CCAB 2011
Sentence (Quantum) – Buggery
Sentence (Quantum)
Buggery
香港特別行政區 訴 葉恆鉅
高等法院上訴法庭
CACC 415/2010
高等法院上訴法庭副庭長楊振權、上訴法庭法官關淑馨及原訟法庭法官林文瀚
聆訊及判案日期：2011 年 8 月 31 日
答辯人法律代表: 高級檢控官吳美華
上訴人法律代表: 馬維騉
判刑上訴許可申請 - 與 16 歲以下女童非法性交罪 - 與 21 歲以下女童肛交罪 - 判刑重要考慮因素
申請人在高等法院承認三項控罪，即一項與16歲以下女童非法性交罪及兩項與21歲以下女童肛
交罪。就與16歲以下女童非法性交罪，原審法官以3年為量刑基準，並因申請人認罪而將刑期扣減三分
一至2年。就兩項與21歲以下女童肛交罪，原審法官以4年為量刑基準，亦因申請人認罪而就每項控罪判
申請人入獄32個月。原審法官下令三項控罪判刑同期執行，故申請人的總刑期為32個月。申請人不服判
刑，提出上訴許可申請。
受害人在案發時剛過 14 歲，是一名離家出走的女童。案發當日早上 5 時，申請人在長沙灣一公
園碰到受害人並和她搭訕。受害人向申請人訛稱 17 歲，並表明自己是離家出走。申請人隨即帶受害人
返回自己的居所，並在房間內和受害人一次性交和兩次肛交。期間，亦有用手指插入受害人的陰部和肛
門。和受害人性交及肛交時，申請人沒有用避孕套，更在她口內射精及要她吞下精液[6]-[8]。
裁決，批准申請人就判刑上訴，並視其申請為正式上訴，上訴得直。總刑期由
32 個月減至 28 個月：
：
裁決
（1） 法庭必需保護未成年女童，避免她們受男子性侵犯。因此性侵犯女童的罪行，都屬嚴重罪行，
一般情況下，理應判即時監禁，而監禁長短，必要視個別案件的情況而定[22]。
（2） 兩名青少年男女，在雙方同意下發生性行為，嚴重性當然較一名年長男子侵犯年輕女子為輕。
因此，罪犯和受害人的年齡差距，必然是判刑的重要考慮因素。除了年齡差距外，雙方人生經驗的差
距，亦會影響罪行的嚴重性。罪犯如已認識受害人多時，及因一時把持不定而犯案，當然會較一名罪犯
在基本不認識受害人而利用受害人無知，怕事來犯案的罪責為輕。申請人雖然只有 21 歲，但較 14 歲的
受害人年長不少，而雙方的人生經歷更有極大的差距[23]-[24]。
（3） 申請人自 16 歲起已多次犯案，並因此而被判入過勞教中心及戒毒所。本案的罪行更是申請人離
開戒毒所兩天後干犯的。申請人的不法行為顯示勞教所提供的短期、尖銳及具震驚性的懲罰仍不足以令
申請人服從紀律﹑遵守法律及以平等合理的方法和他人相處。[25]
（4） 申請人明顯是知悉受害人當時是離家出走少女，面對困境。他是利用受害人的無知及無助將她
視為獵物以滿足自己的獸慾。申請人在公園內搭訕受害人後便立刻帶她返家，並在短時間和她性交一次
及肛交兩次。法庭不接受求情理由指他和受害人是情侶關係，而申請人在戒毒所禁慾多個月，故難以控
制自己的慾望。該些說法絕非減低罪責的理由[26]-[28]。
（5） 雖然本案不涉及金錢交易﹑暴力或嚴重變態虐待行為，但本案不屬同類案件中，嚴重程度較輕
的一宗[29]。
（6） 除了上述的加重罪責因素外，在性行為過程，申請人亦對受害人作出極不負責及具剝削性和羞
辱性的行為，包括不用安全套，不顧受害人的感受，在她口內射精及要她吞下精液等。申請人明知肛交
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Sentence (Quantum) – Buggery
令受害人感到不適，但仍堅持要她第二次肛交。事件亦令受害人肛門直腸黏膜有裂傷。申請人的行為實
在是令人感到厭惡的[30]-[32]。
（7） 和 21 歲以下女童肛交罪的最高終身監禁刑罰當然只適用於一些等同強姦的罪行，但與未成年少
女肛交和性交，本質上是有分別的。視與未成年少女肛交較性交為嚴重是有其邏輯基礎及合理的。以本
案而言，原審法官就非法性交罪和肛交罪，對申請人採納不同的量刑基準是適當的[33]-[34]。
（8） 考慮過案件的詳情及申請人的背景，法庭認為以申請人的整體罪行而言，4 年的量刑基準及最終
的 32 個月總刑期屬明顯過重，而適當的量刑基準及判刑應分別是 3 年 6 個月及 28 個月。法庭批准申請
人就判刑上訴，並視其申請為正式上訴，判申請人的上訴得直。法庭維持與 16 歲以下女童非法性交罪
的 2 年判刑，但將每項與 21 歲以下女童肛交罪的判刑減為 28 個月。法庭亦下令三項控罪的刑期同期執
行。申請人的總刑期由 32 個月減至 28 個月 [36]-[38]。
[English Translation of CACC 415/2010 above]
HKSAR v IP HANG KUI
COURT OF APPEAL
CACC 415/2010
Yeung VP, Kwan JA, Lam J
Date of Hearing and Judgment: 31 August 2011
Counsel for the Respondent: Memi Ng SPP
Counsel for the Applicant: David Ma
Application for leave to appeal against sentence – Unlawful sexual intercourse with girl under 16 –
Buggery with girl under 21 – Important considerations in sentencing
The Applicant pleaded guilty to three charges in the High Court, i.e. one count of unlawful sexual
intercourse with a girl under 16 and two counts of buggery with a girl under 21. As for the offence of unlawful
sexual intercourse with a girl under 16, the trial judge adopted 3 years as the starting point and imposed 2 years’
imprisonment on the Applicant after giving a discount of one-third for his guilty plea. As for the two counts of
buggery with a girl under 21, the trial judge, likewise on account of his guilty pleas, adopted 4 years as the
starting point and imposed 32 months’ imprisonment on the Applicant for each offence. He ordered all the
sentences to run concurrently, making a total sentence of 32 months’ imprisonment. The Applicant applied for
leave to appeal against sentence.
At the material times, the victim who was just over 14 years old was a runaway girl. At 5 a.m. on the
day of the offence, the Applicant came across the victim at a park in Cheung Sha Wan and chatted with her. The
victim said that she had run away from home but falsely represented to the Applicant that she was 17 years old.
Then, the Applicant took the victim to his residence and had sexual intercourse once and anal sex twice with her
inside a room. During that course, the Applicant inserted his finger into the victim’s vagina and anus. When the
Applicant had sexual intercourse and anal sex with the victim, he did not use a condom. He even ejaculated
inside her mouth and asked her to swallow his semen [6]-[8].
Held, the Applicant’s application for leave to appeal against sentence granted and treated as the appeal proper,
appeal allowed and the overall sentence reduced from 32 months to 28 months:
(1)
The court is obliged to protect underage girls from sexual assault by men. Hence, sexual assault on a
girl is a serious offence. Normally, an immediate custodial sentence should be reasonably expected although the
length of sentence invariably depends on the circumstances of individual cases [22].
(2)
A young man and a young woman who engage in consensual sexual activity is naturally of a lesser
severity than that of a male adult who sexually assaults a young girl. Accordingly, the age difference between
the offender and the victim is definitely an important consideration in sentencing. Apart from age difference,
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Sentence (Quantum) – Buggery
disparity in life experiences between them will also affect the seriousness of the offence. An offender who has
known the victim for a long time commits the offence due to a momentary lapse of self-control is naturally less
culpable than an offender who is unknown to the victim but taking advantage of her innocence and shyness in
committing the offence. Although the Applicant was only 21 years old, there was a wide gap in age between him
and the 14 year-old victim, and their life experiences were indeed in great disparity [23]-[24].
(3)
The Applicant since 16 years old had committed offences resulting in him having been sentenced to
detention centre and drug addiction treatment centre. The current offences were committed by him only two
days after he had been discharged from the drug addiction treatment centre. As the Applicant broke the law
again, this shows that the short, sharp and shock sentence in the detention centre had not been sufficient to
change the Applicant to become disciplined, law abiding and able to deal with others in a fair and reasonable
manner [25].
(4)
Obviously, the Applicant knew that the victim was a runaway girl in a plight. He had exploited the
victim’s innocence and helplessness, and preyed on her to satisfy his licentious desires. Having chatted with her
in a park, the Applicant immediately took her home and had sexual intercourse once and anal sex twice with her
within a short period. The Court did not accept his mitigation that his relationship with the victim was that of
lovers, and he failed to control his desire after abstinence from sex for several months in the drug addiction
treatment centre. These were absolutely not reasons to mitigate his culpability [26]-[28].
(5)
Although no money transaction, violence or serious sadistic act was involved in this case, it was not at
the lower end of the scale of seriousness for the same kind of offences [29].
(6)
In addition to the above aggravating factors, the Applicant in the course of sexual intercourse acted very
irresponsibly towards the victim in an exploitative and insulting manner, including the failure to use a condom,
no regard to the victim’s feelings by ejaculating insider her mouth and asking her to swallow his semen.
Knowing that having anal sex with the victim for the second time would cause her discomfort, yet the Applicant
still insisted to proceed. As a result, it caused ruptures to her rectum’s mucous membrane. The acts of the
Applicant were really disgusting [30]-[32].
(7)
The maximum penalty of life imprisonment for the offence of buggery with a girl under 21 is, of course,
only applicable to those offences equivalent to rape. However, there is difference in nature between buggery and
sexual intercourse in relation to an underage girl. In relation to an underage girl, buggery is regarded as more
serious than sexual intercourse. This is logically justified and reasonable. As far as the present case is
concerned, it was proper for the trial judge to adopt different starting points for the offences of unlawful sexual
intercourse and buggery [33]-[34].
(8)
Having considered the facts of the case and the background of the Applicant, the Court, with regard to
the offences on the whole, considered that the starting point of 4 years and the ultimate total sentence of 32
months were manifestly excessive. The appropriate starting point and sentence should be 3 years and 6 months
and 28 months respectively. The Applicant’s application for leave to appeal against sentence was granted and
treating it as the appeal proper, the appeal was allowed. The sentence of 2 years’ imprisonment for the offence
of unlawful sexual intercourse with a girl under 16 remained unchanged but the sentence on each count of
buggery with a girl under 21 was reduced to 28 months. All sentences on the three charges were ordered to run
concurrently. Hence, the overall sentence of the Applicant was reduced from 32 months to 28 months [36]-[38].
233
CCAB 2011
Sentence (Quantum) – Burglary
Burglary
HKSAR v CHAN KONG YIU（
（陳江耀）
陳江耀）
COURT OF APPEAL
CACC 359/2010 & CACC 381/2010
Yeung & Hartmann JJA
Date of Hearing: 29 June 2011
Date of Judgment: 29 June 2011
Date of Handing Down Judgment: 28 July 2011
Counsel for the Respondent: Hermina Ng PP
Counsel for the Applicant: David Boyton
Criminal Sentencing – Burglary – Conspiracy to steal – Handling stolen goods – Aggravating factors –
Whether the sentences imposed manifestly excessive
刑 事 罪 判 刑 —入屋犯法罪—串謀偷竊罪—處理贓物罪—加重刑罰的因素—判刑是否明顯過
重
The Applicant was involved in 2 separate cases, DCCC 906/2010 and DCCC 500/2010. The 2 cases
were dealt with together upon the request of the Applicant. In DCCC 906/2010, the Applicant pleaded guilty to
one charge of burglary. In DCCC 500/2010, he pleaded guilty to one charge of conspiracy to steal and one
charge of handling stolen goods. He admitted that between December 2009 and January 2010, he had conspired
with 2 others to steal 163 watches valued at almost $18,000,000 from a shop in Japan. He also admitted to have
handled 4 watches burgled from another shop in Japan in October 2009. The Applicant was 53 years old and
had 6 previous convictions, all of which were offences of burglary.
In DCCC 906/2010, the judge adopted the tariff for non-domestic burglary of 2 years and 6 months. As
there was no further mitigating and aggravating factors other than the Applicant’s guilty plea, the judge reduced
the tariff by one-third to 20 months.
In DCCC 500/2010, the judge used the sentence for the underlying offence, namely burglary, as a
reference for the charge of conspiracy to steal. He referred to HKSAR v Fan Kit Hung [2009] 6 HKC 314 and
mentioned that a professional burglar was plainly an aggravating factor and, where several offences were
involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of
more than 5 years’ imprisonment. The starting point could also be adjusted upwards if there were aggravating
circumstances such as (1) the offence was carefully planned and skillfully executed involving the use of heavy
instrument or equipment; (2) the offence was committed by two or more people; (3) the offence targeted
substantial premises and involved substantial properties; (4) the offender was a professional burglar and not just
an opportunist; (5) the offender had previous convictions, particularly previous convictions of similar nature; (6)
the offender committed multiple offences; and (7) where substantial damage was done to the victimized
premises, or to things in it, in the course of the burglary.
The judge then took the view that 6 of the 7 aggravating factors identified by the Court of Appeal were
present, namely that the burglary was carefully planned and skillfully executed involving the use of jack and
drill; that the offence was committed by 3 people; that the offence targeted substantial premises and involved
watches worth a total of HK$17,879,812; that the burglars were professional; that the Applicant had many
similar previous convictions; and that substantial damage was done to the victimized premises. The judge added
that there was an international element involved when the Applicant, together with others, conspired to burgle a
shop in Japan, thus made it more difficult and costly for the law enforcement agencies, both in Hong Kong and
Japan, to investigate and to apprehend the perpetrators.
For each of the 7 aggravating factors that he had identified, the judge added 3 months to the starting
point of 30 months, the usual tariff for non-domestic burglary, making a total starting point of 51 months for the
1st charge of conspiracy to steal. The judge reduced the 51-month starting point by one-third to 34 months to
reflect the guilty plea.
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CCAB 2011
Sentence (Quantum) – Burglary
In respect of the handling charge, the judge referred to R v Bernard Webbe & Ors [2002] 1 Cr App
R(S) 22 and identified 9 factors as aggravating the offence of handling, namely (1) closeness to the original
offence; (2) particular seriousness in the primary offence; (3) high value to the loser; (4) the fact that the goods
were proceeds of a domestic burglary; (5) high degree of sophistication; (6) high level of profit made; (7) the
provision by the handler of a regular outlet for stolen goods; (8) threats of violence or abuse of power by the
handler over others; and (9) the commission of an offence while on bail.
The judge adopted a starting point of 24 months for the handling charge and reduced it to 16 months on
account of the guilty plea.
In DCCC 500/2010, the Applicant was thus sentenced to the respective terms of 34 months and 16
months with 8 months to run consecutively, making a total of 42 months’ imprisonment.
The judge then ordered the 20-month sentence in DCCC 906/2010 to run consecutively to the 42-month
sentence in DCCC 500/2010, making the overall sentence on the Applicant one of 62 months’ imprisonment.
The Applicant sought leave to appeal against sentence on the ground that it was manifestly excessive.
Held, application for leave granted, but the overall sentence was increased from 62 months to 68 months:
(1)
The Applicant was clearly a professional burglar. He had 6 previous convictions, all for burglaries
committed between 1986 and 1997. The Applicant also committed another burglary in 2003 [36].
(2)
A 30-month starting point for non-domestic burglary is suitable for one without any special aggravating
feature, and for a first offender [39].
(3)
The burglary in DCCC 906 /2010 was quite a bad case when the Applicant burgled an office unit by
first prizing open the metal grille of the building on the ground floor and then the metal shutter of the unit. The
Applicant was clearly well equipped as he was able to cut open two safes. The Applicant, by then, had already
had 6 previous convictions for burglary [40].
(4)
The starting point for the burglary offence in DCCC 906/2010 should be 3½ years’ imprisonment. With
the guilty plea, the sentence in DCCC 906/2010 should be 28 months’ imprisonment [42].
(5)
The judge was right to refer to the international element. What the Applicant and his accomplices did
was unprecedented and was not within the contemplation of this court when tariff sentences were laid down for
non-domestic burglary cases. The usual tariff had no application in this case [45].
(6)
The Applicant and his accomplices went to Japan for the sole purpose of committing a serious burglary.
They scouted for target shops to burgle and once a target was identified, they acquired sophisticated equipment
to drill a hole in the wall to gain access to the target shop and stole therein 163 expensive watches valued at
almost $18 million. They then mailed the loot in parcels back to Hong Kong before themselves returning to
Hong Kong in time to pick up the parcels. The degree of planning and the mode of operation made this case one
of, if not, the worst burglary case that this court had ever come across. The Applicant took an active part, and
what he and his accomplices did had significantly damaged the reputation of Hong Kong [46] & [47].
(7)
The 51-month starting point for the conspiracy to steal charge, far from being manifestly excessive, was
in fact inadequate to reflect the gravity of what the Applicant and his accomplices did [48].
(8)
A proper starting point, taken into consideration the Applicant’s background, should at least be 5 years’
imprisonment. With a one-third discount for the guilty plea, the sentence for the offence of conspiracy to steal
should be 40 months’ imprisonment [49].
(9)
The Applicant’s overall sentence should be 68 months’ imprisonment even though such a sentence
represented a notional starting point exceeding the jurisdiction of the District Court [51].
235
CCAB 2011
Sentence (Quantum) – Criminal Intimidation
Criminal Intimidation
香港特別行政區 訴 林子康
高等法院原訟法庭
HCMA 496/2011
原訟法庭法官張慧玲
聆訊及裁決日期： 2 0 1 1 年 1 1 月 1 6 日
判案理由書日期： 2 0 1 1 年 1 1 月 2 1 日
答辯人代表律師： 高級助理刑事檢控專員盧慶祥
上訴人代表律師： 駱應淦資深大律師
刑 事 罪 判 刑 —刑事恐嚇
刑事恐嚇—香港法例第
章《刑事罪行條例》
條—申請人威脅受害人稱若她
申請人威脅受害人稱若她
刑事恐嚇 香港法例第200章
香港法例第
刑事罪行條例》第24(a)(ii)條
不與他免費「
個月的量刑起點是否明顯過重—「
不與他免費 「 援交」，
援交 」，他會將她的裸照傳送給她的男友
」， 他會將她的裸照傳送給她的男友—18個月的量刑起點是否明顯過重
他會將她的裸照傳送給她的男友
個月的量刑起點是否明顯過重 「希望粉
碎」因素—無正面良好品格
因素 無正面良好品格
上訴人在裁判法院承認一項「刑事恐嚇」罪，被判監禁10個月。上訴人就判刑提出上訴。
上訴人透過互聯網認識X小姐。後X小姐同意以港幣$4,000與上訴人「援交」。在上訴人要求
下，X小姐透過視像脫光衣服以供上訴人觀看。其後X小姐拒絕到上訴人家裏「援交」。翌日，X小姐收
到來自上訴人的短訊。上訴人聲稱有X小姐的裸照，並要求X小姐與他免費援交，否則他將該等照片發
送給X小姐的男友，X小姐因而感到恐懼。其後，X小姐從電腦收到來自上訴人的電郵，該電郵隨附10多
幅X小姐的裸照。X小姐感到害怕。隨後，X小姐收到上訴人的一個來電，上訴人問X小姐有否收到該電
郵。X小姐與男友相討後報警求助。上訴人被捕後在警誡下承認有關罪行。並謂出自一時衝動，警方調
查期間，在上訴人的電腦發現36幅X小姐的裸照。
裁決，上訴(判刑)得直：
裁決
(1)
以本案案情而言，18 個月量刑起點看來是較高，但並非明顯過重。況且，裁判官在給予上訴人
三分之一刑期扣減後，再因上訴人初犯額外減刑 2 個月，裁判官此特別寬大的做法是無理據的(參看案
例 Secretary for Justice v Chau Wan Fun [2007] 1 HKC 423)。認罪後三分之一刑期扣減通常是屬最高減
幅。在本案，無資料顯示上訴人有正面良好品格(positive good character)而可得多於三分之一的刑期扣減
[24]。
(2)
警方於起訴現上訴人前曾為上訴人錄取口供以徵求上訴人的同意，作為向法庭申請法庭具結令
(即 Bind Over Order)之用。上訴人表示同意接受具結令，亦維持其認罪及懺悔的態度[6]。警方其後亦同
樣為X 小姐錄取口供，獲得其同意警方以該方式處理該案[7]。但上訴人最終仍被正式起訴。
(3)
當上訴人在沙田裁判法院認罪、求情及被判刑當天，代表上訴人的律師尚未獲悉此等資料，故
未有向裁判官就這方面作求情陳詞[7]及[8]。
(4)
本案案情嚴重，以具結令取代檢控並非正確做法，若警方正式向法庭申請具結令，裁判官將不
會接納。就本案而言，向被告人錄取口供，以獲其同意警方以法庭具結令的形式了結案件，就如讓一名
被告人存有希望，然後令「希望粉碎」(參看案例HKSAR v Lui Kin Hong, Jerry, CACC 378/1998)[5]及
[10]。
(5)
本案裁判官將12 個月的刑期減至10個月，變相量刑起點是15個月。以本案案情而言，15個月的
量刑起點可說是恰當的(雖然18個月並非明顯過高)。上訴人遭受希望粉碎之苦，故酌情額外減刑2個月。
上訴得直，10個月的監禁刑期撤銷，改判8個月監禁[25]及[26]。
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Sentence (Quantum) – Criminal Intimidation
[English Translation of HCMA 496/2011]
HKSAR v LAM PATRICK CHI-HONG
COURT OF FIRST INSTANCE
HCMA 496/2011
Barnes J
Date of Hearing and Judgment: 16 November 2011
Date of Reasons for Judgment: 21 November 2011
Counsel for the Respondent: Francis Lo SADPP
Counsel for the Appellant: Lawrence Lok SC
Criminal sentencing – Criminal intimidation – Section 24(a)(ii) of the Crimes Ordinance (Cap 200) –
Appellant threatened victim by saying he would sent her nude photographs to her boyfriend if she refused
to have “compensated dating” with him for free – Whether starting point of 18 months manifestly
excessive – “Dashed hope” factor – Lack of positively good character
The Appellant pleaded guilty to a charge of “criminal intimidation” at the magistracy and was
sentenced to 10 months’ imprisonment. He appealed against sentence.
The Appellant came to know Miss X through the internet. Later, Miss X agreed to have “compensated
dating” with the Appellant at HK$4,000. At the request of the Appellant, Miss X stripped off her clothes and let
the Appellant look at her naked body via video. Subsequently, Miss X refused to go to the Appellant’s home to
have “compensated dating” with him. On the following day, Miss X received an SMS from the Appellant. The
Appellant said that he had Miss X’s nude photographs and would send those photographs to Miss X’s boyfriend
if she refused to have “compensated dating” with him for free. Thus, Miss X was alarmed. Later, she received
an email from the Appellant in her computer. Attached to the email were ten-odd nude photographs of Miss X.
She felt afraid. Afterwards, she received a telephone call from the Appellant. The Appellant asked whether
Miss X had received the email. After discussions with her boyfriend, Miss X reported the matter to the police.
The Appellant was arrested. Under caution, he admitted that he committed the offence on the spur of the
moment. During investigation, the police found 36 nude photographs of Miss X in the Appellant’s computer.
Held, appeal (against sentence) allowed:
(1)
On the facts of the case, a starting point of 18 months seemed to be on the high side, but it was not
manifestly excessive. Moreover, on top of the one-third discount, the magistrate gave a further reduction of two
months to the Appellant for it was his first offence. The magistrate had no justification to be so lenient (see
Secretary for Justice v Chau Wan Fun [2007] 1 HKC 423). The maximum discount for a guilty plea was onethird. There was nothing in this case to show that the Appellant had a positively good character which would
enable him to deserve a further reduction in addition to the one-third discount [24].
(2)
Before the police charged the Appellant with an offence, they took a statement from him to seek his
consent for applying to court for a bind over order. The Appellant agreed to accept a bind over order,
maintained his indication to plead guilty and showed remorse [6]. Later, the police also took a statement from
Miss X who agreed with the disposal of this case by police in such a manner [7]. But the Appellant was in the
end formally charged.
(3)
On the sentencing day when the Appellant pleaded guilty and made mitigations at the Shatin
Magistracy, his representing counsel who was unaware of the above information did not advance mitigation to
the magistrate in this respect [7] & [8].
