or about 19 September 1997, in Hong Kong, wilfully pretending to be
recognised by law as qualified to act as a solicitor by means of an
advertisement inserted in the Hong Kong Post’.
The second offence charged a repeat of the first offence on 3 July 1998.
The third offence charged the Applicant with ‘being an unqualified
person in February 1998, wilfully using descriptions, namely, ‘Lawyer’ and a
certain Japanese phrase, implying that he was qualified or recognised by law as
qualified to act as a solicitor’.
The magistrate held that a ‘Lawyer’ in the context in which the Applicant
had used the term was to be taken to mean someone qualified to practise law and
that it was unnecessary for the prosecution to show that the Applicant had
misled anyone by so describing himself. The magistrate found that the
Applicant had not deliberately pretended to be recognised by law as qualified to
act as a solicitor. However, he held that in s 46 ‘wilfully’ included ‘recklessly’
and that the evidence established the requisite recklessness on the Applicant’s
part. In particular, in order to promote his business, the Applicant had
consciously taken the potentially harmful risk that people might think he was a
solicitor when he was not. Precautions to counteract that risk were inadequate to
negate recklessness.
On appeal, the Court of First Instance upheld the magistrate’s decision,
and held that in the context ‘wilful’ meant ‘deliberate and intentional’ but that it
also encompassed recklessness, relying principally on R v Sheppard [1981] AC
182. The court declined to certify the case for appeal under s 32 of Cap 484 on
the ground that it was not reasonably arguable.
The Applicant sought to have certified as raising points of law of great
and general importance these questions:
122
CCAB 2000
Mens Rea
1.
Whether a person can be convicted of an offence under the provisions of
s 46(1) of the Legal Practitioners Ordinance, Cap 159 on the basis of
recklessness.
2.
If the answer to Question 1 is in the affirmative, whether the mens rea
necessary to constitute recklessness is abrogated or rendered otherwise
insufficient to constitute recklessness in law if the appellant puts in place steps
or procedures which he believes will avoid constituting the offence but which in
fact failed to eliminate the risk of commission of an offence under the provisions
of s 46(1) of the Legal Practitioners Ordinance.
3.
If the answer to Question 1 is in the affirmative, whether in relation to
SPS 2286 and SPS 2287 the appellant’s conduct could in law have amounted to
recklessness.
Section 46, so far as was material, provided:
Any unqualified person who wilfully pretends to be, or takes or
uses any name, title, addition or description implying that he is
qualified or recognised by law as qualified to act as a solicitor
shall be guilty of an offence …
Held :
Question 1
(1)
The authority of R v Sheppard (above), which supported the proposition
that where a statutory offence prohibited conduct performed ‘wilfully’, it was
generally sufficient for the prosecution to prove that the accused recklessly, had
been followed in Hong Kong in R v Li Wang-fat [1982] HKLR 133, and in R v
Chau Ming-cheong [1983] 1 HKC 68;
(2)
Although the Applicant contended that the wording of s 46 was such as
to require proof of an intention to deceive or mislead, the section penalised
someone who ‘wilfully pretends to be or takes or uses any name, title, addition
or description implying that he is qualified or recognised by law as qualified to
act as, a solicitor’. The word ‘pretends’ comprehended acts of pretence or
conduct which expressly or impliedly conveyed a false representation. The
word was plainly intended by the legislature to represent one form of the actus
reus of the offence created by s 46. The other possible forms comprised acts of
taking or using the misleading name or description in question. The word
‘wilful’ specified the mental element required to accompany one or more of the
forms of conduct constituting the actus reus. Support for that approach to the
elements of the offence could be found in Carter v Butcher [1966] 1 QB 526;
(3)
Section 46 was not aimed merely at persons who ‘wilfully pretend’. It
also penalised someone who ‘wilfully … uses’ or ‘wilfully … takes’ a name, title
or description carrying the misleading implication. It could not be suggested
that as a matter of language, the verb ‘uses’ (or ‘takes’) implied an intention to
deceive on the part of the ‘user’ (or ‘taker’). There was no reason to think that s
46 was designed to require intentional conduct in relation to an offence of
wilfully pretending to be a solicitor while accepting recklessness as sufficient in
respect of offences of ‘wilful use’ or ‘wilful taking’. Moreover, if, as was
submitted, the word ‘pretend’ carried in itself the meaning of deliberate deceit,
the word ‘wilful’ was redundant;
(4)
There was no difficulty with applying the concept of recklessness to acts
of pretence within s 46. If, as in the present case, the accused inserted
advertisements and used business cards which constituted a relevant false
representation, recklessness would be established by showing that he had done
123
CCAB 2000
Mens Rea
these acts while careless, regardless, or heedless of whether they conveyed the
false representation to others. In s 46, ‘wilful’ was the requisite mental state
applicable to all forms of the actus reus, including ‘pretending’;
(5)
The question formulated as Question 1 was not reasonably arguable;
Question 2
(6)
This question did not in fact arise in the present case. The three
summonses related to the placing of advertisements and the use of business
cards which contained no such disclaimers and involved no other steps taken to
prevent the public from potentially being misled as to his professional
qualification. It was in respect of these activities that the Applicant was found to
have been reckless. That was a conclusion involving questions of fact for the
magistrate, and raised no point of law of great and general importance;
Question 3
(7)
This question raised no point of law of great and general importance.
The magistrate found that given the contents of the advertisements and business
cards and the circumstances of their publication and use, by describing himself
as a ‘lawyer’ and his company as a ‘law firm’, the Applicant had made a false
representation that he was someone qualified to practise law as a solicitor;
(8)
The question properly before the magistrate was whether, given their
contents and the context in which they were published and used, the
advertisements and business cards amounted to a pretence caught by s 46. That
was a question specific to the circumstances of the case, and involved no point
of law of great and general importance.
Offences against Public Justice
MA 486/99
Gall J
CHAU Fu-kau
Act tending to pervert course of public justice/Meaning of ‘tending to
pervert’/Test of impossibility
傾向破壞司法公正的作為 -‘傾向破壞 ’的涵義 - 不可能情況的判
斷標準
(2.2.2000)
*K Zervos
#E L
McGuinniety
The Appellant was convicted on 15 April 1999 of a charge of doing an
act tending and intended to pervert the course of public justice.
On appeal, it was submitted, inter alia, that the magistrate failed properly
to consider or at all the meaning of the words ‘tending to pervert’ in the charge.
Reliance was placed upon R v Lee Kon and others MA 1190/90, wherein the
ICAC taped the conversation of the accused with one Miss Ho in the course of
the investigation of an alleged electoral conspiracy. Those tapes showed that the
accused had urged Miss Ho to make false statements to the ICAC in the course
of the investigation. The appeal was allowed on the basis that although the acts
of the accused were sufficient to prove that each intended to pervert the course
of justice the acts were incapable of perverting the course of justice because
Miss Ho was acting on the instructions of the ICAC and could not be affected by
the words of the accused.
124
CCAB 2000
Offences against Public Justice
Whereas the Appellant contended that the meaning of ‘tendency to
pervert’ was that the act must be capable of perverting, the Respondent
submitted that if the act was one of which an observer could say ‘that conduct if
successful will pervert the course of justice’, then the act had a tendency to
pervert.
Held :
(1)
From R v Machin [1980] 1 WLR 763, it was clear that to do an act with
the intention of perverting the course of justice was not of itself enough. The act
must also have that tendency. The gist of the offence was conduct which might
lead and was intended to lead to a miscarriage of justice whether or not a
miscarriage actually occurred. The object of the intended perversion did not
have to be achieved for the offence to be made out;
(2)
At common law incitement to commit an offence could not be committed
where it was impossible to commit the offence alleged to have been incited. It
must be right that a court in determining whether there was a tendency to pervert
must look at whether the acts complained of were of such a nature that they
could possibly pervert the course of justice. There was a difference between
conduct, which was extremely unlikely to cause a miscarriage of justice, and
conduct which could not possibly cause a miscarriage of justice. Although it
was extremely unlikely that a person who was being urged in the presence of
ICAC officers to lie to those officers would in fact tell the lies that were being
urged upon him, that was not impossible. The test was one of impossibility and
the decision reached in Lee Kon would not be followed.
Result
- Appeal dismissed.
Plea
MA 683/2000
Tong DJ
CHI
Wing-kin
Guilty plea/Application to reverse plea/Informed decision taken by adult
accused
承認控罪 - 申請推翻認罪 - 成年被告在掌握充分資料下所作的決定
(25.8.2000)
*Cheung
Wai-sun
The Appellant pleaded guilty to three charges of burglary.
When the Appellant sought subsequently to reverse his pleas, the
magistrate refused his application. In so ruling, the magistrate observed:
#I/P
In the present case, the plea of guilty and the admission of the
brief facts by the appellant in court were unequivocal. He had
been legally represented, and there was no suggestion that he
had not been properly advised by counsel. I was satisfied that
the appellant in pleading guilty had not been subject to any
duress, he had not been misled by anyone, and there was no
misunderstanding on his part. Under those circumstances, I
refused leave for him to reverse his plea.
On appeal, the Appellant reiterated that he had been pressured by his
father and the lawyer into pleading guilty.
Held :
125
CCAB 2000
Plea
(1)
The father and the lawyer of the Appellant were entitled to give him the
benefit of their opinion and advice, even in strong terms. Ultimately, however,
it was the Appellant’s own decision to plead guilty to the charges. He was an
adult;
(2)
In reaching her decision, the magistrate was guided by the approach
indicated in the authorities of R v Smith (1992) 94 Cr App R 230, R v Turner
(1970) 54 Cr App R 352, and R v Peace [1976] Crim L R 119. The correct
principles, which were also reflected in Hong Kong in HKSAR v Au Yeung
Boon-fai [1999] 3 HKC 605, and HKSAR v Wong Chi-yuk MA 381/99, were
applied by the magistrate;
(3)
The magistrate was right to reject the application to reverse the pleas.
