香港特別行政區 v. 黃鑾堅HCMA664/2007

S’s words:-

When I was reading the first paragraph of this judgment, I formed a bias view against the Appellant. However, his appeal was allowed. The Appellant had relied on “exceptional hardship” to convince the Court. I believe the Judge in this case had paid some sympathy to the Appellant, and in particular, the factor of his mother. In other words, we cannot say that the Magistrate gave a wrong decision.

--- quote from judgment ---

裁決日期 ： 2007年8月15日

上訴人於2005 年2 月6 日至2007 年1 月26 日期間因違例駕駛被記滿15 分。裁判官應運輸署的申請，按香港法例第 375 章《道路交通(違例駕駛記分)條例》第 8 條，下令取消上訴人的駕駛資格，為期6 個月。上訴人現就該項命令提出不服判處的上訴。

上訴人再次因記滿15 分而被停牌，除非裁判官或法庭認為有額外的情況，否則必須按照法例規定取消駕駛資格6 個月。上訴人所倚賴的就是「極度困苦」(exceptional hardship)的情況。

「極度困苦」並非指極端程度的困苦，而是指有異於一般或常軌的困苦(參閱香港特別行政區訴江德安 [1999] 1 HKC 399及HKSAR v. Chan Po Wah, Richard Oliver, HCMA193/2000)。

但本席認為上訴人母親的情況則不同。以他母親的情況而言，若上訴人能在短時間內回家作安撫，小則可避免濫用救護車服務，大則可避免其母自殺枉死。上訴人此一特別家庭情況是有異於一般或常軌的因素，構成「極度困苦」。

本席必須明言，上訴人母親的情況並非給予上訴人一「免死金牌」，以後不論在任何情況下也不會被停牌。若證據顯示上訴人明知故犯，不理母親此一特殊情況而繼續違規，法庭將不會再考慮此「極度困苦」理由。

HKSAR v. CHAN CHUN MAN CACC 57/2007

S’s words:-

Stanley C K Siu won a case through the instructions of Legal Aid Department.
The guidelines of trafficking had again been considered.
The Appellant got an imprisonment of 66 months (reduced from 76 months).

Combined Approach is applicable in this case. However, the District Court Judge adopted an excessive starting point for the sentencing.

--- quote from judgment ---

宣判日期：2007 年 8 月 2 日

上訴申請人陳俊文（以下稱“上訴人”）於2007年2月2日在高等法院原訟法庭潘敏琦暫委法官席前承認一項販運危險藥物罪，被判入獄76個月。

法官判刑時正確地援引香港特別行政區 訴 葉偉賢[2004] 3 HKC 367一案，即如果案件涉及販運多過一種毒品，一般來說“combined approach”（即以組合量刑方法）處理是適合的。這量刑方法是用毒性最嚴重的毒品作為量刑基準，然後再把其他同時搜出的毒品適當地放在考慮之列。法官判刑時說本案主要的毒品是冰毒，而就該冰毒法官判上訴人監禁8年半，再因其他毒品故把刑期調高至9年半，經上訴人認罪扣減三份一後，判刑76個月。

代表上訴人的蕭朝堅大律師陳詞說，法官就販運17.77克冰毒所採納的8年半起點明顯過重，因為案例顯示販運冰毒10克至70克刑期應為7年至10年，既然本案的冰毒為17.77克，法官是應該採納一個較接近7年的量刑基準。

本庭接納蕭大律師的陳詞。本庭認為考慮到本案冰毒的重量，適合的刑期為7年3個月，但鑑於其餘毒品，法官把刑期調高一年是適合的。

基於以上理由，本庭給予上訴人許可上訴，視本申請為正式上訴，並裁定上訴得直，刑期基準應為8年3個月（即99個月），上訴人認罪扣減三份一，則刑期改為66個月。

HKSAR v. CATACUTAN, PRESLYN-SAGA HCMA 31/2007

S’s words:-

A simple case of theft with domestic helper in breach of trust for stealing the properties of her employer. No one would pay attention to this case if the employer was not a famous entertainer Mr. Jacky Cheung.
Although the stolen items were not of any substantial value, the breach of trust element would justify an immediate custodial sentence against a first offender, for example 3 months’ imprisonment in this case. In no doubt, my view is that the original 6 months imprisonment was quite excessive.