(4)
The facts of this case were serious. It was inappropriate to impose a bind over order in lieu of
prosecution. Should the police formally apply to the court for a bind over order, the magistrate would not have
accepted it. In the present case, taking a statement from the defendant in order to seek his consent to the way the
police proposed to settle this matter by applying to court for a bind over order, was tantamount to giving a hope
to the defendant but then “dashing the hope” (see HKSAR v Lui Kin Hong, Jerry, CACC 378/1998) [5] & [10].
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Sentence (Quantum) – Criminal Intimidation
(5)
The magistrate reduced the term of sentence from 12 months to 10 months. In effect, it was equivalent
to adopting a starting point of 15 months. In the circumstances of this case, a starting point of 15 months would
be regarded as appropriate (though 18 months was not manifestly excessive). Considering that the Appellant
was a victim of “dashed hope”, the court exercised its discretion to grant a further deduction of 2 months. The
appeal was thus allowed. The original sentence of 10 months’ imprisonment was quashed and substituted with
one of 8 months [25] & [26].
Dangerous Drugs
HKSAR v NG KWOK FAI
COURT OF FIRST INSTANCE
HCMA 726/2010
Mackintosh J
Date of Judgment: 8 December 2010
Counsel for the Respondent: Hermina Ng PP
Counsel for the Applicant: In person
Criminal sentencing – Trafficking in dangerous drugs – Trafficking outside a methadone clinic is to be
regarded as a very grave aggravation of the offence
刑事罪判刑－販運危險藥物－在美沙酮診所外販運危險藥物須視為該罪行的一項十分嚴重的
加刑因素
The Appellant was alleged to have sold and delivered a small packet of heroin to an undercover police
officer for $150 outside a methadone clinic. Two days later, the operation went overt. A number of persons
were arrested. The undercover police officer recognized the Appellant as the man who had sold him the package
of drugs. He appealed against conviction only.
After dismissing the appeal against conviction, the court added a postscript concerning sentence. The
Appellant’s conviction was for trafficking in dangerous drugs outside the methadone clinic where addicts go to
try to free themselves of their addiction. To traffick in a place such as that is a very grave aggravation of the
offence of trafficking. A starting point of not less than 2½ years’ imprisonment would have been appropriate. It
is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to
discourage them, particularly, where they commit such offences outside a methadone clinic [32].
HKSAR v PEI YUK KAM (畢玉錦)
畢玉錦)
COURT OF APPEAL
CACC 213/2010
Hartmann JA, Lunn & Line JJ
Date of Hearing: 24 February 2011
Date of Judgment (re: conviction): 24 February 2011
Date of handing down Reasons for Judgment (re: conviction) and Judgment (re: sentence): 9 March 2011
Counsel for the Respondent: Robert KY Lee SADPP
Counsel for the Applicant: Wong Hay Yiu
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Criminal sentencing – Drug manufacturing most serious of all drug-related offences – Drug
manufacturing and doing an act preparatory to manufacturing a dangerous drug are viewed with similar
seriousness and should attract similar sentences
刑事罪判刑—在所有危險藥物相關罪行中以製造危險藥物為最嚴重—製造危險藥物與作出準
備製造危險藥物的作為在嚴重程度上兩者視為相若並應判處相若刑罰
The Applicant was convicted of doing an act preparatory to manufacturing a dangerous drug (together
with another offence) and was sentenced to 4½ years’ imprisonment. He appeals against both conviction and
sentence for this drug offence.
The police raided an apartment and at that time, it was occupied by the Applicant and the co-accused
(“Wu”). Wu was seen stepping out of the apartment carrying garbage bags and when apprehended, he shouted a
warning to the Applicant who was inside the apartment. The Applicant was then seen running into the toilet
carrying a glass containing brown liquid with the clear intention to dispose of the glass and its contents. The
liquid was subsequently found to reveal traces of paracetamol.
Inside the apartment, various powders, liquids and chemicals were found. Basically, less only a couple
of ingredients, the raw materials were present for the manufacture of ‘ice’. In addition, other articles were found
including electronic scales, scissors, pots and bowls containing quantities or traces of chemicals used in the
manufacture of ‘ice’; a hot plate as means for heating and a freezer for cooling were found. A small quantity of
‘ice’ was discovered. There was also found a recipe for one method of manufacturing ‘ice’.
The judge was satisfied that the evidence proved that prior to the police raid the Applicant had done
acts preparatory to the manufacture of “ice”.
Held, leave to appeal against sentence refused:
(1)
As observed in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at 586, the offence of drug
manufacturing is the most serious of all drug-related offences, graver than trafficking and in all but the most
exceptional cases warranting a heavier sentence. Doing or offering to do an act preparatory to or for the
purposes of manufacturing a dangerous drug must be viewed with similar seriousness and should attract similar
sentences. The intention of the legislature in this regard is unmistakable. Both offences were created by s 6(1)
of the Dangerous Drugs Ordinance (Cap 134) and the same sentence was provided [33]-[34].
(2)
Even when the scale of operation is very limited, a minimum starting point for manufacturing should be
six years’ imprisonment [35] & [37]. Doing or offering to do a preparatory act may or may not reflect a lesser
degree of moral culpability than participating in the manufacturing process. Each case will depend on its own
facts [36].
(3)
The judge recognized that the intended manufacturing operation put in place in the apartment was
small-scale and unsophisticated. The quantity of chemicals was limited and a number of necessary chemicals
were still missing. Nevertheless, on the authorities, no matter how limited and no matter how crude the intended
operation, he was obliged to take as his starting point a sentence similar to the starting point of six years that
would have to be applied if the Applicant had been convicted of manufacturing. Having taken all mitigating
factors into account, the judge was prepared to give a discount of 25%; hence the sentence of four years and six
months. The judge did not condescend to state why he had chosen that discount. But, whatever the reason, it
was a substantial discount and, in the circumstances, the sentence could not be considered in any way manifestly
excessive [38]-[39].
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CCAB 2011
Sentence (Quantum) – Dangerous Drugs
SJ v CHAN CHUN FAI (陳俊輝)
COURT OF APPEAL
CAAR 11/2010
Cheung & Yeung JJA, Chu J
Date of Hearing and Judgment: 28 April 2011
Counsel for the Applicant: Wesley Wong Ag DDPP & Samantha Chiu PP
Counsel for the Respondent: Oliver Davies
Criminal sentencing – Trafficking in dangerous drugs – 12.85 gms of "Ice" – Defendant exported drugs
from Hong Kong to Macau – Where defendant intended to use drugs for self-consumption, wrong to
impose sentence on basis of possession for self-use and then enhance sentence by reason of defendant
exporting drugs
刑事罪判刑－販運危險藥物－12.85克“冰”－被告人將毒品從香港出口往澳門－若毒品是被
告人擬供自用，則以管有毒品供自用為基礎定出刑罰後再以被告人出口毒品為理由加刑是錯
誤的
The defendant was about to travel from Hong Kong to Macau by ferry. After he passed through the
Hong Kong Immigration counter, he was stopped by Customs officers and drugs were found in his shoulder
bag. The defendant claimed to Customs officers that the drugs were for his own consumption. The prosecution
accepted that claim.
The defendant pleaded guilty in the Court of First Instance to one count of trafficking in dangerous
drugs contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The drugs were 12.85
grammes of methamphetamine hydrochloride (“Ice”). The Court sentenced him to a term of 18 months’
imprisonment. The Secretary for Justice applied for a review of the sentence on the ground that it was wrong in
principle and manifestly inadequate.
Held, application for review allowed and the sentence was increased to 3 years and 6 months’ imprisonment.
(1)
The sentencing judge approached the matter by first considering what the sentence would be for
possession of the drugs, and then increasing that sentence for the aggravating element of exportation which
created the offence of trafficking. This approach was incorrect as a matter principle. The defendant had
committed and pleaded guilty to the offence of trafficking. It was not in any sense a technical offence. He was
bringing the drugs from Hong Kong to Macau and this constituted exporting the drugs within the meaning of s 2
of Cap 134, namely, “to take or cause to be taken out of Hong Kong or any other country, as the case may be, by
land, air or water” [4]-[5].
(2)
The sentencing judge, in a situation such as this, must proceed on the basis that the defendant is charged
with the more serious offence of trafficking and not simple possession. Self consumption of the drugs is only a
matter that goes towards mitigation and does not by itself change the nature of the offence [7].
(3)
Trafficking in 12.85 grammes of “Ice” attracts a sentence of at least 7 years’ imprisonment under the
guideline set out in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, whereas a sentence of 18
months’ imprisonment is the customary sentence for possession of the drugs for self use. Since the defendant
has committed the offence of trafficking, it is wrong to sentence him on the basis of possession for self use and
then enhance the sentence by reason of the fact that he was exporting the drugs [9]-[10].
(4)
In the present case, the correct and workable approach would be to adjust the starting point downwards
by 25% for personal consumption. This being the case it is not necessary to address the issue of latent risk
because, looking at the matter in the proper perspective, the defendant is sentenced on the basis of trafficking
with the strong mitigating factor that the drugs were intended for his own consumption. Bearing in mind that the
defendant pleaded guilty and that the drugs were wholly for his self consumption, the appropriate sentence
should be 3 years and 6 months’ imprisonment [15]-[16].
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CCAB 2011
Sentence (Quantum) – Dangerous Drugs
HKSAR v MINNEY, JOHN EDWIN
COURT OF APPEAL
CACC 383/2010
Stock VP, Fok JA & Line J
Date of Hearing and Judgment: 6 April 2011
Date of Handing Down Reasons for Judgment: 16 June 2011
Counsel for the Respondent: Kevin P Zervos SC DPP & Wong Sze-lai Lily SPP
Counsel for the Applicant: Philip Dykes SC and Giles Surman
Criminal sentencing – Possession of dangerous drugs – Whether the latent risk sentencing principle is
unconstitutional
刑事罪判刑－管有危險藥物－潛在風險判刑原則是否違憲
The Applicant was convicted in the District Court upon his own pleas of 2 offences of possession of
dangerous drugs.
On the day in question, a party of police officers entered a bar at Lamma Island and demanded to search
the Applicant therein. The Applicant took out 2 plastic bags containing a total of 0.85g of cocaine from his
trousers’ pocket and threw them to the floor. Under caution, the Applicant said that they were for his own
consumption (Charge 1). Thereafter, the Applicant was taken to his residence. Upon search, a total of 1.05g of
cannabis resin and 5.63g of cocaine were seized. Under caution, the Applicant admitted that the cannabis resin
and cocaine seized from his residence were for his own consumption (Charge 2).
In sentencing, the Judge adopted a starting point of 6 months’ imprisonment for Charge 1 and 12
months for Charge 2. He then considered the latent risk factor and increased the starting points by 3 months to 9
months and 15 months’ imprisonment respectively. Taking into account mitigation and the pleas, the Judge
imposed concurrent sentences of 6 months and 10 months respectively.
On appeal, the Applicant accepted that, without the enhanced element, the prison sentences for the two
offences would not be susceptible to challenge. However, he sought to appeal against the uplift of 3 months on
each sentence referable to the latent risk sentencing principle. The basis of the Applicant’s challenge was that
the latent risk sentencing principle was unconstitutional since it imputed to a person convicted of a possession
offence an unproven predilection or propensity to commit the more serious offence of trafficking. This
contravened the presumption of innocence protected in Article 87 of the Basic Law and Article 11(1) of the
Hong Kong Bill of Rights Ordinance, Cap 383.
Held, application for leave dismissed:
(1)
There can be no objection to a sentencing court taking into account the relevant circumstances of the
case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real
risk that some of those drugs might end up being redistributed and finding their way into the hands of others
apart from the offender’s. That is not to say that the court then attributes to the defendant an intention to traffic
in the drugs but that simply reflects the fact that the quantity and circumstances of their possession are such as to
pose a risk to society [28].
(2)
What the established risk will be is something that will vary from case to case and it is not possible to
predict all circumstances. They will include leaving drugs in a place, for example a shared flat, where others
have access to them; taking, as in the present case, a number of packets to a pub where friends may prevail upon
the possessor to share what he has; and buying in such a quantity as to create a temptation to sell in order to fund
the next purchase. It is the real risk of dissemination of drugs which the courts are looking to deter by this
sentencing policy and there is nothing objectionable or contrary to policy or to the presumption of innocence in a
sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence give
rise. It is not a question of punishing a person for a crime he has not committed. It is not a question of
punishing him for a crime he may commit. It is a question of punishing him for the crime which he has
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Sentence (Quantum) – Dangerous Drugs
committed taking into account the circumstances of its commission and the dangers to society which those
circumstances create [29].
(3)
It is “the risk to society of the drugs being redistributed and finding their way into other hands apart
from the offender’s. The risk will be determined from all the circumstances in any particular case, including of
course the quantity of drugs possessed and the personal circumstances of the offender” (HKSAR v Wan Sheungsum [2000] 1 HKLRD 405 applied) [30].
(4)
If a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn
counsel for the accused, to enable the accused to challenge the issue, if necessary by the giving of evidence; and
a judge is not to sentence for unproved trafficking, namely an unproved actual intention to traffic [31].
(5)
The degree of enhancement for the risk factor must bend to the circumstances of each case and the
existence of the risk factor and the degree of risk is not a matter of mathematics upon which the court can
provide a tariff [32].
(6)
Consideration of the possession of a quantity of dangerous drugs will involve consideration of the risk
of some of those drugs finding their way into circulation, although a greater quantity in one man’s hands may
reflect less risk than a smaller quantity in the hands of another. Consideration of the risk in question does not
amount to a finding that the Applicant had the necessary intention to make him guilty of trafficking in the
dangerous drugs. If it did, it would be impermissible [33].
(7)
There is a distinction to be made between sentencing on the basis that trafficking was the intent or
purpose of the defendant’s possession of the drugs and sentencing on the basis that his possession in the
circumstances produced a risk of those drugs finding their way into the hands of others. The former would not
be permissible, but the latter is. Sentencing rightly enjoys the flexibility to meet the differing degrees of
potential abuse to which the possession may give rise, whether it be for mitigation or aggravation [37].
(8)
In the present case, the sentencing Judge did not assume a present intention on the part of the Applicant
to traffic in the drugs in question; and the view that he reached that there was "a risk some of the cocaine may
fall into the hands of others" was reasonable. No imputation or attribution of an intention to traffic on the part of
the Applicant was involved in his reasoning [41].
HKSAR v CHUNG YAT HO (鍾逸豪)
COURT OF APPEAL
CACC 367/2010
Yeung VP, Hartmann JA
Date of Hearing: 28 July 2011
Date of handing down Reasons for Judgment: 2 August 2011
Counsel for the Respondent: Andrew Cheng PP
Counsel for the Applicant: James McGowan
Criminal sentencing – Conspiracy to traffic in a dangerous drug – Criminal agreement went beyond the
single instance of trafficking discovered by the police – Culpability of parties to the agreement was much
greater – Starting point higher than that which would have been based on the total weight of narcotics
seized was justified
刑事罪判刑 - 串謀販運危險藥物 - 犯罪協議不限於警方偵破的單一次販運事件 - 協議各方
有較大刑責 - 量刑起點高於以檢獲毒品總重量作為計算基礎的量刑起點是有理據的
The Applicant (D3 at trial) pleaded guilty to a count of conspiracy to traffic in a dangerous drug and
another count of possession of a dangerous drug, and was sentenced to 8 years and 8 months’ imprisonment and
6 months’ imprisonment respectively. The Applicant recruited two men (D1 and D2 at trial) to distribute
ketamine for him on a day-to-day basis. D1 and D2 would collect a stock of ketamine from the Applicant and
then drive with it in vehicles to locations as directed by him. The Applicant would instruct them by phone as to
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CCAB 2011
Sentence (Quantum) – Dangerous Drugs
where and to whom the drugs should be delivered. On the day in question, the police intercepted D1 and D2 and
found 20 packets containing a total of 228.59 g ketamine inside both of their vehicles.
In respect of the conspiracy count against the Applicant, the judge took a starting point of 13 years and
reduced the sentence by virtue of the plea to 8 years and 8 months’ imprisonment. Had the charge been one of
trafficking only, the same quantity of ketamine (228.59 g) would have attracted a sentence in the range of 6 to 9
years (for 50 to 300 g) only.
The Applicant applied for leave to appeal against sentence contending inter alia that the judge had
fallen into error by taking as his starting point a sentence greater than that which, had the charge been one of
trafficking only, would have been based on the total weight of the narcotics found.
Held, application dismissed:
(1)
Agreement is the essence of conspiracy and the judge correctly looked to the culpability of the
Applicant reflected by the nature of the agreement and the actions carried out in pursuance of that agreement.
The judge was entitled to find that the agreement went beyond that of a one-off trafficking operation to distribute
a specific quantity of ketamine on a specific date, and was to set up a distributing network, supply ketamine to
others who were themselves likely to deal in the drug. The object of the conspiracy was to operate the network
on an indefinite basis. The conspiracy was an open-ended one which would have continued but for the
intervention of the police [19]-[20].
(2)
The judge was correct to find in the present case that the culpability of the parties to the criminal
agreement was much greater as the agreement reached beyond the single instance of trafficking discovered by
the police [23].
(3)
Given the Applicant’s role as the ringleader of the conspiracy and his level of culpability, the starting
point of 13 years adopted was within the contemplation of the sentencing guidelines laid down in SJ v Hii Siew
Cheng [2009] 1 HKLRD 1 [24].
HKSAR v NG SIU KAM
COURT OF APPEAL
CACC 474/2009
Stock VP, Hartmann JA, Lunn J
Dates of Hearing: 16 November 2010 & 22 June 2011
Date of Judgment: 2 September 2011
Counsel for the Respondent: Jasmine Ching SPP
Counsel for the Applicant: John Marray
Criminal sentencing – Conspiracy to traffic in a dangerous drug – Aggravating factors
刑事罪判刑—串謀販運危險藥物—加重刑罰的因素
The Applicant was convicted after trial of a count of conspiracy to traffic in a dangerous drug and was
sentenced to 24 years’ imprisonment [1]-[2]. He applied for leave to appeal against both conviction and
sentence [3].
The prosecution case was based entirely on the evidence of a co-conspirator, Wong. Wong testified that
he was approached by the Applicant to act as a courier to bring dangerous drugs from the Mainland into Hong
Kong and was promised a reward of approximately $1,500 for every successful importation of 500 grammes of
ketamine [5]. Within 2½ months, Wong had acted on the Applicant’s instructions to travel to the Mainland in
order to smuggle drugs into Hong Kong on a minimum of 10 occasions [7].
Held, appeal against sentence allowed and sentence reduced to 20 years’ imprisonment:
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(1)
While the judge addressed the factors pointing to the nature and extent of the conspiracy to traffic in
ketamine, he failed to assess an appropriate starting point which could then be adjusted, if appropriate, having
regard to the aggravating or mitigating factors [56].
(2)
The conspiracy endured for a period of approximately 2½ months where Wong made a minimum of
10 trips in bringing drugs from the Mainland [57]. The total quantity of ketamine imported is estimated to be a
minimum of between 5 and 5.5 kilograms of ketamine [58]. The appropriate starting point for trafficking in this
quantity of ketamine is one of 16 years’ imprisonment [60].
(3)
The aggravating factors include: (i) the Applicant’s greater culpability given he was the recruiter, the
paymaster and the one who directed the course of the conspiracy as between himself and the co-conspirator [62];
(ii) the fact that the conspiracy was not short-lived, it ran for some 2½ months and the co-conspirator made at
least 10 trips into the Mainland bringing back dangerous drugs upon the Applicant’s direction [63]; and (iii) the
importation of dangerous drugs into Hong Kong [64]. The Court took the view that taking all the above factors
into account, the final sentence should be one of 20 years’ imprisonment [65].
Driving under Influence of Drugs
SJ v CHAN HON HOI (陳瀚海)
COURT OF APPEAL
CAAR 8/2010
Yeung & Yuen JJA, Lunn J
Date of Judgment: 22 December 2010
Counsel for the Applicant: Alex Lee SADPP & Jasmine Ching SPP
Counsel for the Respondent: Victor Ho
Criminal sentencing – Driving motor vehicle under influence of drugs – Inhaling dangerous drugs on two
occasions – Defendant taxi driver consumed ketamine before starting to drive – Second occasion occurred
whilst defendant on bail in respect of first occasion – Defendant's conduct indicated deliberate and
blatant disregard for public safety – Drug-driving problem increasingly prevalent – Whether total
sentence of 18 months' imprisonment and two-year disqualification manifestly inadequate
刑事罪判刑－在藥物影響下駕駛汽車－兩次吸服危險藥物－被告人是的士司機－在開始駕駛
前服用氯胺酮－被告人在第一次的保釋期間犯第二次－被告人的行為顯示蓄意並公然罔顧公
眾安全－藥物駕駛的問題愈趨普遍－總共監禁18個月及取消駕駛資格2年是否明顯不足
The Respondent, a 30-year-old taxi driver, was charged with two counts of driving a motor vehicle
under the influence of drugs (ketamine) and two corresponding charges of inhaling a dangerous drug. The
second incident happened while he was on bail for the first incident. The Respondent pleaded guilty to all four
charges in the District Court. For the 1st and 2nd charges, the judge adopted starting points of 12 months and 15
months respectively, and for the 3rd and 4th charges, a starting point of 6 months. The judge reduced the starting
points by one-third on account of the guilty pleas to 8 months, 10 months and 4 months respectively. After
considering the principle of totality, the judge imposed an overall sentence of 18 months’ imprisonment and a
disqualification period of 2 years. He was also ordered to take a driving improvement course.
Held, application for review of sentence allowed; total sentence was increased to 30 months’ imprisonment and
the disqualification period to 3 years.
(1)
Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the
catastrophic consequences of serious traffic accidents. Driving is a very complex skill determined by changes in
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CCAB 2011
Sentence (Quantum) – Driving under Influence of Drugs
physical, emotional and mental conditions all of which can be impaired by the use of drugs. In many ways,
driving under the influence of drugs can be more serious than dangerous driving. When someone sets out to
drive whilst under the influence of drugs, he must be aware, at the outset, of the risk associated with his driving.
It can be a deliberate anti-social and dangerous act, and not just a spontaneous irrational one. Drivers who
knowingly drive a car whilst under the influence of drugs must expect a heavy sentence [23]-[27],
(2)
This is a very bad case of the type. It was not a case of unwittingly consuming drugs. The respondent
was not under the influence of prescription or non-prescription over-the-counter medications, or herbal drugs
that the effect of which might not be fully and readily appreciated. The respondent took ketamine before he
started driving. As revealed from his criminal record, the respondent was a drug abuser and he must be aware of
the effect of ketamine, yet he decided to drive a taxi after consuming it and when he was still under its influence,
not once, but twice, and on the second occasion whilst he was on bail in respect of the first one [28]-[29],
(3)
From the nature of the accidents and the respondent’s post-accident behaviours on both occasions, the
respondent must have been so overwhelmed by the effect of the ketamine he took that he could not properly
drive a taxi on a busy road in Hong Kong. Driving under the influence of drugs is an issue of growing concern
world-wide [30]-[33].
(4)
Bearing in mind that this is a sentence review and there has not been previous warning that the court
will take a serious view of the offence of driving under the influence of drugs, the appropriate starting points for
the 1st and 2nd charges of driving under the influence of drugs are 2 years and 2½ years respectively. On account
of the pleas of guilty, the court ordered a total sentence of 30 months’ imprisonment. The main purpose of
disqualification is forward looking and preventive. The court ordered a concurrent disqualification period of 3
years on the 1st and 2nd charges, and further ordered that he shall not drive after the disqualification period until
he passes a test of competence to drive. In view of the re-test requirement, the order requiring him to take a
driving improvement course was set aside [35]-[40].
Failure to Provide Breath Specimen
SJ v AMINA MARIAM BOKHARY
COURT OF APPEAL
CAAR 10/2010
Tang ACJHC, Stock VP, Yeung JA
Date of Hearing and Judgment: 11 January 2011
Date of handing down Reasons for Judgment: 11 March 2011
Counsel for the Applicant: Kevin Zervos SC DDPP & Hermina Ng PP
Counsel for the Respondent: Peter Duncan SC
Criminal sentencing – Failure to provide a specimen of breath (s 39B(2) and (6), Road Traffic Ordinance
(Cap 374)) – Whether the sentences of a fine of $5,000, a disqualification order for 12 months and the
attendance of a driving improvement course manifestly inadequate and/or wrong in principle – Noncustodial sentence normally imposed on a first time offender where no one injured and no evidence of
serious impairment due to intoxication – Custodial sentence falls within permissible range where there is
evidence of serious impairment resulting from intoxication
Criminal sentencing – No one is accorded favour because of wealth or connections – No extra punishment
to defendant from privileged background simply to make sure it cannot possibly be said that such a
person is being favoured
刑事罪判刑—沒有提供呼氣樣本（香港法例第374章《道路交通條例》第39B(2)及(6)條）—
罰款5,000元、取消駕駛資格12個月及修習駕駛改進課程的判刑是否明顯不足及/或原則上錯
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誤—如無人受傷亦無證據顯示因神智不清而嚴重損害能力，則初犯者通常被判處非監禁刑
罰—如有證據顯示神智不清引致嚴重能力受損，則監禁刑罰屬可容許的範疇之內
刑事罪判刑—無人因財富或關係可獲得優待—不會純粹為確保免被指責優待來自有特權背景
的被告人而對該人施加額外懲罰
The Respondent’s car swerved onto the opposite lane and collided head-on with a coach travelling in
the opposite direction. When police officers later arrived at the scene, the Respondent was requested to undergo
a Screening Breath Test (“SBT”) for she smelt of alcohol. She became emotional and attempted to leave the
scene. When she was stopped from doing so by a police officer, she slapped him once on his left cheek with her
right hand. The Respondent was arrested and taken back to the police station. Despite repeated explanations
and warnings, she refused to take a SBT.