POOW
香港特別行政區訴黃煥武
HKSAR v W ONG W o o n-mo
高等法院原訟法庭–高院裁判法院上訴2 0 0 0 年第3 0 6 號
*黎婉姬
Anna Lai
# 郭棟明
E r ic
Kwo k
聆訊日期：二零零零年五月十二日
宣判日期：二零零零年五月十五日
CHAN, CJ HC
Date o f Hear ing : 1 2 May 2 0 0 0
Date o f J ud gment : 1 5 May 2 0 0 0
專業裁判官 - 沒有提及舉證標準 - 在律師陳詞時作出不正確的評語
- 有責任提及被告人沒有犯罪紀錄
上訴人被控一項在公眾地方管有攻擊性武器罪，違反香港法
例第 245 章第 33(1) 條，經審訊後被裁定罪名成立，判處入獄 4 個
月。
上訴人於 1 9 9 9 年 1 1 月 1 5 日晚上 8 時 1 5 分，在上環被警員截停
和搜查。當時上訴人帶一個紙袋，袋內有一些雜物和一個黑色尼
龍袋。黑色尼龍袋內發現一把通常用來露營的刀，長約12吋，放在
一個1 1 吋長的刀套內。上訴人被盤問時說該刀是用來自用的。
在本案中，控方的事實並無多大爭議，最主要是上訴人就他
管有案中的刀有沒有合理的辯解。因此這方面的舉證責任當然在上
訴人身上，而舉證的標準是：兩者比對下較為可信（ B alance o f
P r o b ab ilities ）。裁判官在他的事實裁斷陳述書及判案時口頭所提
出的判決理由中，並沒有提及舉證的標準。不過，在雙方大律師結
案陳詞時，裁判官向大律師指出：
“ 聽落去話基於佢  解釋，覺得唔似，即係 n o t p ro b a b le ，
126
CCAB 2000
POOW
唔接受，咁就入罪，唔？”
裁判官以口頭方式判上訴人罪名成立，並解釋他為何不相信
上訴人的辯解。
上訴時，上訴人代表律師提出的其中一個上訴理由，是指裁
判官對於上訴人的舉證標準有錯誤的見解。此外，他又指裁判官在
作出判決時，錯誤地沒有給自己一個關於上訴人以往沒有犯罪紀錄
的全面指引。
裁決：
(1)
裁判官既是一個專業人士，因此就算在事實裁斷陳述書或判
決理由中沒有提及上訴人的舉證標準是什麼，亦不能說他犯錯，因
為法庭假定一位專業的法官會具備應有的法律知識，在一般的情況
下是會運用正確的舉證標準的。不過在本案中，裁判官在雙方律師
陳詞時所作的評語又似乎不是完全正確，使人懷疑他在判案時採取
何種舉證標準：R v Ho P in g - sh u n g [ 1 9 8 7 ] 1 HKC 9 3 ； R v Ch a n
S iu - ma n Cr im Ap p 1 5 4 /8 3 及 R v La w Ch i- keu n g Cr im Ap p 9 0 &
2 9 0 /8 3 等案予以考慮；
(2)
裁判官在判案中沒有提及被告人行為良好，除非在謄本中可
以證明裁判官有錯誤引導自己，否則上訴時應假定他會正確地就被
告人沒有犯罪紀錄這點，作出適當的指引： HKS A R v Wo n g Wa iyee MA 8 4 0 /9 7 。裁判官為專業人士，在一般情況下，可以假定他
在判案時對一名被告人沒有犯罪紀錄這一點，會提醒自己這點對被
告人有利。不過，如果在一些案件中被告人的口供及他的誠信可以
起決定性的作用時，他過往行為良好對於法庭應否接納他的證供是
非常重要的。因此裁判官一般來說應該在陳述書或判決理由中提及
這點，如果沒有，便會使人懷疑他是否忘記了這點。
上訴得直，推翻原判。
[English digest
of MA
306/2000
above]
Chan CJHC
WONG
Woon-mo
Professional magistrate/No reference to the standard of proof/Incorrect
comments made during submission/Duty to make reference to the clear
record of a defendant
The Appellant was convicted after trial of one charge of possession of
an offensive weapon in a public place contrary to section 33(1) of Cap 245 and
sentenced to 4 months’ imprisonment.
(15.5.2000)
*A Lai
#Eric Kwok
At 8:15 pm on 15 November 1999, the Appellant was intercepted and
searched by the police in Sheung Wan. At that time, he was carrying a paper
bag containing some sundries and a black nylon bag, inside which a knife of
about 12-inch long, kept in an 11-inch long sheath, was found. It was a type of
knife usually used for camping. The Appellant, upon being questioned, said that
the knife was for self-defence.
In this case, most of the facts put forward by the prosecution were not
in dispute. The main issue was whether the Appellant had any reasonable
excuse for the possession of the knife in question. Hence, the burden of proof
should be placed on the Appellant while the standard of proof was proof on
balance of probabilities. Although the magistrate did not make any reference to
the standard of proof either in the Statement of Findings or in his Reasons for
Verdict, he said to counsel when they made their final submission:
Upon hearing his explanation, it seems not likely, that is, not
probable. If not accepted, he should then be found guilty, is
127
CCAB 2000
POOW
that right ?
The magistrate eventually convicted the Appellant and orally explained
why he did not accept the Appellant’s defence.
On appeal, it was submitted, inter alia, that the magistrate misapplied
the standard of proof. It was also contended that the magistrate erred in not
giving himself a full direction in relation to the Appellant’s clear record.
Held :
(1)
A magistrate, being a professional, could not be said to be wrong even
if he did not make any reference to the standard of proof on the Appellant, either
in the Statement of Findings or in the Reasons for Verdict, because the court
would assume that a professional judge had the necessary knowledge of law and
in normal circumstances should be able to apply the correct standard of proof.
However, in this case, the magistrate’s comments during the submission did not
seem quite right. That cast doubt on the correctness of the standard of proof he
applied in his ruling: R v Ho Ping-shung [1987] 1 HKC 93; R v Chan Siu-man
Crim App 154/83 and R v Law Chi-keung Crim App 90 & 290/83 considered;
(2)
If a magistrate made no mention of the defendant’s good character,
then, unless the transcript showed that he had misdirected himself, an appellate
court would assume that he did direct himself on the appellant’s clear record and
did so properly: HKSAR v Wong Wai-yee MA 840/97. A magistrate, being a
professional, could be assumed in normal circumstances to have reminded
himself that a defendant’s clear record was a favourable factor in reaching his
verdict. But in cases where a defendant’s evidence and credibility were the
determining factors, his previous good character was very important to the
admissibility of his evidence in court. Therefore, generally speaking, a
magistrate should make some reference to this factor in the Statement of
Findings or Reasons for Verdict. Failure to do so would lead to suspicions that
he had failed to bear this factor in mind.
Practice & Procedure
MA 772/99
Beeson J
(13.12.99)
*David Leung
#K B Egan
CHOW
Yuen-han
Appeal against conviction/Appellant seeking full transcript/ Administrative
decision to withhold transcript/Meaning of ‘deposition’/Whether appeal
pursuable
針對定罪的上訴 - 上訴人要求提供整份聆訊謄本 - 不提供謄本屬行
政決定 - “供詞”的含義 - 上訴可否繼續
As a preliminary issue at the hearing of an appeal against conviction, the
Appellant advised the court that she was not able to file perfected grounds of
appeal because the Appellant, under current practice, had been refused a full
copy of the transcript of proceedings. She contended that as a matter of law she
was entitled to a transcript and that the current practice pertaining to the
provision of transcripts was ultra vires.
Prior to May 1999, a full transcript was prepared for all magistracy
appeals. That practice was changed, on a trial basis, so that documents supplied
for magistracy appeals would be those allowed by the Criminal Appeal Rules
governing provision of documents for appeals from the Court of First Instance
128
CCAB 2000
and the District Court. The trial period of 6 months during which that practice
would be followed was decided upon by the Chief Judge after consultation with
the profession, the Secretary for Justice, the Legal Aid Department and the
Criminal Court Users Committee.
Appellants could still obtain all or part of the transcript on supplying
reasons. The Registrar of Appeals dealt with those applications.
It was against that background that the Appellant lodged her appeal
against conviction on a charge of soliciting for an immoral purpose. On 14 July
1999 she filed general grounds of appeal, and the date of appeal was fixed for
22 September 1999. On 21 September 1999 the court received a letter from the
Appellant, seeking an adjournment and a copy of the transcript. The Appellant
was told to attend court the next day, the appeal date.
On 22 September 1999, the Appellant appeared in person before the
court and again requested an adjournment. She asked for a full transcript but
that application was refused on the basis of the revised procedure - the Appellant
gave no specific reasons why a full transcript was necessary and it appeared to
the court that a transcript was unnecessary as the magistrate had traversed the
evidence adequately in the Statement of Findings. The Appellant was told that
she might wish to seek legal advice for her appeal and she was told that a further
application for a transcript could be made on reasons being shown why it was
needed for the appeal. An adjournment of the appeal was granted.
No perfected grounds of appeal were filed thereafter. By a letter dated
16 September 1999, the Appellant’s solicitors gave reasons why a full transcript
was needed. Those reasons were not considered to be sufficiently cogent to
justify supply of a transcript. The court considered that the Statement of
Findings and counsel’s submissions supplied to the Appellant covered the
evidence and issues in sufficient detail for the appeal on the general grounds to
proceed. No perfected grounds of appeal were filed.
The Appellant argued that as a matter of law, she was entitled to a full
transcript of the appeal because of the provisions relating to appeals in Part VII
of the Magistrates Ordinance Cap 227. Section 113(1) of the Ordinance gave
her the right to appeal ‘from any conviction, order or determination of a
magistrate’. Section 114 set out procedures to be followed in filing general
grounds of appeal, after which the magistrate prepared a Statement of Findings
which was to be served on the Secretary for Justice and the Appellant within 15
days after the notice of appeal was given.
Section 116(1) was the key to the Appellant’s submission. That section
provided as follows: as soon as practicable after the appellant had lodged a
notice of appeal, the magistrates’ clerk should submit to the Registrar the notice
of appeal, the depositions and such copies thereof as the Registrar might
require, and the statement by the magistrate of his findings on the facts and other
grounds of his decision, and thereupon the Registrar should enter the appeal and
should in due course give notice, together with a copy of the depositions, to
the appellant, to the respondent and the Secretary for Justice as to the date, time
and place for the hearing of the appeal.
