To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies
致：刑事檢控科各律師/高級律政書記
裁判法院各法庭檢控主任
A Publication of the Prosecutions Division
of the Department of Justice
律政司刑事檢控科出版
律政司刑事檢控科出版的刊物
出版的刊物
CRIMINAL APPEALS BULLETIN
刑事上訴案判例簡訊
May Edition/2014
2014 年 5 月號
General Editor
總編輯
William Y H Tam
譚耀豪
Editors
編輯
Wesley W C Wong, SC
黃惠沖 資深大律師
David C Y Leung
梁卓然
Fanny K H Wong
黃錦卿
Edmond C M Lee
李俊文
Martin S T Hui
許紹鼎
Raymond H C Cheng
鄭凱聰
Irene Fan
范凱琳
Winnie T W Lam
林德穎
Mickey M K Fung
馮美琪
Franco B O Kuan
關百安
P. Lachmandas Daryanani
戴彥英
Andrew H C Li
李希哲
Winnie W Y Mok
莫韻妍
2
Cliff W K Ip
葉瑋璣
Audrey Parwani
柏愛莉
3
INDEX
Page
A.
Hong Kong Court of Final Appeal
4
香港終審法院
B.
Application for Review of Sentence
7
申請刑罰覆核
C.
Criminal Appeals /Against Conviction
10
刑事上訴案件/針對定罪
D.
Criminal Appeals /Against Sentence
15
刑事上訴案件/針對刑罰
E.
Magistracy Appeals /Against Conviction
20
裁判法院上訴案件/針對定罪
F.
Magistracy Appeals /Against Sentence
35
裁判法院上訴案件/針對刑罰
G.
Practice and Procedure
常規與程序
[
3
] – denotes paragraph number in the judgment.
41
4
A. Hong Kong Court of Final Appeal
香港終審法院
HKSAR v FEROSH
COURT OF FINAL APPEAL
FACC 2/2014
Ribeiro PJ, Tang PJ, Fok PJ, Bokhary NPJ and Lord Collins of Mapesbury NPJ
Date of Judgment: 28 May 2014
Counsel for the Respondent: William Tam DDPP
Counsel for the Appellant: Phillip Ross
Taking employment while being a person unlawfully remaining in Hong Kong - Applying IP Po
Fai - Working per se is not "employment" - Inference of employment to be drawn from all the
circumstances
身為非法留港的人接受僱傭工作–應用葉寶輝 一案–工作本身 並非「僱傭工作」–
作 出受 僱推 論 須 綜 合 所 有 情 況
The Appellant appealed to the Court of Final Appeal against his conviction of the offence of
taking employment while being a person remaining in Hong Kong without the authority of the
Director of Immigration after having landed in Hong Kong unlawfully (“the remaining offence”),
contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance (Cap 115) [1]. The
Respondent conceded the appeal and a Joint Case was filed pursuant to the procedure set out in Mok
Kin Kau (2008) 11 HKCFAR 1 for determination by the Court of Final Appeal without an oral hearing
[2].
The Appellant was one of four men (D1 to D4 respectively) arrested after they had been seen by
police removing metal sheets from a tin shed in Tai Po. The four were prosecuted but the case of one
of the men (D4) was severed for some reason and he was tried after the other three. In the first trial (of
D1, D2 and D3) before the Magistrate, the Applicant was D3. He and D1 were convicted of the
remaining offence and D2 was convicted of taking employment while subject to a removal order [4][5].
The prosecution evidence at trial was that PW1, a police witness, saw D1, D2, the Appellant (D3)
and a fourth man (i.e. D4) at the scene of an apparently derelict metal shed in Tai Po. PW1 saw the
fourth man and the Appellant removing metal sheets from the shed. D1 and D2 were seen taking the
sheets to a stone hut. The four were observed to adopt this procedure three times. PW1 and another
police witness saw the Appellant hitting the metal sheets with a hammer and the fourth man using a
crowbar to prise the metal sheets apart. The four men were kept under observation for about 8
minutes. When the police approached them, the Appellant ran away from the scene and was
intercepted about 100 metres away [6].
Each of the accused gave evidence. It was their defence that they were all there to look for a
place to rent and were not working. The Magistrate rejected their defence and found that they were
working and were employed. She accepted that there was no direct evidence of employment but drew
an inference that they were employed and convicted them. The Appellant appealed to the Court of
First Instance against conviction and it was dismissed [7].
5
In the final appeal, amongst other grounds, the Appellant contended that substantial and grave
injustice had been done in that on the evidence, a tribunal of fact could not have found beyond
reasonable doubt that the Appellant was employed, because he might have been working for his own
benefit at the material time. The Respondent conceded the final appeal solely on the ground of
insufficiency of evidence, relying on The Queen v Ip Po Fai HCMA 1201/1995 that evidence of a
person actually working at a place of employment would not necessarily support an irresistible
inference of employment; and relying on Poon Chau Nam v Yim Siu Cheung (2007) 10 HKCFAR 156
and HKSAR v Chow Kin Cheung [2013] 1 HKC 246 that the mere fact that a person is working for
another does not necessarily mean there is a relationship of employment between the two [13], [15].
Held, appeal allowed and conviction quashed:
(1) The Court of Final Appeal held that the prosecution evidence merely established that the
Appellant and his co-accused were observed to be carrying out some form of manual work at the
derelict metal shed. However, given the condition of the shed, this was not an obvious place of
employment, like a restaurant, shop or construction site, and there was no evidence as to whom either
the shed or the sheets of metal the appellant was assisting to dismantle belonged. Moreover, there was
no evidence that the four men were doing that work for an employer rather than for themselves, nor of
the degree of any control being exercised over them by any employer. There was no evidence of any
payment for the work or the basis of any such remuneration. There was no evidence of who had
provided the hammer and crowbar, if they were not brought by the Appellant and his co-accused
themselves. There was no evidence of any safety or other work-related equipment at the site [18].
(2) In the circumstances, the Court of Final Appeal accepted the parties’ joint submission that the
inference of employment was not the sole and irresistible inference to be drawn from the evidence.
That being so, proof of the offence beyond reasonable doubt was not established and the Appellant’s
conviction constituted a substantial and grave injustice. For that reason, the Appellant’s appeal was
allowed and his conviction quashed [19].
HKSAR v SHUM WAN FOON (沈運歡)
沈運歡)
COURT OF FINAL APPEAL
FACC 7/2013
Ribeiro PJ, Tang PJ, Fok PJ, Bokhary NPJ and Lord Collins of Mapesbury NPJ
Date of Judgment: 28 May 2014
Counsel for the Respondent: Edmond Lee SADPP
Counsel for the Appellant: Margaret Ng
Criminal law and procedure - Duty on magistrate to make sufficient inquiries to ascertain the
purported basis for reversal of plea - Where a failure to make proper inquiries, the appropriate
disposition on appeal is to remit the matter to the magistrate to inquire into the application to
reverse plea (without quashing the conviction)
Criminal law and procedure - CFA providing guidance on the practice and procedure for
uncontested CFA appeals
刑事法及訴訟程序–裁判官有責任充分查詢以確定推翻認罪的聲稱理據–如沒有適當
查詢，上訴時恰當的處理方法是把事宜發還裁判官以查明推翻認罪的申請(但不撤銷
定罪)
刑 事法 及訴 訟 程序 – 終 審 法 院為 非 爭 辯 的終 審法 院 上訴 案提 供 常 規與 程序 指 引
6
The Appellant was represented by counsel and pleaded guilty to three charges. The case was
then adjourned for three weeks in order for background and community service reports to be obtained
before sentencing. He was granted bail pending sentence.
At the resumed hearing, the Appellant’s counsel informed the magistrate that the Appellant
wished to reverse his plea and apply for an adjournment of 7 days in order to instruct a new legal
representative. The magistrate discharged the counsel and the Appellant then acted in person.
The magistrate did not make sufficient inquiries with the Appellant to ascertain the purported
basis for the reversal of plea and to decide whether it was sound in fact and in law. The magistrate
elicited further mitigation from the Appellant and sentenced him to concurrent sentence of 6 months
imprisonment on each charge.
The Appellant served his sentence. He applied and was granted leave to appeal out of time
against his conviction. His magistracy appeal was dismissed.
The Appellant obtained leave to appeal to the Court of Final Appeal on the ground of
substantial and grave injustice. Subsequently, the Respondent did not contest the Appellant’s appeal
and the Court of Final Appeal allowed the appeal.
Held, appeal allowed:
(1)
Where a defendant applies to change his plea from guilty to not guilty, it is incumbent on a
magistrate to make sufficient inquiries to ascertain the basis of the defendant's wish to reverse his plea
and to decide if that basis is sound in fact and in law. Authority for this proposition can be found in
Wong Ching-wah v The Queen [1976] HKLR 412 [13].
(2) In ordinary circumstances, the appropriate disposition where there has been a failure to make
proper inquiry on an application to change plea is an order remitting the matter to a magistrate to
inquire into that application. The remitter will clarify whether the original plea should stand, in
which case a conviction will follow, or whether a trial should proceed on the basis of a not guilty
plea. There would ordinarily be a public interest in having a proper determination of a defendant's
guilt or innocence of the offences with which he has been charged. That was all the more so in the
instant case where the offences in question were serious offences attracting a custodial sentence [32].
(3) The procedure to be applied when a party is minded to concede an appeal in the Court of Final
Appeal was given in the case of Mok Kin Kau v HKSAR (2008) 11 HKCFAR 1. It is known as the
‘Mok Kin Kau’ procedure [35].
(4) The Court of Final Appeal took the opportunity to provide some guidance on the Mok Kin Kau
procedure. The decision whether or not to allow an appeal clearly lies with the Court. The Appeal
Committee or the Court (as the case may be) may exercise a discretion to dispense with the need for
an oral hearing of either the application for leave to appeal or the appeal itself when the application
or appeal is uncontested and it is readily apparent that leave should be granted or the appeal allowed.
If parties both agree that an appeal should be allowed, a Joint Case should be filed with the Court.
The parties should also endeavour to agree all ancillary orders and any costs consequent on the
appeal being allowed [37].
7
B. Application for Review of Sentence
申請刑罰覆核
SJ v LEUNG YUET HUNG
COURT OF APPEAL
CAAR 1/2014
Yeung Ag CJHC, Stock VP, Lunn JA
Date of Hearing and Judgment: 12 May 2014
Counsel for the Applicant: Anna Lai SADPP & Claudia Ng Ag SPP
Counsel for the Respondent: John Marray
Application for review of sentence - Attempted rape - Appropriate starting point for attempted
rape could, depending on the circumstances, be as high as that for rape - Fundamental for a
sentencing court to accord careful consideration to the impact of the crime upon the victim Prosecuting counsel should carefully consider the need to obtain a victim impact assessment
report - Aggravating factors - Historic or "cold case" factor - Approach on review having
regard to "double jeopardy"
申請刑罰覆核–企圖強姦–企圖強姦罪的恰當量刑起點視情況而定可高達強姦罪的判
刑–判刑法庭就罪行對受害人的影響給予審慎考慮始為重要基本–控方律師應審慎考
慮有需要索取受害人影響評估報告–加重刑罰的因素–封塵久遠或「懸案」因素–覆
核 時 顧 及 「 一 罪不 得兩 審 」 原則 的 處 理 方法
The Applicant was convicted after trial of one count of attempted rape and was sentenced to four
years’ imprisonment. The offence was committed on 26 July 1993 upon a girl who lived in a housing
estate in Tsing Yi. She was then aged 12 years 11 months. The Respondent was then aged 21 years
[3].
19 years passed before the Respondent was arrested for the attempted rape. The Respondent’s
palm print, which was taken after a theft committed by him in 2012, was found to match a palm print
in the apartment where the girl lived. Shortly after the attempted rape, semen stains which belonged to
the Respondent were recovered from the external area of the girl’s private part and from the
underpants and pair of shorts which she had been wearing at the time of the offence [4].
On the day in question, the girl entered the lift on the ground floor of a building and the
Respondent followed her into the lift but pressed no button for any floor. He followed her out of the
lift and walked past her towards the staircase. She entered her home. None of her family was there
[7].
A few minutes later, the Respondent knocked on the front door and falsely represented that he
was a staff representative from Town Gas and was there to take a meter reading. He asked if there
was any adult at home and requested entry to read the meter. She allowed him in. The Respondent
entered the kitchen and asked the girl in [8]-[9].
As she entered the kitchen, he grabbed her neck and pointed something sharp against her waist
from behind. He pushed her to the floor, told her to keep quiet and said that he only wanted money.
Then he pulled her T-shirt over her head. He asked her for her name and where she went to school.
He then asked whether she wanted to be taken away by him and she said “No” [9].
8
His penis was erect and he moved his penis around and about her private parts. He asked
whether she had done this before and she said that she had not. She shouted in protest several times
but he hit her head with his hand in order to keep her quiet. This caused her pain. She tried to resist
him by pushing him away but in vain [10].
Her home telephone rang and she told him that her father would be coming home at noon, upon
hearing which, he became nervous. Yet he still lay on top of her and continued to move his erect
penis around her vagina for several minutes before getting up and leaving the flat [11]. Penetration had
not taken place but he had ejaculated in the region of her vagina [12].
The sentencing judge noted that the attempted rape took place over 20 years ago, only a small
amount of violence was used and that the Respondent had not committed any offence throughout his
life except one count of minor theft [19].
Held, application for review allowed:
(1) A number of judgments in this jurisdiction, starting as long ago as 1994, have echoed the
statement that “the starting point in Billam is not one which necessarily should be used as the starting
point in Hong Kong” and that the guidelines in Billam were “no more than general indications of what
was considered to be appropriate at that time in England. The courts in Hong Kong are entitled to
take into account local conditions and impose sentences that vary from those referred to in the Billam
sentencing guidelines” [23].
(2) The assumption made, that an attempted rape is necessarily less serious than the full offence, is
not a safe or logical assumption. As with all sentencing, everything depends on the facts of the
case [29].
(3) Aggravating factors to which the cases allude include, but are not restricted to, the following: (1)
the victim is very young; (2) a weapon is used to frighten the victim; (3) the sexual offence has been
carefully planned; (4) violence is used over and above the force necessary to commit the sexual
offence; (5) the offender has broken into or otherwise gained access to the place where the victim is
living; and (6) the offender has used no safety measures in sexually abusing the victim so as to avoid
transmitting venereal disease or causing pregnancy. The age of the victim was a major aggravating
feature [35]-[37].
(4) A victim impact assessment report should, subject of course to the consent of the victim and the
sensible assessment of prosecuting counsel, always be obtained and produced in such cases [38]-[39].
(5) Those who sexually prey on child victims count on the fact that their victims may well not report
the offence or may be prone to unreliable recollection of detail, including identification. That is one
reason why the offender should not stand to gain from the passage of time before disclosure of the
offence or apprehension. This is not to say that the conduct of the offender in the intervening years is
irrelevant but it is to warn against the adverse consequences of allowing the fact of the intervening
years to accrue too much significance [49].