The Respondent was charged with and pleaded guilty to 3 offences, namely careless driving, assaulting
a police officer acting in due execution of his duty and failure to provide a specimen of breath. For the last
charge, she was fined $5,000, disqualified from driving for 12 months and ordered to attend a driving
improvement course. The Secretary for Justice applied to review this particular sentence.
Held, application for review allowed to the extent that the disqualification period is extended:
(1)
Offences under ss 39, 39A and 39B(6) of Road Traffic Ordinance are serious offences for which a
person could be prosecuted on indictment or summarily. In deciding which way to proceed, the prosecution
would take into account, inter alia, the degree of intoxication and the consequence of the offence [15].
(2)
The sentence for failing to provide a specimen of breath can and should, in most cases, be more
severe than drink driving in order to discourage drivers, who had been drinking heavily, from refusing to
supply specimens for testing. The circumstance of each individual case must be examined to determine
the proper penalty [52].
(3)
It was however possible that the Respondent had swerved not because she was unable to control her car,
but because she improperly had tried to take a short cut. One could not infer from the fact that the accident
occurred on the wrong side of the road that the Respondent was unable to control her car due to intoxication
[29].
(4)
The Magistrates’ Court Sentencing Guidelines published by the Sentencing Guidelines Council in
England have no application in Hong Kong and the English legislative provisions are different [16]-[17]. But
the said guidelines in terms of the particular sentences suggested are useful in highlighting the different levels of
criminality [41].
(5)
In the absence of previous decisions or statistics to that effect, it cannot be said that the norm for failure
to provide a specimen of breath was an immediate custodial sentence [27], [41] & [52]. It is indeed the case that
a non-custodial sentence would normally be imposed on a first time offender where no one was injured and
where there is no evidence of serious impairment due to intoxication [27]. Where there is evidence of serious
impairment as a result of intoxication a custodial sentence on a first time offender would fall within a permissible
range of sentences. If that person has been involved in an accident resulting in serious injuries, there is no
reason why if he/she is prosecuted on indictment, a substantial custodial sentence should not be imposed [17]. If
the deliberate refusal or failure to provide a specimen of breath was prompted by a desire to avoid the
consequence of a serious traffic accident due to the effect of heavy drinking, the proper sentence could well be
an immediate imprisonment even for a first offender [53].
(6)
In the present case, however, (1) the offender had not previously committed any traffic offences; (2)
though there can be no question but that she had been drinking, the uncontradicted evidence was that the
offender suffered at the time of the offence from a significant mental ailment and the evidence did not in this
special context establish that there was, as a result of drink, serious impairment; (3) the offender was, at the date
of the hearing of the review before the magistrate, serving a term of imprisonment for allied conduct on the same
occasion [43] and (4) there being no injury to anyone except to the Respondent herself [53]. Absent any
statistics suggesting that a custodial sentence was a norm for a first offence with such factors at play, it could
hardly be said that the failure to impose a term of imprisonment was outside the range of sentence permissible to
a sentencing court [44].
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(7)
The disqualification for a period of 12 months is unduly lenient. For the sake of the community (the
protection of members of the public) and the Respondent’s own sake (given her drinking problem aggravated by
bipolar depression), the Respondent should be disqualified for a much more substantial period, namely 3 years
[35], [36], [39] & [56].
(8)
The Road Traffic Amendment Ordinance 2010 is not applicable to the present case (as they came into
effect after the offence), but no doubt the amendments show the Legislature’s increasingly strong view against
drink driving and connected offences [12]-[14].
(9)
The fact that the Respondent had assaulted a police officer in the course of his duties is of course a very
serious matter. Police officers, in the proper execution of their duties, are symbols of law and order and must be
respected and protected from abuse. If contemptuous and abusive behavior towards police officers were
tolerated, law and order would be compromised. However, the Respondent had already been separately dealt
with in this regard by way of a separate charge [54]-[55]. It would not be right to punish her again [31].
(10)
All judicial officers have taken an oath to administer the law without fear, favour, affection or ill will
[50]. The Respondent comes from a highly respected and affluent family and she is also well-educated. These
are certainly not reasons to treat her leniently. The doctrine of equality before the law mandates the court to treat
all persons, regardless of wealth, social status, or the political power wielded by them or their families, the same.
No individual or group is entitled to special legal privileges [50]-[51]. It is a central tenet of our system of
justice that no one is accorded favour because of wealth or connections. A ‘good’ background is not dictated by
wealth or connection and the vast majority of young people in Hong Kong come from caring families. By reason
of the same principles of levelheadedness and fairness which must drive judicial decision-making, the courts do
not visit extra punishment upon, or brush aside true mitigating factors in respect of, a defendant who happens to
be from a privileged background simply to make sure that it cannot possibly be said that such a person is being
favoured [46]-[47].
False Imprisonment
SJ v YIU MAN CHUN (姚文俊)
COURT OF APPEAL
CAAR 14/2010
Stock VP, Fok JA, McMahon J
Date of Hearing and Judgment: 4 April 2011
Counsel for the Applicant: Martin Hui SPP
Counsel for the Respondent: Walter Lau
Criminal sentencing – False imprisonment – Wounding – Entrapping former girlfriend in apartment for 9
hours and wounding her neck and chin with a cutter – Aggravating features –Repeated offender –
Adverse psychological impact on victim – Appropriate sentence before mitigation should be 4½ years
Sentencing – Artificiality in separating the two offences in this case – Agreed facts in respect of previous
convictions for offences of wounding the same victim should have been placed before sentencing judge in
this case
刑事罪判刑－非法禁錮－傷人－在寓所禁錮前女友9小時並以刀傷其頸部及下巴－加重刑罰
因素－屢犯者－對受害人有不良心理影響－求情前的恰當刑罰應是4½年監禁
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CCAB 2011
Sentence (Quantum) – False Imprisonment
判刑－矯作地分開案中兩項罪行－應將與以往同一受害人的傷人案定罪有關的同意事實呈交
本案判刑法官考慮
The Respondent (D) was convicted in the District Court upon his own pleas of false imprisonment and
wounding. He was sentenced to 12 months’ imprisonment in respect of each offence, and 6 months of the second
sentence were ordered to be served consecutively, making a total of 18 months’ imprisonment.
D and the victim were former lovers. On the night in question, D visited the victim’s flat and, whilst
being there, he had an argument over the phone with his sister. The victim became frightened and wanted to
leave. D prevented her from doing so and, in shutting the gate, he injured her hand. The victim later made a
report to the police by telephone. Upon the police’s arrival, D refused to let them in and blocked the entrance to
the flat with a wooden table. He took out a hammer to hit the table and his own hand. He then took a cutter,
grabbed the victim’s neck and pressed the cutter against her neck and chin, causing her superficial cut wounds on
those areas. After the victim had promised not to inform the police about her injuries and upon negotiation, D
surrendered the hammer and the cutter and allowed the police to enter the apartment. The victim had by then
been detained against her will for some 9 hours. She suffered from tenderness and cut wounds on the neck with
no likely permanent scarring and bruising on her right hand.
About 11 months prior to the present offences, D had treated the victim with violence on another
occasion for which he was subsequently sentenced, on two charges of wounding, to a total of 12 months’
imprisonment. He was released from prison 3 months before the present offences.
Before sentencing D, the judge called for a victim impact report which showed that the victim was
suffering from post-traumatic stress disorder and fairly severe adverse psychological impact.
The judge also called for a psychological report on D which described him as someone who
demonstrated “limited remorse and victim empathy” and tended to minimise his wrongdoings. D’s risk of violent
recidivism was estimated to be relatively high and there was a need for psychological intervention.
The Secretary for Justice applied for a review of sentence pursuant to s 81A of the Criminal Procedure
Ordinance. It was contended that the judge had failed sufficiently to reflect a number of aggravating features in
this case and the sentences imposed were, in the overall impact, manifestly inadequate.
Held, application for review granted, sentence imposed for the false imprisonment charge set aside and a
sentence of 2 years and 9 months’ imprisonment substituted, to run concurrently with the 12-month sentence for
the wounding charge which remained undisturbed:
(1)
There is some artificiality in this case in sentencing D for two offences trying, somehow, to divorce the
false imprisonment from the wounding and treating them as distinct. Had there been a charge of false
imprisonment alone, it would have been perfectly permissible for the sentencing judge to take into account all
the facts embraced by the act of false imprisonment, including the act of holding a cutter to the victim’s face and
the fact that a wound was occasioned. In this case, it is artificial to split the two criminal acts as if one had
nothing to do with the other. They were closely interwoven [31].
(2)
The appropriate sentence for an act of keeping someone for several hours in his or her own flat as a
result of a domestic dispute will vary enormously according to the history and all the surrounding circumstances.
The wielding of weapons, namely the hammer and cutter, is a serious aggravating feature. To hold a cutter to
someone’s throat is particularly aggravating because it is both terrifying to the victim and a highly dangerous act
in itself. The appropriate starting point for the offence of false imprisonment with all its surrounding
circumstances, before the aggravating feature of the prior incident, is a sentence of 3½ years’ imprisonment [33][34].
(3)
The previous offences of wounding in 2009 and the fact that the current offences occurred within
months of D’s discharge from prison show an entire lack of remorse and constitute particularly serious
aggravating features. The fact that this was a replay of the 2009 offences illustrates that the sentence imposed on
the previous occasion failed to deter D and that a sentence needs to be imposed that would have a greater chance
of deterrence and which, at the same time, is designed to protect potential victims from D’s proclivity to violence
[35]-[36].
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(4)
Furthermore, the fact that this was the second occasion upon which the victim had been subjected to
serious violence at D’s hands significantly aggravated the trauma visited upon her. Taking into account this
serious aggravating feature, an appropriate sentence before mitigation would have been 4½ years’ imprisonment.
By virtue of the guilty plea, the appropriate sentence for the offence of false imprisonment would be one of 3
years’ imprisonment [37]-[38]. As it was a review, the Court of Appeal substituted a sentence of 2 years and 9
months’ imprisonment in relation to the false imprisonment offence.
(5)
The facts agreed in 2009 in respect of the previous offences of wounding should have been placed
before the sentencing judge by the prosecutor. It is extraordinary that it was not done [35].
HKSAR v NGAI YIU CHING (倪耀偵
倪耀偵)
倪耀偵
COURT OF APPEAL
CACC 107/2011
Stock VP, Fok JA, McWalters J
Dates of Hearing: 2 September 2011
Date of Judgment: 3 October 2011
Counsel for the Respondent: Samantha Chiu Ag SPP
Counsel for the Applicant: Manyi Tsang
Criminal sentencing – False imprisonment – Indecent assault – Multiple offences - One transaction rule
only a practical working rule, not a rule of law – Importance of totality principle – Emphasis on reflecting
offender’s overall culpability – Old age on its own not a mitigating factor – Effect of sexual assaults on
victim - Victim impact statement not required
刑事罪判刑－非法禁錮－猥褻侵犯－多項罪行－「同一事件」的原則只是實際做法而不是法
律規則－整體量刑原則的重要性－重點在於反映罪犯的整體罪責－高齡本身不是減刑因素－
性侵犯對受害人的影響－無須受害人所受影響的評估報告
The Applicant (D), a 69-year-old caretaker, pretended to be an owner of two steel companies and
befriended the victim who agreed to be his sworn daughter. On the day in question, D lured the victim to his
workplace at a warehouse in a secluded area by offering her a job and promising to give her $1 million. Inside
the premises, the victim was tied and gagged and falsely imprisoned for 6 to 7 hours. In the course of the false
imprisonment, D indecently assaulted the victim thrice by kissing and fondling her breasts and kissing on her
thighs for about 5 to 6 minutes each time. When the victim escaped eventually, she encountered a taxi on the
way and was noticed by the taxi driver to be frightened and crying and her hands were red and swollen.
D was convicted after trial of one count of false imprisonment and three counts of indecent assault. He
was sentenced to 3 years’ imprisonment for each count and the sentences for the indecent assault counts were
ordered to be served concurrently with each other but consecutively to the sentence for the false imprisonment
count, making a total term of 6 years. The judge explained that he ordered the indecent assault sentences to run
concurrently with each other because “they were all committed very soon after one another and to that extent can
be considered as part of the same incident”. He provided no reason why he ordered these sentences to be served
consecutively to the false imprisonment sentence. Nor was there any indication by him that he had regard to the
totality principle.
On D’s application for leave to appeal against sentence, it was argued on his behalf that since the four
offences were all part of one transaction, the judge had erred in principle in not ordering all of the sentences to
run concurrently.
Held, granting the application for leave, treating the hearing of the application as the appeal but dismissing the
appeal:
(1)
When a judge is faced with the task of sentencing a defendant for multiple offences, he is required as an
initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence
appropriate to the culpability of the offender. In the case of several offences committed in the course of a single
episode, the prosecuting authority might choose to proffer only one charge, where one charge embraces all the
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CCAB 2011
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criminal conduct reflected by the evidence, or separate charges for each criminal act. If it chooses the former
course, the instances of proved conduct embraced by the single charge but which could have been the subject of
separate charges are taken into account in deciding what penalty reflects the true overall criminality. If it elects
the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the
objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true
culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that
is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender
twice for the same conduct [13]-[17].
(2)
The “one transaction” rule that concurrent sentences should be imposed for offences arising from one
transaction or course of criminal conduct was not developed as an inflexible rule of law. It was never intended as
anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive
sentences so that the final sentence is not one that is unfair to an offender. Departure from such practical working
rule does not inevitably mean that the sentence imposed on the offender is excessive. The real point is not
whether two or more offences are committed at about the same time, but whether the second or other further
offences add to the culpability or criminality of the first. Whatever sentence is arrived at after application of the
rule is still subject to the totality principle. HKSAR v Leung Ping Wa HCMA 1038/2005 and Secretary for
Justice v Tseung Man Ka [2000] 4 HKC 611 considered [18]-[21].
(3)
The totality principle is there to ensure not only fairness to the offender, in the sense that he is not
punished twice for the same offence and that the sentence is not an unduly crushing punishment but it is also a
tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles
of deterrence, rehabilitation and denunciation”: R v K M [2004] NSWCCA 65 at para 55. The emphasis
therefore should be on a reflection in the sentence of the true culpability disclosed by the offences of which the
accused has been convicted. It is likely to be a more effective approach in reflecting an offender’s overall
culpability than one which becomes overly concerned with the one transaction rule, although in the case of more
than one offence, the court must guard carefully against punishing twice for the same act. If the second offence
which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will
normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the
first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a
whole. HKSAR v Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79 considered.
This approach is reflected in other jurisdictions: R v Greaves & Ors [2011] 1 Cr. App. R.(S) 8 and Cahyadi v
The Queen 168 A Crim R 41 considered [22]-[26].
(4)
In the present case, D abused the trust that he had gained from the victim and lured her to a secluded
location where he could restrain her more readily. Once he had her under his control, he bound and gagged her.
These acts added not only to the terror of her ordeal but also the danger of it. Taking also into account the
duration of the detention, the sentence of 3 years’ imprisonment imposed for the false imprisonment was fully
justified [28].
(5)
Each of the indecent assaults was humiliating and all were serious examples of this offence. The
assaults were committed against a vulnerable, frightened woman who was under the control of D. Each offence
lasted for some time and involved a high level of indecency. The sentences for these offences, especially given
that there were three separate incidents of indecent assault, are not excessive [29].
(6)
To simply make the indecent assault sentences all concurrent with each other is to run the risk that D is
not properly punished for his overall culpability and the fact that whilst he had the victim under his control, he
repetitively indecently assaulted her. Multiple offences of the same kind committed in effect on the same
occasion can be sentenced by either of two ways. The first is that adopted by the trial judge but when employing
this method, the sentence must reflect the fact that multiple offences have been committed. The second course is
to impose partially consecutive sentences. Whichever course is adopted is a matter of discretion for the
sentencing judge. The course adopted by the trial judge was appropriate for the circumstances of this case and
that the starting point of 3 years sufficiently reflected the fact that there were multiple indecent assaults inflicted
upon the victim over the course of her imprisonment [32].
(7)
In the circumstances of this case, the judge was wholly justified in ordering the sentences for the
indecent assaults to run consecutively to the sentence imposed for the false imprisonment as the former offences
added substantially to D’s culpability for the latter; or vice versa [35].
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CCAB 2011
Sentence (Quantum) – False Imprisonment
(8)
Old age, except perhaps advanced old age, has never on its own been accepted as a mitigating factor.
For sentencing purposes, D should be regarded as a person of mature years, not as an old man. Nevertheless,
that the convicted person has for a lengthy period of time hitherto led a blameless life may suggest strongly that
the offence or offences of which he has been convicted are out of character. That they are out of character is an
inference more readily drawn if D shows remorse for his conduct. HKSAR v Lan Yuk Huen CACC 37/2008;
Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226 considered [38].
(9)
The failure to present a victim impact assessment report does not necessarily mean that the court is
unable to draw commonsense conclusions as to the effect of a sexual offence upon a victim. In the circumstances
of this case, one does not need a victim impact assessment report before one can assume profound effect on the
victim. There was ample evidence from which to conclude that the victim was traumatised by her ordeal. HKSAR
v Chung Chi Wing [2010] 5 HKC 75 disapproved. HKSAR v Chow Yuen Fai [2010] HKC 226 and HKSAR v
Tam Kam Fai CACC 329/2001 considered [40]-[47].
Handling Stolen Goods
HKSAR v CHAN KONG YIU（
（陳江耀）
陳江耀）
COURT OF APPEAL
CACC 359/2010 & CACC 381/2010
Yeung & Hartmann JJA
Date of Hearing: 29 June 2011
Date of Judgment: 29 June 2011
Date of Handing Down Judgment: 28 July 2011
Counsel for the Respondent: Hermina Ng PP
Counsel for the Applicant: David Boyton
Criminal Sentencing – Burglary – Conspiracy to steal – Handling stolen goods – Aggravating factors –
Whether the sentences imposed manifestly excessive
刑 事 罪 判 刑 —入屋犯法罪—串謀偷竊罪—處理贓物罪—加重刑罰的因素—判刑是否明顯過
重
The Applicant was involved in 2 separate cases, DCCC 906/2010 and DCCC 500/2010. The 2 cases
were dealt with together upon the request of the Applicant. In DCCC 906/2010, the Applicant pleaded guilty to
one charge of burglary. In DCCC 500/2010, he pleaded guilty to one charge of conspiracy to steal and one
charge of handling stolen goods. He admitted that between December 2009 and January 2010, he had conspired
with 2 others to steal 163 watches valued at almost $18,000,000 from a shop in Japan. He also admitted to have
handled 4 watches burgled from another shop in Japan in October 2009. The Applicant was 53 years old and
had 6 previous convictions, all of which were offences of burglary.
In DCCC 906/2010, the judge adopted the tariff for non-domestic burglary of 2 years and 6 months. As
there was no further mitigating and aggravating factors other than the Applicant’s guilty plea, the judge reduced
the tariff by one-third to 20 months.
In DCCC 500/2010, the judge used the sentence for the underlying offence, namely burglary, as a
reference for the charge of conspiracy to steal. He referred to HKSAR v Fan Kit Hung [2009] 6 HKC 314 and
mentioned that a professional burglar was plainly an aggravating factor and, where several offences were
involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of
more than 5 years’ imprisonment. The starting point could also be adjusted upwards if there were aggravating
circumstances such as (1) the offence was carefully planned and skillfully executed involving the use of heavy
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CCAB 2011
Sentence (Quantum) – Handling Stolen Goods
instrument or equipment; (2) the offence was committed by two or more people; (3) the offence targeted
substantial premises and involved substantial properties; (4) the offender was a professional burglar and not just
an opportunist; (5) the offender had previous convictions, particularly previous convictions of similar nature; (6)
the offender committed multiple offences; and (7) where substantial damage was done to the victimized
premises, or to things in it, in the course of the burglary.
The judge then took the view that 6 of the 7 aggravating factors identified by the Court of Appeal were
present, namely that the burglary was carefully planned and skillfully executed involving the use of jack and
drill; that the offence was committed by 3 people; that the offence targeted substantial premises and involved
watches worth a total of HK$17,879,812; that the burglars were professional; that the Applicant had many
similar previous convictions; and that substantial damage was done to the victimized premises. The judge added
that there was an international element involved when the Applicant, together with others, conspired to burgle a
shop in Japan, thus made it more difficult and costly for the law enforcement agencies, both in Hong Kong and
Japan, to investigate and to apprehend the perpetrators.
For each of the 7 aggravating factors that he had identified, the judge added 3 months to the starting
point of 30 months, the usual tariff for non-domestic burglary, making a total starting point of 51 months for the
1st charge of conspiracy to steal. The judge reduced the 51-month starting point by one-third to 34 months to
reflect the guilty plea.
In respect of the handling charge, the judge referred to R v Bernard Webbe & Ors [2002] 1 Cr App
R(S) 22 and identified 9 factors as aggravating the offence of handling, namely (1) closeness to the original
offence; (2) particular seriousness in the primary offence; (3) high value to the loser; (4) the fact that the goods
were proceeds of a domestic burglary; (5) high degree of sophistication; (6) high level of profit made; (7) the
provision by the handler of a regular outlet for stolen goods; (8) threats of violence or abuse of power by the
handler over others; and (9) the commission of an offence while on bail.
The judge adopted a starting point of 24 months for the handling charge and reduced it to 16 months on
account of the guilty plea.
In DCCC 500/2010, the Applicant was thus sentenced to the respective terms of 34 months and 16
months with 8 months to run consecutively, making a total of 42 months’ imprisonment.
The judge then ordered the 20-month sentence in DCCC 906/2010 to run consecutively to the 42-month
sentence in DCCC 500/2010, making the overall sentence on the Applicant one of 62 months’ imprisonment.
The Applicant sought leave to appeal against sentence on the ground that it was manifestly excessive.
Held, application for leave granted, but the overall sentence was increased from 62 months to 68 months:
(1)
The Applicant was clearly a professional burglar. He had 6 previous convictions, all for burglaries
committed between 1986 and 1997. The Applicant also committed another burglary in 2003 [36].
(2)
A 30-month starting point for non-domestic burglary is suitable for one without any special aggravating
feature, and for a first offender [39].
(3)
The burglary in DCCC 906 /2010 was quite a bad case when the Applicant burgled an office unit by
first prizing open the metal grille of the building on the ground floor and then the metal shutter of the unit. The
Applicant was clearly well equipped as he was able to cut open two safes. The Applicant, by then, had already
had 6 previous convictions for burglary [40].
(4)
The starting point for the burglary offence in DCCC 906/2010 should be 3½ years’ imprisonment. With
the guilty plea, the sentence in DCCC 906/2010 should be 28 months’ imprisonment [42].
(5)
The judge was right to refer to the international element. What the Applicant and his accomplices did
was unprecedented and was not within the contemplation of this court when tariff sentences were laid down for
non-domestic burglary cases. The usual tariff had no application in this case [45].
(6)
The Applicant and his accomplices went to Japan for the sole purpose of committing a serious burglary.
They scouted for target shops to burgle and once a target was identified, they acquired sophisticated equipment
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Sentence (Quantum) – Handling Stolen Goods
to drill a hole in the wall to gain access to the target shop and stole therein 163 expensive watches valued at
almost $18 million. They then mailed the loot in parcels back to Hong Kong before themselves returning to
Hong Kong in time to pick up the parcels. The degree of planning and the mode of operation made this case one
of, if not, the worst burglary case that this court had ever come across. The Applicant took an active part, and
what he and his accomplices did had significantly damaged the reputation of Hong Kong [46] & [47].
(7)
The 51-month starting point for the conspiracy to steal charge, far from being manifestly excessive, was
in fact inadequate to reflect the gravity of what the Applicant and his accomplices did [48].
(8)
A proper starting point, taken into consideration the Applicant’s background, should at least be 5 years’
imprisonment. With a one-third discount for the guilty plea, the sentence for the offence of conspiracy to steal
should be 40 months’ imprisonment [49].