--- quote from judgment ---

The Appellant is a woman of previous good character in her early 30s. She was convicted after trial before Winston Leung, Esq. in the Magistrate’s Court at Eastern on two charges of theft. The Magistrate sentenced her to 6 months’ imprisonment by way of concurrent terms of that length on each charge. She now appeals against conviction and sentence.

At the time of the offences of which she was convicted, the Appellant worked as a domestic helper at the home of a well-known entertainer, Mr Cheung Hok-yau. The offences were charged as having been committed at the premises where the Appellant worked. Charge 1 is of stealing a personal letter addressed to Mr Cheung and therefore his property. Charge 2 is of stealing three photographs which were Mr Cheung’s property. The charges did not state the value of that letter or those photographs. But the Magistrate was of the view that they could be of high commercial value given what he called Mr Cheung’s “celebrity status”.

I find no basis on which to disturb either of these convictions, and the appeal against conviction is dismissed.

So I turn to the appeal against sentence. The Magistrate was right to bear in mind that theft by a domestic helper from an employer at his home involves a betrayal of trust.

What does trouble me, however, are the Magistrate’s statements that the Appellant “had all the trappings of a spy in Mr Cheung’s household”; that her conduct is “all the more vicious in that she had the intention of selling the privacy of her employer for money”; and that for the exploitation of an employer’s “celebrity status” the “deterrent must be harsher”.

As it seems to me, the detriment to the employer and the gain to the domestic helper in a case like this might both be considerably less than when the theft is of, for example, a large sum of cash stolen from an employer of relatively modest means.

Depriving someone of timely receipt of a letter can cause them considerable loss and inconvenience. But there is no evidence as to what harm arose out of the theft of the letter to Mr Cheung in the present case. All the items stolen could have some commercial value arising out of Mr Cheung’s position as a well-known entertainer. But there is no evidence as to the value or range of value of any of the items concerned.

This case cannot be regarded as trivial. Even so, I am left with the impression that the Magistrate formed a considerably exaggerated view of the Appellant’s role and the harm she caused. It is impossible to say what lesser sentence he would have passed if he had not, in his anxiety to do the right thing, fallen into that error. Doing the best I can in all the circumstances, I allow the appeal against sentence so as to cut each concurrent term by half, so that the Appellant’s total sentence is reduced from 6 months’ imprisonment to 3 months’ imprisonment.

香港特別行政區 v. AENGYONG, SOMCHAI HCMA 1194/2006

S’s words:-

It is too embarrassing for the Counsel for the Appellant (if he was the same Counsel in Shatin Magistracy on behalf of the Appellant) to attend High Court on behalf of the Appellant in this case.
The incompetence of a defence counsel/solicitor is a good ground of appeal (but very embarrassing in fact). That probably relates to the issue of justice.
Thus, if a defence counsel/solicitor adopted a tactics not to raise questions in certain area, that would not be a ground of appeal unless one can suggest that such also relates to the incompetence of a defence counsel/solicitor.