(6) The Court of Appeal cited the latest guidelines issued on the subject by the Sentencing Council
for England and Wales, effective from April 2014. It is suggested that: “4. The seriousness of the
offence, assessed by the culpability of the offender and the harm caused or intended, is the main
consideration for the court … 6. The court must assess carefully the harm done to the victim based on
the facts available to it …. Consideration of the circumstances which brought the offence to light will
be of importance. 7. The court must consider the relevance of the passage of time carefully as it has
the potential to aggravate or mitigate the seriousness of the offence. It will be an aggravating factor
where the offender has continued to commit sexual offences against the victim or others or has
9
continued to prevent the victim reporting the offences. 8. Where there is an absence of further
offending over a long period of time, especially combined with evidence of good character, this may
be treated by the court as a mitigating factor. However ... previous good character/exemplary
conduct is different from having no previous convictions. The more serious the offence, the less
weight which would normally be attributed to this factor.” [55].
(7) This was an ugly offence of its kind, planned by an intruder on a girl alone at home with
violence in addition to that “required” for the offence itself, who persisted despite the girl’s cries and
attempts to ward him off, and with unprotected ejaculation. Ignoring the issue of passage of time, this
was an attempted rape which warranted a sentence of nine years’ imprisonment [59].
(8) In all the circumstances of the instant case, the passage of time of itself was of some but not
much significance. It was of some significance because for a period of 19 years since, at a relatively
young age, the Respondent had committed the offence, he led a blameless life and the concern for the
safety of others which otherwise would be a material factor was no longer a factor. Standing back and
looking at matters in the round, the Court of Appeal was of the view that the appropriate sentence was
one of 8 years’ imprisonment [60]-[61].
(9) The Court then considered the issue of double jeopardy as applying to a review of sentence. To
give effect to the double jeopardy considerations in this particular case, the Court decided that the
sentence that should be imposed was one of 7 years and 6 months’ imprisonment [63]-[66].
10
C. Criminal Appeals /Against Conviction
刑事上訴案件/針對定罪
HKSAR v SZE MEI MUN (施美滿
施美滿)
施美滿 & ORS
COURT OF APPEAL
CACC 60/2013
Yeung Ag CJHC, Lunn JA & Poon J
Date of Hearing: 11-12 March 2014
Date of Judgment: 14 May 2014
Counsel for the Respondent: Robert SK Lee SC & Memi Ng SPP
Counsel for A1 & A2: Michael Blanchflower SC & Jonathan Ah-weng
Counsel for A3 & A4: Gerard McCoy SC, Simon KC Ng & Melo Man
Counsel for A5: Richard Donald & Winnie Chu
Criminal law & procedure – Conspiracy to export unmanifested cargo – Proper construction of
the offence under s 18 of Import and Export Ordinance (Cap 60) – Section 94A of Criminal
Procedure Ordinance (Cap 221) inapplicable – Prosecution has to prove that there was no
manifest
Criminal law & procedure – Prosecution’s duty of disclosure – Relevant material located outside
the jurisdiction – Obligation to take reasonable steps to ascertain and obtain the material
刑 事法 及訴 訟 程序 – 串 謀 輸 出未 列 艙 單 貨物 – 香 港 法例 第 6 0 章 《 進 出口 條 例 》 第 18
條 罪行 的恰 當 詮釋 – 香 港 法 例第 2 2 1 章 《 刑 事訴 訟 程序 條例 》 第 9 4A 條不 適 用 – 控方
須 證明 沒有 艙 單
刑事法及訴訟程序–控方披露資料的責任–相關資料存放在司法管轄區以外–有責任
採 取合 理步 驟 確定 和取 得 資 料
The five Applicants were convicted after trial of a charge of conspiracy to export unmanifested
cargo (Charge 1) and of various related charges of money laundering (Charges 2-8). Charge 1 alleged
that the Applicants had conspired with inter alia four mainlanders to export unmanifested marked
diesel oil. The four mainlanders were masters of fishing vessels on to which the marked oil was loaded
and then smuggled out of Hong Kong into the Mainland. They were prosecuted in the Mainland and
were convicted and serving sentences there. Charges 2-8 arose out of the conspiracy in Charge 1 and
alleged that the Applicants had respectively dealt with large sums of money totalling over HK$2.6
trillion, knowing or having reasonable grounds to believe that the money represented proceeds of
indictable offence.
Before the trial, evidence was taken on commission from the four masters at the Shenzhen
Intermediate People’s Court pursuant to a Letter of Request. It transpired that the four masters had
earlier on made other out-of-court statements to the Mainland authorities which were not provided to
either party of the Hong Kong proceedings. Efforts were made by the prosecution to obtain these
previous statements from the Mainland authorities but to no avail. In due course, the Applicants took
objection to the admission of such commissioned evidence at the trial in Hong Kong. The judge ruled
against the objection and admitted the evidence of the four masters.
11
On appeal, the Applicants contended inter alia that the judge had erred in (i) determining that by
operation of s 94A of the Criminal Procedure Ordinance (Cap 221) it was not necessary for the
prosecution to prove in Charge 1 that there was no manifest; and (ii) admitting into evidence the
testimony of the four masters under s 77F(1) of the Evidence Ordinance (Cap 8), given that not all of
the material potentially relevant to their testimony had been disclosed to the defence prior to their
testimony because of the refusal of the Mainland authorities to make available all previous statements
made by the four masters. In response to ground (i), the Respondent raised an alternative argument
that s 18 of the Import and Export Ordinance (Cap 60) is to be construed as creating an offence of
exporting cargo, with an exception/exemption to the commission of the offence in the preparation and
use of a manifest.
Held, granting all Applicants leave to appeal against conviction, dismissing their appeals in respect of
Charges 1-5 and allowing the appeals by A1 and A3 in respect of Charges 6 & 7 respectively:
On ground (i)
(1) The judge erred in determining that s 94A of Cap 221 was relevant to Charge 1, a charge of
conspiracy. An inchoate offence of conspiracy, attempt or incitement exists at common law and does
not involve any reverse onus; hence it is unaffected by s 94A: HKSAR v Lam Yuk Fai (2006) 9
HKCFAR 281; HKSAR v Ng Po On (2008) 11 HKCFAR 91; HKSAR v Yung Lai Lai [2012] 5
HKLRD 670 [167]-[169].
(2) Having regard to the substance and reality of the language creating the offence as well as the
object and purposes of the legislation, s 18 of Cap 60 should not be construed as simply creating an
offence of exporting cargo, with an exception/exemption in the form of a manifest. As was held in R v
Cheng Kai & Another HCMA 753/1994, s 18 creates an offence of strict liability. It is not necessary to
show that the defendant had intended that the cargo exported by him was to be unmanifested. Apart
from showing that the cargo was not declared or properly declared in the manifest, the prosecution is
only required to prove that he intended to and did export the cargo [170]-[173].
(3) In proof of the offence of conspiracy to export unmanifested cargo under Charge 1, the
prosecution had to establish that the co-conspirators were parties to an agreement to do that unlawful
act (namely, the exportation of unmanifested cargo) intending that to be done. Accordingly, the judge
erred in determining that by operation of s 94A, it was not necessary for the prosecution to prove that
there was no manifest [174].
(4) Notwithstanding the judge’s wrong decision on a question of law, given that no miscarriage of
justice had actually occurred, it was appropriate to apply the proviso in accordance with the test as set
out in Launder v HKSAR (2004) 4 HKCFAR 457. First, the judge did not apply the erroneous
determination of law to his analysis of the facts of the case. Secondly, there was overwhelming
evidence to support the judge’s finding that each of the Applicants was a party to the conspiracy
alleged in Charge 1, so that a jury or a judge would have inevitably come to the same conclusion
[232]-[233].
On ground (ii)
(5) There is no absolute obligation on the prosecution to disclose relevant material held outside the
jurisdiction by those not subject to the jurisdiction of the Court. The prosecution’s duty is to “pursue
reasonable lines of enquiry” to identify the material and to take reasonable steps to obtain it: R v Flook
[2010] 1 Cr App R 30 [61] [116].
12
(6) In the instant case, the prosecution had taken reasonable steps to ascertain and obtain the
material in the hands of the Mainland authorities relevant to the four masters which was disclosable to
the defence. The material lay beyond the powers of the courts of Hong Kong to compel production
and thereby to afford disclosure to the defence [122].
(7) The potential significance of the undisclosed material relevant to the four masters lay in whether
or not it might undermine the credibility of the accounts given by them [127]. In the circumstances of
the instant case, the judge was correct to determine that no unfairness was likely to occur in the trial of
the Applicants in consequence of receipt of the evidence of the four masters. Such evidence was
properly admitted pursuant to s 77F(1) of Cap 8 [143].
HKSAR v LAU CHAK LAM, ANDY (劉澤霖
劉澤霖)
劉澤霖
COURT OF APPEAL
CACC 130/2013
Stock VP, Barma JA and D Pang J
Date of Hearing: 29 April 2014
Date of Handing Down Judgment: 28 May 2014
Counsel for the Respondent: Anna Lai SADPP
Counsel for the Applicant: Monica Chow
Criminal law and procedure – Prosecution’s burden of proof – Trying its best in the
circumstances – Defence entitled to put the prosecution to strict proof and offered no
suggestions or theories – Arguable submissions not given a fair hearing
刑事法及訴訟程序–控方的舉證責任–控方在此情況下是盡力而為–辯方有權要求控
方 嚴格 舉證 、 不予 質問 或 理 論 – 沒 有 公 平聆 聽有 理 據的 陳詞
The Applicant was convicted after trial of robbery of a pair of diamond earrings from a jewellery
shop (Shop A) by throwing pepper in the face of the salesperson there before fleeing the scene.
About 23 minutes after the robbery, the Applicant went with his girlfriend into Shop B which was
about 400 metres away from Shop A and which was also owned by Shop A’s owner. The Applicant
offered for sale a pair of earrings identical in shape and design to the earrings which had been stolen in
Shop A. The daughter of the shop owner became suspicious as she recognised the pair of earrings.
When she questioned their provenance and tried to take a photograph of the Applicant's girlfriend, the
pair fled the shop without proceeding further to the sale. Upon interview by the police a few weeks
later, the Applicant denied robbery but admitted trying to sell a pair of earrings belonging to his
girlfriend at Shop B.
There was no registration or other marks on the earrings for identification purposes, and at the
Applicant’s trial, the defence argued by way of cross examination of prosecution witnesses and
submissions that despite the similarity of the earrings presented in Shop B in every aspect to the
earrings stolen from Shop A, such similarity of itself was not sufficient to prove that they were in fact
the same earrings. The trial judge ruled against the defence in this regard. The trial judge also
remarked that there was an evidential burden on the defence to show that there was another such pair
somewhere in the world.
13
Held, application for leave to appeal against conviction granted and the appeal allowed. A re-trial was
ordered:
(1) It was not for the defence to prove that there was another pair or other pairs of the same design;
and it was wrong for the judge to suggest that on the facts of this case, i.e. in the context of a common
item of a pair of diamond earrings in a city awash of jewellery shops which stock earrings, there was
an evidential burden on the defence to that effect. The supposition that “the prosecution discharges its
high burden and standard of proof by doing the best it can in the circumstances” was wrong [25].
(2) The prosecution witness’s evidence that the earrings were identical in shape and design to the
earrings stocked in Shop A was not, on its own, sufficient to prove that they were in fact the same
earrings [25].
(3) No matter how strong the evidence against an accused, justice must be seen to be done. The
arguments advanced by the appellant’s counsel at trial were not nonsensical nor wasting time but her
contentions were interrupted in such a manner that the trial judge appeared to an objective observer to
have set his sights firmly against the accused’s case without according to counsel a proper hearing.
An accused person is entitled to feel that arguable submissions have been given a fair wind [30].
(4) It was open for the judge to conclude that, on the evidence as a whole, the only reasonable
inference was that the Applicant was the thief. Reviewing the CCTV footage and the quality of the
evidence, the Court ordered a retrial [28], [31].
HKSAR v MOK KWOK WAI ERICIS (莫國煒)
莫國煒)
COURT OF APPEAL
CACC 102/2013
Yeung Ag CJHC, Lunn JA & McWalters J
Date of Hearing and Judgment: 13 May 2014
Date of Handing Down Reasons for Judgment: 29 May 2014
Counsel for the Respondent: Wesley Wong SC DDPP & Raymond Cheng SPP
Counsel for the Applicant: Richard Donald
Murder – Pleading guilty to manslaughter by reason of provocation – Whether alternative
verdict of manslaughter by reason of unlawful and dangerous act should have been left to the
jury – Proper application of Ho Hoi Shing
Lies direction – Whether risk of impermissible use by the jury of lies in the Yuen Kwai Choi
sense
謀殺–承認因受激怒而誤殺–是否應留給陪審團考慮轉以「因非法危險作為而誤殺」
的罪名裁決–何開盛 一案的適當應用
謊言指引–是否有風險陪審團如 阮貴財 一案所指在不容許的情況下使用謊言
14
The deceased died of multiple force traumas all over her body, with fractured ribs, injuries to
her right lung and brain concussion [18]. The Applicant admitted under caution beating her on the
three to four days before she died [27], offering various reasons for losing self-control [28]-[29].
Having pleaded guilty to manslaughter before the jury, the Applicant, who did not testify, raised the
only defence of provocation against the charge of murder by adducing expert evidence from a clinical
psychologist and certain parts of his cautioned video record of interviews [31]-[32]. On appeal, the
Applicant complained that the trial judge misdirected the jury for having failed to (a) leave the option
of verdict of manslaughter by reason of unlawful and dangerous act, and (b) give a lies direction [38].
Held, application for leave to appeal against conviction dismissed:
(1)
The judge had extensive discussion with counsel on how to direct the jury and, in his own
initiative, suggested that the alternative verdict of “manslaughter with no intent”, i.e. killing by a
dangerous and unlawful act, should also be left to the jury despite the way the defence was conducted
on behalf of the Applicant. Counsel agreed to the judge’s proposed directions to the jury [37].
(2)
In a criminal trial by jury, the judge is duty bound to place before them all possible alternatives
which are open to them on the evidence on which a jury could reasonably come to a particular
conclusion – applying Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 [47]. The judge is not
absolved of such duty to leave an available verdict even though it was not one for which the defence
contended [48]. However, an alternative verdict should only be left if it was one to which a jury could
reasonably come to and a judge was entitled not to leave a lesser alternative verdict if it was not unfair
to do so, applying R v Foster [2008] 1 Cr App R 470 [49]. The judge is not always obliged to leave all
the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed
should not) do so unless the alternatives really arise on the issues as presented at trial: there may be
instances where there was at one stage a question which would, if pursued, have left open the
possibility of a lesser verdict, but which, in the light of the way of the trial has developed, has simply
ceased to be a live issue and in these and other situations it would only be harmful to confuse the jury
by advising them of the possibility of a verdict which could make no sense, applying R v Fairbanks
[1986] 2 WLR 1202 [50].