(9)
The Applicant’s overall sentence should be 68 months’ imprisonment even though such a sentence
represented a notional starting point exceeding the jurisdiction of the District Court [51].
Immigration
HKSAR v ZHONG MING JING (鍾明青
鍾明青)
鍾明青)
COURT OF APPEAL
CACC 180/2010
Stock VP, Lunn J
Date of Judgment: 5 November 2010
Counsel for the Respondent: Noelle Chit PP
Counsel for the Applicant: Robert Andrews
Criminal sentencing – Assisting passage to Hong Kong of unauthorized entrants – Endangering safety of
others at sea – Being person in charge of sampan, failing to stop as required by light signal displayed by
police vessel – Applicant coxswain of motorized sampan which carried 8 unauthorized entrants – Sampan
not equipped with fire-fighting or life-saving equipment – Whilst being pursued by police vessel,
Applicant manoeuvred sampan into path of police vessel
刑事罪判刑－協助未獲授權進境者前來香港的旅程－在海上危及他人的安全－身為掌管在航
舢舨的人，沒有按水警小艇展示燈號的要求停船－申請人是載有8名未獲授權進境者的機動
舢舨的船長－舢舨沒有裝設滅火器具或救生裝置－被水警小艇追逐時，申請人將舢舨駛入水
警小艇的航道
The Applicant pleaded guilty to 3 charges, namely, assisting the passage to Hong Kong of unauthorized
entrants (charge 1), endangering the safety of others at sea (charge 2) and being the person in charge of the
sampan, failing to stop as required by light signal displayed by police vessel (charge 3). The sentencing judge
imposed a total sentence of 5 years’ imprisonment. The Applicant applied for leave to appeal against sentence.
In relation to charge 1, the Applicant was the person in charge of the sampan. It was carrying 8
unauthorized entrants with no safety equipment, such as life-saving devices, and no fire-fighting equipment.
Charge 2 alleged that the Applicant steered the sampan in a dangerous manner when being pursued by the police
vessel. In particular, on many occasions, the Applicant deliberately altered the course of the sampan to put it
directly in the path of the police vessel thereby causing the police vessel to alter course and decelerate sharply.
The pursuit lasted only 4 minutes due to the failure of the engine of the sampan and not to any conduct of the
Applicant. At that time, the sea state was slight and the wind was light.
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Held, leave granted and appeal allowed:
(1)
In relation to charge 1, previous authorities indicated that a starting point of 5 years’ imprisonment
would be appropriate in the circumstances of the present case where the Applicant was the person in charge of
the sampan, that it was carrying no less than 8 unauthorized entrants and it carried no appropriate safety
equipment [15]. Accordingly, the starting point of 6 years adopted by the sentencing judge was reduced to 5
years.
(2)
Henceforth, the courts should regard the absence of life-saving equipment and fire-fighting equipment
as aggravating factors [20].
(3)
For charge 2, the most important aggravating feature in the commission of the offence was the manner
in which the sampan was steered by the Applicant during its flight from the pursuing police vessel. 18 months’
imprisonment was an appropriate starting point for this offence [24] & [26].
(4)
The sentence of four years’ imprisonment imposed in respect of charge 1 was quashed and substituted
by a sentence of 3 years and 4 months’ imprisonment. The 12 months’ sentence for charge 2 to be served
concurrently with the 2 months’ sentence for charge 3 was ordered to run consecutively with the sentence for
charge 1, making a total reduced sentence of 4 years and 4 months [32].
香港特別行政區 訴 阮成坤
高等法院原訟法庭
HCMA 9 5 9 /2 0 1 0
原訟法庭法官潘敏琦
聆訊及判案日期： 2 0 11 年4 月1 4 日
答辯人代表律師： 署理高級檢控官吳穎軒
上訴人代表律師： 何子青
刑事罪判刑 － 刑期同期/分期執行 － 在非法入境後未得處長授權而留在香港罪(《入境條
例 》 第 3 8 ( 1 ) ( b) 條 ) 及 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪 ( 《 入 境 條 例 》
第 4 2 ( 2 ) ( c) ( ii) 及 4 2 ( 4 ) 條 )
上 訴 人 承 認 控 罪 (1) 在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港 罪 ， 違 反 《 入 境 條 例 》
第 38(1)(b) 條 ， 及 控 罪 (2) 管 有 意圖為入境條例的目的而使用的虛假的文件罪，違反《入境條
例 》 第 4 2 ( 2 ) ( c) ( ii) 及 4 2 ( 4 ) 條 ， 分 別 被 判 監 禁 1 8 個 月 及 1 0 個 月 ， 弟 二 項 判 刑 當 中 8 個 月 分 期
執行，即總刑期為2 6 個月監禁。上訴人就判刑提出上訴。
案 情 指 上 訴人被警員截查期間，向警員聲稱他是一名中國內地的船員及出示一本中華人
民 共 和 國 海 員 護 照 給 警 員 查 閱 ， 調 查 發 現 該 海 員 護 照 内 所 附 貼 的 抵 港 船 隻船員名單是虛假的。
上訴人承認偷渡來港，他聲稱來港的目的是為找尋工作。
裁 決 ，上訴得直，總刑期減為2 1 個月：
(1)
上 訴 人 向 警員展示虛假的船員名單之作為屬他在非法入境後所干犯的另一控罪。有關的
虛 假 船 員 名 單 ， 縱 使 最 終 無 助 上 訴 人 在 港 找 尋 工 作 ， 最 低 限 度 亦 有 助 他 在非法進入香港之後繼
續 留 在 香 港 [ 11 ] 。 部 份 刑 期 分 期 執 行 的 量 刑 原 則 乃 香 港 特 別 行 政 區 訴 李 長 利 一 案 HCMA
9 3 5 /2 0 0 4 後的大勢所趨，亦比較合理 [ 1 3 ] 。
(2)
不 過 ， 上 訴人向警員出示的是虛假的抵港船隻船員名單，他被控的控罪是管有此虛假文
件 ， 本 案 並 沒 有 證 供 顯 示 ， 他 出 示 給 警 員 查 閱 的 中 華 人 民 共 和 國 海 員 護照是虚假或偽造的。雖
然 上 訴 人 承 認 來 港 是 找 尋 工 作 ， 事 實 上 ， 他 向 警 員 出 示 的 虛 假 名 單 ， 根本無助於他找尋工作，
不能與虚假或偽造身份證相提並論 [ 1 4 ] 。
254
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Sentence (Quantum) – Immigration
(3)
法 庭 不 會 干預兩項控罪的個别刑期，但認為控罪(2)刑期中的3 個月刑期分期執行較適
合反映本案案情的嚴重性，因此如述改判。總刑期減為2 1 個月[ 1 5 ] 。
[English Translation of HCMA 959/2010]
HKSAR v RUAN CHENG KUN
COURT OF FIRST INSTANCE
HCMA 959/2010
M. POON J
Date of Hearing and Judgment: 14 April 2011
Counsel for the Respondent: Hermina Ng Ag SPP
Counsel for the Appellant: Jane Ho
Criminal Sentencing – Concurrent/consecutive sentences – Remaining in Hong Kong without the
authority of the Director after having landed unlawfully (s 38(1)(b) of Immigration Ordinance) and
possession of false document intended for use for the purposes of Immigration Ordinance (ss 42(2)(c)(ii)
and 42(4) of Immigration Ordinance)
The Appellant pleaded guilty to charge (1) of remaining in Hong Kong without the authority of the
Director after having landed unlawfully, contrary to s 38(1)(b) of the Immigration Ordinance and charge (2) of
possession of a false document intended for use for the purposes of the Immigration Ordinance, contrary to ss
42(2)(c)(ii) and 42(4) of the same Ordinance. He was sentenced to 18 months’ imprisonment and 10 months’
imprisonment respectively and 8 months of the second sentence were ordered to run consecutively, making a
total of 26 months’ imprisonment. The Appellant appealed against sentence.
The facts were that when the Appellant was intercepted by a police officer, he claimed to be a sailor
from the Mainland China and produced a PRC Seafarer’s Passport for inspection. Investigation revealed that the
Particulars of Members of the Crew of a Ship Arriving HKSAR (“Particulars of Crew Members”) attached to
the said Seafarer’s Passport was false. The Appellant admitted that he had sneaked into Hong Kong and claimed
that his purpose of coming to Hong Kong was to seek employment.
Held, appeal allowed, the total sentence reduced to 21 months:
(1)
The Appellant’s act of producing to a police officer a false Particulars of Crew Member was a separate
offence committed by him after his unlawful entry. Even though the false Particulars of Crew Members could
not eventually help the Appellant in finding a job in Hong Kong, at least it helped him to remain in Hong Kong
after he had unlawfully entered Hong Kong [11]. The sentencing trend after HKSAR v Li Chang Li HCMA
935/2004 is that part of the sentences should run consecutively and this is also more reasonable [13].
(2)
However, what the Appellant produced to the police officer was a false Particulars of Crew Members,
and he was charged with possession of this false document. In the present case, there was no evidence to show
that the PRC Seafarer’s Passport produced by the Appellant to the police officer was false or forged. Although
the Appellant admitted that he came to Hong Kong to seek employment, in fact, the false Particulars of Crew
Members would not take him any further in finding employment. It could not be compared with a false or forged
identity card [14].
(3)
The court would not interfere with the individual sentence imposed for each of the two offences.
However, it would be more appropriate for 3 months of charge (2) to run consecutively to reflect the seriousness
of this case. Therefore, the sentence was so varied and the total sentence was thus reduced to 21 months [15].
255
CCAB 2011
Sentence (Quantum) – Immigration
HKSAR v LEE SHINWON & ORS
COURT OF APPEAL
CACC 27/2011
Cheung CJHC, Macrae & McWalters JJ
Date of Hearing: 28 October 2011
Date of Judgment (re: conviction): 28 October 2011
Date of handing down Reasons for Judgment (re: conviction): 14 November 2011
Date of Judgment (re: sentence) : 14 November 2011
Counsel for the Respondent: Ira Lui SPP
Counsel for A1: Suzanne Sim
Counsel for A2: Edwin Choy
Counsel for A3: Jackson Poon & Derek Hui
Criminal sentencing – Immigration offence - Conspiracy to obtain services by deception
刑事罪判刑－入境罪行－串謀以欺騙手段取得服務
The three Applicants and two accomplices were jointly charged with conspiracy to obtain services by
deception and the criminal conduct involved was human trafficking. They participated in a scheme to traffic two
Mainlanders to Australia on a flight leaving Hong Kong for Sydney. The scheme was for the Applicants to fly
from Korea to Sydney via Hong Kong. In Hong Kong a substitution was to take place and A2 and A3 were to be
replaced by the two Mainlanders being trafficked. The Mainlanders were able to pose as A2 and A3, who had
flown from Korea, as they had been given false Korean passports in the names of A2 and A3. The boarding
passes for the Hong Kong/Sydney sector had been issued in Korea and were given to the Mainlanders. It was
their plan that A2 and A3 would wait until the flight for Sydney had departed Hong Kong and then approach
airline staff to claim that they had lost their boarding passes for that flight. In this way they were able to obtain
entry into Hong Kong [1]-[2].
A1 was the person in charge of the group. He accompanied A2 and A3 from Korea to Hong Kong and
travelled to Australia with the Mainlanders. A1 pleaded guilty to the charge whereas A2 and A3 were convicted
after trial [3] & [5]-[7].
For the Mainlanders, the judge adopted the same starting point of 3 years’ imprisonment. For A1, the
judge adopted a starting point of 4½ years and discounted it for the plea of guilty to 3 years’ imprisonment. The
judge adopted a higher starting point because he viewed A1 as the most culpable of the defendants and as being
not far behind the mastermind [9].
For both A2 and A3, the trial judge adopted the same starting point of 4 years’ imprisonment. For A3
the judge allowed a discount of 4 months for his psychiatric condition and sentenced him to imprisonment for 3
years 8 months [10]-[11].
In the course of mitigation, the trial judge was referred to two cases: HKSAR v He Wen You [2009] 3
HKLRD 445 and HKSAR v Cheng Kwong Chung & Ors CACC 536/2001. On appeal, it was argued by the
Applicants that these cases support their contention that the judge had adopted too high a starting point in respect
of each of them [43].
Held, applications for leave to appeal against sentence dismissed:
(1)
An analysis of the case law reveals the sentencing policy behind this type of offence and the sentencing
goal, namely deterrence, that must be reflected in the sentence imposed [47].
(2)
Policy considerations that underlie a court’s approach to sentencing for these cases were enunciated in
the cases of Cheng Kwong Chung and He Wen You. In Cheng Kwong Chung, the Court of Appeal said at
paragraph 51 of its judgment: “We take the view that offences such as these are very serious. They involve the
exploitation of persons on the Mainland, for substantial sums, exploitation which is no doubt financially
crippling to the emigrant and his or her family and which puts the emigrant at continuing risk. Beyond that, and
256
CCAB 2011
Sentence (Quantum) – Immigration
importantly, the offences deliberately seek not only to undermine Hong Kong’s laws but also the immigrations
laws of other jurisdictions, and to enable persons to travel on aircraft when they are not authorised to do so. It
hardly needs to be emphasised that conduct of this kind is to be treated by our courts with a firm hand, not least
when air security and international immigration controls carry an importance greater than ever before.” [48].
(3)
In He Wen You, the Court said at paragraph 9 of its judgment, “We must point out that a higher starting
point is applicable to this kind of cases, which clearly involve sophisticated planning and arrangement. Making
use of Hong Kong’s position as a hub of communications, offenders assist illegal immigrants in entering a third
country. By means of a fraudulent scheme, offenders help illegal immigrants enter the restricted area of the
Hong Kong International Airport, where they then use false boarding passes to board flights bound for a third
country. Upon arrival in that country, they will use false identity documents for gaining entry into that country.
These activities will obviously tarnish Hong Kong’s international reputation. Furthermore, as a result of those
activities, immigration authorities of foreign countries will become wary of visitors from Hong Kong even when
they are holding lawful travel documents, which means that visitors from Hong Kong will have to suffer a
certain degree of inconvenience when they enter those countries. Severe, deterrent sentences must therefore be
imposed for those offences.” [48].
(4)
There is also the comity of nations consideration which was adverted in HKSAR v Yim Kim Ping & Ors
CACC 67/2009 as “a mutual responsibility shared by all nations to punish and deter those who tried to cross
international borders with forged travel documents.” [49].
(5)
There were two other Court of Appeal authorities where a starting point of 4½ years’ imprisonment had
been endorsed: Yim Kim Ping and HKSAR v Teo Zi Yang & Anor CACC 52/2010 [52].
(6)
The ground of appeal for A1 was that the sentence imposed by the trial judge was manifestly excessive
and/or wrong in principle. In considering this argument, the starting point must be an examination of the charge
to which A1 pleaded guilty. Although it was a conspiracy to obtain travel services by deception, the deception
was not, as counsel for A1 contended, limited to simply misusing boarding passes [55]-[56].
(7)
The charge clearly pleaded that part of the deception was the use of forged travel documents. The
conspiracy was not, therefore, a limited one and was no narrower, in terms of the conduct it encompassed, than
the charges employed in the other Court of Appeal decisions. All these cases, whatever charge might be
employed by the prosecutor, were concerned with punishing the conduct of human trafficking taking place in
Hong Kong – conduct which undermines the integrity of Hong Kong’s air travel security and immigration
procedures. The actual details of the human trafficking scheme in the present case were not so significantly
different from the schemes in the other Court of Appeal authorities so as to create a meaningful distinction
between them. For persons who played a substantial role in carrying out such schemes, the Court of Appeal had
endorsed a starting point of 4½ years’ imprisonment. Given the role that A1 played in the scheme, the starting
point was wholly appropriate [57] & [59].
(8)
The only ground of appeal against sentence of A2 and A3 was that, given their respective culpability
the judge’s starting point of 4 years’ imprisonment was too high and resulted in a sentence that was manifestly
excessive. In support of this ground, counsel argued that the Court of Appeal authorities lay down a benchmark
of 3 to 3½ years for defendants whose participation in a human trafficking scheme was limited to the kind of
roles played by A2 and A3. But an analysis of those cases did not reveal any such benchmark [61] & [64]-[65].
(9)
The trial judge accepted that A2 and A3’s culpability was less than that of A1, hence the lower starting
point. Nevertheless, the judge correctly recognized that without willing cooperation of A2 and A3, the
conspiracy would collapse. They were essential to the conspiracy’s successful implementation. Thus, whilst not
the masterminds of the scheme or the leading henchmen of the mastermind, they provided substantial assistance
in carrying out the scheme [62].
(10)
For A2 and A3, a starting point of 4 years imprisonment could not be said to be manifestly excessive
[65]-[66].
257
CCAB 2011
Sentence (Quantum) – Indecent Assault
Indecent Assault
HKSAR v LI KA MAN (李家文))
COURT OF FIRST INSTANCE
HCMA 824/2010
Bokhary J
Date of Judgment: 2 February 2011
Counsel for the Respondent: Winston Chan SPP
Counsel for the Appellant: Gerard McCoy SC & Nisha Mohamed
Criminal sentencing – Indecent assault – Touching the complainant’s buttocks – Being playful not
necessarily renders the touch less than highly offensive
刑事罪判刑－猥褻侵犯－觸摸投訴人的臀部－即使是嬉戲式觸摸未必絶不令人高度反感
On the night of 8 October 2009 at the nightclub of the Club House at the Lai Chi Kok Reception
Centre, the Appellant, a Correctional Services Officer, indecently assaulted the complainant, who was working
there as a waitress, by intentionally touching her buttocks. The Appellant was charged and later convicted in the
Magistrates’ Courts on a charge of indecent assault and sentenced to two weeks’ imprisonment.
Held, appeal against sentence dismissed:
(1)
The touch may have been as fleeting and playful as contended on the Appellant’s behalf. But the whole
incident lasted quite a long time. A touching being playful does not necessarily render it less than highly
offensive. As to the contention that the touch was to “a non-intimate area of the body”, it is not anything less
than highly offensive to touch a woman on her buttocks even though there are parts of her anatomy where
touching her would be even more offensive [15].
HKSAR v HO TUNG YUEN(何統源
何統源)
何統源
COURT OF APPEAL
CACC 59/2011
Yeung VP, Line J
Date of Hearing: 15 September 2011
Date of handing down Reasons for Judgment: 15 September 2011
Counsel for the Respondent: Memi Ng SPP
Counsel for the Applicant: Jasper Kwan
Criminal sentencing – Indecent assault – Taxi driver indecently assaulted a drunken passenger
刑事罪判刑—猥褻侵犯—的士司機猥褻侵犯醉酒乘客
The Applicant pleaded guilty to a count of indecent assault and was sentenced to 3 years’
imprisonment. The Applicant was a taxi driver who picked up the victim as a passenger. The victim was drunk
at the material time. The Applicant kissed the victim, touched and kissed her breasts, took off her pantyhose and
boots before inserting his finger into her vagina. The indecent assault lasted for about 30 minutes.
The judge adopted a starting point of 3½ years and increased it to 4½ years on account of the
aggravating features: the Applicant took advantage of the victim’s state of inebriation, the Applicant molested
the victim in the most repugnant of ways, and the Applicant breached his duty as a taxi driver to transport the
victim wherever she wanted.
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CCAB 2011
Sentence (Quantum) – Indecent Assault
The Applicant applied for leave to appeal against sentence contending inter alia that the starting point
and the enhancement adopted by the judge were too high, resulting in a manifestly excessive sentence.
Held, application dismissed:
(1)
A taxi driver who takes advantage of a drunken female passenger by indecently assaulting her can
expect no mercy from the court and such unscrupulous behaviours will be severely punished [27].
(2)
[28].
This is a bad case of the type as the Applicant had molested the victim in the most repugnant of ways
(3)
The interest of the society demands deterrent sentences against taxi drivers who molest drunken female
passengers, irrespective of their previous good character. The sentence must be adequate to mark the public
abhorrence of the crimes and redress the grievance suffered by the victim, her relatives and friends. It is hoped
that such an approach would maintain and restore people’s confidence in using taxi services [29].
HKSAR v Z
COURT OF FIRST INSTANCE
HCMA 291/2010
Line J
Date of Hearing: 2 September 2011
Date of Judgment: 5 September 2011
Counsel for the Respondent: Rosa Lo PP
Counsel for the Appellant: Timothy Edward David Parker
Criminal sentencing – indecent assault – community values
刑 事 罪 判 刑 — 猥褻侵犯 — 社 會 價 值 觀
The Appellant was convicted of indecent assault and was sentenced to 4 weeks’ imprisonment. The
facts were that the Appellant used his fingers to squeeze the left buttock of PW1, a 14-year-old girl, with “okay”
strength in the street. The pavement was not crowded at the material time. PW1 immediately complained to
PW2, her sister, and pointed at the Appellant. PW2 asked the Appellant not to go and said they would call the
police. However, the Appellant ignored PW2 and kept on walking. PW1 and her sisters followed the Appellant
until they met the police officer.
Held, appeal against sentence was allowed:
(1)
Cases like this are not easy to sentence and community values cannot be ignored. Everybody knows that
cases of “touching” like this one, involving indecent assault at the bottom end of the bracket of seriousness in
Hong Kong, are dealt with much more severely than they would be in other jurisdictions abroad. For a single
touch like this in the street, 4 weeks is too long. Weight must be given to the local values and the way that these
cases are dealt with in Hong Kong. The sentence of 4 weeks’ imprisonment was quashed and 7 days’
imprisonment was imposed on the Appellant [29].
259
CCAB 2011
Sentence (Quantum) – Indecent Assault
HKSAR v CHAN HOI TAT (陳凱達
陳凱達)
陳凱達
COURT OF APPEAL
CACC 447/2010
Cheung & Hartmann JJA, Barnes J
Dates of Hearing: 27 September 2011
Date of Judgment: 27 September 2011
Date of handing down Reasons for Judgment: 18 October 2011
Counsel for the Respondent: Agnes Chan Ag ADPP
Counsel for the Applicant: James McGowan
Criminal sentencing – Aiding, abetting, counselling and procuring the making of child pornography –
Criminal intimidation - Indecent assault – Misuse of the internet by older man to seek and groom victims
who are vulnerable and immature – Need to protect the young and the vulnerable – Deterrent sentence
required
刑事罪判刑－協助、教唆、慫使和促致製作兒童色情物品－刑事恐嚇－猥褻侵犯－年長男子
利用互聯網作不當用途，藉此搜尋並結識易受傷害及未成熟的受害人以發展性關係－需要保
護年輕人及易受傷害者－須判處阻嚇性刑罰
The Applicant (D) was convicted after trial of one count of aiding, abetting, counselling and procuring
the making of child pornography (Charge 1), two counts of criminal intimidation (Charges 2 & 4) and two
counts of indecent assault (Charges 3 & 5). He was sentenced to imprisonment for 1 year for each of Charges 1,
2 & 4 (all concurrent) and 2 years’ imprisonment for each of Charges 3 & 5 (both consecutive to each other and
the other charges); resulting in a total term of 5 years.
The charges arose from incidents that took place between 2003 and 2005. The complainant X (then
aged 12) came to know D (then aged 24) via the internet in 2003. On a date unknown in 2003, at D’s request, X
sent two naked photographs of herself to D via the internet using the webcam (Charge 1). Later in 2004, D
requested to meet X and when X refused, he threatened to publish her naked photographs in the media and over
the internet and to send the same to X’s father (Charge 2). As a result, X met D and was then taken to a place
which she believed to be D’s home. There D undressed X and forced her to masturbate him and perform oral sex
on him. D then took further naked photographs of X, after which he kissed her body including her lower parts
(Charge 3). In 2005, D again requested to meet X and, upon her refusal, made the same threats to her (Charge 4).
As a result, X met D later and was taken to an hourly hotel where she was indecently assaulted again by D. On
this occasion, apart from forcing X to masturbate him and perform oral sex on him, D also rubbed his penis
against X’s thighs from behind in a form of simulated sex. Naked photographs were then taken of X after which
D again forced X to perform oral sex on him and kissed X’s body including her lower parts (Charge 5).
D appealed against both conviction and sentence. In respect of his sentence appeal, it was contended on
his behalf that the judge had failed to take into account sufficiently D’s excellent background and positive good
character, and hence the total sentence of 5 years was manifestly excessive.
Held, dismissing both applications for leave to appeal against conviction and sentence:
(1)
This is a serious case. D was grooming a 12-year-old via the internet. He talked with her about daily
matters before progressing to introducing matters of a sexual nature to this young girl. It is far too easy for an
older man to prey on the innocence and/or naivety of a youngster and a deterrent sentence must be imposed to
protect the young [45].