--- quote from judgment ---

上訴人於裁判法院經審訊後，被裁定一項違反逗留條件罪罪名成立，現上訴人不服定罪，提出上訴。而在上訴聆訊當日，本席已判上訴人上訴得直及案件需發還裁判法院重審。

代表上訴人的梁大律師提出數點上訴理由，但本席認爲只有一點是有理據的。梁大律師陳詞說，原審時在控方舉證完畢後，辯方大律師曾向裁判法官申請重召控方證人作進一步盤問，指進一步盤問與上訴人如何替其他顧客清理桌子這案中爭議點相關。

原審裁判法官不批准重召控方證人作進一步盤問，卻沒有説明理由，這便引出秉行公正未能有目共睹的這番陳詞。

梁大律師陳詞說，他很想控方證人可被重召作進一步盤問，最重要的原因是上訴人被捕後，控方證人曾各自在自己的記事冊裏記下當晚事發經過。他看過有關記事冊，發覺内容一模一樣。

很明顯，控方第一和第二證人的證供是否可信可靠是案中的爭議點。如果記事冊内容真的一模一樣，很明顯她們應該就有關事宜接受盤問，而既然辯方說上訴人是被警員誣陷的，這個説不定對辯方會有幫助。

這是一宗簡單的案件，而從謄本清楚可見，梁大律師在處理這宗案件方面上準備不足。如果辯方大律師妥為準備的話，他定必明白控方證人是否可信在案中至爲重要，而他因此應就有關記事冊内容及她們證供矛盾的地方盤問她們。很可惜當時他沒有這樣做，而上訴人的確因爲代表大律師原審時準備不足而得不到公平審訊。

因此，在這種情況下，縱使本席極不情願，也不得不判上訴得直。但本席必須強調，在許多案件裏，大律師爲了戰略或策略上的理由，蓄意不就案中某些方面作出盤問，在這個情況下，被定罪的上訴人是不能以此作爲上訴理由的。很不幸，本案純粹因爲大律師不稱職才弄至這個不幸的境地。

HKSAR v. CHAN KIN KWOK & POON CHI YUNG HCMA235/2007

S’s words:

For this case, the reason why the appeal against conviction being dismissed is not so interesting.

For act of foolish, the Court would be free to impose a more lenient sentence.

Without threat or oppression, 6 months’ imprisonment as starting point is appropriate.

With aggravating fact being a police officer, a higher starting point of 8 months (9 months originally but 1 month was discounted) is appropriate.

In other words, if element of threat or oppression is present, 12 months’ imprisonment starting point should be expected.

--- quote from judgment ---

Both appellants were convicted after trial at Shatin Magistracy of separate offences of professing to be a member of a triad society, contrary to section 20(2) of the Societies Ordinance, Cap. 151. Each was sentenced to 12 months’ imprisonment. The 1st appellant appeals both his conviction and sentence. The 2nd appellant appeals his sentence only. ... and the 1st appellant’s appeal against conviction is dismissed.

Both appellants appeal their sentence of 12 months’ imprisonment as being manifestly excessive. I agree. That is a sentence commensurate with the claim being made in circumstances of threat or oppression. Here the circumstances of both claims were relatively more benign. The claims were made by both the 1st and the 2nd appellants in a social setting amongst other persons who were apparently either themselves triads or associates of triads.

The claims were made not to threaten or coerce but to identify the purported status of the claimant. Both the 1st and the 2nd appellants, it is apparent, made their claims during casual and even friendly conversation with persons they no doubt regarded as associates or at least as like minded individuals.

A claim of triad membership can involve various and sometimes subtle degrees of culpability. For that reason it has long been recognised there are no “tariffs” involved in sentencing. Culpability can range, at one end of the scale from the foolish, for example, a plainly unthreatening claim of membership made on the spur of the moment during an argument : see HKSAR v. Khan Umer, HCMA932/2001, to the terrifying where, for example, an individual may be forced to give up his property or livelihood in response to a threat accompanying the claim to membership : see HKSAR v. Hung Shing Chung & Anor, HCMA790/2005. There are a multitude of circumstances where claims may be made falling between those extremes.

In my view an appropriate starting point of sentence for the 1st appellant would have been six months’ imprisonment. The aggravating factor of the 1st appellant’s membership of the Hong Kong Police Force enhances the starting point of sentence to nine months’ imprisonment. I appreciate the 1st appellant has lost a 21-year pension as a result of this offence and that, together with his years of service in the police force as a person of apparent unblemished record, allows him a one month discount from the starting point. Accordingly the sentence of 12 months’ imprisonment imposed by the magistrate is set aside and substituted with a sentence of eight months’ imprisonment.