(3)
The nature of the deceased’s injuries was inconsistent with the suggestion that the Applicant
had not intended to cause her really serious bodily injuries and counsel for the Applicant clearly
recognised it [45]. The only question relevant to the defence was whether the Applicant, in
committing the unlawful and dangerous act or acts which caused the deceased’s death, had the specific
intent to cause grievous bodily harm to her [53].
(4)
In Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 [58], it was held that in the great
majority of cases where the prosecution contends that an accused is telling lies in the witness box, a
direction on lies is inappropriate. In cases where the rejection of any explanation given by an accused
almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury
are asked to decide on the truth of what an accused said on a central issue in the case, the usual
direction on the burden and standard of proof would normally be sufficient. A lies direction is
reserved for the limited circumstances in which a lie is used not merely to undermine the credibility of
the defence, but as in itself constituting a separate item of evidence or conduct in support of the case
against the accused, or where there is a danger that the jury might use a lie, not merely as undermining
the credibility of a defence, but as itself probative of guilt: HKSAR v Chan Kam Loi CACC 410/2012
and HKSAR v Chan Boon Ning CACC 571/2001 applied [59].
(5)
This was not a case about lies at all [55]. The trial judge’s reference to the deceased’s injuries
and what the Applicant said to the police was simply to identify the differences in the contents of his
out-of-court statements or his defence and the prosecution evidence against him. The Applicant’s lies,
if any, were only relevant to the issue of his credibility [57]. There was no risk of the jury making any
“impermissible use” in the Yuen Kwai Choi sense of any lies [60].
15
D. Criminal Appeals/Against Sentence
刑事上訴案件/針對刑罰
HKSAR v CHAN WAI TUNG (陳 煒東 )
COURT OF APPEAL
CACC 121/2013
Stock VP, Lunn & Macrae JJA
Date of Hearing and Judgment: 1 April 2014
Date of Handing Down Reasons for Judgment: 22 May 2014
Counsel for the Respondent: David Leung Ag DDPP
Counsel for the Appellant: James Cheng
Sentencing – Rape – Opportunistic attack on vulnerable semi-unconscious stranger with
persistence justifies a starting point for sentence of 9 years’ imprisonment – Aggravating factors
that would justify an enhancement of sentence from the starting point of 5 years’ imprisonment
判刑–強姦–乘機向易受傷害的半昏迷陌生人不住施襲，9 年監禁為量刑起點合乎理
據 – 多 項 加重 刑罰 因素 足 以 支持 上調 5 年 的 量 刑 起 點
The Appellant was convicted after trial of one count of rape and was sentenced to 10 years’
imprisonment.
On the night in question, the depressed 39-year-old complainant left her home and whilst on the
street took a large quantity of prescribed medicine in an attempt to commit suicide. She then felt very
dizzy. She was placed on a workman’s hand trolley by the 27-year-old Appellant and was wheeled to
a relatively quiet place. The Appellant then undressed himself and when interrupted by two security
guards whilst having sexual intercourse with the complainant, he lied to the security guards that the
complainant was her girlfriend and ignored the security guards’ enquiries and directions to desist.
Instead of decamping, the Appellant also threatened the security guards with obtaining the help of his
friends. By reason of the consumption of the medicine, the complainant, though partly conscious of
what was happening to her, was unable to resist the Appellant or even shout for help. The Appellant
nevertheless persisted [5] & [37].
The Appellant was not a person of good character. He had previous convictions of offences of
trafficking in dangerous drugs, criminal damage, common assault, assaulting occasioning actual bodily
harm and theft [24]. The complainant suffered considerable trauma as a result of the rape, but the
trauma had lessened after conclusion of the trial [25] & [26].
In adopting a starting point for sentence of 10 years’ imprisonment, the trial Judge remarked that
there was no evidence showing that a condom had been used, no used condom was found at the scene
but the absence of contact evidence was an indicator that, perhaps, a condom had been used. The
Judge described the offence as a very serious rape although it was opportunistic rather than carefully
planned. However, the complainant would have had reason to fear pregnancy and/or a sexually
transmitted disease until such time as she could receive results of tests [28] & [29].
Held, appeal allowed with a sentence of 9 years’ imprisonment substituted:
16
(1) In the recent decision of Secretary for Justice v Leung Yuet Hung [2014] 3 HKLRD 304, the
Court of Appeal noted that a number of judgments in this jurisdiction had said that Hong Kong courts
were entitled to depart from the 5-year starting point suggested by R v Billam [1986] 1 WLR 349 for
rape by an adult without any aggravating or mitigating features and suggested that the time was ripe to
revisit that starting point; however, absent statistics and a modern sentencing database, the Court of
Appeal proceeded on the basis that 5 years still tended to be the starting point applied [34].
(2) However, aggravating factors identified in Billam (supra) as well as the more recent case of R v
Millberry & Others [2003] 1 WLR 546 are equally applicable in this jurisdiction. They include, but
are not limited to:
1. where the rape is committed by two or more men acting together;
2. where the rape is committed by a man who has broken into or otherwise gained access to a
place where the victim is living;
3. where the rape is committed by a person who is in a position of responsibility towards the
victim or by a person who abducts the victim and holds her captive;
4. where violence is used over and above the force necessary to commit the rape;
5. where a weapon is used to frighten or wound;
6. where the rape has been carefully planned;
7. where the rape is repeated;
8. where the defendant has previous convictions for rape or other serious offences of a violent
or sexual nature;
9. where the victim is subjected to further sexual indignities or perversions;
10. where the victim is either very old or very young;
11. where the effect on the victim, whether physical or mental, is of special seriousness;
12. where the victim is especially vulnerable because of physical frailty, mental impairment or
disorder or learning disability;
13. where the rape is committed by the defendant who is knowingly suffering from a lifethreatening sexually transmissible disease, whether or not he has told the victim of his
condition and whether or not the disease is sexually transmitted;
14. where the rape is committed with a failure to use a condom; and
15. repeated rapes over a course of time in relation to the same victim [35].
(3) Circumstances which feature from time to time in Hong Kong cases which must go in
aggravation of sentence for rapes include:
1. threats of harm delivered to victims and/or to members of their family should they report the
incident, especially if the threats are delivered to a child or young person; and
2. that Hong Kong is a crowded city which is a safe city by international standards, and its
residents have come to expect and are entitled to expect an environment in which it is safe
for a female to walk about alone and at night [35] & [36].
(4) Although the attack on the complainant was opportunistic, it was launched upon an obviously
vulnerable stranger and it was clear that the Appellant was determinedly and brazenly persistent in the
commission of the offence [37].
(5) These circumstances were such as to warrant material enhancement of sentence from the starting
point of 5 years’ imprisonment. Yet, there were absent many of the features which in other cases had
drawn sentences in the range of 10 years’ imprisonment or more. A sentence in excess of 9 years’
imprisonment was not warranted and, to that extent, the sentence of 10 years’ imprisonment imposed
was excessive [38].
17
HKSAR v ARTURS LUDINS
COURT OF APPEAL
CACC 363/2013
Yeung VP, McWalters J
Date of Judgment: 3 April 2014
Date of Handing Down Reasons for Judgment: 8 May 2014
Counsel for the Respondent: David Chan ADPP
Counsel for the Applicant: Maurice Peter Tracy
Possession of false instruments – False bank cards involving debit cards and gift cards –
Sentencing judge conducted own private research on the internet to enquire the true nature of
the forged debit and gift cards – Adversarial system of administration of justice – Relies on
evidence presented by the parties and not on any extraneous matters obtained by private
research
管有虛假文書–虛假銀行卡涉及扣帳卡和禮品卡–判刑法官私自網上搜尋調查偽造扣
帳卡及禮品卡的真正性質–對訟式司法體系–依賴控辯雙方展示的證據而非私下搜尋
所 得的 任何 外 來 資 料
The Applicant pleaded guilty to (1) possession of false instruments - 68 false bank cards; and
(2) uttering a false instrument: using a forged credit card. The Applicant was a visitor from Latvia and
he presented an invalid Citibank American Express credit card in his name to buy a bottle of whisky
(charge 2). In his wallet, 4 other counterfeit credit cards, all in his name were found. Upon search of
his residence, another 63 counterfeit bank cards and an encoder machine were found. Of the 68 forged
bank cards found in the Applicant’s possession, 7 were forged credit cards and the other 61 were
forged debit cards or gift cards (charge 1).
On his own initiative, the judge made enquiries on the internet into the true nature of the 61
forged debit and gift cards. The judge ultimately concluded that “the proper approach was to regard
the 61 forged bank cards as aggravating the possession of the 7 forged credit cards in much the same
way that the possession of the encoder was also an aggravating feature”. The Applicant was
sentenced to 3 years and 8 months’ imprisonment.
Held, leave to appeal against sentence dismissed:
(1)
The way the judge resorted to the internet to find out the true nature of the debit cards and gift
cards rather than insist on assistance from the parties was slightly surprising. To consider whether
there was a meaningful difference between the different types of card in terms of the potential loss
they could cause, embarking on his private research was not the way to obtain the information. The
proper course was for him to indicate he needed further information on the nature of the different
cards before sentencing the Applicant [25], [27].
(2)
In our adversarial system of the administration of justice, the court relies on evidence presented
by the parties and not on any extraneous matters obtained by private research [28].
(3)
When there are disputes as to facts relevant to or closely bound up with the ingredients of an
offence and when such disputes as to facts would have a bearing on sentence, a Newton Enquiry is
required before a judge can rely on prejudicial aspects of the disputed facts against the accused [29].
18
(4)
However, the judge’s error in the instant case had caused no prejudice to the Applicant when
he only sentenced him on the basis of 7 forged credit cards and that the presence of the other 61 forged
bank cards was only regarded to be an aggravating factor. The judge’s approach was in fact most
favourable to the Applicant [26], [30].
(5)
Whatever was their exact nature, the 61 forged bank cards were intended to be used to pay for
goods and services. Those forged bank cards could be converted and some of them had been
converted so that they could be used as an instrument of fraud. The presence of the encoder would
lead to the irresistible inference that the Applicant was ready and able to generate more usable forged
bank cards to further perpetrate his crime. On the facts as disclosed, the Applicant was involved in an
international syndicate and the judge was right to find that the Applicant was involved in a medium
size operation [33], [37].
(6)
The Applicant was a visitor and he lengthened his stay in Hong Kong for the purpose of
committing frauds against others. He had possession of large number of forged bank cards issued by
overseas financial institutions. The Applicant tried to use one of them and admitted to have used
others to make purchases of liquors and computers 3 to 4 times a week. The Applicant was able to
obtain, from an overseas source, equipment used for the perpetration of his crime. The judge was
entitled to take the view that there was an international element and use it as an aggravating factor.
This was a very bad case of the type. The seriousness lied not only in the number of forged bank
cards involved, but also in the fact that with the encoder, the Applicant could have generated more
usable forged bank cards. The starting point adopted by the judge, namely 5 years and 6 months was a
lenient one. The sentence of 3 years and 8 months’ imprisonment, on a plea of guilty, was not
manifestly excessive [39]-[42].
HKSAR v NG MAN YEE (吳敏兒
吳敏兒)
吳敏兒
COURT OF APPEAL
CACC 278/2013
Stock VP & McWalters JA
Date of Hearing: 8 April 2014
Date of Judgment: 30 May 2014
Counsel for Respondent: Edmond Lee SADPP
Counsel for Applicant: Keith J Oderberg
Criminal sentencing – Previous decisions of the Court of Appeal led to serious cases of money
laundering being tried in the District Court – The Court of Appeal corrected that in Boma –
Erroneous or unduly lenient sentences imposed in unconnected cases will not give rise to a valid
ground of appeal for reduction in sentence
刑事罪判刑–嚴重洗黑錢案件的審訊因上訴法庭的先前判決而在區域法院進行–上訴
法 庭在 B om a 一 案已 糾正 – 無 關 連案 件 的 錯 誤 判刑 或 過輕 判刑 不 成 為 減刑 的 有 效 上訴
理由
19
The Applicant had a relation with a woman who bore him a child in 1993. She subsequently
moved to Taiwan. The Applicant claimed that the woman asked him to open a bank account in Hong
Kong. Between May 2006 and May 2012, there were 230 deposits and 238 withdrawals.
Withdrawals from the account amounted to just over HK$77.3 million dollars. The Applicant
personally handled the transfer of HK$16 million. The Applicant was convicted after trial and was
sentenced to 5 years and 6 months’ imprisonment. The Applicant applied for leave to appeal against
sentence.
Held, application dismissed:
(1)
The Court accepted that there have been cases in which persons who have laundered hundreds
of millions, and sometimes billions of dollars, were prosecuted in the District Court where the
jurisdictional sentencing limit is 7 years’ imprisonment [31], [32].
(2)
Due to the previous decisions of the Court of Appeal, the Director of Public Prosecutions may
have viewed the District Court as the appropriate venue for most money laundering cases [32].
(3)
In HKSAR v Boma [2012] 2 HKLRD 33, at 42, paragraph 37, to avoid such “distortions to
justice”, Stock VP urged the Director of Public Prosecutions not to feel constrained by prior
judgments of the Court from bringing cases in the High Court where huge sums of money were
involved or where the predicate offence was particularly serious [33].
(4)
Therefore given the previous sentencing decisions before Boma, the Applicant might not
understand why others involved in more serious money laundering cases had been sentenced
apparently more leniently. However, that did not entitle the Applicant to harbour a justified sense of
grievance. It cannot be said that other erroneous or unduly lenient sentences imposed in unconnected
cases involving the same offence, provide an offender receiving a heavier sentence than those imposed
in these other unconnected cases, with a justified sense of injustice. It does not matter what the reason
is for the alleged disparity between the cases; whether it be one judge being more lenient than another
or the prosecutor selecting the wrong venue for trial. Whatever the reason, the principle remains the
same – the parity principle only applies to co-offenders [50], [51].