(2)
One of the perils of the misuse of the internet by an older man is that he could groom an immature girl
into believing that she is more mature than she is, and to give her the false confidence that she could behave and
should be treated as if she were an adult. The internet is now widely available for all sorts of innocent, valuable
and educational purposes. Its misuse by older men to seek and find and then groom girls who are vulnerable and
immature, should be deterred. It is an area in which the Court needs to deliver a clear message of disapproval:
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Sentence (Quantum) – Indecent Assault
Attorney General’s Reference No. 127 of 2004 (David Michael Briggs) [2005] 2 Cr. App. Rep. (S.) 74;
Secretary for Justice v Chung Yui Hung [2007] 2 HKLRD 771 adopted [46].
(3)
For the offence of indecent assault, the act could range from a relatively minor touch to an act short of
an attempted rape. It is necessary to look at all the circumstances to decide what is the appropriate sentence,
bearing in mind the need to protect the young and the vulnerable from such transgressions, the need to deter
others and the need to redress the grievances suffered by the victim and his/her family [48].
(4)
In the present case, the acts involved in both indecent assault charges were very serious, particularly
when there was an additional act of simulated sex involved in Charge 5. A starting point of 2 years was too low
in all the circumstances. The overall sentence of 5 years was not manifestly excessive [49].
HKSAR v NGAI YIU CHING (倪耀偵
倪耀偵)
倪耀偵
COURT OF APPEAL
CACC 107/2011
Stock VP, Fok JA, McWalters J
Dates of Hearing: 2 September 2011
Date of Judgment: 3 October 2011
Counsel for the Respondent: Samantha Chiu Ag SPP
Counsel for the Applicant: Manyi Tsang
Criminal sentencing – False imprisonment – Indecent assault – Multiple offences - One transaction rule
only a practical working rule, not a rule of law – Importance of totality principle – Emphasis on reflecting
offender’s overall culpability – Old age on its own not a mitigating factor – Effect of sexual assaults on
victim - Victim impact statement not required
刑事罪判刑－非法禁錮－猥褻侵犯－多項罪行－「同一事件」的原則只是實際做法而不是法
律規則－整體量刑原則的重要性－重點在於反映罪犯的整體罪責－高齡本身不是減刑因素－
性侵犯對受害人的影響－無須受害人所受影響的評估報告
The Applicant (D), a 69-year-old caretaker, pretended to be an owner of two steel companies and
befriended the victim who agreed to be his sworn daughter. On the day in question, D lured the victim to his
workplace at a warehouse in a secluded area by offering her a job and promising to give her $1 million. Inside
the premises, the victim was tied and gagged and falsely imprisoned for 6 to 7 hours. In the course of the false
imprisonment, D indecently assaulted the victim thrice by kissing and fondling her breasts and kissing on her
thighs for about 5 to 6 minutes each time. When the victim escaped eventually, she encountered a taxi on the
way and was noticed by the taxi driver to be frightened and crying and her hands were red and swollen.
D was convicted after trial of one count of false imprisonment and three counts of indecent assault. He
was sentenced to 3 years’ imprisonment for each count and the sentences for the indecent assault counts were
ordered to be served concurrently with each other but consecutively to the sentence for the false imprisonment
count, making a total term of 6 years. The judge explained that he ordered the indecent assault sentences to run
concurrently with each other because “they were all committed very soon after one another and to that extent can
be considered as part of the same incident”. He provided no reason why he ordered these sentences to be served
consecutively to the false imprisonment sentence. Nor was there any indication by him that he had regard to the
totality principle.
On D’s application for leave to appeal against sentence, it was argued on his behalf that since the four
offences were all part of one transaction, the judge had erred in principle in not ordering all of the sentences to
run concurrently.
Held, granting the application for leave, treating the hearing of the application as the appeal but dismissing the
appeal:
(1)
When a judge is faced with the task of sentencing a defendant for multiple offences, he is required as an
initial step to identify the appropriate sentence for each offence and as the final step to achieve a total sentence
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appropriate to the culpability of the offender. In the case of several offences committed in the course of a single
episode, the prosecuting authority might choose to proffer only one charge, where one charge embraces all the
criminal conduct reflected by the evidence, or separate charges for each criminal act. If it chooses the former
course, the instances of proved conduct embraced by the single charge but which could have been the subject of
separate charges are taken into account in deciding what penalty reflects the true overall criminality. If it elects
the latter course, namely, to charge two or more offences arising from an episode of criminal activity, the
objective is still the same; that is to say, the ultimate overall sentence must still reflect the overall and true
culpability, although the sentencing judge must take care, first, to pass a sentence for each individual offence that
is appropriate to that offence and the circumstances of its commission and, second, not to punish the offender
twice for the same conduct [13]-[17].
(2)
The “one transaction” rule that concurrent sentences should be imposed for offences arising from one
transaction or course of criminal conduct was not developed as an inflexible rule of law. It was never intended as
anything more than a practical rule of thumb to guide judges in the exercise of the power to impose consecutive
sentences so that the final sentence is not one that is unfair to an offender. Departure from such practical working
rule does not inevitably mean that the sentence imposed on the offender is excessive. The real point is not
whether two or more offences are committed at about the same time, but whether the second or other further
offences add to the culpability or criminality of the first. Whatever sentence is arrived at after application of the
rule is still subject to the totality principle. HKSAR v Leung Ping Wa HCMA 1038/2005 and Secretary for
Justice v Tseung Man Ka [2000] 4 HKC 611 considered [18]-[21].
(3)
The totality principle is there to ensure not only fairness to the offender, in the sense that he is not
punished twice for the same offence and that the sentence is not an unduly crushing punishment but it is also a
tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles
of deterrence, rehabilitation and denunciation”: R v K M [2004] NSWCCA 65 at para 55. The emphasis
therefore should be on a reflection in the sentence of the true culpability disclosed by the offences of which the
accused has been convicted. It is likely to be a more effective approach in reflecting an offender’s overall
culpability than one which becomes overly concerned with the one transaction rule, although in the case of more
than one offence, the court must guard carefully against punishing twice for the same act. If the second offence
which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will
normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the
first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a
whole. HKSAR v Kwok Shiu To [2006] 2 HKLRD 272 and HKSAR v Iu Wai Shun [2008] 1 HKC 79 considered.
This approach is reflected in other jurisdictions: R v Greaves & Ors [2011] 1 Cr. App. R.(S) 8 and Cahyadi v
The Queen 168 A Crim R 41 considered [22]-[26].
(4)
In the present case, D abused the trust that he had gained from the victim and lured her to a secluded
location where he could restrain her more readily. Once he had her under his control, he bound and gagged her.
These acts added not only to the terror of her ordeal but also the danger of it. Taking also into account the
duration of the detention, the sentence of 3 years’ imprisonment imposed for the false imprisonment was fully
justified [28].
(5)
Each of the indecent assaults was humiliating and all were serious examples of this offence. The
assaults were committed against a vulnerable, frightened woman who was under the control of D. Each offence
lasted for some time and involved a high level of indecency. The sentences for these offences, especially given
that there were three separate incidents of indecent assault, are not excessive [29].
(6)
To simply make the indecent assault sentences all concurrent with each other is to run the risk that D is
not properly punished for his overall culpability and the fact that whilst he had the victim under his control, he
repetitively indecently assaulted her. Multiple offences of the same kind committed in effect on the same
occasion can be sentenced by either of two ways. The first is that adopted by the trial judge but when employing
this method, the sentence must reflect the fact that multiple offences have been committed. The second course is
to impose partially consecutive sentences. Whichever course is adopted is a matter of discretion for the
sentencing judge. The course adopted by the trial judge was appropriate for the circumstances of this case and
that the starting point of 3 years sufficiently reflected the fact that there were multiple indecent assaults inflicted
upon the victim over the course of her imprisonment [32].
(7)
In the circumstances of this case, the judge was wholly justified in ordering the sentences for the
indecent assaults to run consecutively to the sentence imposed for the false imprisonment as the former offences
added substantially to D’s culpability for the latter; or vice versa [35].
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(8)
Old age, except perhaps advanced old age, has never on its own been accepted as a mitigating factor.
For sentencing purposes, D should be regarded as a person of mature years, not as an old man. Nevertheless,
that the convicted person has for a lengthy period of time hitherto led a blameless life may suggest strongly that
the offence or offences of which he has been convicted are out of character. That they are out of character is an
inference more readily drawn if D shows remorse for his conduct. HKSAR v Lan Yuk Huen CACC 37/2008;
Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226 considered [38].
(9)
The failure to present a victim impact assessment report does not necessarily mean that the court is
unable to draw commonsense conclusions as to the effect of a sexual offence upon a victim. In the circumstances
of this case, one does not need a victim impact assessment report before one can assume profound effect on the
victim. There was ample evidence from which to conclude that the victim was traumatised by her ordeal. HKSAR
v Chung Chi Wing [2010] 5 HKC 75 disapproved. HKSAR v Chow Yuen Fai [2010] HKC 226 and HKSAR v
Tam Kam Fai CACC 329/2001 considered [40]-[47].
Manslaughter
SJ v CHAN MAN YUM CANDY
COURT OF APPEAL
CAAR 1/2010
Hartmann & Fok JJA, Lunn J
Date of Hearing: 17 June 2011
Date of Handing Down Reasons for Judgment: 14 July 2011
Counsel for the Applicant: Kevin Zervos SC DPP & David Leung SADPP
Counsel for the Respondent: Adrian Bell SC & Bruce Lau
Review of sentence – Whether probation order sufficient sentence for manslaughter – Whether
exceptional circumstances justifying non-custodial sentence
覆核刑罰—誤殺罪判處感化令是否足夠的刑罰—特殊情況是否足以支持判處非監禁刑罰
The Respondent pleaded guilty in the Court of First Instance to one count of manslaughter, namely, to
the unlawful killing of her 13-month-old adopted daughter.
The Respondent had adopted the child from an orphanage in the Mainland and had brought the child to
Hong Kong to live with her. On the date of offence, the Respondent had returned to Hong Kong from Shenzhen
after an unsuccessful attempt to obtain repayment of a loan. She collected the child from her mother and an
argument over the feeding of the child took place. The Respondent then took the child to her apartment. On the
return to the apartment, the child was in a state of distress. The Respondent was later seen holding the child
upside down in mid-air and then throwing her onto the ground from a height of around three feet. Then the
Respondent, once again, lifted up the child’s legs and hung her upside down. She then shook the child up and
down for around four to five times. Later, the Respondent was seen repeating the action of lifting the child up
and throwing her onto the ground for around seven to eight times. The Respondent very shortly afterwards took
the child to the hospital for emergency treatment. The child was eventually found to be brain dead and, with the
Respondent’s consent, the life support machinery was switched off. The autopsy revealed that among other
injuries, there were four fractures of the skull.
At the time of sentencing, the judge had before her various psychiatrists’ reports. The Respondent was
diagnosed as suffering from “bipolar affective disorder, current episode depressed, mild-to-moderate” which
condition is “a major and serious psychiatric disorder that can have potential of relapse.” One of the psychiatrists
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took the view that “present infanticide occurred when her bipolar affective disorder was left undiagnosed,
unattended and unmanaged.”
After considering those reports as to the state of the Respondent’s mental health at the time when she
committed the offence, the judge sentenced the Respondent to a term of three years probation subject to
conditions. In sentencing, the judge recognised that there were special circumstances in the case. She took into
account that the respondent was a person who had been willing to help others and who loved children and that
she suffered from mental illness, and unfortunately had not been able to receive treatment on time, under
influence of her mental illness, pressure and distress, she committed the offence of manslaughter on the crying
baby. The Respondent killed the baby girl whom she loved very much due to the aforesaid reasons. In light of
these mitigating circumstances, the judge decided that the order of probation was the appropriate order to make,
recognizing that such an order was rare.
The Applicant made an application under s 81A of the Criminal Procedure Ordinance, Cap 221, for the
review of the sentence on the ground that it was manifestly inadequate and/or wrong in principle.
Held, application for review of sentence was dismissed:
(1)
Recognition has to be given to two primary facts. First is the fact that the protection of human life is a
foremost objective of our system of criminal justice. As such, when a life is taken unlawfully, the community is
entitled to expect that the conduct be denounced by a punishment that is appropriate to the
circumstances. Second is the fact that in our society, as in all compassionate societies, particular recognition is
given to the need to protect the vulnerable. That is why special concern is aroused when an infant child dies at
the hands of one of its parents, the very person entrusted to protect and nurture that child [46].
(2)
Without in any way undermining the importance of those two primary facts, it must be recognised that
the offence of manslaughter encompasses such a variety of circumstances and degrees of culpability that it is
simply not possible to define any particular tariff or range of sentences. Indeed, even the comparison of one case
with another is invariably of limited value. For that reason, it has been said from time to time that manslaughter
is the most protean of crimes: infinitely variable [47].
(3)
Within the common law, while it may be exceptional, it is not therefore unheard-of for a person
convicted of manslaughter of a child within his or her care, to be found to have such limited culpability that a
sentence other than imprisonment is imposed. A number of cases were referred to in which a sentence other
than imprisonment was imposed: R v Ku Yi Fun (unreported) CACC 30/1986, R v Cheng Ping Mui
(unreported) CACC 540/1989 and R v Bibiana Chi Li [2000] NSWSC 1088 [48]-[60].
(4)
In R v Chambers (1983) 5 Cr App R. (S) 190, the Court Appeal in England, in considering the
appropriate sentence to be imposed in manslaughter cases in which the offender is found to be of diminished
responsibility, made the following observations [61]:
“In cases where the evidence indicates that the accused’s responsibility for his acts was so grossly
impaired that his degree of responsibility for them was minimal, then a lenient course will be open to
the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such
an order as will give the accused his freedom, possibly with some supervision.”
(5)
In light of these authorities, it is clear that in appropriate cases, even though they will be rare, it is open
to a judge to impose a sentence on an offender in the position of the Respondent other than a sentence of
imprisonment. Accordingly, the sentence imposed in the present case was not wrong in principle [63].
(6)
In the present case, what the judge was entitled to take into account, and clearly did take into account,
was the psychiatric evidence that the actions of the Respondent, as violent as they were, were the culmination of
her extreme frustrations at a time when there was a significant impairment of her impulse controls. For those
few terrible moments, herself the victim of a major psychiatric disorder, the Respondent acted entirely out of
character and then, when consciousness of the reality of her actions returned, immediately took steps to revive
the child [66].
(7)
As the sentencing judge accepted, the very person who brought the life of the child to an end loved that
child. There was no previous history of abuse. Up until that moment, the Respondent’s life, even if filled with
personal disappointment, had been exemplary in the care that she gave to her family and to others. The
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Respondent was suffering from a major psychiatric disorder, one that at the time was “undiagnosed, unattended
and unmanaged”. She was not to blame for becoming ill. It had not arisen as a result of self abuse; its cause was
not to be found in drug addiction or alcoholism. It was also relevant that the Respondent had spent some six
months’ imprisonment on remand, only obtaining bail when her bipolar disorder was satisfactorily under control
[69]-[70].
(8)
It was in the context of those mitigating circumstances that the judge came to the difficult determination
that in the circumstances of this case there was little room for any meaningful form of retribution against the
Respondent. Equally, this was not a case which required either personal or general deterrence [71].
(9)
Another court may perhaps have imposed a limited term of imprisonment. Certainly, it will only be
very rare when offences of this kind escape with anything less than imprisonment. But the criminal law has
always accepted that there will be cases when a logical and considered exercise of compassion will better protect
the interests of the society than some other sterner course. The judge found this to be such a case. In the opinion
of the Court of Appeal, she was entitled to do so while remaining within the range of her discretion [72]-[73].
HKSAR v CHIU WAI KAN, VICKEN (趙偉勤)
COURT OF APPEAL
CACC 438/2009
Stock VP, Hartmann JA, Lunn J
Dates of Hearing: 26 May, 22 June & 30 August 2011
Date of Judgment: 30 August 2011
Counsel for the Respondent: Martin Hui Ag SADPP & Michael Tsang PP
Counsel for the Applicant: Lawrence Lok SC, Caesar Lo & Joe Chan
Criminal sentencing – Manslaughter – Diminished responsibility – Drug dependency syndrome –
Irresistible urge to consume ketamine – Psychosis induced by long-term ketamine consumption – Damage
to the mind brought about by conduct of the accused himself – Proper sentencing approach
刑事罪刑罰—誤殺—減責神志失常—藥物倚賴綜合症—在不可抗拒的衝動下服用氯胺酮—長
期服用氯胺酮引發的精神病—被告自己的行為帶來精神損害—適當的量刑方法
The Applicant (D) was convicted after trial of a count of murder for having killed his stepfather in his
flat by strangling and stabbing him with a screwdriver. The attack was unprovoked and there was no sign of a
struggle. The cause of death was manual strangulation with indicia suggesting the application of considerable
force and massive blood loss from numerous wounds caused by the screwdriver used also with considerable
force. D claimed to be a long-term drug dependant and that he had consumed ketamine on the night of the killing
because of an irresistible urge to take it. D was himself responsible for the long term drug abuse and failure to
seek assistance for the problem. He attempted, a couple of years before the killing, to come off drugs and it was
successful for some months but, as a result of an unhappy relationship, he succumbed again.
D’s appeal against his conviction for murder had earlier on been allowed and a verdict of guilty of
manslaughter on the basis of diminished responsibility had been substituted. It fell for the Court to sentence D
for that offence.
Held, imposing a sentence of 10 years’ imprisonment for the offence of manslaughter:
(1)
In diminished responsibility cases there are various courses open to a judge, the choice of which will
depend on the state of the evidence and material before him - (i) If the psychiatric reports recommend and justify
it, and there are no contrary indications, a hospital order can be made. (ii) Where a hospital order is not
recommended or is not appropriate, and the accused constitutes a danger to the public for an unpredictable
period of time, the right sentence will, in all probabilities, be one of life imprisonment. (iii) In cases where the
evidence indicates that the accused’s responsibility for his acts is so grossly impaired that his degree of
responsibility for them is minimal, then a lenient course will be open to the judge. Provided there is no danger of
repetition of violence, it will usually be possible to make such an order as would give the accused his freedom,
possibly with some supervision. (iv) In cases where there is no proper basis for a hospital order but the accused’s
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Sentence (Quantum) – Manslaughter
degree of responsibility is not minimal, the judge should pass a determinate sentence of imprisonment, the length
of which will depend on two factors: his assessment of the degree of the accused’s responsibility and his view as
to the period of time, if any, for which the accused will continue to be a danger to the public. R v Stephen
Francis Chambers [1983] Cr App R (S) 190 considered [22].
(2)
Two notes of caution must be sounded: (i) protection of the public cannot justify a sentence which
constitutes mere preventive detention. The sentence must be appropriate to the offence although the protection of
society is an imperative factor to be taken into account in determining where within the permissible range of
sentence for the offence at hand and its circumstances, the term imposed should fall: R v Veen (No. 2)
(1988) 164 CLR 465 considered; (ii) it should not be assumed that a verdict of manslaughter by diminished
responsibility necessarily dictates a sentence less than life imprisonment; there will be cases which warrant such
a term: R v Veen (No. 1) (1979) 143 CLR 458; R v Veen (No. 2) (1988) 164 CLR 465 and R v Blacklidge
(unreported, NSWCCA, 12 December 1995) considered [23]-[26].
(3)
In determining the appropriate sentence in the present case, the court should take into account the
countervailing factors, on the one hand, that the attack was vicious, brutal and unprovoked and was carried out
with an intention to kill as opposed to an intention to cause serious bodily harm; and, on the other hand, the
significant degree to which D’s responsibility for his act should be treated as diminished by his drug-induced
psychosis or irresistible impulse to take drugs. Further, it is necessary to take into account the material factor of
D’s own responsibility for the long term drug abuse and failure to seek assistance for his problem. R v Chan
Hung Hing (CACC 552/1995, 12 December 1995, unreported) considered [27]-[30].
(4)
An accused who suffers from serious psychiatric illness which has come upon him through no conscious
conduct of his own and which affects his responsibility for his acts, deserves a considerably more sympathetic
approach than a person whose free choice has led to an altered mental condition; there being, in the former case,
little relevance in deterrence. Where an accused has become addicted to alcohol or drugs he must, generally, be
treated as carrying responsibility for that state of affairs, especially where he has sought no assistance to take
himself out of the cycle. Whilst his culpability for the act of killing is diminished by reason of his mental
condition, the degree of diminishment is itself affected by the circumstances which created that condition:
R v Bosch (2010) BCSC 984; R v Henry (1999) 46 NSWLR 346 considered [31]-[32].
(5)
In the case of a killing by a person suffering from a drug induced psychosis or an irresistible impulse to
take drugs as a result of his habits, such as results in a finding of manslaughter by reason of diminished
responsibility attributable to that psychosis or impulse, the fact of the addiction is certainly not a mitigating
factor; indeed, recognition of the choice factor and the requirements of deterrence demand that, generally, the
degree of responsibility is to be viewed as greater than in cases of non-self-induced illness. It will be greater still
in cases where no help is sought in the face of a history of violent propensities when affected by the addictive
substance. Furthermore, the court must take care in such cases not to double count in a defendant’s favour: in
other words, the court must recognize that his condition of drug-induced psychosis has already been reflected in
the conviction for manslaughter rather than murder [33].
(6)
Although it is difficult to predict the danger posed by D to society, the post-release supervision regimes
under the Long-Term Prison Sentences Review Ordinance (Cap 524) and the Post-Release Supervision of
Prisoners Ordinance (Cap 475) can provide a measure of comfort in terms of public protection in that steps
might hopefully be taken to ensure that D will be provided with the support that will militate against a return to
his former and dangerous drug habits upon his release from prison [39]-[40].
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Sentence (Quantum) – Manslaughter
HKSAR v LAW CHUNG HIN & NG WAI LUN
COURT OF APPEAL
CACC 133/2011
Stock VP, Yuen JA
Date of Hearing: 9 November 2011
Date of Judgment: 9 November 2011
Date of handing down Reasons for Judgment: 18 November 2011
Counsel for the Respondent: Virginia Lau SPP
Counsel for A1: John Hemmings
Counsel for A2: Arthur Luk, SC & Victor Lee
Criminal sentencing – Manslaughter - Whether the judge erred in drawing no distinction for sentencing
purposes between D1 and the Applicants
刑事罪判刑－誤殺－法官沒有為判刑目的而將第一被告人與申請人予以區分是否犯錯
The Applicants were arraigned as D2 and D3 upon an indictment containing one count of
murder alleging that they and a man called Mok (who was D1) on 18 January 2010 murdered Ng Fong
Kai (Ng). They pleaded not guilty to murder but guilty to manslaughter. The plea was accepted by the
prosecution and D1 was sentenced to 8 years’ imprisonment; D2 to 7 years 3 months’ imprisonment
and D3 to 8 years’ imprisonment.
D1-D3 were all members of or followers of members of the Wo Shing Wo triad society.
Another associate, named Kam Mo Tat (Kam), claimed to D3 that he had been beaten up by another
group of young men, including the deceased victim, Ng (aged 15 years, also a member of a triad group)
at the Universal Cyber Café. Kam had asked D3 to assist him in getting revenge on the members of this
group. In turn D3 approached D1 requesting him to arrange a revenge attack on the other group of
young men. On the night in question, D3 assembled a group of between 15 to 20 young men to carry
out a revenge attack. Towards midnight, Ng and his 4 friends (Group A) were chatting and smoking
around a chess board table in a playground outside Lung Chi House. Shortly after midnight, they were
approached by the group of young men that included the 3 defendants (Group B). Group A were
attacked mainly by punches and kicks. But, at least two members of group B used bottles as weapons.
Several of Group B, including all 3 defendants, took part in kicking and punching Ng. D1 dragged Ng
out of an “arbour”, kicked, punched and used his knees to assault Ng. Finally D1 stamped on Ng’s body
after running at him. Ng was taken to the hospital and died 4 days later. The cause of death was
“rupture of the liver”. Experts opined that it could have been caused by “a forcible blunt force impact
over the abdomen, such as bumping, kicking, stamping and heavy punching.”
The sentencing judge noted that the beating and kicking of Ng by the Applicants were of an
altogether different order from the particular attack by D1 which resulted directly in Ng’s
death. However, the judge said that each of the Applicants had chosen to join in an organised criminal
gang and set out to beat Ng. Any person who attached himself to such an attack, whether or not he
himself inflicted the injuries, bore equal responsibility for the acts of the co-accused. She further stated
that youth, family situation, ignorance, misguided loyalty, or misinterpretation of “yee hei” provided no
excuses or mitigation for an offence of such gravity. A sentence of 8 years’ imprisonment was
appropriate in such circumstances for each of the three defendants. D2’s sentence was reduced to 7
years and 3 months as his indication of an early plea might have some bearing on the pleas of D1 and
D3.