The term ‘deposition(s)’ was not defined in the Magistrates Ordinance,
or in Cap 1, but the Appellant relied on section 118(1)(a) of the Magistrates
Ordinance as showing that it meant the transcript of proceedings.
That section, which was referable to the actual hearing of the appeal,
stated ‘the depositions taken before the magistrate or a certified copy thereof
shall, without prejudice to any other method of proof, be admissible as evidence
of the evidence which was given and of the statements which were made before
the magistrate, and generally that the proceedings therein recorded took place’.
129
CCAB 2000
The Respondent submitted that if the Appellant’s interpretation of
section 116(1) was correct his arguments could not properly be dealt with on an
appeal, which this hearing was, but as an administrative decision which fell to be
attacked and thus the Appellant had to find another forum.
The Respondent referred to section 34 of the Magistrates Ordinance
which described the minute of proceedings required to be kept by the magistrate;
that clearly was what was commonly referred to as ‘the transcript of
proceedings’. Section 35A allowed ‘any party to the proceedings to which the
minute relates’, to inspect the register without payment of a fee and to have a
copy of the minute on payment of a fee. It was submitted that that was what the
Appellant could do if she required a full transcript. The Appellant contended
that the section upon which she relied was in Part VII of the Ordinance dealing
specifically with appeals; that section 35A, a general section, did not assist the
Respondent and that she was entitled to the depositions which meant the
transcript of proceedings.
Held :
(1)
Dictionary definitions did not clarify the position. The Shorter Oxford
Dictionary definition gave as the primary meaning of ‘deposition’: ‘The giving
of testimony on oath in court; the testimony so given spec. a sworn written
statement that may be read out in court as a substitute for the production of the
witness.’ Stroud’s Judicial Dictionary 5th ed, simply referred to ‘Depositions or
statements on oath taken in a foreign country.’ Halsbury discussed depositions
in a specialist sense, as evidence taken for the purposes of committal for trial,
rather than as what was referred to as a transcript of proceedings or a minute
taken during a trial;
(2)
This was an appeal and what was complained of was an administrative
refusal to supply the Appellant with the transcript of proceedings. The
Appellant said she was not able to prepare perfected grounds of appeal without
such transcript;
(3)
The court was not able to resolve the argument as an appeal.
Result - Hearing of appeal adjourned sine die.
Obiter - It was for the Appellant to take whatever steps were deemed
appropriate in order to pursue the request for a transcript.
130
CCAB 2000
CA 106/99,
38/2000 and
67/2000
Stuart-Moore
VP
Leong &
Wong JJA
(7.3.2000)
*D G Saw, SC
K P Zervos &
David Leung
#David
TollidayWright
(1) TANG
Siu-kwong
(2) MAK
Wai-hon
Possession of infringing copies of copyright works/Wrongful transfer to
District Court/Jurisdiction of District Court
管有版權作品的侵犯版權複製品 - 案件錯誤移交區域法院 - 區域法
院的司法管轄區
These were three applications for leave to appeal against conviction out
of time. A1 was convicted after trial in the District Court of possessing, for the
purpose of trade or business, infringing copies of copyright works with a view to
committing an act which infringed the copyright without the licence of the
copyright owner, contrary to ss 118(1)(d) and 119(1) of the Copyright
Ordinance, Chapter 528. (CA 38/2000). A2 pleaded guilty in the District Court
to two charges brought under the same sections. (CA 67/2000). A2 was also
convicted under the old s 5(1) of the Copyright Ordinance, Chapter 39. (CA
106/99). The Department of Justice discovered that these cases should not have
been transferred from the Magistrates’ Court to the District Court. The
applications were consolidated.
The penalties for offences under s 118(1) were provided by s 119(1)
which read:
(1)
A person who commits an offence under s 118(1) is liable
on conviction to a fine at level 5 in respect of each
infringing copy and to imprisonment for 4 years.
(2)
A person who commits an offence under s 118(4) or (8) is
liable on conviction on indictment to a fine of $500,000
and to imprisonment for 8 years.
S 14A(1) of the Criminal Procedure Ordinance, Chapter 221 provided:
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; or
(b)
the words ‘upon indictment’ or ‘on indictment’ appear; or
(c)
(Repealed); and
(d)
the offence is transferred to the District Court in
accordance with Part IV of the Magistrates Ordinance
(Chapter 227).
Held:
(1)
Since the words ‘upon indictment’ or ‘on indictment’ did not appear in s
119(1), offences under s 118(1) could only be triable summarily. Although a
magistrate might transfer a summary offence to the District Court upon
application made by the Secretary for Justice if the defendant also faced an
indictable offence which was to be transferred to that court, there was no
jurisdiction for a magistrate to transfer a summary offence on its own to the
District Court in circumstances where the defendant was not also accused of an
indictable offence which the prosecution was seeking to have transferred;
(2)
The jurisdiction of the District Court in criminal proceedings was
provided for by ss 74 and 75 of the District Court Ordinance, Chapter 336.
These sections established that the District Court had jurisdiction to try charges
or complaints transferred by a magistrate in accordance with the provisions of
Part IV of the Magistrates Ordinance, Chapter 227, or proceedings on
indictment transferred to the court from the Court of First Instance under s 65F
of the Criminal Procedure Ordinance, Chapter 221;
(3)
The transfer of these summary offences on their own, unaccompanied by
an indictable offence, was null and void. The magistrate had no jurisdiction to
131
CCAB 2000
make an order transferring them to the District Court. The jurisdiction over
these cases remained vested with the magistrate;
(4)
The transfer of CA 38/2000 and CA 67/2000 from the magistrates’ court
to the District Court was in error. The proceedings in the District Court
amounted to a nullity;
(5)
The application in CA 106/99 was wholly misconceived. The offences
were properly transferred to the District Court as they were triable offences on
indictment under the old s 5(1) of the Copyright Ordinance, Chapter 39.
Result - Appeals in CA 38/2000 and CA 67/2000 allowed.
106/99 dismissed.
Appeal in CA
Obiter - Where a magistrate had acted in excess of his jurisdiction, he was
nevertheless competent to exercise his jurisdiction properly: R v West
(1964) 46 Crim App R 296, AG v Nunns (Permanent Magistrate) and
Another [1987] 2 HKC 294 applied.
MA 592/99
Gall J
(8.6.2000)
*Cheung
Wai-sun
#Henry Ma (1)
J Acton-Bond
(2)
LEI Pei-chi (1)
Yau Yick
Knitting
Factory Ltd.
(2)
Discretion of magistrate to permit the re-opening of the prosecution
case/Whether director authorised to make admission on behalf of the
company/Whether admission implicated the company
裁判官行使酌情權准許控方重開案件提證 - 董事是否有權代表公司
招認 - 招認會否牽連公司
A1 was convicted of furnishing false or misleading information to an
authorised officer, contrary to section 26(2) of the Import and Export
Ordinance, Cap 60. A2 was convicted of giving or causing to be given false or
incorrect information in a document that might be used in support of a
certificate of origin application, contrary to section 7(2)(b) of the Protection of
Non-Government Certificates of Origin Ordinance and of exporting prohibited
articles without a licence, contrary to section 6D(1) and (3) of Cap 60 and
importing prohibited articles without a licence, contrary to section 6C(1) and (2)
of Cap 60.
All the summonses faced by both Appellants involved 1,996 blouses,
which were manufactured in A2’s knitting company in Kowloon, and were later
exported to China without a licence. In China, the work of looping and stitching
was done to the blouses and they were then exported back to Hong Kong
without a licence. However, an application was made for the issue of a
certificate of origin in respect of the blouses on the basis that all the work of
manufacture had been done in A2’s factory (‘the application’).
A2 was a limited company and A1 was at all relevant times a director of
the A2. The application was chopped with A2 and signed by its other directors,
Mr. Lau. When Customs and Excise officers attended A2’s factory, they saw
A1, who produced documents to substantiate the claims made in the application.
However, upon further enquiry, A1 admitted that part of the manufacturing work
of the blouses was done in the Mainland and a cautioned statement was taken
from him in the capacity as a director of A2, and, in that statement, he
implicated A2.
On appeal, it was submitted, on behalf of A1, that the magistrate wrongly
exercised her discretion in permitting the prosecution to re-open its case after
the defence had closed its case and delivered its final submission. On behalf of
A2, it was submitted, inter alia, that the magistrate was wrong to rule A1’s
statement was admissible against A2.
132
CCAB 2000
Held :
(1)
The magistrate had complete discretion on whether a witness should be
recalled and the court would not interfere with the exercise of the discretion
unless it appeared that thereby an injustice had resulted. In the closing address
of this case, the defence counsel argued that whilst the officer had given
evidence of being authorised pursuant to section 4A of Cap 60, she had not
given evidence that the authorisation was in writing. Out of an excess of caution,
the magistrate permitted the prosecution to re-open its case and recall the
witness to exhibit her warrant card. The magistrate considered that it was a
technical matter to permit the recall of the witness and concluded that the
exercise of the discretion would not cause any injustice: R v McKenna 40 Cr
App R 65 followed;
(2)
A1 was a director of A2. Directors of a company were its officers. It was
common sense that, on the face of it, when an investigating authority approach a
company and was spoken to by a director of that company who spoke to the
company’s business, that director spoke for the company : R v Lolly Queen Ltd.
[1994] 2 HKCLR 51, Edwards v Brookes (Milk) Ltd. [1963] 3 All ER 62, Myers
v DPP [1964] 2 All ER 881 considered;
(3)
It was clear from the evidence that A1, one of the three directors of A2,
had an intimate working knowledge of the details of the company and that he
had worked on the company production. The magistrate was satisfied that A1
was a full director of the company and knowledgeable as to its business. In view
of the authorisation signed by Mr. Lau of A2, authorising A1 to give
information to the Customs officers on behalf of A2, the magistrate was not
obliged to look beyond this document. Two out of three of the directors of the
company, prior to the making of the statement, were therefore in agreement that
A1 should make that statement binding the company.
Result : Appeal dismissed.