20
E. Magistracy Appeals /Against Conviction
裁判法院上訴案件/針對定罪
香港特別行政區 訴 鍾冰施及其他人
鍾冰施及其他人
高等法院原訟法庭
HCMA 332/2013
原訟法庭法官杜麗冰
聆訊日期： 2014 年 1 月 22 日
裁決日期： 2014 年 1 月 22 日
判案理由書日期：2014 年 5 月 7 日
答辯人代表律師：署理高級檢控官莫韻妍
上訴人代表律師：沈士文、趙芷筠
刑事法及訴訟程序 - 無合理辯解而沒有遵從建築事務監督的清拆命令 - 香港法例第123
章
香港法例第
《 建築物條例》
建築物條例 》 第 40(1BA) - 屋宇署人員沒有根據「
屋宇署人員沒有根據 「 執法政策 」 的要求而執法 - 控方沒有
提供依照「
提供依照 「 執法政策 」 所定下的程序的有關檔案文件 - 合理辯解
第一、三及四上訴人經審訊後被裁定一項「 無合理辯解而沒有遵從建築事務監督的清
拆命令 」罪名成立,違反香港法例第 123 章《建築物條例》第 40(1BA)條,第二上訴公司經審
訊後,亦裁定兩項相同的控罪罪名成立。各上訴人不服定罪提出上訴[1]。
該五張傳票指各上訴人分別為新界荃灣運通洋樓 1 字樓的單位及部份平台的擁有人,在
2012 年 5 月 16 日至 2012 年 6 月 20 日期間,沒有合理辯解而沒有遵從建築事務監督根據香
港法例第 123 章《建築物條例》第 24(1)條的條文,於 2011 年 9 月 14 日向他們送達的命令
(該命令是拆除有關的違例的建築工程,並按照建築事務監督批准的圖則,把樓宇受影響的部
份恢復原狀),違反《建築物條例》第 40(1BA)條[2]。
辯方的主要投訴，是涉案的物業是位於新界並受到大埔理民府於 1981 年 11 月 9 日發
出給各大互助委員會/業主組織法團主席的特赦信 (Amnesty Letter) 的保護。屋宇署對其執
行處 理僭建物的政策作出檢討, 在 2011 年制定 了一 套特 定的「 執法 政策 」(Enforcement
Policy),屋宇署人員需跟隨特定的程序執法,否則上訴人的合理期望 ( 即根據特赦信的保證 , 僭
建物不會被拆除) 不能被剝奪。該「執法政策」提及平衡公眾利益與合理期望的考慮
(Public Interest versus Legitimate Expectation)「 執法政策 」的第６段列明 [5]-[6]:
“6.
To cater for any appeal that might arise after the issuance of a statutory
removal order in this type of cases, it is important that a thought process in the form
of weighing between any legitimate expectation and any overriding public interest
should be properly documented in the subject case files. Therefore, before a removal
order is issued to remove any UBW in a NT building with an OP date before 27
February 1975, the Team Leader (TL) responsible for issuing the removal order
should make a proper record in the case file about his/her thought process in
weighing the legitimate expectation and any overriding public interest. This thought
process is not necessary if there is evidence that the subject UBW was constructed
after 27 February 1975. The TL should not make a recommendation to issue the
removal order unless he/she has concluded that there is an overriding public interest
to remove the relevant UBW. The recommendation(s) should be forwarded to the Unit
Head for endorsement. It should be noted in this connection that each case should be
considered on its merits and in case of doubt legal opinion may be sought. If
21
necessary, a fresh order may be issued after going through the thought process to
supersede an existing order if the grounds to issue the existing order have not been
properly documented in the case file.”
辯方投訴在審訊時,控方必需在毫無合理疑點下證明辯方沒有「合理辯解」,但控方拒
絕提供依照「執法政策」所定下的程序的有關檔案文件 (the proper documentation), 違反了
控方披露與檢控案件有關資料的責任。因此這證據上的缺陷令控方不能在毫無合理疑點下
證明各上訴人沒有合理辯解 [8]。
裁決，上訴得直，定罪撤銷：
裁決
(1)
本案的案情與案件 HCMA 1139/2006 及 HCMA 395/2009 相似, 因該兩案例的屋宇署人員
均沒有根據「 執法政策」的要求而執法,所以各上訴人的合理期望不能被剝奪,故控方不能成功
舉證該罪行的元素。本案的裁判官錯誤地沒有運用上述兩個他必須遵守的案例。法官接納辯方
的陳詞，判處上訴得直[9]。
[HCMA 332/2013 – English Translation]
HKSAR v CHONG PING SHI & ORS
COURT OF FIRST INSTANCE
HCMA 332/2013
Toh J
Date of Hearing: 22 January 2014
Date of Judgment: 22 January 2014
Date of Reasons for Judgment: 7 May 2014
Counsel for the Respondent: Winnie Mok Ag SPP
Counsel for the Appellants: Erik Shum & Jolie Chao
Criminal law and procedure – Failing to comply with demolition order of the Building
Authority without reasonable excuse – Section 40(1BA) of the Buildings Ordinance (Cap 123) –
Failure to act in accordance with requirements of “Enforcement Policy” by officer of Buildings
Department – Prosecution failed to provide documentation of thought process as set out in
“Enforcement Policy” – Reasonable excuse
A1, A3 and A4 were convicted after trial of an offence of “failing to comply with a demolition
order of the Building Authority without reasonable excuse”, contrary to s 40(1BA) of the Buildings
Ordinance (Cap 123). A2, which was a company, was also convicted after trial of two charges of the
same offence. The Appellants appealed against conviction [1].
The five summonses alleged that during the period from 16 May 2012 to 20 June 2012, each of
the Appellants, being the owner of a flat and a portion of the flat roof on the 1/F of Winning Heights,
Tsuen Wan, New Territories, did without reasonable excuse fail to comply with an order of the
Building Authority served under s 24(1) of the Buildings Ordinance (Cap 123) on 14 September 2011
(requiring each to demolish the unauthorised building works and to reinstate the affected parts of the
building in accordance with the plans approved by the Building Authority), contrary to s 40(1BA) of
the Buildings Ordinance [2].
22
The main argument of the defence was that the properties in question were situated in the New
Territories and protected by an Amnesty Letter issued by the Tai Po District Office on 9 November
1981 to all the chairmen of mutual aid committees and owners incorporated. The Buildings
Department revised its policy on unauthorised building works and formulated a specific set of
“Enforcement Policy” in 2011. The officer of the Buildings Department was required to follow the
specific process in the enforcement of the law, otherwise the Appellants could not be deprived of their
legitimate expectation (namely, the Amnesty Letter promised that illegal structures would be
exempted from demolition). A weighing exercise involving public interest versus legitimate
expectation was a consideration mentioned in the “Enforcement Policy”, as shown in paragraph 6 [5][6]:
“6.
To cater for any appeal that might arise after the issuance of a statutory removal
order in this type of cases, it is important that a thought process in the form of weighing
between any legitimate expectation and any overriding public interest should be properly
documented in the subject case files. Therefore, before a removal order is issued to
remove any UBW in a NT building with an OP date before 27 February 1975, the Team
Leader (TL) responsible for issuing the removal order should make a proper record in the
case file about his/her thought process in weighing the legitimate expectation and any
overriding public interest. This thought process is not necessary if there is evidence that
the subject UBW was constructed after 27 February 1975. The TL should not make a
recommendation to issue the removal order unless he/she has concluded that there is an
overriding public interest to remove the relevant UBW. The recommendation(s) should
be forwarded to the Unit Head for endorsement. It should be noted in this connection
that each case should be considered on its merits and in case of doubt legal opinion may
be sought. If necessary, a fresh order may be issued after going through the thought
process to supersede an existing order if the grounds to issue the existing order have not
been properly documented in the case file.”
The defence argued that at trial, the prosecution had to prove beyond reasonable doubt that the
defence did not have a “reasonable excuse”. However, by refusing to provide the documentation of
the thought process as set out in the “Enforcement Policy”, the prosecution was in breach of its duty to
disclose information relating to the prosecution case. Such defects in evidence caused the failure of
the prosecution to prove beyond reasonable doubt the absence of reasonable excuse [8].
Held, appeal allowed and conviction quashed:
(1) The facts in this case were similar to those in HCMA 1139/2006 and HCMA 395/2009. As the
officers of the Buildings Department in those two cases did not act in accordance with the
requirements of the “Enforcement Policy”, the appellants could not be deprived of their legitimate
expectation. For this reason, the prosecution was unable to prove the elements of the offence. The
trial magistrate erroneously failed to apply the two cases which he was obliged to follow. The Court
accepted the submission of the Appellants and allowed the appeal [9].
23
香港特別行政區 訴 黃毓民及其他人
高等法院原訟法庭
HCMA 453/2013
高等法院原訟法庭法官彭偉昌
聆訊日期：2014 年 3 月 13 日
判案書日期：2014 年 5 月 19 日
答辯人代表律師：高級助理刑事檢控專員李俊文及高級檢控官李希哲
第一上訴人代表律師：郭憬憲
第二上訴人代表律師：潘熙及石書銘
刑事法及訴訟程序–
刑事法及訴訟程序–公安罪行–
公安罪行–未經批准集結–
未經批准集結–香港法例第 245 章《公安條例》
公安條例》的「集會」定
義是否構成歧視–
義是否構成歧視–自發遊行–
自發遊行–非法集結–
非法集結–衝擊警線–
衝擊警線–非法集結罪是否違反一項控罪不能包含多
項罪行的原則–
項罪行的原則–公平審訊的權利–
公平審訊的權利–提供足夠設施給抗辯作準備–
提供足夠設施給抗辯作準備–依據香港法例第 227 章《裁判
官條例》
條例》第 35A 條申請審訊過程的錄音
上訴人是政治組織「人民力量」的領袖，該組織參與 2011 年 7 月 1 日舉行的獲批准公
眾遊行。然而遊行期間，他們呼籲支持者偏離批准路線，到禮賓府前繼續抗議。第一上訴人甚
至指派第二上訴人為總指揮。有見及此，警方在批准路線設立封鎖線，以防有人偏離。示威者
與警方曾短暫僵持。但在第一上訴人發號施令下，示威者衝擊警線，歷時約一分鐘。警方發出
多次警告不獲理會，繼而施放胡椒噴劑，示威者於是散開。
第一及第二上訴人經審訊後，以共犯身分被裁定一項非法集結罪(違反香港法例第 245
章《公安條例》(「條例」)第 18 條)，以及一項組織或協助組織未經批准集結罪(違反條例第
17A(3)(b)(i)條) 罪名成立。另外，他們也各自被裁定一項明知地參與未經批准集結罪(違反
條例第 17A(3)(a)條)罪名成立。兩人不服定罪，向高等法院原訟法庭提出上訴。
裁決，第一上訴人的上訴駁回而第二上訴人的上訴部分得直：
裁決
(1)
條例第 2 條「集會」的定義豁免某些集會，這些豁免集會的舉行人與非豁免集會的舉
行人，兩者之間沒有可辨別的比較標的。故此，對於要預先通知警方才可舉行非豁免集會的
人，並無歧視，繼而也不出現是否合乎理據的爭論議題。再者，保持意見不受干預的權利，不
會因須給予通知的規定而受到影響 [28]、[30]。
(2)
從案中證據看來，擬前往禮賓府的遊行不能視作自發。有指參與者可能少於三十人，
又或只走在行人路上，這個說法明顯脫離事實。無論如何，就條例而言，法律沒有把行人路從
公路和大道區分出來[40]-[42]。
(3)
在考慮非法集結罪時，無需明確參考終審法院常任法官包致金在吳恭劭 一案中所訂下
的相容測試。另一方面，上訴法庭在陶君行 一案重申，《香港人權法案》保證的只是和平集
會的權利 [55]、[58]。
24
(4)
違反條例第 18 條的非法集結罪，究竟屬於單一罪行還是多項罪行，這是條文詮釋的問
題。法官認為第 18 條針對的是一個由最少三人組成而又會令人害怕社會安寧會被破壞的集
結。因此，香港法例第 221 章附屬法例 C《公訴書規則》第 5 條自然適用。法官的結論是，本
案的非法集結罪並沒有違反一項控罪不能包含多項罪行的原則 [67]-[71]。
從案中證據看來，裁判官的裁斷正確，擬進行的遊行並不是獲批准遊行的部分，儘管
(5)
兩者路線相同(至少到警線為止是如此)。因此，設立警線是合法的。無論如何，即使封鎖線不
合法，並不一定表示示威者可以衝擊防線而免受法律懲處 [88]-[90]。
法官認為，雖然證據足以得出唯一合理而不可抗拒的推論，就是第二上訴人明知地參
(6)
與未經批准集結，但不能相提並論，同樣指他組織或協助組織未經批准集結。據此，第二上訴
人針對控罪 3 的上訴得直，定罪撤銷 [95]。
第二上訴人索取審訊過程的錄音(並承諾自付合理費用)。依據香港法例第 227 章《裁
(7)
判官條例》第 35A 條，裁判官不應將申請延至審訊結束之後。然而，法官裁定裁判官沒有偏
私。另外，就案情看來，雖然第二上訴人未能取得錄音，這並無影響其公平審訊的權利，就提
供設施給抗辯作準備而言，尤其無受影響 [133]-[135]、[139]。
[HCMA 453/2013 – English Translation]
HKSAR v WONG YUK MAN & ANOR
COURT OF FIRST INSTANCE
HCMA 453/2013
D Pang J
Date of Hearing: 13 March 2014
Date of Judgment: 19 May 2014
Counsel for the Respondent: Edmond Lee SADPP & Andrew Li SPP
Counsel for A1: Douglas Kwok
Counsel for A2: Hectar Pun & Randy Shek
Criminal law and procedure – Public order offences – Unauthorised assembly – Whether the
definition of “meeting” in Public Order Ordinance, Cap 245 constituted a discrimination –
Spontaneous procession – Unlawful assembly – Charging the police cordon – Whether the
offence of unlawful assembly bad for duplicity – Right to a fair trial – Provision of adequate
facilities for the preparation of defence – Application for the audio recording of the trial process
pursuant to section 35A of the Magistrates Ordinance, Cap 227
The Appellants were leaders of a political organisation known as “The People’s Power”, which
participated in the authorised public procession held on 1 July 2011. However, in the course of the
procession, they persuaded their supporters to deviate from the authorised route and continue their
protest in front of the Government House. A1 even appointed A2 as the commander-in-chief. In
response, the police set up a cordon on the authorised route to prevent such deviation. There was a
brief stand-off between the protesters and the police. But on the instruction of A1, they charged at the
police cordon, which lasted for about one minute. The protesters dispersed when the police discharged
pepper spray after their repeated warnings were ignored.
25
A1 and A2 were convicted after trial of a joint charge of unlawful assembly, contrary to section
18 of the Public Order Ordinance, Cap 245 (“the Ordinance”) and another joint charge of organising
or assisting in organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Ordinance.
In addition, they were each convicted of a charge of knowingly taking part in an unauthorised
assembly, contrary to section 17A(3)(a) of the Ordinance. They appealed against conviction to the
Court of First Instance.
Held, dismissing A1’s appeal and allowing A2’s appeal in part:
(1) There is no identifiable comparator between people who hold a meeting that is exempted from
the definition of “meeting” in section 2 of the Ordinance, and other people who hold a meeting that is
not exempted. Accordingly, there is no discrimination against those people who need to give prior
notice to the police in order to hold a non-exempted meeting. It follows that the issue of justification
does not arise. Furthermore, a person’s right to hold opinion without interference will not be affected
by the requirement to give notice [28], [30].
(2) On the evidence adduced in this case, the intended procession to the Government House could
not be regarded as spontaneous. The contention that there might be less than 30 people or they might
only walk on the pavement was plainly unrealistic. In any event, the law does not distinguish between
pavement and public highway/thoroughfare for the purpose of the Ordinance [40]-[42].