The Applicants sought leave to appeal their sentences.
Held, application for leave granted, appeal allowed:
(1)
The courts have shied in cases of manslaughter from providing guidelines because the facts underlying
convictions for such offences vary enormously and appropriate sentences can range from probation to substantial
terms of imprisonment. Nonetheless, this particular category of conduct, namely, gang fights or gang revenge
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Sentence (Quantum) – Manslaughter
attacks resulting in obviously foreseeable harm but non-intentional death, is an all too frequent subject of
consideration by the courts of this jurisdiction; not least as a feature of the scourge of triad membership and triad
violence, luring youth into its wholly negative antisocial net. It is in this type of context that the courts have said
that there must be some internal consistency of sentence so that those guilty of manslaughter in broadly
comparable circumstances receive broadly comparable sentences: R v Ko Kam-hung [1991] 2 HKLR 433 [2829].
(2)
There are some categories of cases such as drug trafficking cases where sentencing policy has dictated a
rigid approach but manslaughter cases tend to be at the other end of the spectrum, lending themselves necessarily
to acute sensitivity to the facts of each case and the circumstances of each offender. The judge erred in not
distinguishing between the culpability of D1 on the one hand and that of the Applicants on the other. Although
there are particular circumstances of aggravation in the cases of D2 and D3, their culpability and their individual
circumstances, when compared with those of D1 merited different treatment from that accorded to D1 [39]-[41].
(3)
Those who join in triad related attacks, let alone attacks that result in someone’s death, must not be
allowed to hope for lenience at the hands of a court on account of age; for it behoves the courts to send to the
youth of this jurisdiction a strong deterrent message. Extreme youth will sometimes warrant sentencing
recognition. D2 had a previous conviction for violence for an offence committed shortly before the present
offence, and he was on police bail at the time of the present offence (i.e. an aggravating factor) and that he
admitted to using a bottle on one of the assaulted group. These were serious features of his conduct but it was a
fact that he was not directly party to the particularly vicious conduct by D1 that was the direct cause of death. He
also pleaded guilty at the earliest possible stage, showed remorse and his offer of evidence was taken by the
judge to have been instrumental in the subsequent pleas of guilty by D1 and D3. Furthermore, unlike D1 and
D3, he was not party to gathering or causing to be gathered the group for the attack. The appropriate sentence in
his case was one of 5 years’ imprisonment [42]-[43].
(4)
D3 was one of those who took part in the kicking and punching of Ng. It was he who asked D1, at the
request of another, to arrange the revenge attack, and he with D1 assembled the group to carry out that
attack. He was older than D2 by a couple of years but young nevertheless and several years younger than
D1. This offence was committed whilst he was on bail for another offence of violence, clearly an aggravating
factor. There was no suggestion that he used a bottle in the course of the assault on the victim group and that he
did not take part in the jumping on Ng’s body that was the direct cause of death. In the result, his culpability was
somewhere between the culpability of D1 and D2. His personal circumstances were unfortunate in that he
suffered considerably in terms of self image because of the illness which resulted in hair loss and it may be that
the attraction of misplaced camaraderie that came from belonging to a group explained why he fell under the
influence of young triads. But there must be a significant limitation to the degree to which this could be taken to
be a mitigating factor; for it was one thing to join a group, another to join a violent group and quite another to be
an instigator of a revenge attack, let alone one that led to somebody’s death; the death, in this case, of a youth. A
sentence of 6 years imprisonment was warranted [44]-[45].
268
CCAB 2011
Sentence (Quantum) – Money Laundering
Money Laundering
律政司司長 訴 雲國強
上訴法庭
CAAR 1 3 /2 0 1 0
上訴法庭法官張澤祐、楊振權及袁家寧
聆訊日期： 2 0 1 1 年5 月1 3 日
判決日期： 2 0 1 1 年5 月1 3 日
申請人代表律師： 署理副刑事檢控專員黃惠沖及署理高級檢控官吳穎軒
答辯人代表律師： 范信恩
刑 期 覆 核 —“ 洗 黑 錢 罪 ” — 加 重 罪 責 因 素
答 辯 人 在 區 域 法 院 承 認 一項“洗黑錢罪”及一項“收受賭注罪”。原審法官分別以 2 1 個月
及 3 個月為量刑基準，並以答辯人認罪而將刑期扣減三份一、兩項控罪的刑期同期執行，故答
辯人需服的總刑期為 1 4 個月[ 8 ] 。
申請人基於以下加重罪責因素，提出覆核刑期申請：（一）洗黑錢的行為維持長達 7
年 ； （ 二 ） 洗 黑 錢 的 金 額 達 1 ,4 0 0 多 萬 元 ； 及 （ 三 ） 答 辯 人 有 直 接 參 與 和 “黑 錢 ” 有 關 的 罪 行
[11]。
裁 決 ，批准覆核刑期申請：
(1)
“洗 黑 錢 ” 是 嚴 重 罪行，原因是“洗黑錢”不但間接地鼓勵犯罪活動，更試圖把犯罪得益合
法 化 。 為 了 打 擊 嚴 重 罪 行 ， 避 免 犯 案 者 獲 得 經 濟 利 益 ， 阻 嚇 “洗 黑 錢 ” 罪 行 是必需的（見 香港特
別行政區訴 Ja vid Ka mra n CACC 4 0 0 /2 0 0 4 ( unr ep o r ted ) 、 香港特別行政區訴 X u X ia Li 及另
一人 [ 2 0 0 4 ] 4 HKC 1 6 等案）[ 1 2 ] 。
(2)
一般而言“洗黑錢”罪行的判刑應主要反映清洗“黑錢”的數額 ，而非被告人或其他人的
得 益 。 原 因 是 要 證 明 有 關 得 益 ， 非 常 困 難 而 在 大 多 數 “洗 黑 錢 ” 案 件 亦 可 能 沒 有 證據顯示“黑錢”
究 竟 是 從 甚 麼 公 訴 罪 行 所  生 的 。 當 然 如 有 資 料 證 明 “黑 錢 ” 源 自 嚴 重 罪 行，包括販毒、擄人勒
索、非法販賣人口和其他有組織罪行等或被告人的得益極大，則判刑理應上調 [ 1 3 ] 。
(3)
上 訴 庭 在 其他多宗同類案件亦列出其他和判刑有關的因素，包括犯案的次數及犯案時間
的長短、被告人參與和“黑錢”有關罪行的程度、罪行是否有組織及是否精密等等 [ 1 4 ] 。
(4)
本 案 的 “黑 錢 ”源自非法收受足球博彩賭注，而非特別嚴重的罪行。答辯人的罪行，包括
其 收 受 賭 注 罪 行 的 組 織 亦 非 嚴 密 。 根 據 答 辯 人 的 招 認 ， 他 從 罪 行 取 得 的 金額亦非巨大，不超過
1 5 萬 元 。 以 “洗 黑 錢 ” 罪 行 而 言 ， 本 案 並 非 是 十 分 嚴 重 的 一 宗 [ 1 6 ] 。 但 法 庭 不 能 忽視答辯人在長
達 7 年 期 間 “ 洗 黑 錢 ” ， 次 數 以 千 計 ， 而 總 額 更 達 1 ,4 0 0 萬 元 ， 本 庭 亦 不 能 忽 視 答 辯 人 清 洗 的 “黑
錢”源自他有份參與的收受賭注罪行[ 1 7 ] 。
(5)
即使以對答辯人最有利的方法處理，適用的量刑基準都不應低過4年[19]。考慮到答辯
人 承 認 控 罪 ， 而 判 刑 亦 是 在 覆 核 申 請 作 出 ， 上 訴 庭 認 為 針 對 答 辯 人 的 第 一 項 “洗黑錢”判刑應為
2年6個月。該判刑和第二項收受賭注的2個月判刑同期執行。答辯人的總刑期應為2年6個月
[20]。
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CCAB 2011
Sentence (Quantum) – Money Laundering
[English Translation of CACC 13/2010 above]
SJ v WAN KWOK KEUNG
COURT OF APPEAL
CAAR 13/2010
Cheung, Yeung & Yuen JJA
Date of Hearing: 13 May 2011
Date of Judgment: 13 May 2011
Counsel for the Applicant: Wesley Wong Ag DDPP & Hermina Ng Ag SPP
Counsel for the Respondent: Edward Fan
Review of sentence – “Money Laundering” – Aggravating features
The Respondent pleaded guilty in the District Court to one count of “money laundering” and one count
of “bookmaking”. The sentencing judge took 21 months’ imprisonment and 3 months’ imprisonment
respectively as the starting point for each offence. He gave a one-third discount for the guilty pleas and ordered
that the sentences be served concurrently, resulting in a total sentence of 14 months’ imprisonment [8].
The Applicant applied for a review of sentence based on the following aggravating features: (1) the act
of money laundering lasted for 7 years; (2) the amount laundered amounted to $14 million; and (3) the
Respondent directly participated in the offence relating to the proceeds of crime [11].
Held, application for review granted:
(1)
“Money laundering” is a serious offence because not only does it indirectly encourage the commission
of criminal activities, it also attempts to legitimize the proceeds of such activities. It is necessary to deter the
commission of “money laundering” offences in order to combat serious crimes and to prevent the retention of illgotten gains (see HKSAR v Javid Kamran CACC 400/2004 (unreported); HKSAR v Xu Xia Li and Anor [2004] 4
HKC 16) [12].
(2)
Generally speaking, the sentence for “money laundering” should reflect the amount laundered and not
the gain the defendant or others obtained. This is because it is very difficult to prove the gain obtained and in
the majority of cases there may not be evidence to show what the indictable offence was. Of course, if there is
evidence to prove that the offence from which the amount laundered had been sourced was serious (including
such offences as drug trafficking, kidnapping for ransom, human trafficking and other syndicated crimes) or that
the defendant’s gain was extremely large, the sentence should be adjusted upwards [13].
(3)
The Court of Appeal in a number of similar cases has also listed other factors relevant to sentence,
including the number of occasions involved and the overall period in which the offence was committed, the
degree of the defendant’s participation in the related offence and whether the offence was organized and its
sophistication [14].
(4)
In the present case, the source of the money laundered was derived from bookmaking in soccer
gambling rather than some very serious crimes. The manner in which the Respondent committed the offence (as
well as the underlying bookmaking offence) was not sophisticated. According to the Respondent’s admissions,
the financial gain did not exceed $150,000 and was not particularly huge. For the offence of “money
laundering”, this was not a very serious case of its type [16]. But the Court could not ignore the fact that the
offence lasted for 7 years, involved thousands of transactions (totalling $14 million) and that the Respondent
participated in the bookmaking activities from which the money laundered had been sourced [17].
(5)
The appropriate starting point should at least be 4 years’ imprisonment even taking a view most
favourable to the Respondent [19]. Taking into account the Respondent’s pleas and that this was a review of
sentence, the Court of Appeal ordered that the sentence for the “money laundering” count should be 2 years and
6 months’ imprisonment and that for “bookmaking” 2 months’ imprisonment, to be served concurrently,
resulting in a total sentence of 2 years and 6 months’ imprisonment [20].
270
CCAB 2011
Sentence (Quantum) – Money Laundering
HKSAR v LUNG YUN NGAN & ANOR
COURT OF APPEAL
CACC 482/2010
Hartmann & Kwan JJA, A Cheung J
Date of Hearing and Judgment: 12 May 2011
Date of handing down Reason for Judgment: 24 May 2011
Counsel for the Respondent: Maggie Yang SPP
Counsel for the Applicant: Kevin Egan
Criminal sentencing – Money laundering of $3 million proceeds of letter of credit frauds over 2 years –
Aged defendants – Limited level of participation – 12 months’ imprisonment after trial not excessive
刑事罪判刑—在兩年間清洗300萬元的信用證欺詐罪行得益—年老的被告人—參與程度有限—
審訊後被判監禁12個月並非過重
The two Applicants were a married couple aged 61 (the wife, “A1”) and 72 (the husband, “A2”)
respectively. They were convicted after trial in the District Court of one count of dealing with property known or
believed to represent proceeds of an indictable offence, contrary to s 25 of the Organized and Serious Crimes
Ordinance (Cap 455) and were each sentenced to 12 months’ imprisonment.
At the material time, A1’s elder brother was a shareholder cum director of a company (“Wah Hing”).
Between January 2004 and September 2007, when Wah Hing found itself in financial difficulties, A1’s elder
brother and his co-directors conspired together to raise funds by defrauding various banks of loans amounting to
$32 million, by way of bogus letter of credit (L/C) applications. The L/Cs were made payable to a dormant
company (“Soon Sales”) which was controlled by a relative of one of Wah Hing’s directors. Upon receipt of the
L/C monies, Soon Sales would remit them back to Wah Hing either directly or via various intermediary “shell”
companies. Both Applicants, together with A1’s elder brother and his wife, were the shareholders and directors
of one such intermediary company (“Perfect Keen”). A1 was paid a monthly salary of $5,000.
It was the prosecution case that from July 2004 to June 2006 the Applicants dealt with a total of $3
million odd having reasonable grounds to believe that they represented the proceeds of an indictable offence.
There was no dispute at trial that during that period Soon Sales had issued four cheques for the said total sum to
Perfect Keen which in turn passed on the monies to Wah Hing by way of six cheques, all of which were signed
by the Applicants. Both Applicants testified at trial to the effect that they had only become shareholders and
directors of Perfect Keen upon the invitation by A1’s elder brother. They were not required to participate in the
daily management of the company but were given a limited role of being the custodians of the company chequebook and a company chop which they kept at their home. They were also to receive all bank statements of
Perfect Keen. They signed and chopped the company cheques when so requested by a lady assistant of A1’s
elder brother. The lady assistant testified as an accomplice witness against the Applicants at trial.
The trial judge rejected the exculpatory evidence of both Applicants. Based on the prosecution
evidence, he drew an irresistible inference that both Applicants “knew of sufficient grounds that would lead a
common sense right-thinking member of the community to believe that the property in whole or in part
represented any person’s proceeds of an indictable offence.” On this basis, he convicted both Applicants.
The Applicants applied for leave to appeal against their convictions and sentences. In respect of the
sentence appeal, it was argued that in all the circumstances of the case, the sentence of 12 months’ imprisonment
imposed on each of the Applicants after trial was manifestly excessive.
Held, both applications for leave to appeal against conviction and sentence dismissed:
(1)
Money laundering is the processing of criminal proceeds in order to disguise their illegal origins. As
such, it is just one step along from the original offence itself, be it drug trafficking, prostitution, bribery or fraud.
Money laundering is therefore inextricably linked to the underlying criminal activity that has generated it. It
enables such criminal activity to continue. Money laundering flourishes when persons are prepared to turn a
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Sentence (Quantum) – Money Laundering
blind eye to the true nature of the funds with which they are dealing. It not only corrupts individuals, it threatens
the integrity of our banking and financial services. It is unsurprising that our legislature has viewed it to be
criminal activity of the most serious kind [91].
(2)
There are no sentencing guidelines for the offence of money laundering because the facts vary so much
from case to case. The amount of money involved in the ‘laundering’ exercise itself is a major consideration as
is the length of time over which the exercise took place. While each case must depend very much on its own
facts, the imposition of a substantial period of imprisonment for a money laundering offence involving
$1 million or more is not remarkable. HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, HKSAR v Chow Ying Ki
[2005] HKEC 983 and HKSAR v Abayomi Bamidele Fayomi [2005] HKEC 2167 considered [92] &[94].
(3)
In the present case – even taking into account the ages of the Applicants, the fact that they had no
previous convictions, their relationship to A1’s elder brother who recruited their participation and the relatively
limited level of their participation – an immediate custodial sentence was inevitable. Their participation in the
scheme extended over a period of two years and involved a sum in excess of $3 million. In those circumstances,
the sentence of 12 months’ imprisonment cannot be said to be manifestly excessive and indeed, it may be said to
contain an element of mercy [95].
香港特別行政區 訴 譚家俊
高等法院上訴法庭
CACC 406/2010
高等法院上訴法庭法官袁家寧、上訴法庭法官朱芬齡
判案日期： 2011年10月18日
答辯人法律代表： 署理高級檢控官陳冰華
上訴人法律代表： 孫錦熹
刑事判刑─串謀依靠他人賣淫的收入為生
控罪在事實方面有關連─總刑期
刑事判刑 串謀依靠他人賣淫的收入為生─“洗黑錢
串謀依靠他人賣淫的收入為生 洗黑錢”罪
洗黑錢 罪─控罪在事實方面有關連
控罪在事實方面有關連 總刑期
上訴人在區域法院承認兩項控罪，一項是“串謀依靠他人賣淫的收入為生”罪 (下稱 “依靠賣淫”
罪)，另一項是“處理可公訴罪行的得益的財產”罪(下稱 “洗黑錢” 罪)。
就“依靠賣淫”罪，控方指，上訴人牽涉在一個安排女子賣淫的組織。他安排內地女子經其他人
化妝及攝影後，把相片上載到色情網站。嫖客打電話至網站所登的電話號碼時，上訴人會接電話，安排
女子與嫖客在不同酒店會合。事後他會向女子收取費用，轉交給他的僱主，他亦負責保管有關賬目。上
訴人說當時他負責5名女子的賣淫活動。
就“洗黑錢”罪，控方指，上訴人由2004年至2009年的5年期間，經他4個銀行戶口，洗黑錢共
$4,900,000左右。上訴人說這些款項源於上述賣淫活動。
就上訴人干犯的 “依靠賣淫”罪，法官以24個月監禁為量刑基準，因上訴人認罪扣減1/3後，判處
他要受16個月監禁。就 “洗黑錢” 罪，法官以42個月監禁為量刑基準，因上訴人認罪扣減1/3後，判處他
要受28個月監禁。因為兩項控罪在事實方面是有關連的，所以法官考慮到整體判刑的原則後，頒令“洗
黑錢”罪判刑其中的8個月刑期與“依靠賣淫” 罪的刑期同期執行，即20個月分期執行，總刑期為36個月。
上訴人針對刑期提出上訴。
裁決，上訴得直，總刑期減為32個月：
裁決
(1)
上訴法庭參考了一系列的案例後，所得的結論是“依靠賣淫”罪的判刑要視乎多種因素，包括賣
淫活動的規模，活動持續的時間，妓女的人數，她們的來源及/或她們的年齡是否會令到她們容易被人利
用或欺凌，被告人在賣淫活動所擔當的角色，他是否有前科，與及他從賣淫活動個人所獲得的得益。就
本案而言，所牽涉的賣淫活動，規模不小。有關女子是從內地來港的。就上訴人本人而言，他所擔當的
角色不小，明顯屬管理層。他亦承認在他依靠女子賣淫為生有4年之久。他的報酬亦相當可觀，每月可
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CCAB 2011
Sentence (Quantum) – Money Laundering
得$60,000 - $70,000。但亦考慮到本案沒有證據顯示有關妓女是年幼女子，或曾被人剝削或欺凌。綜觀
一切，上訴法庭認為以24個月監禁為量刑基準是明顯過重，應以18個月為量刑基準，上訴人認罪扣減1/3
後，變成12個月[9]-[11]。
(2)
至於“洗黑錢” 罪，上訴法庭參考了一系列的案例後，指出法庭判刑時所需考慮的因素，包括產
生有關款項的罪行，被告人是否知道該罪行的進行，款項的數額，洗黑錢活動持續多久，與及被告人本
人參予活動的程度等。在本案而言，上訴人並不是愚蠢地把戶口借給家人使用，他自己清楚知道洗黑錢
活動的款項來自管理妓女賣淫的活動。有關的款項超過$4,000,000, 洗黑錢活動亦持續了5年之久，而他
本人負責保管賬目，及將款項調動，所以參予活動程度深厚。上訴法庭認為法官以3年半為量刑基準，
並不可以說是明顯過重[13]-[14]。
(3)
就總刑期一事，在本案而言，上訴法庭認為兩項控罪在事實方面是有關連，所以應該有部份刑
期同期執行，認為總刑期應減為32個月。上訴人就第三項控罪的刑期減為12個月，而就第五項控罪的刑
期不改，其中的8個月刑期與第三項控罪的刑期同期執行，即20個月分期執行，總刑期為32個月[15]。
[English Translation of CACC 406/2010 above]
HKSAR v TAM KA CHUN DANNY
COURT OF APPEAL
CACC 406/2010
Yuen & Chu JJA
Date of Judgment: 18 October 2011
Counsel for the Respondent: Eva Chan Ag SPP
Counsel for the Appellant: Suen Kam Hee
Criminal sentencing – Conspiracy to live on earnings of prostitution of others – “Money laundering”
offence – Offences connected on the facts – Totality of sentence
The Appellant pleaded guilty to two charges in the District Court, one being “conspiracy to live on
earnings of prostitution of others”; the other being “dealing with proceeds known or reasonably believed to
represent proceeds of an indictable offence” (hereinafter referred to as the “money laundering” offence).
In relation to the offence of “conspiracy to live on earnings of prostitution of others”, it was the
prosecution case that the Appellant was involved in an organisation which arranged females for prostitution. He
arranged the photographs of the Mainland females to be uploaded to pornographic websites after they had been
applied make-up and photographed by others. When customers called the phone number posted on the website,
the Appellant would receive the calls and arrange the females to meet the customers in different hotels.
Afterwards he would charge fees from the females and transfer the amounts to his employer. He was also
responsible for keeping the relevant books of accounts. The Appellant said that he was responsible for 5
females’ prostitution activities at the material time.
In relation to the “money laundering” offence, it was the prosecution case that the Appellant laundered
around $4,900,000 through his 4 bank accounts during the 5 years between 2004 and 2009. The Appellant said
that these monies originated from the above prostitution activities.
Regarding the “conspiracy to live on earnings of prostitution” offence, the judge adopted a starting
point of 24 months’ imprisonment. After a one-third reduction of sentence was given due to the Appellant’s plea
of guilty, the judge imposed a 16 months’ imprisonment on him. Regarding the “money laundering” offence, the
judge adopted a starting point of 42 months’ imprisonment. After a one-third reduction of sentence due to the
Appellant’s plea of guilty, the judge imposed a 28 months’ imprisonment on him. Because these two offences
were connected on the facts, after considering the principle of totality, the judge ruled that 8 months of the
“money laundering” offence be served concurrently with that of the “conspiracy to live on earnings of
prostitution” offence. In other words, 20 months would be served consecutively and the overall sentence was 36
months. The Appellant appealed against sentence.
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CCAB 2011
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Held, appeal allowed, overall sentence reduced to 32 months’ imprisonment：
(1)
After considering a number of authorities, the Court of Appeal concluded that the sentencing of
“conspiracy to live on earnings of prostitution” offence depends on various factors, including the scale of
prostitution, the period of persistence of such activities, the number of prostitutes, their origins and/or whether
their age makes them vulnerable to exploitation or abuse, the role of the Appellant in the prostitution activities,
whether he has previous records, and the personal profits he derived from such prostitution activities. In the
present case, the scale of prostitution was not small. The females came from the Mainland. As far as the
Appellant is concerned, his role was not small and he obviously belonged to the management level. He also
admitted that he lived on the earnings of prostitution of these females for as long as 4 years. His income was
considerable in the amount of $60,000-$70,000 each month. Nevertheless, consideration was given to the lack
of evidence in the present case showing any of the females being young girls, or that they were exploited or
abused. In all circumstances, the Court of Appeal decided that a starting point of 24 months’ imprisonment was
manifestly excessive. The appropriate starting point should be 18 months’ imprisonment, coming to 12 months
after the one-third discount for the guilty plea [9]-[11].
(2)
As to the “money laundering” offence, after considering a number of authorities, the Court of Appeal
pointed out the factors to be taken into account in sentencing, including the offence deriving the relevant
proceeds, whether a defendant knows of the taking place of the relevant offence, the amount of the proceeds, the
period of persistence of the money laundering activities, the extent of the defendant’s involvement, etc. In the
present case, it was not the case that the Appellant foolishly lent his account for his family member’s use. He
clearly knew that the proceeds of the money laundering activities originated from the acts of managing
prostitution. The relevant amount exceeded $4,000,000 and the money laundering activities persisted for as long
as 5 years. The Appellant himself was responsible for keeping the accounts and transferring the amounts, so his
extent of involvement was deep. The Court of Appeal decided that the starting point of 3½ years imposed by the
judge could not be said to be manifestly excessive [13]-[14].
(3)
In relation to totality of sentence, in the present case, the Court of Appeal held that the two offences
were connected on the facts; therefore part of the sentence should be carried out concurrently. The overall
sentence should be reduced to 32 months. The sentence for the offence of “conspiracy to live on earnings of
prostitution” was reduced to 12 months, whereas that for the offence of “money laundering” remained
unchanged, 8 months of it to be served concurrently. In other words, 20 months should be served consecutively
and the overall sentence should be 32 months’ imprisonment [15].