MA 174/2000
Chu DJ
(25.8.2000)
*Thomas Law
(1) LI
Kwokpang
(2) CHU
Wai-kwai
(3) TONG
Kwokkwong
Non-disclosure of convictions for dishonesty and violence/ Defence strategy
affected by non-disclosure/Effect of disclosure upon credibility/Material
irregularity
沒有披露不誠實及暴力行為的定罪紀錄 - 不披露定罪紀錄影響辯
方的抗辯策略 - 披露定罪紀錄對可信性的影響 - 重大不當之處
The Appellants were convicted after trial of two charges of assault
occasioning actual bodily harm.
#Eric Kwok
The case for the prosecution was that on 7 July 1999, PW1 and PW2
went to the home of A1 and were there assaulted by the Appellants. The
Appellants and the prosecution witnesses knew each other prior to the incident.
However, in their initial witness statements the Appellants did not disclose the
identity of the assailants, and at court they explained this on the basis that they
were afraid of retaliation.
A1 and A2 gave evidence at trial to the effect that when the two
prosecution witnesses arrived at A1’s home PW2 had an argument with A1.
PW1 then attacked A1. Two of them then fought. A2 tried to mediate but was
assaulted by PW2. To prevent further assault, A2 pressed PW2 to the ground
until PW2 agreed not to struggle further. A1 and PW1 also stopped fighting
soon thereafter. Only after that matter was settled did A3 arrive.
At trial, only the record of the latest three convictions of PW1 were
released to the defence. The undisclosed convictions related to offences of
dishonesty and violence, although dated back to 1982 and 1984. In an
affirmation, counsel who represented the Appellants at trial stated that he had
considered whether to put the character of PW1 in issue, but had decided against
133
CCAB 2000
on the basis of the convictions disclosed to him because the Appellants also had
previous convictions. Counsel stated that had he known of the full conviction
record of PW1, he would have formed a different view and would have put the
character of PW1 in issue.
Held :
(1)
There was a duty on the prosecution to inform the defence of the
existence of a conviction of which they knew: R v Hung Fuk-lam Cr App
550/87, following R v Paraskeva (1983) 76 Cr App R 112;
(2)
The undisclosed convictions might have been relevant to the issue of
credibility and also as to whether, as they said, the Appellants were acting in
self-defence. From the affirmation of trial counsel it was clear that the
undisclosed convictions were relevant to how the defence would have conducted
its case. It followed that there was an irregularity at trial;
(3)
Although it was idle to speculate what affect the disclosure of the
previous convictions would have had upon the findings of the magistrate as to
the credibility of PW1 and PW2, a matter which was relevant and important to a
major issue in the trial was not, as it should have been, drawn to the attention of
the magistrate;
(4)
There was a material irregularity at trial which rendered the convictions
unsafe and unsatisfactory.
Result - Appeals allowed. Retrial ordered.
MA 231/2000
Tong DJ
(2.9.2000)
*David Leung
#Kevin Egan
YEOH
Kar-miin
Comments by court after no-case submission and before ruling/Caution
necessary at sensitive stage of trial/Possibility of accused being misled by
court
在律師陳詞要求法庭判決被告無須答辯後，裁判官在作出裁決之前
作出評論 - 在審訊的敏感階段必須慎言 - 被告有可能被裁判官誤導
The Appellant was convicted after trial of three offences of accepting an
advantage as an agent, contrary to ss 9(1)(a) and 12(1) of the Prevention of
Bribery Ordinance, Cap 201.
On appeal, complaint was made about remarks made by the magistrate
after counsel had completed his submission of no case to answer. After the
submission, the magistrate asked defence counsel to confirm his assumptions
that the Appellant would not give evidence, that there would be no defence
witness and further that defence counsel would simply adopt the no-case
submission as the final submission if he were to find a case to answer. The
magistrate had also adjourned the ruling to a date when counsel had to return to
the High Court at 10 am.
In reply, the Respondent submitted that the magistrate was simply
dealing with case management.
Held :
(1)
The no-case submission stage was a sensitive stage of the proceedings.
Magistrates tended to be very cautious in what they said at that juncture because
any comments from the bench could be misinterpreted as some kind of hint, and
counsel gave advice to clients based on such comments. The magistrate had,
perhaps inadvertently, given the impression that he was giving an indication;
(2)
It was inappropriate for the magistrate to have made such remarks
134
CCAB 2000
regarding the defence evidence at that time and in that manner. If something
needed to be clarified for the purpose of case management, the magistrate
should have clearly predicated his inquiry on that basis;
(3)
There was a possibility that the Appellant might have been misled and
misguided in making her decision to remain silent, and this was a material
irregularity which meant that justice had not been seen to be done.
Result - Appeal allowed. Retrial ordered.
MA 867/99
Gall J
(22.9.2000)
*Graham
Harris
#Gerard
McCoy SC &
Raymond
Pierce
SFC
v
CHU
Sing-ming,
Jason
Time limits/Prosecution under Securities Ordinance/ Computation of time
起訴時限 - 根據《證券條例》提出檢控 - 時限的計算
The Appellant was convicted on 29 June 1999 after trial of one offence
of aiding and abetting, counselling and procuring another to act as a dealer’s
representative without that other being registered as a dealer’s representative
under the Securities Ordinance, contrary to ss 50(1) and (2) of the Securities
Ordinance, Cap 333, and s 89 of the Criminal Procedure Ordinance, Cap 221.
On appeal, it was submitted, inter alia, that the Securities and Futures
Commission (‘SFC’) had not lawfully commenced the prosecution by laying an
information against the Appellant within the time fixed for the laying of such
information, namely, within 12 months after the discovery of the offence by the
SFC, pursuant to s 148A of the Securities Ordinance, Cap 333.
On 28 November 1998, the SFC laid three informations against the
person the Appellant and one against Li Chin-yu, Molly (‘Molly Li’), the
Appellant was alleged to have aided and abetted, counselled and procured to act
as a dealer’s representative of Quest Stockbrokers (HK) Ltd. (‘Quest’), without
her being registered as a dealer’s representative under the Securities Ordinance.
The information alleged that the offence took place between 3 February
1997 and 29 April 1997. During the trial, the dates of the information were
amended to read from 31 January 1997 to 29 April 1997. The defendants were
tried separately. The Appellant was convicted, whilst Ms Molly Li was
acquitted.
Section 148A of the Ordinance provided:
1. Notwithstanding section 26 of the Magistrates Ordinance,
Chapter 227 an information or complaint relating to an offence
under this Ordinance may be tried if it is laid or made, as the
case may be, at any time within three years after commission of
the offence or within twelve months after the first discovery
thereof by the prosecutor, whichever expires first.
2. This section should not apply in relation to an offence
committed before the commencement of the Securities
(Amendment) Ordinance 1991(6 of 1991).
The chronology of events which gave rise to this prosecution revealed
that the matter had been originally brought to the attention of the SFC by a letter
of complaint dated 15 June 1997 from a Ms Wong. Annie Kwong, an SFC
investigator, gave evidence that she had commenced investigation on 22
October 1997 when she received a number of documents from the Stock
Exchange of Hong Kong (‘SEHK’), including the original letter of complaint.
These documents had been delivered by hand to the SFC under cover of a letter
dated 22 October 1997 from the Assistant Director of Regulation of the SEHK
to the Senior Director of Enforcement. Ms Molly Li and the Appellant were
interviewed and denied the existence of any contract of employment between
them, and also the payment of any remuneration.
On 2 July 1998, the SFC issued a notice to banks to obtain bank
135
CCAB 2000
documents of Molly Li and the Appellant. On 13 July 1998, the Standard
Chartered Bank and the Bank of China supplied bank statements of Molly Li
and the Appellant which showed that three cheques issued from the Appellant’s
account had been deposited into the account of Molly Li.
The SFC contended that until they had received the bank documents in
July 1998, there had been no discovery of the fact of payment to Molly Li by
Quest, a material fact which had to be proved.
Held :
(1)
It was without doubt that where a time limit was imposed for the
commencement of proceedings or for the laying of an information, it was for the
prosecution to prove, if necessary, that the prosecution had been brought or the
information laid within the time limit. However, it was also clear that where the
facts of the alleged commission of offence emerged over a period of time, it
might be difficult to determine the exact point at which the period within which
prosecution must be brought or an information laid commenced. In R v Yau
Hing-ping and Another [1992] 1 HKCLR 188, Yang CJ held:
The issue here is when it was that the [prosecutor] first
discovered the offence. In other words, when it was that he was
informed of the offence.
In R v Beaconsfield Justices, ex parte Johnson & Sons Limited (1985) 149 JP
535, Stuart-Smith J adopted the proposition of McNeill J in the unreported case
of John Charles Brookes v Club Continental Limited, dated 13 October 1981,
and held:
I think it is sufficient for the purposes of this case, to say that
the word ‘discover’ means no more in this context than that all
the facts material to found the relevant charge under the Act
were disclosed to the appropriate officer. The word ‘discovery’
here does not import any investigation by the officer. It is
simply his knowledge, from disclosure to him in some way, of
the material facts which would found the offence.
It was argued that the word ‘discovery’ did not infer any investigation, and that
Beaconsfield was therefore authority for the proposition that knowledge of the
material facts should not be confused with confirmation of those facts and that
the time started to run from a date when the prosecutor had no serious doubts as
to the veracity of the complainant who had produced the relevant documents. It
was held that at that time the prosecution had all the relevant and material facts
in hand for time to commence to run;
(2)
In the present case, the original complaint was made prior to 2 November
1997 and thereafter interviews took place with the parties and relevant witnesses
and with the Appellant himself. Trading histories were provided and the
Appellant’s commission rebates had been provided. Some of the documents
related to the dealings of Molly Li and to the Appellant’s clients. This detail
was all included in a report provided under cover of a letter dated 22 October
1997 from the Assistant Director of Regulation at the SEHK to the Senior
Director of Enforcement of the SFC. This report concluded that in the view of
the SEHK, there was suspicion that Quest aided unregistered dealings by Molly
Li. The Appellant then faced a charge of aiding and abetting unregistered
dealings by Molly Li. By that time, therefore, the Appellant was suspected of
the offence upon the basis of materials in the hands of the prosecuting authority
rather more concrete than the claims of the original complainant. And it was
from the delivery of the letter dated 22 October 1997 to the Senior Director of
Enforcement of the SFC that the Appellant argued that the period of one year
within which the prosecution had to be brought commenced to run. That
submission was correct;
(3)
In Morgans v Director of Public Prosecutions [1999] 1 WLR 968,
136
CCAB 2000
Kennedy LJ stated:
Mr Blackman contends that the words ‘sufficient in the opinion
of the prosecutor to warrant the proceedings’ are merely
descriptive of the evidence, and that the prosecutor would not
have to form his opinion before time begins to run. I accept
that submission because otherwise the prosecutor, in full
possession of all relevant information, can prevent time from
running simply by not applying his mind to the case.