(3) In considering the offence of unlawful assembly, it is not necessary to expressly refer to the test
of irreconcilability laid down by Bokhary PJ in Ng Kung Siu. On the other hand, in To Kwan Hang,
the Court of Appeal reiterated that only the right to peaceful assembly is guaranteed under the Hong
Kong Bill of Rights [55], [58].
(4) Whether the offence of unlawful assembly, contrary to section 18 of the Ordinance, creates a
single offence or multiple offences is a matter of statutory construction. The Court held that the aim
of section 18 is to prohibit the assembly of 3 or more persons that will cause other people to fear that a
breach of the peace will be committed. Therefore, rule 5 of the Indictment Rules, Cap 221C is
applicable. The Court concluded that the charge of unlawful assembly in the instant case was not bad
for duplicity [67]-[71].
(5) On the evidence adduced in the case, the magistrate was right to find that the intended
procession was not part of the authorised procession, notwithstanding that they shared the same route
(at least up to the point of the police cordon). Therefore, the formation of the police cordon was
lawful. In any event, even if the cordon was not lawful, the protesters were not entitled to charge the
cordon without legal impunity [88]-[90].
(6) The Court was of the view that while there was sufficient evidence to draw the only reasonable
and irresistible inference that A2 knowingly participated in the unauthorised assembly, the same could
not be said that he organised or assisted in organising the unauthorised assembly. Accordingly, A2’s
appeal was allowed in relation to charge 3 and the conviction quashed [95].
(7) Pursuant to section 35A of the Magistrates Ordinance, Cap 227, the magistrate should not have
delayed A2’s application for the audio recording of the trial process (with his undertaking to pay any
reasonable cost) until after the trial. However, the Court held that the magistrate did not lose his
impartiality. Besides, on the facts of this case, the unavailability of the audio recording would not
have affected A2’s right to a fair trial, in particular, the provision of adequate facilities for the
preparation of his defence [133]-[135], [139].
26
香港特別行政區 訴 刁銳及另一人
高等法院原訟法庭
HCMA 606/2013
高等法院原訟法庭暫委法官黃崇厚
聆訊日期：2014 年 3 月 11 日、3 月 18 日及 4 月 17 日
判案日期：2014 年 5 月 26 日
答辯人代表律師：高級檢控官倪振邦
第一上訴人代表律師：張偉顏大律師
第二上訴人代表律師：張民輝大律師
輸入未列艙單貨物罪 – 要提出香港法例第 60 章 《 進出口條例》
進出口條例 》 第 18(2)條的法定抗辯理
18(2) 條的法定抗辯理
由 ， 被告人只有證供責任 – 要求被告人舉證至具說服力的舉證責任將不符合相稱性的測
要求被告人舉證至具說服力 的舉證責任將不符合相稱性的測
試 – 引用了 Lee To Nei v HKSAR (2012) 15 HKCFAR 162
D1 被控以下控罪：第一控罪： 輸入未列艙單貨物罪；第三控罪：沒有呈交資料而以訂
明車輛運載貨物進入香港罪（下稱「沒有綑綁資料罪」）；第五控罪：非按照香港法例第 586
章第 11(1)條的規定而進口附錄 II 及附錄 III 物種的標本罪（下稱「瀕危物種罪」）；，和
第六控罪：非按照香港法例第 207 章《植物（進口管制及病蟲害控制）條例》第 7 條的規定而
進口植物蟲害罪（下稱「蟲害罪」)。
D2 被控以下控罪：第二控罪： 輸入未列艙單貨物罪；和第四控罪：輸入在訂明車輛上
的未報關貨物罪（下稱「沒有電子報關罪」）。
案情指，案發日早上 7 時許，D1 駕駛一部編號為 MH 1992 的貨車，由文錦渡管制站進入
香港。他將一份載貨清單(即艙單)投放於清關亭的載貨清單收集箱。然後，按指示駛車到驗貨
大樓，讓關員驗貨。根據載貨清單，貨物是鮮花 100 件，收貨人是好時年鮮花貿易公司（下稱
‘好時年’）。關員搜查貨車時，在駕駛倉中發現：(1) 一包活魚，在乘客座位上；(2) 一包
活魚，在司機座位下；(3) 三包活魚，在司機位後的長梳化上。在貨斗內，則有很多紙箱、植
物和鮮花，也有 28 個用膠紙密封的發泡膠箱。膠箱內有以下生物：(1) 78 個膠袋的熱帶魚；
(2) 61 隻烏龜、8 隻活體食蝸龜；(3) 5 隻屬於南美側頸龜屬物種的活體側頸龜；(4) 15 隻屬
於圖龜屬物種的活體圖龜；(5) 455 克活體麥皮蟲及 730 克活體蟋蟀。這些生物，全部都在發
泡膠箱開封後才被發現。上述 (2)－(5)項的生物，全部放在同一個發泡膠箱內。上述 8 隻活
體食蝸龜是《瀕危動植物物種條例》附錄 II 物種。那 5 隻屬於南美側頸龜屬物種的活體側頸
龜、15 隻屬於圖龜屬物種的活體圖龜,是《瀕危動植物物種條例》附錄 III 物種。這些龜，全
部沒有出口國發出的有效出口證。那 455 克活體麥皮蟲及 730 克活體蟋蟀是《植物（進口管制
及病蟲害控制）條例》管制的植物蟲害。關乎這些昆蟲，沒有進口授權書。D2 是好時年的東
主，也是上述貨車的登記車主。
經審訊後，裁判官裁定二人所有控罪都罪名成立。二人不服定罪，提出上訴。
27
裁決，不服第一、二、四、五和六項控罪定罪上訴被駁回，不服第三項控罪定罪上訴得直:
裁決
(1) 就輸入未列艙單罪，控方必須證明被控人輸入貨物，而且貨物未列於艙單之內。控方並
不須證明，被控人知道他輸入（或輸出）了的貨物，並未列於艙單中[48]。不過，如果被控人
成功依賴第 18(2)條的免責辯護，他便不會入罪[49]。關鍵考慮是：這樣逆轉舉證責任，可否
通過相稱性的驗證標準[50]。本罪行條文本身，關乎法定免責辯護，被控人要證明的，不單是
他不知道，還有即使作出合理努力亦不會知道貨物並未列於艙單內[67]。努力是否合理，是客
觀性的衡量，因此免責辯護並非單純涉及被控人的個人認知[86]。
(2) 如果情況有異、或令人不安時，努力的程度便應相應加强[90]。即使被控人只有提證責
任，而情況是舉證責任也回到控方身上時，只要控方能在毫無合理疑點的標準下反證其中一項
免責辯護理由，被控人便未能成功倚賴法定免責辯護[91]。要證明被控人不能倚賴另一項免責
辯護理由，控方的責任是證明如果被控人盡了合理努力的話他便會得知違規情況[92]。輸入或
輸出未列艙單這罪行，合理努力，對運輸界而言，一般是指監督上貨、或檢查貨物。兩者的做
法，可以是全面監督或檢查、或抽樣進行。何謂合理努力，視乎情況，抽樣監督或檢查，可以
是合理的[94]。在抽樣監督或檢查可算是合理努力的時候，抽樣的比例和方式是否合理，也視
乎情況，包括比例是否足夠、抽樣是否有足夠代表性[95]。 合理努力是否會令致走私貨品被
發現，也很視乎每宗案件的實況，因此走私貨品如何存放、在那位置收藏、貨物的性質，都會
是重要證據[96]。即使以該案的情況來說，抽驗貨物已經是合理努力，也不是說在數字上抽驗
了某百份比的貨物便算足夠，努力要算得上是合理，除了抽驗的百份比是合理之外，抽驗的代
表性也是重要因素，比方，只抽驗放在外圍的貨物，難稱已盡合理努力，抽驗要足以成為合理
努力，一般要觸及廣泛性的分佈，除非被控人提證證明這樣做超乎合理努力，否則不能忽略放
在底層、深處、或角落的貨物，此外，若有外表令人起疑的貨物，便應查驗，因此，即使在抽
驗可算是合理努力的情況，很多時也難免要搬移貨物來進行[97]。
(3) 經慎重考慮後，法庭認為，向被控人施加說服責任，以輸入未列艙單罪這罪行來說，未
能通過相稱性的驗證標準，因為這樣做過份減損了無罪推定，只有裁定被控人只有提證責任，
才不致如此，也不用宣佈相關條例違憲無效。不能忽視，以這罪行來說，只要控方證明了被控
人輸入、或輸出貨物，而貨物未列艙單之內，被控人便要舉證證明他的清白[98]。因此，法庭
裁定：被控人如果要倚賴第 18(2)條的法定免責辯護，只有提證責任，盡了這責任後，控方便
須在毫無合理疑點的標準下證明 ：(1) 被控人是知道他輸入或輸出了艙單沒列出的貨物的；
或 (2) 如果盡了合理努力，他便會發現這些貨物存在的[99]。只要證明了其中一項，加上控方
要證明的罪行元素也證明了的話，被控人便應罪成。
(4) 沒有綑綁資料罪是嚴格法律責任罪行，而且，只有容許普通法的辯解: 讓被控人可在相
對可能性衡量的標準下證明，他真誠和合理地相信車上沒有貨品是未呈報的，才不致過份減損
無罪推定而致法例無效。這普通法辯解，可適用於被控人不知情的情況[186]。
(5)
在沒有電子 報關 罪中 ，被控 人只 須負 提證責任， 否則 便通 過不了相稱 性驗 證標準
[195]。
(6) 在瀕危物種罪中，如果被控人可在相對可能性衡量的標準下證明 ：(1) 他不知道相關貨
物存在；和 (2) 他真誠和合理地相信沒有那貨物存在，他便不應被判有罪[231]。至於知道所
涉貨物的存在，只是未能辨別貨物是瀕危物種，法庭認為，在這方面施加絕對責任，是可以通
過相稱性測試的[232]。
28
(7) 蟲害罪是嚴格法律責任罪行，控方不須證明被控人知道違規貨物的存在，不過被控人可
倚頼以下普通法抗辯理由：(1) 他不知道違規貨品的存在；和 (2) 他真誠和合理地相信，違規
貨品不存在。要倚頼這抗辯理由，舉證標準是相對可能性的衡量[249]。 這罪行的法定抗辯理
由是「 合理辯解」，要倚頼這抗辯理由，被控人只應負上提證責任[250]。「合理辯解」這法
定抗辯理由，適用於被控人知悉貨品存在而沒有署長授權書的情況，這抗辯理由和上述普通法
抗辯理由並非不一致，只是建基於不同事實而已，條例也沒有用上局限使用範圍或除了合理之
外還須其他條件才可倚賴辯解的條件，所以兩種抗辯理由可以並存[253]。
[HCMA 606/2013 – English Translation]
HKSAR v DIAO RUI & ANOR
COURT OF FIRST INSTANCE
HCMA 606/2013
A Wong DJ
Dates of Hearing: 11 March, 18 March & 17 April 2014
Date of Judgment: 26 May 2014
Counsel for the Respondent: Dominic Ngai SPP
Counsel for A1: Karen Cheung
Counsel for A2: Jeremy Cheung
Importing unmanifested cargo – Defendant raising statutory defence under s 18(2) of
Import and Export Ordinance (Cap 60) which carried evidential burden only – Requiring
defendant to discharge persuasive burden would not satisfy proportionality test – Reference to
Lee To Nei v HKSAR (2012) 15 HKCFAR 162
The following charges were laid against D1: importing unmanifested cargo (Charge 1); failure to
lodge information about cargo carried into Hong Kong by means of prescribed vehicle (Charge 3)
(“the lodgement offence”); importing specimens of Appendix II and Appendix III species otherwise
than in accordance with the provision of s 11(1) of Cap 586 (Charge 5) ( “the endangered species
offence”); and importing plant pests otherwise than in accordance with the provision of s 7 of the Plant
(Importation and Pest Control) Ordinance (Cap 207) (Charge 6) ( “the plant pests offence”).
The following charges were laid against D2: importing unmanifested cargo (Charge 2) and
importing undeclared cargo on a prescribed vehicle (Charge 4) (“the electronic declaration offence”).
The facts revealed that at a time after 7 am on the material date, D1 drove a lorry with
registration number MH1992 into Hong Kong via Man Kam To Control Point. He dropped a cargo
manifest into the manifest collection box at the clearance point and was then directed to the Import
Cargo Examination Building for customs inspection. According to the manifest, the cargo contained
100 items of fresh flowers consigned to Good Harvest Fresh Flower Trading Co. (“Good Harvest”).
Customs officers conducted a search of the lorry and found in the driver’s compartment (1) a pack of
live fish on the passenger seat; (2) a pack of live fish under the driver’s seat; and (3) 3 packs of live
fish on the long sofa behind the driver’s seat. In the cargo compartment, there were a lot of cartons,
plants and fresh flowers as well as 28 polyfoam boxes sealed with adhesive tapes. The polyfoam
boxes contained the following creatures: (1) 78 plastic bags of tropical fish; (2) 61 turtles and 8 live
Malayan snail-eating turtles; (3) 5 live South American river turtles of Podocnemis species; (4) 15 live
Map turtles of Graptemys species; and (5) 455g of live mealworms and 730g of live crickets. All of
29
these creatures were found after unsealing the polyfoam boxes. Items (2)-(5) above were all placed in
the same polyfoam box. The 8 live Malayan snail-eating turtles were Appendix II species under the
Protection of Endangered Species of Animals and Plants Ordinance. The 5 live South American river
turtles of Podocnemis species and the 15 live Map turtles of Graptemys species were Appendix III
species under that Ordinance. None of the turtles was accompanied by valid export licence issued by
the exporting country. The 455g of live mealworms and 730g of live crickets were plant pests
controlled by the Plant (Importation and Pest Control) Ordinance. There was no import authorization
for these insects. D2 was the owner of Good Harvest and the registered owner of the said lorry.
After trial, the magistrate convicted both defendants of all the charges. They appealed against
conviction.
Held, appeal against conviction for Charges 1, 2, 4, 5 and 6 dismissed and appeal against conviction
for Charge 3 allowed:
(1) For the offence of importing unmanifested cargo, the prosecution has to prove that the
accused imported cargo and that the cargo was unmanifested. There is no need for the prosecution to
prove that the accused knew the cargo imported was unmanifested [48]. However, the accused would
not be convicted if he can successfully rely on the defence under s 18(2) [49]. The material
consideration is whether the reverse onus could satisfy the proportionality test [50]. The offencecreating provision provides for a statutory defence whereby the accused not only needs to prove that
he did not know, but also needs to prove that even with reasonable diligence, he could not have known
that the cargo was unmanifested [67]. As reasonable diligence is to be assessed objectively, the
statutory defence is not purely a matter of the accused’s personal knowledge [86].