I take into account the 2nd appellant has recently suffered from bowel cancer and that it is at risk of recurring. But I do not regard the past illness of the appellant to be a material mitigating factor. He is currently clear of cancer. There is no other mitigation. Accordingly the magistrate’s sentence of 12 months’ imprisonment is set aside and substituted with a sentence of six months’ imprisonment.

NG TIM YIP KEVIN v. CHAN HO KIN (formerly trading as KENNY’S ENGINEERING COMPANY) HCPI 948/2005

S’s words:-

Another plaintiff has failed to establish a claim against his former employer. One of the defence of the Defendant was that the Plainitiff was not his employee. That “standard” and “usual” defence was not accepted by the Court, not surprisingly.

However, if the Defendant did agree the Plaintiff an employee at the very first beginning, the Defendant would have his insurers (and the solicitors of the insurers) to assist his case. Thus, is it always preferable to suggest a plainitiff not his/her employee? It is too difficult to set up a formula, and also, in many occasions the defendant’s insurers would draw their own conclusions leaving the disappointing employer to consider arbitration.

Never mind. The Honourable Court in this action did conclude that the works assigned to the Plaintiff was a simple task and the accident was caused due to the fact that the Plaintiff (and his colleague) failed to follow the instructions of the Defendant. Therefore, the Plaintiff’s claim was dismissed.

--- quote from judgment ---

It is the plaintiff’s case that he started working for the defendant in about September 2002 as an apprentice in repair and maintenance of water plumbing and electrical work. The plaintiff was only 17 at the time.

On the day of the accident, the plaintiff, still an apprentice, was assigned by the defendant to dismantle drainage pipes at the Site. That work of dismantling was carried out by the plaintiff working together with another apprentice of the defendant by the name of Ah Cheong.

At about 5.30 p.m. when the two of them had dismantled a section of the drainage pipe which weighed about 100 lbs, and both of them were carrying the dismantled pipe, one at each end, the colleague of the plaintiff slipped letting fall his end of the dismantled pipe. As a result, and because the plaintiff could not get away in time, the plaintiff’s right hand was crushed by the dismantled pipe thereby causing very serious injuries to the plaintiff’s right hand and fingers.

Counsel for the plaintiff, in his opening, based the negligence of the defendant to be as follows :

(a) insufficient manpower allocated by the defendant to carry the heavy dismantled pipe;
(b) failure of the defendant to be present and to properly supervise the work of two inexperienced apprentice;
(c) failure to give proper training and instructions to the plaintiff and his colleague;
(d) failure to provide a proper platform for the work of dismantling; and
(e) failure to provide the proper tools or equipment to properly transport the dismantled pipe.

In so far as the working relationship between the plaintiff and the defendant goes, I have no difficulty accepting the plaintiff’s evidence that he was the employee of the defendant, even taking into account the terms of the employment contract between them.

From the findings above, there can be no doubt but that the plaintiff was an employee of the defendant and therefore at the time of the accident, the defendant was under the duty to the plaintiff to act as an employer.

Given the findings above, there was no good reason for the plaintiff to have ignored the instructions of the defendant to cut the pipe into smaller pieces or sections for dismantling, I find this accident to have come about because of the failure of the plaintiff to follow the instructions that he was given by the defendant.

The work involved in this case was not work which involved any great complexity. It has never been challenged by the plaintiff that the defendant had given them full instructions as to how to cut and dismantle the water pipe.

For the reasons given, I do not find any negligence on the part of the defendant. The accident came about only because of the plaintiff’s failure to follow the instructions given to him to cut the pipe into manageable sections.

Accordingly, the plaintiff’s claim is dismissed.