In the present case the prosecutor was in a position, upon receipt of the
report from the SEHK, to apply his mind to the laying of charges and it was at
that point that the period of one year commenced to run.
香港特別行政區訴黃皓燊
HKSAR v WONG Ho-sang
高等法院原訟法庭 – 高院裁判法院上訴2 0 0 0 年第6 0 5 號
* 覃文輝
S Tam
# 溫智君
Woon Jeaquan
高等法院原訟法庭法官湯寶臣
聆訊日期︰二零零零年十一月三日
宣判日期︰二零零零年十一月三日
COURT OF THE FIRST INSTANCE OF THE HIGH COURT
TONG J
Date of Hearing: 3 November 2000
Date of Judgment: 3 November 2000
口頭宣判時判令上訴人進入勞教中心 - 書面紀錄則誤寫為教導所應採納口頭判令還是書面紀錄
上訴人承認一項勒索罪及一項普通襲擊罪。由於上訴人年
幼，案件轉交少年法庭處理。裁判官在庭上宣告判上訴人到勞教中
心，但由於筆誤，法庭書面紀錄卻寫上判上訴人到教導所。上訴人
因此被送到教導所。他不服判刑提出上訴。
法庭認為有三點需要提出討論。第一個問題是裁判官的判決
是否以在庭上宣告的為準，還是以後來書面紀錄為準。第二個問題
是如果有被告因書面紀錄的錯誤而被送到教導所，法庭可否下令將
被告送回勞教中心而不會受香港法例第239 章《勞教中心條例》第
4(3) 條的限制。第三個問題是如果裁判官後來得知文件紀錄上有誤
差，但被告已提出上訴，裁判官會否因為第227 章《裁判官條例》
第1 0 4 ( 9 ) 條的規定，只能讓上訴人上訴而別無他法。
裁決︰
(1)
原則上，正式裁決是以裁判官在庭上的口頭宣告作準而非以
書面紀錄作準︰HKS A R v Ya u Ch i- lu n g CA 2 7 1 /9 8 ；
(2)
如果裁判官沒有下令把被告人送往教導所，被告只是由於
書面紀錄的錯誤而被送往教導所，則第4(3)條並不適用；
(3)
法庭參閱過感化官的進展報告，認為上訴人應接受感化18
個月。
137
CCAB 2000
上訴得直，改判接受感化。
判詞旁論︰
《裁判官條例》訂明，如被告人提出上訴，裁判官無權處理或覆
核案件。但在本案的情況下，如果明知這事情是因手民之誤而引
起的，雖有上訴程序，裁判官可以考慮召回雙方到法庭。如果上
訴人暫時撤回上訴，裁判官可作出澄清甚至運用覆核權。這個做
法可能對上訴人較為公平，亦可節省時間和訟費，但裁判官應考
慮到實質情況而作出決定。
[English digest
of MA
605/2000
above]
Tong J
(3.11.2000)
*S Tam
#Woon Jeequan
WONG
Ho-sang
Oral order of detention centre imposed on Appellant/Written record
mistakenly recorded as training centre/Whether oral order or written
record to be adopted
The Appellant pleaded guilty to a charge of blackmail and a charge of
common assault. Owing to the Appellant’s young age, his case was transferred
to the juvenile court. The magistrate ordered that he be sentenced to a detention
centre. It was, however, mistakenly recorded in a document that he had been
sentenced to a training centre. He was therefore sent to a training centre. He
appealed against the sentence.
The court considered that there were three issues which needed to be
discussed. Firstly, whether the oral order given in court should be followed or
the subsequent written record should be followed. Secondly, if the defendant
was sent to a training centre as a result of a mistake written on the record, could
the court order that he be sent to a detention centre and not be bound by s 4(3)
of the Detention Centres Ordinance, Cap 239? Thirdly, by the time a defendant
lodged his appeal, and the magistrate had discovered the mistake recorded in the
written document, was the magistrate bound by s 104(9) of the Magistrates
Ordinance, Cap 227 i.e. was he left with no alternative but to allow the appeal to
proceed?
Held :
(1)
In principle, the oral order given by the magistrate in court should be
adopted and not the written record : HKSAR v Yau Chi-lung CA 271/98;
(2)
S 4(3) was not applicable if the magistrate did not order that a defendant
be sent to a training centre, and he was sent to a training centre owing to a
mistake of the written record;
(3)
Having considered the progress probation report, it was considered that
the Appellant should be put on probation for 18 months.
Result - Appeal allowed. Probation substituted.
Obiter -
The Magistrates Ordinance provided that a magistrate had no
jurisdiction to deal with or review a case if a defendant had lodged
an appeal. In light of the present circumstances, it was obvious that
the record was mistakenly written. Despite the appeal procedures,
the magistrate could consider calling both parties to attend court. If
the Appellant withdrew his appeal, the magistrate could clarify the
matter and/or review the case. It would be more fair to the Appellant
if that was done. It could save time and cost. However, the
magistrate should consider the actual circumstances and decide
whether this should be done.
138
CCAB 2000
Prosecutor/Prosecutions
CA 145/99
Stuart-Moore
VP
Leong &
Wong JJA
KWAN
Cho-hon
Exhibit passed to jury/Duty to check exhibit bag contained no more than
what had actually been exhibited before being passed to jury
證物呈交陪審團 - 證物呈交陪審團前律師與法官均有責任檢查證物
袋，以確定袋中除確實呈堂的證物外並無其他物品
The Applicant was convicted of trafficking in a mixture containing
approximately 1.19 kgs of heroin hydrochloride.
(25.1.2000)
*Anna Lai
#W Allan
At trial, the only issue for the jury’s determination concerned the
Applicant’s knowledge. Had the prosecution established to the required
standard that the Applicant knew that dangerous drugs were inside the Maxim’s
bag he was found to be carrying? The prosecution case was entirely inferential.
The sole ground of appeal was aimed at what occurred after the jury had
retired to consider its verdict. The jury requested to see a number of exhibits.
One of the exhibits was P 28, a Smartone telephone and one Smart SIM card.
However, when the jury received the bag which contained P 28, they found a
further SIM card clipped to it, a Hutchison card, which did not form any part of
the exhibit. The jury notified the court of this finding, and the judge gave them
a direction. The Applicant argued, on the facts, that this irregularity in the trial
led to a verdict which was unsafe and unsatisfactory.
Held :
The court observed:
This provides an example of what may happen when there is a
failure to check precisely what is being handed to the jury in
response to a request to see exhibits. We need perhaps to say no
more than to emphasise the importance of counsel and the judge
ensuring that what is sent to the jury contains no more than the
exhibit itself together with its wrapping or property bag. It is
frequently the case that exhibit or property bags contain more
than the exhibit itself, and if counsel for the prosecution and
counsel for the defence have done their duty properly, the
situation encountered in the present case will not arise. There is
a particular duty on the part of prosecuting counsel to ensure
that prosecution exhibits, for which he or she must take the
ultimate responsibility, are in the proper form. In this respect,
the judge should also ensure that there has been no oversight on
the part of counsel before releasing the exhibits to the jury, thus
providing an additional safeguard against what has happened in
the present case.
139
CCAB 2000
FACC 2/2000
Bokhary, Chan
& Ribeiro PJJ
Sir Alan
Huggins &
Lord Millett
NPJJ
CHING
Kwok-yim
Duty on prosecution to disclose criminal convictions of which it was
aware/Advisable for prosecutor to inquire about witness’s record if
credibility a crucial issue/Effect of non-disclosure
控方有責任披露其所知的犯罪記錄 - 如果證人可信性是重要因素，
檢控人員宜查究證人的記錄 - 如不予披露會有何後果
The Appellant was convicted after a trial in the magistrates’ court of an
offence of unlawful and malicious wounding, contrary to s 19 of the Offences
against the Persons Ordinance, Cap 212.
(23.11.2000)
*Arthur Luk &
Alex Lee
#Yeung Yeukchuen
The case turned ultimately upon the evidence of the Appellant and the
alleged victim (Mr Wong Pan-yuk) alone. They lived in the same house, Mr
Wong being the sub-tenant of the Appellant’s wife. The house was an illegal
structure, and a demolition order had been made. Mr Wong said that the
Appellant made a sudden, unprovoked attack upon him with a grind-stone,
thereby causing a wound on his forehead and loosening one of his teeth. He and
the Appellant had previously had a dispute whether they should choose
resettelment or financial compensation in relation to the demolition of the house,
and they had also quarrelled about the payment of rent, during which quarrel the
Appellant had attacked Mr Wong with a piece of stone. A police officer
confirmed that Mr Wong had a bleeding wound on his forehead but he could not
find the grind-stone. It was common ground that this had been kept in the
kitchen. The Appellant denied the attack and said that Mr Wong was under the
influence of alcohol and had abused and threatened him however, he (the
witness) went to his own room and did not know how Mr Wong came by his
injuries. He described Mr Wong as a ‘weird’ person who had previously
threatened others.
The magistrate found Mr Wong to be credible and reliable and convicted
the Appellant. The Appellant appealed to the High Court on the ground that the
prosecution had failed to disclose that Mr Wong had a record of criminal
convictions. In his judgment on the appeal, Yeung J said:
The information available now shows that [Mr Wong] was
convicted for the offences of aiding others in breaching the
condition of stay and unlawful use of electricity without authority
in 1991 and 1995 respectively and was fined on both occasions.