(2) If the circumstances are unusual or give rise to a cause for concern, a greater degree of diligence
would be required accordingly [90]. Notwithstanding that the burden on the accused is only an
evidential one, the accused would not be able to avail himself of the statutory defence if one of the
limbs to the statutory defence is rebutted beyond reasonable doubt when the burden of proof falls back
upon the prosecution [91]. To prove the failure of the accused to rely on the other limb under the
statutory defence, it is the duty of the prosecution to show that the accused would have known the
contravention if reasonable diligence had been exercised [92]. In relation to the offence of importing
or exporting unmanifested cargo, reasonable diligence in the context of logistics business generally
means monitoring cargo loading or inspecting cargo, either could be achieved by an overall
supervision or examination, or sampling inspection. As the meaning of reasonable diligence depends
upon the circumstances, picking out samples for the purpose of supervision or inspection could be
reasonable [94]. Even though supervision or inspection performed on a sampling basis could be
regarded as exercising reasonable diligence, the reasonableness of the sampling ratio and method
(including sample ratio and representativeness) also varies according to the facts [95]. Whether
reasonable diligence would lead to the discovery of smuggled cargo is also decided by the actual
circumstances of each case. So the manner of storing the smuggled cargo, the location where it was
hidden and the nature of the cargo would be important evidence [96]. So far as the circumstances of
the instant case were concerned, sample inspection in terms of reasonable diligence did not mean that
a numerical figure of picking out a certain percentage of cargo for examination would be sufficient.
To satisfy the term of reasonable diligence, sample representativeness was also an important factor
apart from the sampling percentage. For instance, simply picking out goods facing outside could
hardly be described as having exercised reasonable diligence. If the inspection was to constitute
reasonable diligence, it normally concerned general sampling distribution. Unless evidence was
shown by the accused that efforts to such an extent would go beyond reasonable diligence, he should
not turn a blind eye to the goods placed at the bottom, in the centre or corners. Besides, if goods
which appeared to be suspicious were seen, examination should be conducted. Therefore, despite the
fact that sample inspection could be an exercise of reasonable diligence, removing the whole lot for
inspection very often became inevitable [97].
30
(3) After careful consideration, the Court was of the view that imposing a persuasive burden on the
accused in respect of the offence of importing unmanifested cargo would not satisfy the
proportionality test as it results in disproportionate derogation from the presumption of innocence.
Only by finding that the accused merely carries an evidential burden could this be avoided and save
the need to declare the relevant provision unconstitutional and invalid. It must be noted that for such
an offence, the prosecution is only required to prove that the accused imported or exported cargo
which was unmanifested, and the burden would then next fall on the accused to prove his innocence
[98]. As such, the Court ruled that the accused only bears an evidential burden to establish the
statutory defence under s 18(2); and upon the discharge of this burden by the accused, the prosecution
is required to prove beyond reasonable doubt that (1) the accused knew that he imported or exported
unmanifested cargo; or (2) he could with reasonable diligence have known the existence of such cargo
[99]. If either of the limbs is proved in addition to those elements the prosecution is required to
establish, the accused would then have to be convicted.
(4) The lodgement offence is a strict liability offence to which only the common law defence is
available. The accused can prove on a balance of probabilities that he had an honest and reasonable
belief that the lorry contained no undeclared cargo. Only by so doing could the provision be saved
from being declared unconstitutional and invalid for disproportionate derogation from the presumption
of innocence. This common law defence is applicable when the accused claims the lack of knowledge
[186].
(5) For the electronic declaration offence, the accused only carries an evidential burden; otherwise,
the proportionality test cannot be satisfied [195].
(6) As regards the endangered species offence, the accused should not be convicted if he can prove
on a balance of probabilities that (1) he had no knowledge of the existence of the cargo in question;
and (2) he had an honest and reasonable belief that the cargo did not exist [231]. As for knowing the
existence of the cargo but with a mere failure to identify them as endangered species, the Court was of
the view that imposing an absolute liability could satisfy the proportionality test [232].
(7) The plant pests offence is a strict liability offence for which the prosecution is not required to
prove the accused person’s knowledge of the existence of the illegal cargo. However, the accused can
rely on the following common law defence that (1) he had no knowledge of the existence of the illegal
cargo; and (2) he had an honest and reasonable belief that the illegal cargo did not exist. Relying on
the common law defence requires the proof on a balance of probabilities [249]. The statutory defence
for this offence is “reasonable excuse”. The accused relying on it only carries an evidential burden
[250]. The statutory defence of “reasonable excuse” is applicable to the circumstances where the
accused knew the existence of the cargo but without the authorization issued by the Director. The
statutory defence and the said common law defence, albeit premised on different facts, are not
inconsistent. Besides, the statute does not restrict the scope of application or impose other
requirements other than reasonableness before the defence can be used. Therefore, both defences coexist [253].
31
香港特別行政區 訴 鄧卓斌
原訟法庭
HCMA 126/2013
原訟法庭法官馮驊
聆訊日期：2013 年 7 月 10 日
判案書日期：2014 年 5 月 23 日
答辯人代表律師：律政司檢控官嚴浩正
上訴人代表律師：方偉健大律師
刑事法及訴訟程序 - 被懷疑為車輛的司機沒有在要求下提供資料 - 引用 Latker 案，法庭指 《道
路交通條例》
63條對公眾利益及個人的基本權利作出了可接受的平衡
路交通條例
》第63
條對公眾利益及個人的基本權利作出了可接受的平衡 - 上訴人有機會得到法
律意見，
律意見
，警誡對他未有構成混淆或不公
刑事法及訴訟程序 - 訟費 - 辯方於開審前一天提出基於人權法的抗辯理由
辯方於開審前一天提出基於人權法的抗辯理由 - 裁判官保留訟費的
命令有否誤導
上訴人經審訊被裁定一項「 被懷疑為車輛的司機而沒有在要求下提供資料」罪，罪名
成立。他不服定罪及訟費命令，提出上訴。
警方接報，指私家車 GA4770 於 2012 年 1 月 24 日在馬頭圍涉及意外後離開。警方根
據《道路交通條例》第 63(1) 條向登記車主發出「要求提供司機身份詳情通知書」（「571 表
格」）。車主回覆，有關意外時的司機是上訴人。2012 年 3 月 17 日，上訴人與其大律師出席
警方會面，被警誡及告知可能被控不小心駕駛罪後保持緘默。警方發出 571 表格，要求他提供
意外時 GA4770 司機身份。2012 年 3 月 28 日，上訴人交回 571 表格，以英文聲明，指他於
2012 年 3 月 17 日，根據《保安局長的規則及指引》被警誡，因此行使《人權法》第 11(2)(g)
條之憲法保障緘默權。辯方沒爭議案情，但指警方向上訴人發出 571 表格之前，已經向他施行
警誡，並告知其緘默權，因此，警誡應延伸至 571 表格，上訴人在有關意外的調查期間繼續享
有緘默權。裁判官認為會面記錄與 571 表格不同。正如 Latker 案中馬道立首席法官指出，第
63 條只不過要求上訴人提供司機資料和與上訴人關係，僅此而已，屬表面證據，上訴人的權
利不會受到影響，緘默權不能延伸至 571 表格。因此，上訴人沒有提供司機資料，並無合理辯
解。
上訴人依賴以下上訴理由:
判官錯誤認為上訴人被懷疑涉及交通意外而被警方警誡及告知可能被控不小心駕駛後行
使緘默權，他仍須對 571 表格回答；上訴人並不指稱《道路交通條例》第 63 條本身違反緘默
權，只是在本案情節違反緘默權和公平審訊的權利。
裁決，上訴被駁回，維持原判:
裁決
(1)
Latker 案，馬道立首席法官在判詞指出，《人權法》第 11 條免於自證其罪的權利（right
against self incrimination），只適用於已被起訴的被告人 [16]。
32
(2)
馬首席法官指出，法庭必須在社會整體利益和個人基本權利敲定合理的平衡，相關考慮
包括有關法例的社會目的、對基本權利的干預、保護個人的措施、和不遵守的處罰。《道路交
通條例》第 63 條對公眾利益及個人的基本權利作出了可接受的平衡 [21]-[22]。
(3)
Latker 案判詞指出，該案只考慮身為車主的司機的情況。在 香港特別行政區 訴 王子鑫
HCMA 884/2010 案，高等法院法官彭偉昌裁定《道路交通條例》第 63 條適用於並非車主的司
機，沒有違反公平審訊的權利 [23]。
(4)
在本港，基本權利是 否適用及被違反是取 決於個別案情（見 Latker 案； A v The
Commissioner of the Independent Commission Against Corruption (2012) 15 HKCFAR 361）[26]。
(5)
法庭已裁定 《道路交通條例》 第 63 條對緘默權限制有合法理由支持，並沒有違反
《人權法》第 10 條。緘默權是憲法基本權利，有否警誡並不關鍵 [42]。
(6)
上訴人有機會得到法律意見，警誡對他未有構成混淆或不公。至於法律意見的實質内容
則不相關 [45]。
(7)
訟費上訴亦駁回。辯方在審訊前一天才提出以基本人權為抗辯理由。就該論點的性質而
言，控方需要獲取進一步法律意見為恰當。況且，特委裁判官席前通常由檢控主任代表控方，
基於特別法律觀點，控方需要安排政府律師出席。辯方不一早通知，以便控方早做安排，亦造
成不便 [60]-[61]。 裁判官訟費保留的命令沒有任何誤導或不公平之處 [56]。
[HCMA 126/2013 – English Translation]
HKSAR v TANG CHAMPIN
COURT OF FIRST INSTANCE
HCMA 126/2013
Fung J
Date of Hearing: 10 July 2013
Date of Judgment: 23 May 2014
Counsel for the Appellant: Raymond Fong
Counsel for the Respondent: David Yim PP
Criminal law and procedure – Suspected of being offending driver, failing to give information
on demand – By reference to Latker, the Court held that s 63 of the Road Traffic Ordinance
struck an acceptable balance between public interest and fundamental rights of individual –
Caution did not cause Appellant confusion or unfairness as he had opportunity to obtain legal
advice
Criminal law and procedure – Costs – Defence raised human rights issue the day before trial –
Whether Magistrate’s order on cost to be reserved was misleading
33
The Appellant was convicted after trial of an offence of “suspected of being an offending driver,
failing to give information on demand”. He appealed against conviction and costs order.
Police received information that a private car GA 4770 failed to stop after an accident in Ma Tau
Wai on 24 January 2012. Under s 63(1) of the Road Traffic Ordinance (“RTO”), police issued to the
registered owner of the vehicle a “notice requiring identification of driver” (“Form 571”). The vehicle
owner in reply identified the Appellant to be the driver of the vehicle at the time of accident. On 17
March 2012, the Appellant, together with his barrister, attended a police interview during which he
remained silent after being cautioned and informed of the possibility of being charged with careless
driving. Form 571 was issued requiring him to provide the driver’s identity of GA 4770 at the time of
accident. On 28 March 2012, the Appellant returned Form 571, stating in English that as he had been
cautioned on 17 March 2012 pursuant to Secretary for Security’s rules and directions, he exercised the
right to silence which was the constitutional protection guaranteed under Article 11(2)(g) of the Bill of
Rights. The defence did not dispute the facts but contended that the Appellant had already been
cautioned and informed of the right to silence by police before Form 571 was issued to him.
Therefore, the caution should extend to cover Form 571 and the Appellant continued to enjoy the right
to silence during the investigation of the accident. The magistrate took the view that the record of
interview was different from Form 571. As pointed out by Ma CJHC in Latker, s 63 required no more
than an identification of the driver by the Appellant and his relationship with such a driver. The
information obtained constituted only prima facie evidence which would not affect the Appellant’s
rights. The right to silence could not extend to cover Form 571. Therefore, the Appellant, without
reasonable excuse, had failed to provide information on the driver’s identity.
Ground of appeal relied on by the Appellant:
The Appellant exercised his right to silence after he was cautioned by the police and informed of
the possibility of being charged with careless driving in relation to a traffic accident involving him as
the suspected driver. Despite that, the magistrate erred in holding that the Appellant was still obliged
to reply to Form 571. The Appellant was not suggesting that s 63 of the RTO itself contravened the
right to silence, but rather the rights to silence and a fair trial were infringed in the circumstances of
the instant case.
Held, appeal dismissed and conviction upheld:
(1) In Latker, Ma CJHC pointed out in the judgment that the right against self-incrimination as
guaranteed under Article 11 of the Bill of Rights is only applicable to the defendant who has been
charged with a criminal offence [16].
(2) The court has to strike a fair balance between the demands and interests of the general
community and the fundamental rights of the individual. Relevant matters for consideration include
the social objectives of the legislation in question, the extent of the interference with fundamental
rights, the safeguards in place for the protection of the individual and the penalties involved in noncompliance. Section 63 of the RTO provides an acceptable balance struck between the public interest
and the fundamental rights of the individual [21] – [22].
(3) The judgment of Latker stated that the court is only concerned with registered owners. In
HKSAR v Wong Tsz Him HCMA 884/2010, Pang J held that the application of s 63 of the RTO to the
driver other than the registered owner does not contravene the right to a fair trial [23].
34
(4) In Hong Kong, whether the fundamental rights are engaged and contravened is a case-specific
question (see Latker; A v The Commissioner of the Independent Commission Against Corruption
(2012) 15 HKCFAR 361) [26].
(5) It was held by the Court that the restrictions upon the right to silence by s 63 of RTO are legally
justified without infringing Article 10 of the Bill of Rights. Right to silence is a fundamental
constitutional right and whether or not the caution has been administered is immaterial [42].
(6) The caution did not cause the Appellant any confusion or unfairness as he had an opportunity to
obtain legal advice. As to the substance of the legal advice, it was a matter of no relevance [45].
(7) Appellant’s cost application was dismissed. It was appropriate for the prosecution to adjourn
and obtain legal advice when the defence raised human rights issue as a point of defence just on the
day before trial. Moreover, the prosecution had to arrange a public prosecutor to appear before the
special magistrate when dealing with legal arguments. The fact that the defence did not inform the
prosecution ahead for preparation caused inconvenience to the parties [60]-[61]. The magistrate’s
order on costs to be reserved was not misleading nor unfair [56].