HKSAR v LEUNG WAI WAH alias LIANG WEI HUA (梁偉華
梁偉華)
梁偉華
COURT OF APPEAL
CACC 201/2011
Cheung CJHC, Yeung VP
Date of Hearing: 9 November 2011
Date of handing down Reasons for Judgment: 16 November 2011
Counsel for the Respondent: Samantha Chiu Ag SPP
Counsel for the Applicant: Andy Hung
Criminal law & procedure – Sentencing – Money Laundering – Bookmaking was the underlying offence
刑事法及訴訟程序－判刑－洗黑錢－收受賭注為有關的基礎罪行
The Applicant pleaded guilty to a count of conspiracy to deal with property known or believed to
represent the proceeds of an indictable offence. The Applicant held, at the material times, a bank account.
Between November 1997 and June 1999, total deposits into and withdrawals from the account were
HK$38,157,601.89 and $38,157,191.38 respectively. 69.97% of the deposits (HK$26,699,429.90) and 24.49%
of the withdrawals (HK$9,344,806.58) were made in cash. Between 1 December 1997 and 6 May 1999, there
were transfers of a total sum of HK$12,661,090 from the account into another account in the name of Li Kamming (“Li”). Under caution, the Applicant admitted that he had engaged in bookmaking of horse racing and
274
CCAB 2011
Sentence (Quantum) – Money Laundering
football games with Li, his brother-in-law. The Applicant claimed that the account was operated by Li in
connection with the bookmaking activities and that he had signed some deposit slips for Li to process bank
transactions.
A starting point of 6 year was adopted by the judge. After the 1/3 discount was given, the Applicant
was sentenced to 4 years’ imprisonment.
The Applicant applied for leave to appeal against sentence contending inter alia that the starting point
adopted by the judge was too high and that insufficient weight had been given to the fact that the Applicant had
co-operated fully with the police, resulting in a manifestly excessive sentence.
Held, application allowed:
(1)
A “money laundering” offence is committed when the defendant had reasonable grounds to believe that
the “money” he had handled was “dirty”. The offence does not require the establishment by the prosecution that
the “money” is actually “dirty”. The offence would have been proved even if the “money” is in fact not “dirty” as
long as the defendant had reasonable grounds to believe that it was [18].
(2)
The nature of the indictable offence from which the “laundered money” derived was a factor which a
sentencing court was entitled to take into account although it was not a significant one unless it could be shown
that the defendant knew the nature of the crime and that the crime was of a serious nature [20].
(3)
The following factors are relevant to sentence in “money laundering” cases:
1
2.
3.
4.
5.
6.
7.
8.
The amount of money laundered, which was described as the major consideration.
The nature of the offence that generated the “laundered money”.
The extent to which the offence assisted the underlying crime or hindered its detection.
The degree of sophistication of the offence.
The defendant’s participation, both in the underlying offence and in the “money laundering”
activities.
The length of time that the offence lasted.
The benefit that the defendant had derived from the offence.
Whether there was an international element in the commission of the offence. [24]
(4)
The Applicant had been given a full one-third discount for his guilty plea and such a discount would
have taken into consideration other mitigating factors, including full co-operation with the police and a good
record [32].
(5)
Having considered cases on sentencing “money laundering” offences involving bookmaking, the Court
was of the view that a more appropriate starting point would be 5 years and 3 months. After the 1/3 discount
was given, the Applicant’s sentence was reduced to 3 years and 6 months.
275
CCAB 2011
Sentence (Quantum) – Murder
Murder
HKSAR v CHU YIU KEUNG & ORS (朱耀强及其他人
朱耀强及其他人)
朱耀强及其他人)
COURT OF APPEAL
CACC 27/2009
Hartmann JA, Lunn & Barnes JJ
Dates of Hearing: 14-16 July, 6 September & 17 December 2010
Date of handing down Judgment: 20 January 2011
Counsel for the Respondent: Wesley Wong SADPP & Hermina Ng PP
Counsel for A1: John Hemmings (re: conviction) & In person (re: sentence)
Counsel for A2: Paul Loughran (re: conviction & sentence)
Counsel for A3: William NC Stirling (re: conviction)
Counsel for A4: William NC Stirling (re: conviction & sentence)
Counsel for A5: John Haynes (re: conviction & sentence)
Criminal sentencing – Murder – Defendants killed victim in course of gang fight – Defendants aged
between 15 and 18 – Whether sentences imposed manifestly excessive
刑事罪判刑－謀殺－被告人在集體打鬥中殺死受害人－被告人15至18歲－判刑是否明顯過
重
At all material times, the 5 Applicants (A1-A5) were associated in a group of young men identified as
Billy’s group in the course of trial. The apparent leader of this group was Lai King Pong known as Billy or Ah
Pong.
Late on the night of 25 August 2007, within the precincts of a housing estate, Billy’s group (a number of
whom armed with metal water pipes) ambushed a second group of youths seemingly led by Lo Shu Fat. As a
result of the ambush, a 17-year-old young man Wu Yu Hei of Lo Shu Fat’s group tripped and fell. He was then
set upon by Billy’s group, receiving multiple blows to his head from the metal pipes carried by his attackers.
Wu subsequently died of his injuries.
Following a jury trial, A1, A2, A4 & A5 were convicted of the murder of Wu while A3 was acquitted of
murder but convicted of manslaughter. A1, aged 18 at the time of the murder, received life imprisonment.
However, as A2, A4 & A5 were under 18, the judge sentenced A2 to 20 years’ imprisonment, A4 to 16 years’
imprisonment and A5 to 18 years’ imprisonment. A3, who was convicted of manslaughter, was sentenced to 5
years’ imprisonment.
Each of the Applicants sought leave to appeal his conviction. With the exception of A3, each also
sought leave to appeal the sentence imposed upon him.
Held, A3’s application for leave to appeal his conviction having been granted, his conviction was quashed and
the sentence of 5 years’ imprisonment set aside whereas all the other Applicants failed in their applications for
leave to appeal against conviction; each of their applications for leave to appeal against sentence was refused:
(1)
As A1 was 18 at the time of the offence, the only and mandatory sentence the court could impose is one
of life imprisonment. There being no merit in his application for leave to appeal against sentence, the Court of
Appeal refused leave for such application [186].
(2)
When considering the appropriate sentences in relation to A2, A4 & A5, even though their young age is
of grave concern to the court, it must not be forgotten that the courts have a duty to impose a sentence which has
both the punitive and the deterrent elements. Here, a group of persons – many armed with metal water pipes –
ambushed and set upon an unarmed rival group, brutally attacked and killed one of the youths who tripped and
fell while being chased. The attack was well-planned and took place within the precincts of a housing estate,
turning the place into a battle field. While the attack took place late at night, there might well have been passers-
276
CCAB 2011
Sentence (Quantum) – Murder
by going about their lawful business who were affected by this shocking incident. In view of the circumstances
of this case, a sentence severe enough to be both punitive and deterrent is warranted [197].
(3)
The participation of A2, A4 & A5 was not identical. In a nutshell, A2 armed himself with a metal pipe
and physically attacked the deceased, though not delivering any fatal blow; A4 did the reconnaissance and did
not take part in the actual attack; A5 chased the rival group while armed with a metal pipe, though there was no
evidence that he physically attacked the deceased [198]. Taking into account the different roles played by A2,
A4 & A5, the trial judge was of the view that the role played by A5 was less serious than that of A2, and that the
role played by A4 was less serious than that of A5. The different sentences imposed on A2, A4 & A5 properly
reflect their culpability [200].
Obscene Articles
HKSAR v LAI YAT BING
COURT OF FIRST INSTANCE
HCMA 514/2011
Stuart-Moore DJ
Date of Hearing and Judgment: 25 August 2011
Counsel for the Respondent: Rosa Lo PP
Counsel for the Appellant: In person
Criminal sentencing – Disparity of sentence – Possession of obscene articles for the purpose of
publication – s 21(1)(b) of Control of Obscene and Indecent Articles Ordinance
刑 事 罪 判 刑 – 判 刑 上 的 差 異 – 管 有 淫 褻 物 品 以 供 發 布 –《
《淫褻及不雅物品管制條例》第
21(1)(b)條
The Appellant was convicted of possession of obscene articles for the purpose of publication, namely
3,177 obscene DVDs. He was sentenced to 8 months’ imprisonment and was fined $10,000. The Appellant
appealed against the fine only.
The facts were that a decoy police officer visited the shop and was served by the Appellant. 5 obscene
DVDs were purchased from the Appellant who took the $100 marked money. Upon search, a total of 3,177
obscene DVDs were found and seized from the shop. The Appellant was arrested and admitted the offence
under caution.
Held, appeal dismissed:
(1)
Citing HKSAR v TANG Wei-hung HCMA 988/2005, the court noted that the imposition of a fine,
coupled with immediate custodial sentence, is a valuable and effective deterrent to offences such as the present
[4].
(2)
However, in some cases which have been brought before the court on appeal, fines were imposed
whereas in others no fine was imposed, and this apparently extends also to cases heard in Chinese. The court
commented that parity of sentencing in commonly encountered offences is essential and it is extremely unfair if
some defendants are being treated more harshly than others merely depending upon which magistrate they
appear before. A consistent approach needs to be maintained or it will give rise to an understandable and
genuine grievance [10].
277
CCAB 2011
Sentence (Quantum) – Theft of “Incense Tree”
Theft of “Incense Tree”
HKSAR v XIE JINBIN (謝錦彬)
謝錦彬
COURT OF FIRST INSTANCE
CACC 195/2010
Yuen JA, To J
Date of Hearing and Judgment: 19 January 2011
Date of handing down Reasons for Judgement: 28 January 2011
Counsel for the Respondent: Andrew Cheng PP
Counsel for the Applicant: Andrew Allman-Brown
Criminal sentencing – Applicant and three other mainlanders cutting tree – Theft of wood blocks of
“incense tree” of the endangered species Aquilaria sinensis – Value, quantity or weight not the only
considerations – Different considerations where stolen property involved protected endangered species –
Injury to the protected flora – Starting point of three years for theft of “incense tree” by mainlanders
cannot be faulted
刑 事 罪 判 刑 － 申 請 人 與 其 他 3 名 內 地 人 砍 伐 樹 木 － 偷 取 瀕 危 物 種 Aquilaria sinensis「 牙 香
樹」樹木－價植、數量或重量並非唯一考慮因素－贓物如涉及受保護瀕危物種有不同的考慮
因素－損害受保護植物－以3年為量刑起點判處偷取「牙香樹」的內地人並無犯錯
The Applicant and three other males were seen cutting a tree using tools at the hillside on Lamma
Island. They fled when police officers arrived to intercept them. The Applicant and two of the other males were
later found and arrested. The Applicant was carrying a saw and a wood block of about 8 inches in length in his
rucksack. There were also found in the rucksacks carried by the other two males an iron hoe, a knife and six
wood blocks of about 4 to 7 inches in length. The wood block found in the Applicant’s possession weighed
0.677 kilogram and the total weight of all the wood blocks was 1.181 kilograms. They were found to be of the
species Aquilaria sinensis, commonly known as “incense tree”. The Applicant and the other two males were
mainland residents who had come to Hong Kong on two way permits.
The Applicant and the other two males pleaded guilty to theft in the District Court. There was expert
evidence before the judge that “incense tree” was a vulnerable species and in danger. The sentencing judge
adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea. She then enhanced the
sentence by 25% pursuant to s 27(2) of the Organized and Serious Crimes Ordinance (Cap 455), making a total
term of imprisonment of two years and six months. The Applicant appealed against that sentence.
Held, appeal against sentence dismissed:
(1)
While the quantity of stolen goods in a case of theft is usually an important factor in determining the
appropriate sentence, it is not necessarily the only and determinative factor. In the ordinary cases of theft from
supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected
endangered species, value or quantity or weight may be the only considerations. But where the stolen property
involved is a protected endangered species, the considerations are wholly different. The end which the law seeks
to achieve is protection of the endangered flora. Thus, the evil which the law seeks to prevent is not theft as such
but injury to the protected flora. The focus, therefore, should be on protection of the plant rather than the value
of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profitmotive, the manner of commission and the gravity of the offence [16].
(2)
A clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or
illegally, specifically for the purpose of exploiting protected and endangered flora for profit. A starting point of
three years for extraction of wood from an “incense tree” by mainlanders could not be faulted [17].
(3)
Though only 1.181 kilograms of “incense tree” was recovered from the Applicant and the codefendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the
offence. The Applicant is not to be punished only according to the weight of the wood block he has stolen, but
according to the enterprise he and the other three offenders had collectively participated in and the seriousness of
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CCAB 2011
Sentence (Quantum) – Theft of “Incense Tree”
the offence. The Applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit
the endangered flora for profit. The offence is one which calls for deterrence. Weight is therefore not the
determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury
caused to the tree [23].
Town Planning
香港特別行政區訴鄧金大及其他人
高等法院原訟法庭
HCMA 572/2010
原訟法庭暫委法官陳慶偉
聆訊日期： 2010年11月18日
裁決日期： 2010年12月31日
答辯人代表律師：檢控官吳穎軒
上訴人代表律師：陳永豪
刑罰─沒有遵從規劃署強制執行通知書
章 《 城市規劃條例》
條 ─ 罰款金額
刑罰 沒有遵從規劃署強制執行通知書─香港法例第
沒有遵從規劃署強制執行通知書 香港法例第131章
香港法例第
城市規劃條例 》 第 23(6)條
($30,000至
至$100,000不等
不等)是否明顯過重或違反原則
不等 是否明顯過重或違反原則
各上訴人在裁判法院承認一項「沒有遵從規劃署強制執行通知書」罪，即未有按規定終止將一幅
土 地 作 儲 存 及 修 理 貨 櫃 的 用 途 ， 違 反 《 城 市 規 劃 條 例 》 第 23(6) 條 ； 當 中 八 名上訴人各被判罰款
$30,000；一名上訴人被判罰款$60,000，另外三名上訴人則各被判罰款$100,000。各上訴人就刑罰提出
上訴。
裁決，上訴駁回；
裁決
(1)
裁判官在處理各上訴人的罰款金額時，只以各上訴人有一次相同紀錄作考慮 (而事實上部分的上
訴人有多次相同的紀錄)；罰款的金額僅是最高罰款額的 3%至 10%；裁判官亦沒有就每日的違反處以罰
款，實屬非常寬大的處理[7]。
(2)
此等案件純是經濟上的犯罪；要阻止土地擁有人將土地違規改作其他用途的最有效方法，便是
剝奪他們從更改土地用途中取得的得益。就此，控方有責任協助裁判官作出適當的量刑。當日後處理此
等案件時，控方應向裁判官提供資料，顯示原有土地用途與違規土地用途每月每呎租金上的差額。若控
方能在調查過程中取得租客繳付的租金資料，這當然最好不過。若未能取得的話，此等租金上的分別理
應可從差餉物業估價署取得。若規劃署曾批出許可予更改土地用途的人士，控方亦可一併提供政府收取
此等費用的數據予裁判官考慮。此等案件判刑的首要考慮是要剝奪非法更改土地用途的得益，另外亦需
加上一定懲罰，以阻嚇以身試法的人士[8]。
(3)
除了上述釐訂基本罰款金額的基礎外，裁判官亦應考慮其他加重/減低刑罰的因素，這包括：
-
對環境的影響：包括對附近居民生活的影響；景觀上的障礙；噪音的增加；空氣質素的
下降；道路交通流量的上升；水源、泥土的污染；動植物生態環境的負面影響；
過往相同的紀錄；
過往同一幅土地的相同紀錄；
若裁判官不打算就每日的違反作出罰款，則需考慮違規時間的長短；
事後有否補救措施；
事後有否獲批更改土地用途的臨時許可/許可等。
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CCAB 2011
Sentence (Quantum) – Town Planning
日後罰款金額的釐訂理應更具理性(rational)及邏輯性(logical)[9]。
(4)
各上訴人被控是次違規的情況長達年半(563 天)，實際的日子可能更遠超此數。土地被改作貨櫃
修理/儲存工場，其內更儲存風煤樽等危險物品，各上訴人理必全然知悉 [10]。現今的香港，社會大眾對
城市規劃、環境保育的意識日益加強，法庭亦有責任對純因一已私利公然違反法律的人士頒布更具阻嚇
力的刑罰。就本案情況而言，裁判官就各上訴人所判處的刑罰原則上無犯錯，罰款金額亦絕非過高
[11]。
[English Digest of HCMA 572/2010 above]
HKSAR v TANG KAM TAI & ORS
COURT OF FIRST INSTANCE
HCMA 572/2010
Deputy Judge Andrew Chan
Date of Hearing: 18 November 2010
Date of Judgment: 31 December 2010
Counsel for the Respondent: Hermina Ng PP
Counsel for the Appellant: Charles Chan
Sentence – Failure to comply with Enforcement Notice of the Planning Department – Section 23(6) of the
Town Planning Ordinance (Cap 131) – Whether fines (ranging from $30,000 to $100,000) manifestly
excessive or contrary to principle
Each of the Appellants pleaded guilty at the Magistracy to one charge of “failure to comply with an
enforcement notice issued by the Planning Department”, namely, failing to discontinue the use of a piece of land
for the storage and repair of containers as required by the notice, contrary to s 23(6) of the Town Planning
Ordinance. Eight of the Appellants were each fined $30,000. One was fined $60,000 while the other three were
each fined $100,000. They appealed against sentence.
Held, appeal dismissed:
(1)
In determining the amount of the fines, the magistrate merely took into consideration that all the
Appellants had one similar conviction record (when in fact some of the Appellants had a number of similar
convictions). As the fines were merely 3% to 10% of the maximum penalty and no daily fine was imposed by
the magistrate, the sentences were already very lenient [7].
(2)
This case involved a purely economic crime: the best way to deter land owners from unauthorized use of
land was to deprive them of any financial gain they obtained from changing the land use. In this regard, the
prosecution had the duty to assist the magistrate to impose an appropriate sentence. When dealing with this kind
of cases in the future, the prosecution should provide the magistrate with information regarding the difference in
rent (per month per square feet) between the original and unauthorized land use. It would be best if the
prosecution could obtain information on the rent paid by the tenant in the course of investigation. If not, such
difference in rent could supposedly be obtained from the Rating and Valuation Department. If the Planning
Department had granted permission to people to change the land use, the prosecution could also provide the
magistrate with the data of the charges collected by the Government. The primary consideration for sentencing
in this kind of cases is to deprive the land owner of financial gains from illegal change of land use and to impose
a punitive sentence so as to deter people from committing such offences [8].
(3)
Apart from the above basis of determining the amount of the fines, the magistrate should also take into
account other aggravating/mitigating factors including:
-
environmental impact: including the impact on the lives of nearby residents; obstruction to views;
increase in noise pollution; deterioration in air quality; increase in traffic flow; water and soil
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CCAB 2011
-
Sentence (Quantum) – Town Planning
contamination; adverse effects on animals and plants in the ecosystem;
previous similar record;
previous similar record in relation to the same piece of land;
if the magistrate did not intend to impose a daily fine for the contravention, he should take into
account the duration of breach;
any remedial measures taken;
whether temporary permission/permission to change the land use was subsequently granted, etc.
In the future, the determination of the amount of the fines should be more rational and logical [9].
(4)
The duration of breach by each of the Appellants was as long as one and a half years (563 days). The
actual number of days might have far exceeded that. The Appellants should be fully aware that the land had
been used as container storage and repair depot and dangerous goods such as gas cylinders were stored inside
[10]. In today’s Hong Kong, there is a heightened social awareness and concern about town planning and
environmental protection. The court has a duty to impose a deterrent sentence on those who for their personal
selfish gains blatantly flouted the law. In the circumstances of this case, the sentences imposed on the
Appellants by the magistrate were neither wrong in principle nor the fines excessive [11].
Trafficking in Dangerous Drug
HKSAR v LI OI YEE (李靄儀)
COURT OF APPEAL
CACC 362/2010
Stock VP, Wright & M Poon JJ
Date of Hearing: 2 November 2011
Date of Judgment: 2 November 2011
Counsel for the Respondent: Wayne Walsh DLO
Counsel for the Applicant: Andy H S Hung
Criminal law & procedure – Sentencing – Attempting to traffic in a dangerous drug – Trafficked in
substance thought to be 39.5g ICE – Harm created by advancement of the culture and of the business of
trafficking in dangerous drugs – Substantial degree of criminality by reason of the mens rea – Significant
part of sentencing aim is deterrence - Sentence of 4 years’ imprisonment appropriate
刑事法及訴訟程序－判刑－企圖販運危險藥物－販運誤以為是39.5克冰的物質－助長販毒歪
風及活動所造成的害處－因犯罪意圖而刑責程度嚴重－判刑目的之主要部分是阻嚇作用－判
處4年監禁屬恰當
The Appellant was convicted after trial of a count of attempting to traffic in a dangerous drug and was
sentenced to 4 years’ imprisonment. She was stopped by the police on the street and was found to be carrying a
handbag containing 39.5g of a substance which she believed to be methamphetamine hydrochloride but which,
upon analysis by the Government Chemist, turned out not to be drug at all. The Appellant claimed to have
purchased that substance for $13,600 believing it to be ICE and intended it for her own consumption, which
assertion was disbelieved by the judge.
In sentencing the Appellant, the judge took the view that had the substance in fact been
methamphetamine hydrochloride, the appropriate sentence would have been one in the region of 8 to 8½ years’
imprisonment. The judge opined that the gravamen of the offence was that the Appellant had intended to traffic
in a significant quantity of ICE and that a deterrent sentence was necessary. The Appellant was sentenced to a
term of 4 years’ imprisonment in the end.
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CCAB 2011
Sentence (Quantum) – Trafficking in Dangerous Drug
The Appellant appealed against sentence contending that the judge had failed to (i) have sufficient
regard to the facts that it was impossible for the Appellant to commit the actual trafficking offence so that the
punishment should be more related to the mens rea instead of the act or preparatory work of trafficking and that
since no dangerous drug was found in the substance, the room for potential harm caused to others was far less
than that of other actual trafficking cases; (ii) take into account that had the Appellant been arrested whilst she
was actually selling the substance, she could have been prosecuted for the lesser offence under s.4A of the
Dangerous Drugs Ordinance; and (iii) recognise that had the substance contained but a small quantity of
dangerous drugs, the Appellant would have received a shorter sentence on the basis of that small quantity.
Held, dismissing the appeal:
(1)
The harm at which the attempt offence is directed, where the offender believes, albeit mistakenly, the
substance to be or to contain a dangerous drug, is the harm created by the advancement of the culture and of the
business of trafficking in dangerous drugs. The mens rea in this case is precisely the same as the mens rea had
the substance turned out to be a dangerous drug, and there is, by reason of this mens rea a substantial degree of
criminality: Patel and Varshney (1995) 16 Cr App R (S) 267, 272. Whilst part of the sentence in any dangerous
drugs case is directed at the actual harm caused by the ultimate consumption of the drug, a significant part of the
sentencing aim in dangerous drugs cases is that of deterrence. It is the aim of the courts firmly to dissuade
erstwhile traffickers from engaging in this trade and it sits ill in the mouth of the offender who believes
erroneously that he is trafficking in dangerous drugs to suggest that he should by reason of happenstance be
immune from that deterrent policy [8]. These principles are reflected in a number of English cases: R v Afzal
and Arshad (1992) 13 Cr App R (S) 145, R v Tomasz Szmyt [2010] 1 Cr App R (S) 69 considered [10]-[11].
(2)
In a case such as the present, the court should look at the sentence which otherwise would be imposed,
in accordance with the relevant guideline tariffs, for trafficking in the drugs which the offender believed she
possessed, for her moral culpability remains the same, but the court should at the same time accord a reduction
in recognition of the fact that the actus reus brings with it no harm to an ultimate consumer [12].
(3)
The Appellant’s contention in respect of s 4A ignores s 4(1)(c) of the same ordinance which provides
that it is an offence to ‘do or offer to do an act preparatory to or for the purpose of trafficking in a substance
believed to be a dangerous drug’ and which carries the same penalties as that provided for trafficking in the
actual drug. R v Lee Wing Chun [1982] HKC 653. The conduct of the Appellant clearly fell within the ambit of s
4(1)(c): R v Ye Wing Leung CACC 159 of 1997 [16]-[18].