In was not in dispute that the prosecuting officer had in his papers a note
of these convictions and that they were not disclosed to the defence. The judge
held that the failure to disclose the criminal record constituted ‘a grave
procedural error’ but that he still had to decide whether that error rendered the
conviction unsafe or unsatisfactory. He thought that it did not and that, if the
trial magistrate had been informed of Mr Wong’s criminal record, he would not
have varied his finding that Mr Wong’s evidence was credible and reliable. He
therefore dismissed the appeal.
With leave the Appellant appealed on the ground that he had suffered
substantial and grave injustice.
The appeal to the High Court was brought under the provisions of Part
VII of the Magistrates Ordinance. The judge’s powers in disposing of the
appeal were governed by s 119(1)(d) and (e), which read:
(d) the judge may by his order confirm, reverse or vary the
magistrate’s decision or may direct that the case shall be heard
de novo by a magistrate or may remit the matter with his opinion
thereon to a magistrate, or may make such other order in the
matter as he thinks just, and by such order exercise any power
which the magistrate might have exercised; and any decision or
140
CCAB 2000
order made by the judge shall have the like effect and may be
enforced in the like manner as if it had been made by the
magistrate.
(e) the powers of the judge under paragraph (d) shall be construed
as including power to award any punishment, whether more or less
severe than that awarded by the magistrate, which the magistrate
might have awarded.
Held :
(1)
There was in the Magistrates Ordinance no equivalent to s 83 of the
Criminal Procedure Ordinance, which specified the grounds upon which an
appeal to the Court of Appeal might be allowed, and therefore there was no
proviso which required that the appeal should be dismissed if no miscarriage of
justice had actually occurred: the judge might make such order as he thought
just. It followed that he had to decide whether there had been in the magistrates’
court an error which made it just that the appeal should be allowed and the
conviction set aside;
(2)
It was common ground that there was a duty on the prosecution to
disclose to the defence details of the criminal convictions of any of its witnesses
if it knew of them and that a breach of that duty was a material irregularity:
Paraskeva (1982) 76 Cr App R 162, 164. In Maguire [1992] 2 All ER 433, 446
it was said: ‘no-one can have a duty to inform of what he does not know’, but
Stuart-Smith LJ went on to say that the agreed proposition in Paraskeva (supra)
left open the question who was embraced by the word ‘prosecution’. It also left
open the question whether there was a duty to make enquiries about a witness’s
record, but that did not need to be considered as it was not disputed that the
information should have been disclosed. Prosecuting officers would be well
advised to make enquiry about a witness’s record where his credibility was
likely to be a crucial issue in the case;
(3)
In Maguire (supra) Stuart-Smith LJ also said at p 446d:
If categorisation is necessary we are content to categorise a failure
to disclose as a ‘procedural’ irregularity, and because that which
was not disclosed ought to have been disclosed, we would expect
the irregularity to be one which usually satisfied the adjective
‘material’. In a case such as R v Hassan (1968) 52 Cr App R 291
there was not a failure to disclose because the convictions were
unknown, and the case had to be dealt with under para (a) [of
s 2(1) of the Criminal Appeal Act 1968]. There was no
irregularity;
(4)
Although Yeung J rightly held that there was a grave procedural error,
the effect of his judgment was that he did not regard that error as sufficiently
serious of itself to require that the appeal be allowed: that was to say he did not
think it was material. That was wrong. The error would only have been
immaterial if the magistrate would undoubtedly have entered the same verdict
had he known of Mr Wong’s previous convictions. It could not be put any
higher than that he might have entered the same verdict. The conviction was
therefore unsafe, and an unsafe conviction was a miscarriage of justice.
141
CCAB 2000
Proviso
Proviso
CA 53/2000
Stuart-Moore
ACJHC
Woo &
Stock JJA
(27.10.2000)
MA
Yee-keung
Voire dire proceeding/Alternate procedure used in District
Court/Defendant testifying on special issue only/Evidence given for
determination of special issue not to be used for purposes of
conviction/Application of proviso
案中案程序 - 區域法院使用交替程序 - 被告人就特別爭論點作證就特別爭論點的裁決而作的證供不可用於作出定罪裁決 - 應用但書
*John
Reading, SC &
Wong Sze-lai
The Appellant (D2) was charged together with Chiu Shun-nin (D1) with
an offence of trafficking in a dangerous drug, namely, 106.26 grammes of a
mixture containing 38.67 grammes of heroin hydrochloride. As D1 had pleaded
guilty, only the Appellant stood trial and, after conviction, he was sentenced to
5½ years’ imprisonment.
#Graham
Harris & A
Omar
On 14 July 1999, at about 8:45 p.m., on a road in Ngau Tau Kok, police
officers stopped a light van with registration number GG2791, for which they
had laid ambush. The Appellant was driving the van.
Beside the Appellant was his wife, Madam Cheung, and sitting behind
them was the D1. D1 got out of the vehicle and attempted to escape. He was
stopped by the police and found to be in possession of a black plastic bag
containing 6 packets of white powder, which was later found by the Government
Chemist to be the heroin, which was the subject of the charge. These facts were
not disputed by the Appellant before the judge. It was also agreed that on the
Appellant’s fingernail clippings taken at the police station after the arrest and on
the shoes he was wearing, traces of heroin were found. Further agreed was that
the Appellant had borrowed from his cousin the van some days before the
incident and had told the owner that it was for transporting goods.
At trial, the prosecution sought to adduce certain confessions and
statements made by the Appellant. Adopting the alternate procedure, the judge
heard evidence from the prosecution and the Appellant himself in order to
decide on the admissibility of such confessions and statements. At the end, he
admitted into evidence exhibit P2, a post-record of a statement made by the
Appellant upon his arrest at the scene, and P4, a record of a video-interview
between PW1 and the Appellant. However, he ruled inadmissible the records of
the interviews subsequent to the taking of exhibit P4, namely, prosecution
exhibits P5, P7 and P9. The most important evidence shown in exhibit P2 and
P4 was the statement made by the Appellant at the scene.
The key issue before the judge was whether the Appellant knowingly
participated in the transportation of the heroin found on D1 who had attempted
to escape from the van when it was stopped by the police.
PW1, PC 53202 and another police officer PW2, were in a police vehicle
driven by a sergeant who did not give evidence. The evidence of PW1 and PW2
was that after stopping the van, PW1 approached the Appellant who was sitting
in the driver’s seat of the van. PW1 told the Appellant that PW1 suspected him
of possession of dangerous drugs and asked him to alight for a search. He
cautioned the Appellant, searched him and found nothing suspicious. The
sergeant then came and said that D1 who had been in the van had been found
with white powder on him. PW1 then arrested the Appellant for possession of
dangerous drugs and cautioned him. According to PW1’s testimony on the
special issue of admissibility, the Appellant then said: “Ah Sir, my wife had
nothing to do with this case. It was Ah Nin and I who ‘taw’ (transliteration of
Cantonese) this for somebody.” The meaning of ‘taw’ in Cantonese was to drag
or pull, and, as the judge put it, meant ‘moving something’. PW2’s evidence
was that the Appellant at the scene said: “Ah Sir, my wife had nothing to do with
the white powder. It was Ah Nin and I who ‘taw’ it for somebody”. This was
also what was recorded in the post-record in exhibit P2. When PW1
subsequently repeated this to the Appellant in the first video-interview, the
142
CCAB 2000
Proviso
Appellant did not gainsay, as recorded in exhibit P4. These two exhibits were
admitted into evidence after the judge heard evidence on their admissibility.
Returning to the scene, upon the Appellant being further cautioned, he said
nothing.
The Appellant gave evidence only on the special issue of admissibility of
his confessions and statements, but did not give evidence on the general issue.
The judge evaluated the evidence and opined that PW1 and PW2 gave evidence
in a straightforward manner. He said:
Having heard PW1 and PW2, I am in no doubt that D2 (the
Appellant) told PW1 that his wife had nothing to do with the
matter and that D1 (the 1st Defendant) and he were transporting
what had been found on D1 for someone else. Now, it is true that
the words do not specifically contain an admission of knowledge
that what was being transported was white powder. I use white
powder there; obviously in Cantonese slang sense white powder
means heroin, everybody knows that. However, on this I am
entitled to look at the circumstantial evidence. There is no doubt
that D1 was transporting heroin.
D2 is himself a drug addict. He had to be taken for methadone
whilst in police custody. D2 had himself handled heroin and got
it on his shoes. He is not the kind of person who could be
expected to be ignorant of drugs and drug-related matters. When
stopped, his immediate reaction was to exonerate his wife, but
that immediate reaction was in no way that which one would
expect from an innocent man who was himself a drug addict.
One would have expected an innocent man at least to say, ‘What
white powder?’ Of course, he sought to exonerate himself later,
but by then he had time to think matters over.
It seems to me that the only inference which no reasonable person
could fail to draw from what was said, and the circumstances
under which it was said, is that D2 knew perfectly well that what
he was transporting was white powder, i.e. heroin.
I am satisfied beyond reasonable doubt that the defendant was
assisting D1 to carry something for someone and that he knew
that what was being carried was a dangerous drug. This amounts
to trafficking.
D2 is found guilty as charged and convicted accordingly.
On appeal, it was submitted, inter alia, that in convicting the Appellant,
the judge wrongly relied upon evidence which was before him for the purpose of
determining the special issue only, and two pieces of evidence were identified in
the Reasons for Verdict:
(a)
The defendant himself said that he mentioned white powder;
and
(b)
D2 is himself a drug addict. He had to be taken for
methadone whilst in police custody.
Counsel referred to R v Wong Kam-ming [1980] AC 247, a murder case,
where, at the start of the trial, the defence challenged the admissibility of the
confessional statement on the ground that it had not been made voluntarily. The
defendant gave evidence in the voire dire, in which he admitted that he had been
present at the scene and involved in the attack of the deceased. The trial judge
ruled the statement inadmissible but allowed the defendant’s said evidence to be
proved in the main trial. On appeal from Hong Kong, the Judicial Committee of
the Privy Council, at 258, held:
Where the confession had been excluded, the argument against
ever admitting such evidence as part of the Crown case must
143
CCAB 2000
Proviso
prevail ... the same exclusion of evidence regarding the voire dire
proceedings from the main trial must be observed, regardless of
whether the challenged confession be excluded or admitted.