35
F. Magistracy Appeals /Against Sentence
裁判法院上訴案 件/針 對刑罰
香港特別行政區 訴 BUT THI HIEN
高等法院原訟法庭
HCMA 124/2014
高等法院原訟法庭暫委法官胡國興
聆訊及判決日期：2014 年 5 月 20 日
頒下判決理由日期：2014 年 5 月 28 日
答辯人代表律師：高級檢控官范凱琳
上訴人代表律師：周慧珠
刑事罪判刑 – 非法接受僱傭工作罪和使用偽造身份證罪 – 使用偽造身份證獲得受聘而獲益為加
刑因素–
刑因素–刑期應同期執行
刑期應同期執行
上訴人在警誡下承認自己由國內偷渡來港求職，
， 並利用偽造身份證成功獲聘為洗碗工
人。他承認一項「非法接受僱傭工作」罪(控罪一)及一項「使用偽造身份證」罪(控罪二) ，並
就兩項控罪分別被判處 15 個月及 12 個月監禁，
，控罪二的其中 6 個月與控罪一的刑期分期執
行，
，總刑期 21 個月。上訴人不服判刑，
，提出上訴。
裁決,
裁決 上訴得直：
(1)
「非法逗留在港期間接受僱傭工作」罪認罪後的合適判刑為 15 個月監禁: 參閱 HKSAR v
Usman Butt [2010] 5 HKLRD 452 [30] 。
(2)
若犯案者管有或使用偽造身份證基本上是為了使他非法在港的情況不易被發覺，認罪後
的合適判刑為 15 個月；而犯案者曾使用偽造身份證而額外獲益為加刑因素:參閱 Usman Butt 和
香港特別行政區 訴 李長利 [2005] 1 HKLRD 864。在香港特別行政區 訴 Hua Thi Huong HCMA
774/2013 一案，上訴人使用偽造身份證而額外獲益，刑期被上調 3 個月 [30] 。
(3)
「使用偽造身份證」罪和「非法入境後留港」罪這類案件的實質判處考慮均是被告人非
法在港，因此，除非有特殊情況，否則法庭應下令刑期同期執行: 參閱 R v So Man King [1989]
1 HKLR 142、HKSAR v Wong Ping CACC 86/2005 及 HKSAR v Tran Viet Thanh [2012] 1 HKLRD
903 [30]。
(4)
本案案情比單單非法入境者更嚴重，
， 因為上訴人是利用一張假身份證來港找工作並成
功找到工作。若上訴人只是利用假身份證來掩蓋她非法在港的身分，
，她的合適刑罰應為 15 個
月監禁。但她利用假身份證在港找工作，
，欺騙僱主僱用她，
，這比掩蓋她非法在港的身分得到額
外益處，
，是加重刑罰的因素，
，15 個月監禁的刑期應被調高 [32] 。
(5)
法庭認為刑期應向上調 3 個月，而這可反映於控罪一的刑期，因為她利用假身分證幫助
她在香港受僱；另一方面，也可反映於控罪二的刑期，因為她正是利用假身分證，其目的是助
她在港受僱。無論如何，這調整只可是總刑期的調高 [33] 。
36
(6)
本案的兩項控罪名，由於法庭判處的刑罰都是為了打擊非法勞工，上訴人所犯的兩項控
罪可以說是為了同一目的而干犯，是同一勾當的兩部分，加上本案沒有特殊情況，刑期應同期
執行 [35] 。
(7)
即使答辯人沒有申請覆核刑罰，法庭在判刑上訴時是有把刑期調高的權力:見香港法例
，而代之
第 227 章《裁判官條例》第 119(1)(d)及(e)條。法庭撤銷控罪一 15 個月監禁的刑罰，
以 18 個月監禁，
，控罪二 12 個月監禁的刑罰維持原判，同期執行，總刑期為 18 個月監禁 [36]
及 [37] 。
[HCMA 124/2014 – English Translation]
HKSAR v BUT THI HIEN
COURT OF FIRST INSTANCE
HCMA 124/2014
WOO DJ
Date of Hearing and Judgment: 20 May 2014
Date of Handing Down Reasons for Judgment: 28 May 2014
Counsel for the Respondent: Irene Fan SPP
Counsel for the Appellant: Monica Chow
Criminal sentencing – Offences of taking up employment unlawfully and using a forged identity
card – Use of forged identity card to secure a job thereby obtaining a benefit was an aggravating
feature – Concurrent sentence should be imposed on both charges
The Appellant under caution admitted that she sneaked into Hong Kong from the Mainland to
seek employment and successfully obtained employment as a dish washer by using a forged identity
card. She pleaded guilty to one offence of “taking up employment unlawfully” (Charge 1) and one
offence of“using a forged identity card” (Charge 2). She was sentenced to imprisonment for 15
months and 12 months respectively on the two charges, with 6 months of the sentence of Charge 2 to
run consecutively to the sentence of Charge 1, making a total of 21 months’ imprisonment. The
Appellant appealed against sentence.
Held, appeal allowed:
(1) Regarding the offence of taking up employment while remaining in Hong Kong unlawfully, the
appropriate sentence should be 15 months’ imprisonment upon guilty plea: see HKSAR v Usman Butt
[2010] 5 HKLRD 452 [30].
(2) If the forged identity card was primarily possessed or used for the purpose of ensuring that the
offender’s illegal status in Hong Kong would not be so easily detected, the appropriate sentence is 15
months’ imprisonment upon guilty plea; but it would be an aggravating factor if the offender had used
the forged identity card to obtain a benefit: see Usman Butt and HKSAR v Li Chang Li [2005] 1
HKLRD 864. In HKSAR v Hua Thi Huong HCMA 774/2013 where the appellant obtained a benefit
by using a forged identity card, an upward adjustment of 3 months was made to the sentence [30].
37
(3) The substantial element in sentencing for the offences of “using a forged identity card” and
“landing and remaining in Hong Kong unlawfully” is the unlawful presence in Hong Kong. Therefore,
the court should order a concurrent sentence in the absence of exceptional circumstances: see R v So
Man King [1989] 1 HKLR 142, HKSAR v Wong Ping CACC 86/2005 and HKSAR v Tran Viet Thanh
[2012] 1 HKLRD 903 [30].
(4) The circumstances of the instant case were more serious than those involving merely illegal
immigrants because the Appellant had made use of a forged identity card to come to Hong Kong to
seek employment and successfully obtained one. Had the Appellant only used the forged identity card
to conceal her illegal status in Hong Kong, the appropriate sentence would have been 15 months’
imprisonment. Yet she also used the forged identity card to seek employment in Hong Kong and
deceived the employer into hiring her, thereby obtaining some particular benefit in addition to
concealing her illegal status in Hong Kong. That was an aggravating feature. An upward adjustment
should be made from the 15 months’ imprisonment [32].
(5) The Court held that an upward adjustment of 3 months’ imprisonment was appropriate to reflect
the sentence for Charge 1 because she made use of the forged identity card to facilitate the obtaining
of employment in Hong Kong. Likewise, it could also reflect the sentence for Charge 2 because she
was also making use of the forged identity card to facilitate the obtaining of employment in Hong
Kong. In any event, the adjustment could only be the uplift of the total sentence [33].
(6) Since the court targeted illegal workers when sentencing the two charges in the instant case, the
two offences committed by the Appellant were for essentially the same purpose, being part and parcel
of the same criminal activity. In the absence of exceptional circumstances, the sentences should run
concurrently [35].
(7) Even though the Respondent did not apply for review of sentence, the Court on appeal had the
power to increase the sentence: see section 119(1)(d) and (e) of the Magistrates Ordinance, Cap 227.
The sentence of 15 months’ imprisonment on Charge 1 was set aside and substituted with one of 18
months. The sentence of 12 months’ imprisonment on Charge 2 was upheld, to be served concurrently,
making a total of 18 months’ imprisonment [36]&[37].
香港特別行政區 訴 范嘉龍
范嘉龍
原訟法庭
HCMA 805/2013
暫委法官胡國興
聆訊日期：2014 年 5 月 22 日
頒下判决理由日期：2014 年 5 月 29 日
答辯人代表律師：高級檢控官關百安
上訴人代表律師：馬維騉大律師
判刑 –「收取超過訂明收費率的的士租用費」罪 –「沒有撥動的士計程錶指示器」罪 – 以
阻嚇性的刑罰判處一個初犯者是不適當 – 但另有一個原則，
但另有一個原則，當所犯罪行是在某區域普遍或在
罪行本身特別普遍的情況下，
罪行本身特別普遍的情況下，是可以判處初犯者阻嚇性的刑罰的 – 本案以後濫收車資可面臨
即時監禁
38
上訴人承認三項控罪。其中裁判官就俗稱「濫收車資」罪，即「收取超過訂明收費率的
的士租用費」罪及俗稱「不落旗」罪，即「沒有撥動的士計程錶指示器」罪判處上訴人共 7 天
監禁及停駕駛的士牌照 1 個月。上訴人承認的案情是，當時上訴人駕駛的士在尖沙咀廣東道的
士上落區等客，其的士錶以一張咭紙蓋着，俗稱「冚旗」。喬裝為內地遊客進行偵查違例的士
行動的警員以普通話詢問上訴人需要多少時間和錢到機場，上訴人回應約 30 分鐘和 380 元。
在車途中的士一直沒有俗稱「落旗」。
裁判官參考了控方提供的的士濫收車資的統計數字，指出濫收車資案件有上升趨勢，而
濫收車資本身已是嚴重事件，以遊客下手是極嚴重地破壞香港的形象。上訴人絕非一時之氣，
而是早以準備下犯案。裁判官認為有必要作出阻嚇害群之馬之量刑，而即時監禁亦非同類案件
首宗。
上訴人不服判刑，提出上訴。上訴理由是，以阻嚇性刑罰判處初犯者有違法律原則。再
者，裁判官將本案定性為欺騙遊客的個案，並以此作為判處阻嚇性刑罰的基礎是不穩妥的，因
為裁判官沒有解釋他為何排除警員是居港的內地人或旅遊常客的可能性。發生在機場範圍的 5
宗案件，均判處罰款，裁判官沒有解釋他為何認為本案的情況比同類案件嚴重，需加以更重的
刑罰。
裁決,
裁決 上訴得直:
(1)
上訴人不能批評裁判官以案發當天警員喬裝為內地遊客為量刑基礎這做法有錯，因為上
訴人已承認這案情[36]。
(2)
HKSAR v Duong Duc Phong HCMA 284/2001 案例適用於本案，即以阻嚇性的刑罰判處一
個初犯者是不適當的，但另有一個原則，當所犯罪行是在某區域普遍或在罪行本身特別普遍的
情況下，是可以判處一個阻嚇性的刑罰用以阻嚇其他人干犯該類罪案。因此，要考慮的是裁判
官是否因為濫收車資罪行的普遍性而處上訴人這 7 天監禁之刑罰。本案原審裁判官沒有明文指
出這類案件是否普遍，而該統計資料是否顯示該罪行的普遍性，亦值得商榷 [37]。
(3)
雖然原審裁判官正確指出即時監禁非同類案件首宗，但另一方面沒有任何資料顯示，該
等被判監禁刑罰的案件，其案情及其被告人的自身情況是否與本案的相類。再者，兩年內合共
5 宗與本案一樣在機場被拘捕的個案，每宗都判罰款，並無一宗判以監禁，這反映裁判官採取
監禁刑罰缺乏支持[39]-[40]。
(4)
裁判官在判刑時，其專注在於判處監禁之刑以阻嚇其他害群之馬，沒有處理上訴人緩刑
的請求，亦沒有解釋為甚麼停牌加上緩刑是不足夠以有阻嚇之用。裁判官沒有對上訴人本身的
情況，包括他是一個未有刑事前科的人，作出充分考慮。對上訴人來說，可能有不公的感覺
[41]-[42]。
(5)
因此，對上訴人處以監禁但緩刑的刑罰，一方面可收阻嚇其他人之效，另一方面亦對上
訴人本人不會構成不公，在本案的特殊情況下是適當的做法。在本案以後，濫收車資可面臨即
時監禁之險已是明顯不過，的士從業者應引以為誡[43] 。
39
[HCMA 805/2013 – English Translation]
HKSAR v FAN KA LUNG ADDIS
COURT OF FIRST INSTANCE
HCMA 805/2013
Woo DJ
Date of Hearing: 22 May 2014
Date of Handing Down Reasons for Judgment: 29 May 2014
Counsel for the Respondent: Franco Kwan SPP
Counsel for the Appellant: David Ma
Sentencing – Offence of “charging of taxi hiring fare exceeding prescribed scale of fares” –
Offence of “failing to move taximeter indicator” – Imposing deterrent sentence upon first
offender inappropriate – However there was a principle that a deterrent sentence might be
imposed where the offence was one which was prevalent in a particular area or of a particular
prevalent nature – Overcharging of hiring fare in subsequent cases might face immediate
custodial sentence
The Appellant pleaded guilty to three charges. In respect of “charging of taxi hiring fare
exceeding prescribed scale of fares” (the offence commonly known as “overcharging of hiring fare” )
and “failing to move the taximeter indicator” (the offence commonly known as “without lowering
flag”), the magistrate sentenced him to 7 days’ imprisonment and disqualification of taxi driving
licence for one month. The facts admitted by the Appellant were that he was on board the taxi at the
taxi drop-off and pick-up area at Canton Road in Tsim Sha Tsui waiting for hire. His taximeter was
covered by a paper card which was commonly known as “covering flag”. During an operation against
taxi malpractices, a police officer posing as a Mainland tourist asked the Appellant in Putonghua how
long and how much it took to go to the airport. The Appellant replied that it took about 30 minutes
and cost $380. All along the way the taxi was without the so-called “lowering flag”.
The magistrate, having considered the statistics provided by the prosecution on taxi
overcharging cases, was of the view that there was an upward trend for overcharging offences.
Overcharging of fare itself was already a serious offence and choosing tourists as targets would
severely tarnish the image of Hong Kong. It was by no means an offence committed by the Appellant
on the spur of the moment but a premeditated one. The magistrate considered it necessary to impose a
deterrent sentence on the black sheep of the trade and it was not the first time that an immediate
custodial sentence was imposed for this kind of cases.
The Appellant appealed against sentence on the ground that imposing a deterrent sentence on the
first offender was against the legal principle. Moreover it was unsafe and unsatisfactory for the
magistrate to characterise this case as a tourist deception case and on this basis to impose a deterrent
sentence. The reason was that the magistrate did not explain why he excluded the possibility that the
police officer could be a Mainlander residing in Hong Kong or a regular visitor. In the five cases that
occurred in the airport area, only fines were imposed. The magistrate did not explain why he believed
the circumstances of this case to be more serious than those of the other similar cases and that a
heavier sentence was warranted.
Held, appeal allowed:
40
(1) Since the Appellant had already admitted the fact that the police officer pretended to be a
Mainland tourist on the day of offence, no criticism should be made against the magistrate for
sentencing him on that basis [36].
(2) HKSAR v Duong Duc Phong HCMA 284/2001 could be applied to the instant case. So it was
inappropriate in respect of a first offender to impose a sentence of deterrence personally upon that
offender. There was, however, a principle that a deterrent sentence might be imposed where the
offence was one which was prevalent in a particular area or of a particular prevalent nature. Therefore
the consideration should be whether the magistrate imposed the 7 days’ imprisonment on the
Appellant because of the prevalent nature of overcharging. In this case, the trial magistrate did not
clearly specify whether the offence was prevalent and the statistics indicating the prevalence of the
offence were also questionable [37].
(3) Although the trial magistrate rightly said that it was not the first time an immediate custodial
sentence was imposed for this kind of cases, there was no information showing that those cases where
a custodial sentence was given were similar to the present case in terms of the facts and personal
circumstances of the defendants. Moreover, there were a total of 5 cases, like the present one, within 2
years involving arrest at the airport but each of them was given fines with none of them a custodial
term. This reflected the absence of justification for imposing the custodial sentence by the magistrate
[39]-[40].