香港特別行政區 訴 周俊生
高等法院上訴法庭
CACC 135/2011
上訴法庭副庭長楊振權，上訴法庭法官關淑馨，上訴法庭法官朱芬齡
聆訊日期： 2011年11月3日
判案日期： 2011年11月10日
答辯人法律代表： 高級助理刑事檢控專員李運騰
上訴人法律代表： 馬維騉及容海恩
判刑上訴—非法販運
克“冰
冰”毒
毒—以
以自用為求請理由—超過一半為自用
判刑上訴 非法販運7.22克
非法販運
自用為求請理由 超過一半為自用—多次同類犯罪記錄
超過一半為自用 多次同類犯罪記錄—10%
多次同類犯罪記錄
的減刑幅度是否足夠—減刑幅度考慮的因素
減刑幅度是否足夠 減刑幅度考慮的因素
上訴人承認一項「販運危險藥物」罪，一項「管有危險藥物」罪，一項「襲擊執行職責的警務
人員」罪及一項「管有適合於及擬用作吸服危險藥物的器具」罪，總共被判3年10個月的監禁[1]-[3]。
原審法官同意涉及販運罪的7.22克“冰”毒中，超過一半為上訴人自用，因而由5年10個月的量刑
基準給予上訴人7個月刑期折扣（約10%）。又因上訴人認罪，再給予三分之一的扣減。上訴人認為因
自用而給予他的減刑幅度不足，導致該項控罪的3年6個月判刑明顯過重，因而提出上訴。上訴人認為適
當的刑期扣減幅度應約為15%[11]。
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Sentence (Quantum) – Trafficking in Dangerous Drug
裁決，上訴駁回：
裁決
(1)
在販運毒品案件，被告人販運的毒品中，全部或部分作自用是減刑理由(見R v Chan Mung-lung
[1992] 2 HKCLR 127 及 R v Chung Kam Fai [1993] HKC 42等案)[14]。
(2)
販毒者打算將涉案毒品全部或部分作自用時，可導致的減刑幅度應為基本量刑基準的 10%–
25%，幅度按不同案件的情況而定。法庭應考慮涉案毒品的總份量、用作自用部分的比例、毒品的性
質、販毒者販毒的目的是否為了賺錢、販毒行為是否有組織和有計劃、被告人的背景及犯罪記錄等等因
素來決定刑期扣減的幅度。除非原審法官犯了原則性的錯誤，法庭不應干預原審法官因被告人販運的毒
品中部分作自用而給予他的刑期扣減[19]。法庭亦不能忽視上訴人自用部分的毒品亦有可能傳送到他人
手中這潛在危機 [20]。此外，販毒的嚴重性不會因毒販販毒目的是為了賺取金錢來滿足毒癮而減輕(見
HKSAR v Wong Suet Hau & Another [2002] 1 HKLRD 69 案判案書第 80 頁 E 行)[21]。
[English Translation of CACC 135/2011 above]
HKSAR v CHOW CHUN SANG
COURT OF APPEAL
CACC 135/2011
Yeung VP, Kwan & Chu JJA
Date of Hearing: 3 November 2011
Date of Judgment: 10 November 2011
Counsel for the Respondent: Alex Lee SADPP
Counsel for the Appellant: David Ma & Eunice Yung
Appeal against sentence – Unlawful trafficking in 7.22 grammes of “ice” – Pleading self-use as
mitigation – More than half for self-use – Multiple similar convictions – Whether 10% reduction
sufficient – Considerations for range of reductions
The Appellant pleaded guilty to one count of “trafficking in a dangerous drug”, one count of
“possession of a dangerous drug”, one count of “assaulting a police officer in the execution of his duty” and one
count of “possession of equipment fit and intended for the inhalation of a dangerous drug”. He was sentenced to
a total of 3 years and 10 months’ imprisonment [1]-[3].
The trial judge accepted that more than half of the 7.22 grammes of “ice” involved in the trafficking
offence were for the Appellant’s self-use and gave him a discount of 7 months (about 10%) from the starting
point of 5 years and 10 months. A further one-third discount was given to reflect his guilty plea. The Appellant
complained that the discount given for self-use was insufficient, resulting in a manifestly excessive sentence of 3
years and 6 months. He therefore appealed against sentence and argued that the appropriate discount should be
about 15% [11].
Held, appeal dismissed:
(1)
In cases of trafficking, the fact that all or part of the drugs trafficked by the defendant was for personal
consumption is a mitigating factor (see cases such as R v Chan Mung-lung [1992] 2 HKCLR 127 and R v Chung
Kam Fai [1993] HKC 42) [14].
(2)
The range of reductions given to a defendant who intended all or part of the drugs involved for self-use
should be 10% to 25% of the basic starting point, depending on the circumstances of different cases. In deciding
the range of reductions, the court should consider factors such as the total quantity of the drug involved, the
proportion of the drug for self-use, the nature of the drug, whether the trafficker’s purpose in trafficking was for
monetary gain, whether the act of trafficking was organised and planned, and the defendant’s background and
criminal record. Unless the trial judge was wrong in principle, the court should not interfere with the sentence
discount the trial judge had given on the basis that part of drug trafficked by the defendant was for self-use [19].
283
CCAB 2011
Sentence (Quantum) – Trafficking in Dangerous Drug
Nor should the court ignore the latent risk that the portion of the drug to be used by the Appellant for his own
consumption might fall into the hands of others [20]. Besides, the gravity of trafficking would not be mitigated
where the trafficker was trafficking in order to make money to feed his own addiction (see HKSAR v Wong Suet
Hau & Another [2002] 1 HKLRD 69 p 80, line E) [21].
USI
香港特別行政區 訴 葉恆鉅
高等法院上訴法庭
CACC 415/2010
高等法院上訴法庭副庭長楊振權、上訴法庭法官關淑馨及原訟法庭法官林文瀚
聆訊及判案日期：2011 年 8 月 31 日
答辯人法律代表: 高級檢控官吳美華
上訴人法律代表: 馬維騉
判刑上訴許可申請 - 與 16 歲以下女童非法性交罪 - 與 21 歲以下女童肛交罪 - 判刑重要考慮因素
申請人在高等法院承認三項控罪，即一項與16歲以下女童非法性交罪及兩項與21歲以下女童肛
交罪。就與16歲以下女童非法性交罪，原審法官以3年為量刑基準，並因申請人認罪而將刑期扣減三分
一至2年。就兩項與21歲以下女童肛交罪，原審法官以4年為量刑基準，亦因申請人認罪而就每項控罪判
申請人入獄32個月。原審法官下令三項控罪判刑同期執行，故申請人的總刑期為32個月。申請人不服判
刑，提出上訴許可申請。
受害人在案發時剛過 14 歲，是一名離家出走的女童。案發當日早上 5 時，申請人在長沙灣一公
園碰到受害人並和她搭訕。受害人向申請人訛稱 17 歲，並表明自己是離家出走。申請人隨即帶受害人
返回自己的居所，並在房間內和受害人一次性交和兩次肛交。期間，亦有用手指插入受害人的陰部和肛
門。和受害人性交及肛交時，申請人沒有用避孕套，更在她口內射精及要她吞下精液[6]-[8]。
裁決，批准申請人就判刑上訴，並視其申請為正式上訴，上訴得直。總刑期由
32 個月減至 28 個月：
：
裁決
（1） 法庭必需保護未成年女童，避免她們受男子性侵犯。因此性侵犯女童的罪行，都屬嚴重罪行，
一般情況下，理應判即時監禁，而監禁長短，必要視個別案件的情況而定[22]。
（2） 兩名青少年男女，在雙方同意下發生性行為，嚴重性當然較一名年長男子侵犯年輕女子為輕。
因此，罪犯和受害人的年齡差距，必然是判刑的重要考慮因素。除了年齡差距外，雙方人生經驗的差
距，亦會影響罪行的嚴重性。罪犯如已認識受害人多時，及因一時把持不定而犯案，當然會較一名罪犯
在基本不認識受害人而利用受害人無知，怕事來犯案的罪責為輕。申請人雖然只有 21 歲，但較 14 歲的
受害人年長不少，而雙方的人生經歷更有極大的差距[23]-[24]。
（3） 申請人自 16 歲起已多次犯案，並因此而被判入過勞教中心及戒毒所。本案的罪行更是申請人離
開戒毒所兩天後干犯的。申請人的不法行為顯示勞教所提供的短期、尖銳及具震驚性的懲罰仍不足以令
申請人服從紀律﹑遵守法律及以平等合理的方法和他人相處。[25]
（4） 申請人明顯是知悉受害人當時是離家出走少女，面對困境。他是利用受害人的無知及無助將她
視為獵物以滿足自己的獸慾。申請人在公園內搭訕受害人後便立刻帶她返家，並在短時間和她性交一次
及肛交兩次。法庭不接受求情理由指他和受害人是情侶關係，而申請人在戒毒所禁慾多個月，故難以控
制自己的慾望。該些說法絕非減低罪責的理由[26]-[28]。
284
CCAB 2011
Sentence (Quantum) – USI
（5） 雖然本案不涉及金錢交易﹑暴力或嚴重變態虐待行為，但本案不屬同類案件中，嚴重程度較輕
的一宗[29]。
（6） 除了上述的加重罪責因素外，在性行為過程，申請人亦對受害人作出極不負責及具剝削性和羞
辱性的行為，包括不用安全套，不顧受害人的感受，在她口內射精及要她吞下精液等。申請人明知肛交
令受害人感到不適，但仍堅持要她第二次肛交。事件亦令受害人肛門直腸黏膜有裂傷。申請人的行為實
在是令人感到厭惡的[30]-[32]。
（7） 和 21 歲以下女童肛交罪的最高終身監禁刑罰當然只適用於一些等同強姦的罪行，但與未成年少
女肛交和性交，本質上是有分別的。視與未成年少女肛交較性交為嚴重是有其邏輯基礎及合理的。以本
案而言，原審法官就非法性交罪和肛交罪，對申請人採納不同的量刑基準是適當的[33]-[34]。
（8） 考慮過案件的詳情及申請人的背景，法庭認為以申請人的整體罪行而言，4 年的量刑基準及最終
的 32 個月總刑期屬明顯過重，而適當的量刑基準及判刑應分別是 3 年 6 個月及 28 個月。法庭批准申請
人就判刑上訴，並視其申請為正式上訴，判申請人的上訴得直。法庭維持與 16 歲以下女童非法性交罪
的 2 年判刑，但將每項與 21 歲以下女童肛交罪的判刑減為 28 個月。法庭亦下令三項控罪的刑期同期執
行。申請人的總刑期由 32 個月減至 28 個月 [36]-[38]。
[English Translation of CACC 415/2010 above]
HKSAR v IP HANG KUI
COURT OF APPEAL
CACC 415/2010
Yeung VP, Kwan JA, Lam J
Date of Hearing and Judgment: 31 August 2011
Counsel for the Respondent: Memi Ng SPP
Counsel for the Applicant: David Ma
Application for leave to appeal against sentence – Unlawful sexual intercourse with girl under 16 –
Buggery with girl under 21 – Important considerations in sentencing
The Applicant pleaded guilty to three charges in the High Court, i.e. one count of unlawful sexual
intercourse with a girl under 16 and two counts of buggery with a girl under 21. As for the offence of unlawful
sexual intercourse with a girl under 16, the trial judge adopted 3 years as the starting point and imposed 2 years’
imprisonment on the Applicant after giving a discount of one-third for his guilty plea. As for the two counts of
buggery with a girl under 21, the trial judge, likewise on account of his guilty pleas, adopted 4 years as the
starting point and imposed 32 months’ imprisonment on the Applicant for each offence. He ordered all the
sentences to run concurrently, making a total sentence of 32 months’ imprisonment. The Applicant applied for
leave to appeal against sentence.
At the material times, the victim who was just over 14 years old was a runaway girl. At 5 a.m. on the
day of the offence, the Applicant came across the victim at a park in Cheung Sha Wan and chatted with her. The
victim said that she had run away from home but falsely represented to the Applicant that she was 17 years old.
Then, the Applicant took the victim to his residence and had sexual intercourse once and anal sex twice with her
inside a room. During that course, the Applicant inserted his finger into the victim’s vagina and anus. When the
Applicant had sexual intercourse and anal sex with the victim, he did not use a condom. He even ejaculated
inside her mouth and asked her to swallow his semen [6]-[8].
Held, the Applicant’s application for leave to appeal against sentence granted and treated as the appeal proper,
appeal allowed and the overall sentence reduced from 32 months to 28 months:
(1)
The court is obliged to protect underage girls from sexual assault by men. Hence, sexual assault on a
girl is a serious offence. Normally, an immediate custodial sentence should be reasonably expected although the
length of sentence invariably depends on the circumstances of individual cases [22].
285
CCAB 2011
Sentence (Quantum) – USI
(2)
A young man and a young woman who engage in consensual sexual activity is naturally of a lesser
severity than that of a male adult who sexually assaults a young girl. Accordingly, the age difference between
the offender and the victim is definitely an important consideration in sentencing. Apart from age difference,
disparity in life experiences between them will also affect the seriousness of the offence. An offender who has
known the victim for a long time commits the offence due to a momentary lapse of self-control is naturally less
culpable than an offender who is unknown to the victim but taking advantage of her innocence and shyness in
committing the offence. Although the Applicant was only 21 years old, there was a wide gap in age between him
and the 14 year-old victim, and their life experiences were indeed in great disparity [23]-[24].
(3)
The Applicant since 16 years old had committed offences resulting in him having been sentenced to
detention centre and drug addiction treatment centre. The current offences were committed by him only two
days after he had been discharged from the drug addiction treatment centre. As the Applicant broke the law
again, this shows that the short, sharp and shock sentence in the detention centre had not been sufficient to
change the Applicant to become disciplined, law abiding and able to deal with others in a fair and reasonable
manner [25].
(4)
Obviously, the Applicant knew that the victim was a runaway girl in a plight. He had exploited the
victim’s innocence and helplessness, and preyed on her to satisfy his licentious desires. Having chatted with her
in a park, the Applicant immediately took her home and had sexual intercourse once and anal sex twice with her
within a short period. The Court did not accept his mitigation that his relationship with the victim was that of
lovers, and he failed to control his desire after abstinence from sex for several months in the drug addiction
treatment centre. These were absolutely not reasons to mitigate his culpability [26]-[28].
(5)
Although no money transaction, violence or serious sadistic act was involved in this case, it was not at
the lower end of the scale of seriousness for the same kind of offences [29].
(6)
In addition to the above aggravating factors, the Applicant in the course of sexual intercourse acted very
irresponsibly towards the victim in an exploitative and insulting manner, including the failure to use a condom,
no regard to the victim’s feelings by ejaculating insider her mouth and asking her to swallow his semen.
Knowing that having anal sex with the victim for the second time would cause her discomfort, yet the Applicant
still insisted to proceed. As a result, it caused ruptures to her rectum’s mucous membrane. The acts of the
Applicant were really disgusting [30]-[32].
(7)
The maximum penalty of life imprisonment for the offence of buggery with a girl under 21 is, of course,
only applicable to those offences equivalent to rape. However, there is difference in nature between buggery and
sexual intercourse in relation to an underage girl. In relation to an underage girl, buggery is regarded as more
serious than sexual intercourse. This is logically justified and reasonable. As far as the present case is
concerned, it was proper for the trial judge to adopt different starting points for the offences of unlawful sexual
intercourse and buggery [33]-[34].
(8)
Having considered the facts of the case and the background of the Applicant, the Court, with regard to
the offences on the whole, considered that the starting point of 4 years and the ultimate total sentence of 32
months were manifestly excessive. The appropriate starting point and sentence should be 3 years and 6 months
and 28 months respectively. The Applicant’s application for leave to appeal against sentence was granted and
treating it as the appeal proper, the appeal was allowed. The sentence of 2 years’ imprisonment for the offence
of unlawful sexual intercourse with a girl under 16 remained unchanged but the sentence on each count of
buggery with a girl under 21 was reduced to 28 months. All sentences on the three charges were ordered to run
concurrently. Hence, the overall sentence of the Applicant was reduced from 32 months to 28 months [36]-[38].
286
CCAB 2011
Sentence (Quantum) – Vice
Vice
香港特別行政區 訴 譚家俊
高等法院上訴法庭
CACC 406/2010
高等法院上訴法庭法官袁家寧、上訴法庭法官朱芬齡
判案日期： 2011年10月18日
答辯人法律代表： 署理高級檢控官陳冰華
上訴人法律代表： 孫錦熹
刑事判刑─串謀依靠他人賣淫的收入為生
控罪在事實方面有關連─總刑期
刑事判刑 串謀依靠他人賣淫的收入為生─“洗黑錢
串謀依靠他人賣淫的收入為生 洗黑錢”罪
洗黑錢 罪─控罪在事實方面有關連
控罪在事實方面有關連 總刑期
上訴人在區域法院承認兩項控罪，一項是“串謀依靠他人賣淫的收入為生”罪 (下稱 “依靠賣淫”
罪)，另一項是“處理可公訴罪行的得益的財產”罪(下稱 “洗黑錢” 罪)。
就“依靠賣淫”罪，控方指，上訴人牽涉在一個安排女子賣淫的組織。他安排內地女子經其他人
化妝及攝影後，把相片上載到色情網站。嫖客打電話至網站所登的電話號碼時，上訴人會接電話，安排
女子與嫖客在不同酒店會合。事後他會向女子收取費用，轉交給他的僱主，他亦負責保管有關賬目。上
訴人說當時他負責5名女子的賣淫活動。
就“洗黑錢”罪，控方指，上訴人由2004年至2009年的5年期間，經他4個銀行戶口，洗黑錢共
$4,900,000左右。上訴人說這些款項源於上述賣淫活動。
就上訴人干犯的 “依靠賣淫”罪，法官以24個月監禁為量刑基準，因上訴人認罪扣減1/3後，判處
他要受16個月監禁。就 “洗黑錢” 罪，法官以42個月監禁為量刑基準，因上訴人認罪扣減1/3後，判處他
要受28個月監禁。因為兩項控罪在事實方面是有關連的，所以法官考慮到整體判刑的原則後，頒令“洗
黑錢”罪判刑其中的8個月刑期與“依靠賣淫” 罪的刑期同期執行，即20個月分期執行，總刑期為36個月。
上訴人針對刑期提出上訴。
裁決，上訴得直，總刑期減為32個月：
裁決
(1)
上訴法庭參考了一系列的案例後，所得的結論是“依靠賣淫”罪的判刑要視乎多種因素，包括賣
淫活動的規模，活動持續的時間，妓女的人數，她們的來源及/或她們的年齡是否會令到她們容易被人利
用或欺凌，被告人在賣淫活動所擔當的角色，他是否有前科，與及他從賣淫活動個人所獲得的得益。就
本案而言，所牽涉的賣淫活動，規模不小。有關女子是從內地來港的。就上訴人本人而言，他所擔當的
角色不小，明顯屬管理層。他亦承認在他依靠女子賣淫為生有4年之久。他的報酬亦相當可觀，每月可
得$60,000 - $70,000。但亦考慮到本案沒有證據顯示有關妓女是年幼女子，或曾被人剝削或欺凌。綜觀
一切，上訴法庭認為以24個月監禁為量刑基準是明顯過重，應以18個月為量刑基準，上訴人認罪扣減1/3
後，變成12個月[9]-[11]。
(2)
至於“洗黑錢” 罪，上訴法庭參考了一系列的案例後，指出法庭判刑時所需考慮的因素，包括產
生有關款項的罪行，被告人是否知道該罪行的進行，款項的數額，洗黑錢活動持續多久，與及被告人本
人參予活動的程度等。在本案而言，上訴人並不是愚蠢地把戶口借給家人使用，他自己清楚知道洗黑錢
活動的款項來自管理妓女賣淫的活動。有關的款項超過$4,000,000, 洗黑錢活動亦持續了5年之久，而他
本人負責保管賬目，及將款項調動，所以參予活動程度深厚。上訴法庭認為法官以3年半為量刑基準，
並不可以說是明顯過重[13]-[14]。
(3)
就總刑期一事，在本案而言，上訴法庭認為兩項控罪在事實方面是有關連，所以應該有部份刑
期同期執行，認為總刑期應減為32個月。上訴人就第三項控罪的刑期減為12個月，而就第五項控罪的刑
期不改，其中的8個月刑期與第三項控罪的刑期同期執行，即20個月分期執行，總刑期為32個月[15]。
287
CCAB 2011
Sentence (Quantum) – Vice
[English Translation of CACC 406/2010 above]
HKSAR v TAM KA CHUN DANNY
COURT OF APPEAL
CACC 406/2010
Yuen & Chu JJA
Date of Judgment: 18 October 2011
Counsel for the Respondent: Eva Chan Ag SPP
Counsel for the Appellant: Suen Kam Hee
Criminal sentencing – Conspiracy to live on earnings of prostitution of others – “Money laundering”
offence – Offences connected on the facts – Totality of sentence
The Appellant pleaded guilty to two charges in the District Court, one being “conspiracy to live on
earnings of prostitution of others”; the other being “dealing with proceeds known or reasonably believed to
represent proceeds of an indictable offence” (hereinafter referred to as the “money laundering” offence).
In relation to the offence of “conspiracy to live on earnings of prostitution of others”, it was the
prosecution case that the Appellant was involved in an organisation which arranged females for prostitution. He
arranged the photographs of the Mainland females to be uploaded to pornographic websites after they had been
applied make-up and photographed by others. When customers called the phone number posted on the website,
the Appellant would receive the calls and arrange the females to meet the customers in different hotels.
Afterwards he would charge fees from the females and transfer the amounts to his employer. He was also
responsible for keeping the relevant books of accounts. The Appellant said that he was responsible for 5
females’ prostitution activities at the material time.
In relation to the “money laundering” offence, it was the prosecution case that the Appellant laundered
around $4,900,000 through his 4 bank accounts during the 5 years between 2004 and 2009. The Appellant said
that these monies originated from the above prostitution activities.
Regarding the “conspiracy to live on earnings of prostitution” offence, the judge adopted a starting
point of 24 months’ imprisonment. After a one-third reduction of sentence was given due to the Appellant’s plea
of guilty, the judge imposed a 16 months’ imprisonment on him. Regarding the “money laundering” offence, the
judge adopted a starting point of 42 months’ imprisonment. After a one-third reduction of sentence due to the
Appellant’s plea of guilty, the judge imposed a 28 months’ imprisonment on him. Because these two offences
were connected on the facts, after considering the principle of totality, the judge ruled that 8 months of the
“money laundering” offence be served concurrently with that of the “conspiracy to live on earnings of
prostitution” offence. In other words, 20 months would be served consecutively and the overall sentence was 36
months. The Appellant appealed against sentence.
Held, appeal allowed, overall sentence reduced to 32 months’ imprisonment：
(1)
After considering a number of authorities, the Court of Appeal concluded that the sentencing of
“conspiracy to live on earnings of prostitution” offence depends on various factors, including the scale of
prostitution, the period of persistence of such activities, the number of prostitutes, their origins and/or whether
their age makes them vulnerable to exploitation or abuse, the role of the Appellant in the prostitution activities,
whether he has previous records, and the personal profits he derived from such prostitution activities. In the
present case, the scale of prostitution was not small. The females came from the Mainland. As far as the
Appellant is concerned, his role was not small and he obviously belonged to the management level. He also
admitted that he lived on the earnings of prostitution of these females for as long as 4 years. His income was
considerable in the amount of $60,000-$70,000 each month. Nevertheless, consideration was given to the lack
of evidence in the present case showing any of the females being young girls, or that they were exploited or
abused. In all circumstances, the Court of Appeal decided that a starting point of 24 months’ imprisonment was
manifestly excessive. The appropriate starting point should be 18 months’ imprisonment, coming to 12 months
after the one-third discount for the guilty plea [9]-[11].
288
CCAB 2011
Sentence (Quantum) – Vice
(2)
As to the “money laundering” offence, after considering a number of authorities, the Court of Appeal
pointed out the factors to be taken into account in sentencing, including the offence deriving the relevant
proceeds, whether a defendant knows of the taking place of the relevant offence, the amount of the proceeds, the
period of persistence of the money laundering activities, the extent of the defendant’s involvement, etc. In the
present case, it was not the case that the Appellant foolishly lent his account for his family member’s use. He
clearly knew that the proceeds of the money laundering activities originated from the acts of managing
prostitution. The relevant amount exceeded $4,000,000 and the money laundering activities persisted for as long
as 5 years. The Appellant himself was responsible for keeping the accounts and transferring the amounts, so his
extent of involvement was deep. The Court of Appeal decided that the starting point of 3½ years imposed by the
judge could not be said to be manifestly excessive [13]-[14].
(3)
In relation to totality of sentence, in the present case, the Court of Appeal held that the two offences
were connected on the facts; therefore part of the sentence should be carried out concurrently. The overall
sentence should be reduced to 32 months. The sentence for the offence of “conspiracy to live on earnings of
prostitution” was reduced to 12 months, whereas that for the offence of “money laundering” remained
unchanged, 8 months of it to be served concurrently. In other words, 20 months should be served consecutively
and the overall sentence should be 32 months’ imprisonment [15].
289