Held :
(1)
Wong Kam-ming was discussed by the Hong Kong Court of Appeal in R
v Lai Chi-shing [1987] HKLR 422. Cons VP said:
In a case of R v Wong Kam-ming (sic) [1980] AC 207 the Privy
Council decided that where a confession was found upon a voire
dire to be inadmissible what the defendant had said upon those
proceedings should play no further part in the continued trial.
That case, however, did not deal with what other witnesses, in
particular those for the prosecution, had said.
In Ho Yiu-fai and Others v R [1970] HKLR 415 (the) Full Court
gave approval to what had by then become a common practice in
the District and Magistrates Courts and is now usually called the
‘alternate procedure’. In that case the court does not stop and
enter upon separate voire dire proceedings, but merely notes the
objection that is taken to the proffered statement and continues
with the trial. The evidence as to the admissibility of the statement
is taken, as it were, in parallel with the evidence upon the general
issue. At some suitable stage, usually the close of the prosecution
evidence, the defendant is given a chance to give his evidence and
to call his witnesses in relation to the proffered statements alone.
The ruling of the court upon the admissibility of those statements
will be made at least before the defendant is required to answer, if
necessary, upon the general issue.
In its judgment the Full Court expressly decided that although in
the event the statements were not admitted the judge nevertheless
would be entitled to rely upon the evidence given by the
prosecution witnesses. Is the position then any different where the
alternate procedure is not followed, but the single judge does
enter upon a voire dire?
In principle we can see no distinction. It seems to us to make no
difference whether the evidence is given in what might be termed
‘parallel proceedings’ or in proceedings which are in one sense
distinct and separate. The reason why there can be no repetition
of the defendant’s evidence is that he is, in effect, forced to give
evidence on the question of admissibility. If he were not given
protection against repetition on the general issue he would be
improperly deprived of his right to silence. But other witnesses
have no right to silence. They do not need to be protected from
the repetition of their evidence, nor can we see any reason why the
defendant should be so protected. It would in our view be
absurdly technical to exclude evidence which the judge has
already heard, in some cases only a short while before. Even if
viore dire proceedings are proceedings separate from the general
issue, they are proceedings in the same litigation, between the
same parties and before the same judge or magistrate.
It was clear that, whether the alternate procedure or a voire dire had been
adopted, insofar as the statement the subject matter of the proceedings had been
held inadmissible, the evidence given by the defendant was inadmissible on the
general issue. The dictum of the Judicial Committee cited above also extended
that rule to a case where the statement had been held to be admissible. The
rationale behind this was that a defendant was, when he faced the prosecution’s
attempt to adduce his out of court statements as evidence implicating him,
compelled to give evidence against their admissibility on the ground of
involuntariness if he felt such to be the case, but his right to remain silent on the
general issue had to be protected. However, the rule had no application to the
144
CCAB 2000
Proviso
prosecution’s evidence given on admissibility, which could be used and
considered by the trial judge on the general issue;
(2)
The judge apparently used the evidence given by the Appellant in the
alternate procedure, that the Appellant said he mentioned white powder at the
scene, to help him decide that the discrepancy between the testimonies of PW1
and PW2 - PW2 said the Appellant used the words “white powder” while PW1
did not - was insignificant. He was wrong to have done that. However, from the
evidence of PW1 and PW2 and in exhibits P2 and P4, which was admissible and
had been admitted on the general issue, it was plain that the Appellant himself
did mention white powder. The judge also erred in considering the evidence
given by the Appellant in the alternate procedure that he was a drug addict and
that he had to be taken for methadone whilst in police custody. The Appellant’s
complaint on this ground was therefore substantiated. Notwithstanding, it was
clear from the Reasons for Verdict, that the judge’s conviction of the Appellant
was based on the following four important pieces of evidence:
(a) the Appellant was driving the van containing D1 who was
trying to escape but was found to be in possession of the
heroin when searched;
(b) the Appellant’s immediate reaction upon the police inquiry at
the scene to exonerate his wife;
(c) his admission in that immediate reaction that it was he and the
1st defendant who were transporting the heroin that had been
found on the 1st defendant for someone else; and
(d) traces of heroin were found on his fingernail clippings and
shoes.
Whether the Appellant himself used the words ‘white powder’ or merely ‘this
case’ was, in the event, of scant comfort to him, because it was common ground
that the words and circumstances of his arrest made perfectly clear that the
police were challenging him about his connection with the dangerous drugs
carried by D1, and it was the Appellant’s reaction which he chose to make
which was not one to be expected from an innocent man, whether a drug addict
or not. The evidence that the Appellant was a drug addict and having to be
taken for methadone could only have been advantageous to him because that
might proffer an explanation why traces of heroin were found on his fingernail
clippings and shoes, though such an explanation was liable to be, and was in
fact, rejected by the judge. In view of the fact that it was agreed that the traces
of heroin were found on the Appellant’s fingernail clippings and shoes, and he
exercised his undoubted right not to give evidence on the general issue to
explain how those drugs came to be there, the erroneous admission of the
Appellant’s evidence of his being a drug addict could not have operated and did
not operate to his detriment;
(3)
Although it was complained that the judge had used the inadmissible
evidence to conclude that the Appellant ‘is not the kind of person who could be
expected to be ignorant of drugs and drug-related matters’, this was not entirely
correct. What the judge said was:
D2 is himself a drug addict. He had to be taken for methadone
whilst in police custody. D2 had himself handled heroin and got
it on his shoes. He is not the kind of person who could be
expected to be ignorant of drugs and drug-related matters.
The judge’s comment complained of was based more on the important
pieces of evidence as enumerated in (2) above.
Result -
Leave to appeal granted, but proviso applied and appeal dismissed.
145
CCAB 2000
Road Traffic
Road Traffic
MA 857/99
Burrell J
(19.4.2000)
TSUI
Ping-wing
Taxi driver behaving in uncivil manner/Whether constitutional guarantees
protect right to swear at passenger/Restriction on freedom of expression
justified
的士司機沒有禮貌 - 咒罵乘客的權利是否受人權法案保障 - 限制發
表的自由有充分理據支持
*A A Bruce,
SC,
& Jasmine
Ching
The Appellant challenged the validity of R 45(1)(a) and 57(1) of the
Road Traffic (Public Service Vehicle) Regulations, Chapter 374. R 45(1)(a)
which stated:
#Ho Chun-yan,
Albert &
John J
Clancey
such -
(1) The driver of a public bus, public light bus or taxi, when acting as
(a) shall behave in a civil and orderly manner’.
R 57(1) made the contravention of R 45(1)(a) an offence punishable by a
maximum fine of $3,000 and imprisonment up to 6 months.
Their validity was challenged on the basis that they were inconsistent
with Art 16 and 22 of the Hong Kong Bill of Rights Ordinance. Art 16
guaranteed freedom of expression. Art 22 guaranteed equality before the law
and equal protection of the law.
The Appellant was charged with behaving other than in a civil and orderly
manner. He was a taxi driver, who picked up a passenger on a hot afternoon in
July, 1998. He was aggrieved by the shortness of the journey. He shook his
head, and he turned the air conditioning down. He spoke into his radio in an
impolite way intending to be heard by the passenger, ‘Just no fucking use, such a
short distance. It was fucking troublesome.’ Similar phrases were repeated. At
the end of the journey, the Appellant directly insulted the passenger by saying,
‘What a fucking big deal. Such a short distance, take a taxi to go there. What a
fucking big deal.’ He was convicted after trial.
The Appellant argued six grounds of appeal. They were:
(1)
The learned magistrate erred in finding that a passenger had a
right not to be insulted and verbally abused by a taxi driver
and that that right was protected by Art 16(3)(a). R 45(1)(a)
was not a justifiable restriction which was legitimate or
necessary for the ‘respect of the rights or reputations of
others’;
(2)
R 45(1)(a) did not contain an ingredient that the conduct
complained of could lead to a breach of the peace. The
Regulation failed the ‘necessity’ test. There was no evidence
to show it was necessary in order to preserve public order.
The mere use of foul language fell short of ‘fighting words’
which would, by their very utterance, be likely to incite an
immediate breach of the peace;
(3)
The Regulation failed the ‘proportionality’ test. A maximum
sentence of 6 months’ imprisonment and a criminal
conviction was a disproportionate sanction for conduct by a
taxi driver which was judged to be uncivil and not orderly. If
there was a need to control or restrict the behaviour of taxi
drivers, internal disciplinary procedures would suffice;
(4)
The Regulation was too vague. The expression ‘shall behave
in a civil and orderly manner’ was too vague or overly broad.
146
CCAB 2000
Road Traffic
There were no statutory definitions of ‘civil’ and ‘orderly’.
Standards of civility varied between different groups in a
pluralistic society. A restriction that was void because of
vagueness could not be prescribed by law. In other words, a
regulation was not ‘provided by law’ if its words could not be
clearly construed;
(5)
The Regulation failed the ‘justification’ test. The magistrate
should have concluded that the prosecution had failed to
demonstrate that the restrictions imposed by the regulation
were demonstrably justifiable in a free and democratic
society which upheld the aspirational value of pluralism,
diversity and toleration. He failed to recognize that the use of
foul language was quite common amongst certain groups and
was not considered objectionable. It should, therefore, never
be criminalized. It was manifestly unjust to criminalize the
speaking of foul language when the habit was commonplace
and would cause no harm to the person on the receiving end;
(6)
Art 22 of the Bill of Rights Ordinance was contravened
because R 45(1)(a) discriminated against taxi drivers and
public bus and light bus drivers. There was no equivalent
control over other sectors of public service, such as train
drivers, firemen, customs and immigration officers, etc.
Separating public vehicle drivers had no objective and no
reasonable justification.
Held :
(1)
R 45(1)(a) restricted the Appellant’s freedom of expression and that
restriction was provided by law;
(2)
16;
It was a limited restriction not of the type primarily contemplated by Art
(3)
The restriction was necessary as defined by Art 16(3);
(4) The purpose of the Regulation was to prohibit precisely the sort of
conduct of which the Appellant was guilty;
(5) R 45(1)(a) was not inconsistent with Art 22 of the Bill of Rights
Ordinance. It did not discriminate against the Appellant in the true sense of the
word and, accordingly, there was no requirement to justify it.