(4) In sentencing, the magistrate focused on the deterrence of other black sheep of the trade by
imposing the custodial sentence. He did not deal with the Appellant’s request for a suspended
sentence nor did he explain why disqualification in addition to a suspended sentence would not have
sufficient deterrent effect. The magistrate failed to give full consideration to the personal
circumstances of the Appellant including his clear record. The Appellant might feel aggrieved [41][42].
(5) Therefore in view of the special circumstances of the case, a suspended custodial sentence which
could on the one hand deter others and would on the other hand result in no injustice to the Appellant
was an appropriate option. It was obvious that there would be a risk of immediate custodial sentence
for overcharging in subsequent cases. People in the taxi trade should take warning from it [43].
41
G. Practice and Procedure
常規與程序
香港特別行政區
香港特別行政區 訴 大新銀行有限公司
原訟法庭
HCMA 54/2014
暫委法官黃崇厚
聆訊日期：2014 年 4 月 11 日
判案日期：2014 年 5 月 19 日
答辯人代表律師：檢控官葉瑋璣
上訴人代表律師：廖元聰大律師
充公令 －「企圖輸出未列艙單貨物」等 － 涉案貨車由擁有人按租購合約租予運輸公司 － 法
庭有酌情權沒收或交還與案件相關物品 － 聲請人有否蓄意或疏忽地參與或促進不法行為以致
貨物可被充公 － 香港法例第 60 章《進出口條例》
進出口條例》第 27, 28(7)條
28(7)條
上訴人是一間銀行以及一輛有關貨車的法定擁有人。上訴人與一間運輸公司簽訂租購合
約，將貨車租予該公司。2012 年 12 月，該輛貨車被海關發現經改裝以作走私手提電話用，而
駕駛該貨車的司機被控違反多條條例，當中包括《進出口條例》第 18(1)(b)條「企圖輸出未
列艙單貨物」罪。海關關長根據《進出口條例》第 27 條申請將該貨車及鎖匙等附件共五項物
品充公。上訴人提出聲請，要求在有條件下取回該貨車及其附件。
裁判官批准海關關長的申請，命令充公該五項物品後，上訴人上訴，其主要上訴理由包
括：要銀行檢查每一輛出租的貨車是吹毛求疵。另外，銀行未必有足夠知識和技術檢查車輛以
揭發改裝。再者，事件中貨車的改裝並不容易察覺，即使上訴人盡合理努力檢查亦不會發現相
關改裝，所以上訴人不應為沒有檢查貨車而被苛責。
裁決，上訴駁回：
裁決
(1) 終審法院於 Wong Hon Sun v HKSAR FACC 1/2009 一案中訂下處理充公申請的法律原則
及應考慮的情況和因素。《進出口條例》第 28(7)條賦予法庭將有關物品沒收或在任何條件下
交予聲請人物主的酌情權，但聲請人須與物品所牽涉的案件無關 [16]-[17]。
(2) 法庭的酌情權是中立的；提出事實的一方肩負舉證責任；舉證標準為相對可能性的衡量
[24]-[25]。
(3) 由於沒收令的目的為遏止嚴重非法活動及保障政府稅務收入，另一方面法庭亦需保障個
人擁有財產的基本權利，因此聲請人必須證明自己沒有以任何方式、蓄意或疏忽地、參與或促
進該導致貨物可被充公的不法行為，法庭才可行使酌情權將貨物在無條件或有條件下交還聲請
人物主 [23], [27]-[28]及[30]。
42
(4) 原訟法庭現引用Ｗong Hon Sun 案中訂立的原則考慮本案案情。上訴人沒有以任何方式
參與與貨車有關的罪行，與該罪行更無任何直接關係。上訴人和涉案司機一方之間只屬租購關
係，而上訴人對罪行發生一直一無所知。再者，相關的租購合約早訂明租戶不可作出任何違法
行為，否則合約會被終止。然而，租約中一項條款賦予上訴人於合理時間檢查車輛的權力，但
上訴人並沒有檢查涉案貨車 [22]。
(5) 原訟法庭亦引用另一宗案件。AG v Chin Chak Wing [1961] HKCR 479 一案同樣關乎一輛
按租購合約出租並且被用作走私的車輛。在該案判詞中，Hogan CJ 裁定：雖然出租公司沒有失
誤，但出租公司能聲稱無辜只因為對所擁有的車輛的用途一無所知。該公司選擇放棄對車輛作
出日常有效的控制，便是容許車輛被不當使用。該公司應能預料車輛有可能被不法使用。既然
出租公司維持該財物的法律業權，而沒有採取有效步驟去阻止罪案發生，法庭就有權拒絕交還
該財物 [31]。
(6) Chin Chak Wing 案與 Wong Hon Sun 案中的原則一致。沿用此原則，在本案中，上訴人
沒有檢查相關貨車。尤其當涉案貨車的相關改裝是單靠目測即可發現，上訴人便未能在相對可
能性的衡量下證明即使檢查亦不能發現相關改裝。上訴人疏忽地促致令貨車可被充公的違法行
為 [32]-[34]。
[HCMA 54/2014- English Translation]
HKSAR v DAH SING BANK LIMITED
COURT OF FIRST INSTANCE
HCMA 54/2014
A Wong DJ
Date of Hearing: 11 April 2014
Date of Judgment: 19 May 2014
Counsel for the Respondent: Cliff Ip PP
Counsel for the Appellant: Steven Liu
Forfeiture order – “Attempting to export unmanifested cargo” – Goods vehicle leased by owner to
transportation company under hire purchase agreement – Discretion of court to forfeit or
return articles concerned – Whether claimant deliberately or negligently participated in or
facilitated illegal conduct which led to forfeiture – Sections 27 and 28(7) of Import and Export
Ordinance Cap 60
The Appellant was a bank and the legal owner of the goods vehicle in question. A hire purchase
agreement (“the Agreement”) was signed by the Appellant and a transportation company, whereby the
goods vehicle was leased to the latter. In December 2012, the Customs and Excise Department found
that the goods vehicle had been altered for the purpose of smuggling mobile phones. The driver was
charged with contraventions of various provisions. One of the offences was “attempting to export
unmanifested cargo”, contrary to s 18(1)(b) of the Import and Export Ordinance (“the Ordinance”).
The Commissioner of Customs and Excise under s 27 of the Ordinance applied for forfeiture of five
articles in total, namely the goods vehicle, keys and other accessories. The Appellant made a claim for
the conditional return of the goods vehicle and its accessories.
43
The magistrate granted the application made by the Commissioner of Customs and Excise and
ordered that the five articles be forfeited. The Appellant then lodged an appeal mainly on the
following grounds: first, it would be hair-splitting to require the bank to examine each and every
goods vehicle it rented out; second, the bank might not have sufficient knowledge and technology to
discover the alterations in the examination of the goods vehicle; moreover, the alterations of the goods
vehicle were so hardly noticeable that even with all reasonable diligence the Appellant would not have
discovered them. Therefore, the Appellant should not be condemned for failing to inspect the goods
vehicle.
Held, appeal dismissed:
(1) In Wong Hon Sun v HKSAR FACC 1/2009, the Court of Final Appeal set out the legal principles
in dealing with applications for forfeiture as well as the circumstances and factors for consideration.
Section 28(7) of the Ordinance confers discretion on the court to order for forfeiture or conditionally
restore to the claimant owner the articles liable to forfeiture but in the latter case, the claimant must be
innocent of any connection with the relevant contravention [16]-[17].
(2) The question of discretion is approached by the court from a neutral starting point. The onus of
proving any fact is always on the side who asserted it. The standard of proof is on a balance of
probabilities [24]-[25].
(3) The purposes of forfeiture are to deter serious illegal activity and protect the revenue but the
court must also safeguard the basic property rights of individuals. As such, a claimant must prove that
he did not in any way participate in or facilitate, either by design or negligence, the contravention
which has resulted in the article becoming liable to forfeiture before the court could exercise its
discretion to order the goods to be delivered to him unconditionally or conditionally [23], [27]-[28]
and [30].
(4) The Court of First Instance referred to the principles laid down in Wong Hon Sun when
considering the facts of the instant case. The Appellant did not by design participate in the offences
connected with the goods vehicle, nor was it directly related to the offence in question. The Appellant
maintained a pure hire-purchase relationship with the driver’s side. All along it knew nothing about
the offences. Moreover, the Agreement expressly provided for the termination of the contract in the
event of any unlawful act by the hirer. Nevertheless, one of the terms of the Agreement empowered
the Appellant to inspect the vehicle at all reasonable times. The Appellant however failed to inspect
the goods vehicle in question [22].
(5) The Court of First Instance also cited the case of AG v Chin Chak Wing [1961] HKCR 479, a
case similarly related to the use of a vehicle rented on hire-purchase terms for the purpose of
smuggling. In that judgment, Hogan CJ held that whilst the hire-purchase company was free from
fault or error, this was an innocence resting on ignorance of what was happening to its own property.
The hire-purchase company had chosen to relinquish effective day to day control over the car, and had
participated in setting in motion a train of events which had ended in the misuse of it. The possibility
of such an outcome must have been foreseen. Since the hire-purchase company, whilst maintaining
legal ownership, took no effective steps to prevent the commission of the offence, the court was
entitled to decline return of the property [31].
(6) Chin Chak Wing and Wong Hon Sun shared the same principles. The application of them to the
instant case was that the Appellant did not examine the goods vehicle especially when the alterations
could be discovered merely upon visual inspection. In those circumstances, the Appellant failed to
prove on a balance of probabilities that the alternations would not have been discovered even upon
examination. The Appellant facilitated by negligence the contravention which had resulted in the
goods vehicle becoming liable to forfeiture [32]-[34].
44
韓明光)
HKSAR v HON MING KONG (韓明光
韓明光 & ORS
COURT OF APPEAL
CACC 272/2011
Stock VP, Yeung VP & Line J
Date of Submissions: 31 March 2014 and 3, 11, 24 & 28 April 2014
Date of Handing Down Judgment: 19 May 2014
Counsel for the Respondent: Jonathan Caplan QC, John Dunn, David Leung DDPP &
Kasmine Hui PP
Counsel for A1: Eric Kwok SC, Maggie Wong & Vivian Ho
Counsel for A2: Benson Tsoi
Counsel for A3: Edward Fitzgerald QC, Eric Kwok SC, Maggie Wong & Vivian Ho
Criminal law and procedure – Costs of unmeritorious appeal to the Respondent – The
Respondent’s costs to be apportioned to the unsuccessful Applicants – Jurisdiction – the Court
of Appeal does not have power to award costs of the trial to the Respondent under the Costs in
Criminal Cases Ordinance
刑事法及訴訟程序–答辯人獲判給訟費因上訴缺乏理據–答辯人的訟費由敗訴的多名
申請人分攤–判給訟費的權限–上訴法庭根據《刑事案件訟費條例》無權將審訊訟費
判 給 案 中 答辯 人
After hearing the Applicants’ applications for leave to appeal against conviction and sentence,
the Court made an order nisi that the Respondent’s costs of the applications (save as to D2’s and D3’s
applications as to sentence) be paid by the Applicants, to be taxed if not agreed. In relation to D2 and
D3’s applications as to sentence, there was an order nisi that there be no order as to costs. The Court
directed that written submissions be filed on the question whether the Court of Appeal was
empowered, at the conclusion of an appeal, to make an order in respect of the costs of the trial and if
the Court was so empowered, why an order in favour of the Respondent in respect of those costs
should not be made [1]-[2].
Held, the Court of Appeal ordered (a) D1 to pay 60% of the Respondent’s costs of his application for
leave to appeal against conviction and of that against sentence; (b) D2 to pay 10% of the Respondent’s
costs of his application for leave to appeal against conviction; and (c) no order as to costs of the trial:
(1) If it was appropriate to make an order for costs of the appeal against the Applicants in favour of
the prosecution, such costs should be proportionate to the extent that the prosecution’s appeal costs
could properly be laid at their respective doors: R v Harrison [1993] 14 Cr App R (S) 419 applied.
The application of that approach in the instant case was not susceptible to precise calculation [9].
(2) Section 13 of Costs in Criminal Cases Ordinance (“the Ordinance”) does not lay down a rule
that the Court of Appeal, unlike the Appeal Committee which has a process of filtering out
applications for leave to appeal, is prima facie not to order costs of an unsuccessful application: Liu
Sik Keung v HKSAR FAMC 41/2003 considered and distinguished [10]-[11].
(3) Whether to make an order where an unmeritorious case has been advanced will depend on all the
circumstances. In the instant case, with a nine-day hearing with extensive preparation which in large
part was unmeritorious, it was difficult to see upon what basis the public purse should not be
compensated [12]. The Court assessed broadly the proportion of the combined applications
attributable to each Applicant and rendered a reduction therefrom for the limited success of that
Applicant in relation to the appeals allowed [13].
45
(4) D1’s application accounted for 70% of the written and oral arguments. His appeal succeeded in
relation to 3 charges. The vast part of his case was an unmeritorious contest of the judge’s reliance of
PW1’s evidence and an unmeritorious argument in relation to the Mainland witness. He also failed in
relation to his application for leave to appeal against sentence. He should bear 60% of the
Respondent’s costs of his application for leave to appeal against conviction and of his application
against sentence [14]-[15].
(5) The time attributed to D2’s case was 10% to 15%. He succeeded on one charge but on a point
conceded by the Respondent before the hearing. As he was successful in his application for leave to
appeal against sentence, there would be no order as to costs of that. D2 was to pay 10% of the
Respondent’s costs of his application for leave to appeal against conviction [16].
(6) D3 succeeded in relation to a substantial number of the convictions but there was no merit in the
arguments on charges 1 and 11. There would be no order as to costs against D3 [17].
(7) The Court of Appeal does not have jurisdiction to award costs of the trial to the prosecution.
There is no inherent power to award costs in a criminal case and the power must be conferred by
statute: AG v Ip Wai Kwong [1982] HKLR 93 applied [19]-[20].
(8) Section 9 of the Ordinance enables a successful appellant to apply for costs of the appeal and
that of the trial. The power in section 13, however, must be read contextually as (a) it presupposes a
conviction in the court below at which stage it was open for the prosecution to seek costs; and (b) the
setting for an order for costs under section 13 is not the conduct of the defence in the court below but
whether the appeal itself is or was without merit. Hence, the reference to costs in section 13 is the
costs of the appeal or the application for leave to appeal, as the case may be [23]-[24].
(9) The phrase “including any proceedings preliminary or incidental thereto” in section 15(a) of the
Ordinance does not, unlike a hearing for directions for the conduct of the appeal, include the trial as a
trial is not preliminary or incidental to such appeal as may follow. A trial does not inevitably lead to
an appeal [25]-[27].
(10) The phrase “the proceedings” in section 17 of the Ordinance refers to the proceeding before the
tribunal which is asked to exercise the power. Hence, the Court of Appeal does not have power under
section 17 to make an order for costs of the trial [28]-[30].