MA 296/2000
Tong DJ
(25.8.2000)
*Winsome
Chan
#I/P
WONG
Yin-chak
Failure to stop after accident/No fixed distance beyond which car must not
travel
在意外發生後沒有停車 - 沒有規定車輛肇事後不得向前駛的距離
The Appellant was convicted after trial of three offences: careless
driving, failing to stop after an accident, and failing to report as soon as
reasonably practicable after an accident causing damage.
As regards the second charge of failing to stop, the magistrate noted
that the Appellant did stop after the accident, albeit at a distance from the point
of collision. On appeal
147
CCAB 2000
Road Traffic
Held :
(1)
In Jarman v Walsh [1936] SASR 25, a driver had driven for 300 yards
from the scene or the accident and then returned, and the court held that the
driver had not complied with the obligation to stop. In McDermott v DPP
[1997] RTR 374, the driver drove on for about 80 yards, then stopped and
returned to the other vehicle, and again it was held that the requirement to stop
had not been satisfied;
(2)
Although a line could not be drawn as to what distance amounted to a
failure to stop, a failure to stop after such a long distance as 60 to 70 meters did
not satisfy the requirement;
(3)
The requirement to stop included the requirement to provide personal
particulars.
香港特別行政區訴蔡志雄
HKSAR v CHOI Chi-hung
高等法院原訟法庭–高院裁判法院上訴2 0 0 0 年第6 2 號
*陳文慧
Vivien Chan
# 郭棟明
Eric Kwok
聆訊日期：二零零零年九月一日
宣判日期：二零零零年九月一日
MAGI ST RACY AP P E AL NO. 6 2 OF 2 0 0 0
CHU DJ
Date o f Hear ing : 1 Sep temb er 2 0 0 0
Date o f J ud gment : 1 Sep temb er 2 0 0 0
犯案者未能提供呼氣樣本 - 醉酒可否構成合理辯解
上訴人經審訊後被裁定違反香港法例第374章《道路交通條
例》第39B(6)條，即沒有提供呼氣樣本。他不服定罪，提出上訴。
上訴人獲示範如何進行呼氣測試。他經五次嘗試仍不能成
功提供呼氣樣本。據裁判官裁斷，上訴人是蓄意沒有提供呼氣樣
本，或是他酒醉到不能遵從警員的指示提供呼氣樣本，但兩者皆不
屬合理辯解。本上訴案的爭論點，在於因醉酒以致未能提供呼氣樣
本是否可構成合理辯解。
裁決︰
(1)
在 R v Lennard [1973] 1 W L R 483一案中，法庭裁定‘ 除
卻因體能或精神狀態的緣故以致無能力提供呼氣樣本，又或是提供
樣本在相當程度上會招致有損健康的風險外，其他理由均不屬合理
辯解 ’；
(2)
香港法例第 374 章第 39B(6) 條與英國《 1967 年道路安全法
令》( Roa d Sa fe t y Ac t 1967 )第3(3)條相類似，而第3(3)條的訂立，
是為解決控方在舉證方面所遇到的困難；
(3)
觸；
若昏醉構成合理辯解，則與第 39B(6) 條的立法精神有所抵
148
CCAB 2000
Road Traffic
(4)
雖然上訴人代表律師辯稱，一名駕車者如因酒醉而未能提
供呼氣樣本，則並無干犯沒有提供呼氣樣本的罪行，因他是在不自
覺的情況下沒有提供呼氣樣本。但上訴人並非不自覺，他是完全明
白提供呼氣樣本的要求。
上訴駁回。
[English digest
of MA
62/2000
above]
CHOI
Chi-hung
Offender unable to provide breath specimen/Whether drunkenness a
reasonable excuse
The Appellant was convicted after trial of an offence contrary to
s 39B(6) of the Road Traffic Ordinance, Cap 374, i.e. failure to provide a
specimen of breath. He appealed against conviction.
Chu DJ
The Appellant was shown how to conduct a breath test. He made five
attempts and still failed to provide a specimen of breath. The magistrate found
that the Appellant deliberately failed to provide a specimen or he was so drunk
that he could not follow the instructions given to him by the police to provide a
specimen. Neither amounted to a reasonable excuse. The issue on appeal was
whether a person who was so drunk that he could not provide a specimen had a
reasonable excuse.
(1.9.2000)
*Vivien Chan
#Eric Kwok
Held :
(1)
In R v Lennard [1973] 1 WLR 483, it was held that ‘no excuse can be
adjudged a reasonable one unless the person from whom the specimen is
required is physically or mentally unable to provide it or the provision of the
specimen would entail a substantial risk to his health’;
(2)
S 39B(6) of Cap 374 was similar to s 3(3) of the Road Safety Act 1967
which aimed at solving the difficulty the prosecution had when it proved the
offence;
(3)
If intoxication could amount to a reasonable excuse, it would be contrary
to the legislative intent;
(4)
Although it was submitted that a person could not commit the offence if
he was so drunk that he could not provide a specimen, and that the failure to
provide a specimen was due to his unconscious state, the Appellant was not
unconscious and he understood the request to provide a specimen.
Result – Appeal dismissed.
MA 929/2000
Beeson J
(7.12.2000)
*Edmond Lee
#I/P
POON
Chi-hung,
William
Speeding/Reliability of laser gun/Certificate prima facie evidence of
regularity/Acceptance of expert evidence/ Relevance of possible margin of
error
超速駕駛 - 雷射槍的可靠程度 - 證明書是證明操作正常的表面證據
- 接納專家證據 - 可能出現的誤差幅度是相關考慮因素
The Appellant appealed against his conviction on a fixed penalty
summons. The information showed that he drove a private car registration No.
HH 3136, on a road at a speed exceeding 50 kilometres per hour, being the
speed limit in force on that road, namely, at a speed of 65 kilometres per hour.
That was an offence contrary to s 41(1)(a) of the Road Traffic Ordinance, Cap
374.
There was no dispute that the Appellant was driving the car on the road
in question at the material time, nor that he was intercepted and given a fixed
penalty notice. The only issue before the magistrate was whether he drove at a
149
CCAB 2000
Road Traffic
speed exceeding the speed limit and he noted that the burden rested on the
prosecution to prove beyond reasonable doubt that the Appellant did drive at a
speed exceeding 50 kmh.
The chief attack on appeal was as to the reliability and accuracy of the
laser speed detection system, that being LT 120-20 (serial no. 7859), which was
the equipment used by the police officer, PW2, to detect the speed of the car.
An independent expert, an Associate Professor of HKUST, was called by the
prosecution to give evidence about tests and examinations he had carried out on
the laser gun in question and on other laser guns of the same model and to give
his opinion on the accuracy and reliability of the laser gun.
Having admitted the witness as an expert, the magistrate concluded that
the laser gun was reliable and accurate when used on normal vehicles on the
road without flat or reflective surfaces. He also found that the laser gun
functioned as it was required to and that it could measure speed accurately
within the specified error margin.
He was satisfied that apart from the general accuracy of the laser gun
technique, the particular gun was working accurately at the material time when
the Appellant’s vehicle was shot by the gun. He was satisfied as well that the
laser gun operator was both a competent operator and a credible witness.
The magistrate also admitted into evidence a certificate under s 28 of the
Evidence Ordinance, Cap 8, which stated that on 24 January 1998 and 1 August
1998, namely, before and after the date of the offence, the manufacturer checked
the laser gun, found it was functioning properly and that the test results were
accurate. The contents of such a certificate stood as prima facie evidence of the
matters contained therein.
On appeal
Held :
(1)
Having heard the expert’s evidence, the magistrate concluded that the
laser gun, radar and VASCAR systems were all accurate reliable speed
detectors;
(2)
The magistrate considered the expert evidence and concluded that at its
highest it could be said that the laser gun might be subject to interference by a
mobile telephone, but in that case the laser gun would produce an error message,
namely, no reading at all, rather than a wrong reading. The evidence at trial
showed that when the gun was shot at the Appellant’s vehicle, no error message
had appeared on the screen of the laser gun and there was no evidence to suggest
that the laser gun was subjected to interference at the time the speed of the
Appellant’s car was detected;
(3)
The magistrate considered the curriculum vitae of the expert and assessed
his knowledge and admitted him as an expert for designing tests on the laser gun
and for commenting on its accuracy and reliability. He specifically found that
he was an independent witness, unrelated to the vendor of the laser gun. It was
for the magistrate to decide whether or not to accept the witness as an expert;
(4)
On the evidence the magistrate was satisfied that the operator of the laser
gun, who had attended a training course and regularly used it, was experienced
in using the gun. There was nothing to show that his finding was in any way
unreasonable, and an appellate court was not in a position to interfere;
(5)
In HKSAR v Sham Wai-man, Walker MA 373/99, it was held that the
prosecution could rely on a certificate produced under s 28 of the Evidence
Ordinance, Cap 8. The magistrate found that the certificate was prima facie
evidence of the facts stated in it, and that the defence had not, on the balance of
150
CCAB 2000
Road Traffic
probability, established that the contents of the certificate were inaccurate. He
accordingly drew the inference that the laser gun was operating normally
between the two dates of inspection in the certificate;
(6)
The magistrate noted that for the purposes of this offence he had only to
be satisfied that the Appellant was exceeding the speed limit by 1 kilometre an
hour. He also noted that the Appellant had exceeded the speed limit by 19 kmh,
and he heard cogent evidence about the accuracy and reliability of the laser gun.
For the offence not to have been committed, the margin of error would need to
be at least 19 kilometres. That was relevant: Penny v Nicholas [1950] 2 All ER
89 followed;
(7)
The magistrate dealt with the case correctly. He assessed the accuracy of
the laser gun procedure and was satisfied on that matter. He satisfied himself as
to the competence of the laser gun operator. He concluded that the Appellant
was guilty of speeding.
Result – Appeal dismissed.
151

Classified Criminal Appeals Bulletin 2000 Part 1

Transcription

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