HKSAR v. BAILEY LEONIZA R. HCMA774/2007

S’s words:-

The Appellant suggested that there was on the evidence a doubt as to whether she was properly warned that she would be prosecuted for careless driving pursuant to section 68 of the Road Traffic Ordinance, Cap. 374. That explains why a proper warning should be given to a potential defendant.

The Appellant and the police officer did have communications but it was not sure whether the Appellant did understand what the police officer was saying to her. Further, there was no written warning of the possibility of a prosecution being given to the Appellant within 14 days from the day of the incident.

Therefore, the Appellant had been prejudiced because it was suggested that she did not make a note of what had happened and she was unable to find any witnesses to testify on her behalf.:-.

It may not be correct to say that in all careless driving cases the police officer should give a written warning of the possibility of a prosecution or otherwise no charge should be laid. However, such a technical defence can be easily avoided by not only verbally informing the driver of the possibility of a prosecution but at the same giving the driver a written warning of the same. Issuing written warning is in fact quite a routine work that should not give the prosecution too much difficulties to overcome. Further, it should be expected that in future police officers would find not only English speaking drivers but Puotonghua Chinese. We could not ensure that all police officers are fluent in English or Putonghua.

--- quote from judgment ---

Date of Judgment : 11 January 2008

10. This is an appeal against the conviction by a Magistrate of the Appellant on a charge of careless driving for which the Appellant was fined $1,600.

11. The sole ground of appeal advanced by Mr Boyton is that the Appellant should not have been convicted as there was on the evidence a doubt as to whether she was properly warned that she would be prosecuted for careless driving pursuant to section 68 of the Road Traffic Ordinance, Cap. 374 (“the Ordinance”)
This was a reference to the Appellant coming out of St. Joseph’s Church onto Garden Road onto the path of the other vehicle. Then the police officer said that she then said something in English which he was not quite sure about. He said that he then told her that he would later prosecute her for careless driving. He said he spoke in very simple English. He was asked what the response of the Appellant was and he said “She said something but I didn’t understand”.

12. Mr Boyton submits that there must be a doubt as regards whether the Appellant in fact understood the warning given to her by the police officer. He relies on the English case of Bentley v. Dickinson [1983] Crim.L.R. 403 where the Divisional Court in England held that the mischief to which section 179(2) of the Road Traffic Act 1972 which is in very similar terms to our section 68, of the Ordinance :
“… the mischief to which section 179(2) was directed was that motorists were entitled to have it brought to their attention at a relatively early stage that there was likely to be a prosecution so that they could recall and if necessary record the facts as they occurred at the time. …”

The court also held that :
“… If there was room for doubt, the court should lean towards protecting the subject rather than dealing with the mischief. …”

13. The Appellant had given evidence that at the scene she only learnt from the police officer that someone had accused her of driving carelessly. She said that she was never told that she might be prosecuted for careless driving and she only became aware of that when she received the summons in January 2007. She then posted a notice which she produced as Exhibit D4, at the entrance of St Joseph’s Church around 7 January 2007 requesting for assistance, namely for any witnesses who witnessed the incident to come forward. And she further said that if she had been informed by the police officer that she might be prosecuted for careless driving she would have returned to St Joseph’s Church that same day to locate any possible witnesses.

14. Given that there was a possibility that the Appellant did not understand what the police officer was saying to her, my view is that in this particular case the police should have sent her a written warning of the possibility of a prosecution, which the police could have done within 14 days from the day of the incident. That would have removed all doubts about whether the Appellant understood what the police officer had said to her at the scene.

15. Mr Boyton submits that perhaps despite her finding, the Magistrate might have had a lurking doubt about whether the Appellant in fact understood what was said to her by the police officer which is why she carried on to make the second finding that even if that were so the Appellant had not been prejudiced.

16. Prejudice comes into play because section 68(2) says that :
“Subsection (1) shall not apply if it appears to the court or magistrate that—
(a) the person prosecuted was not prejudiced in his defence by a failure to comply with that subsection; …”

17. The Magistrate did not give any reasons why she found that the Appellant had not been prejudiced in her defence. With respect, quite clearly, the Appellant had been prejudiced because :
(a) she apparently did not make a note of what had happened to help her to refresh her memory when the trial came along; and
(b) because of the delay, she was unable to find any witnesses to testify on her behalf.

18. I find, despite the very persuasive submission by Mr Liu, that there is a doubt about whether the Appellant understood what the police officer was saying to her at the scene, and I find that the Appellant had been prejudiced in her defence. Accordingly, I allow the appeal and I quash the conviction.

香港特別行政區 v. 藍琼芳 HCMA344/2008

S’s words:-

In order to ensure whether a successful defendant in a criminal case before a magistrate, the issue of “amounts to something less than proof of guilt, even though blameworthy” should be considered.

Now, there are lots of successful defendants in criminal cases still do not choose to ask for costs of the proceedings. They do have their own reasons, but, more important is, whether their legal representatives do have properly advised of their rights to claim for costs beforehand.

The following Chinese authority highlighted some relevant case authorities that could assist us to understand the succesful defendants’ rights for costs.

--- quote from judgment ---

裁判日期：2008年7月22日

1. 上訴人律師的完備上訴理由 ，概括來說，指裁判官質疑第一控方證人的證供，才裁定他不能倚賴所有控方證人的證供，從而判上訴人無罪。在一般情況下，裁判官理應行使酌情權，判予訟費給獲釋的被告，除非有正面的原因存在令致他認為不應頒下訟費令。但裁判官錯誤地裁定上訴人的作為是招致嫌疑，而沒有行使酌情權去接納成功脫罪的上訴人作出的堂費或訟費申請 ，錯誤拒絕頒予訟費令。

2. 一般而言，裁判官就批准或拒絕頒下訟費令的命令，上訴法庭是不會干預的。主審裁判官就決定訟費的事宜上是有廣泛的酌情權，他在庭上直接聽取證供，處於最有優勢的位置來決定什麼因素有助他對訟費作出裁決。除非裁判官明顯地在考慮行使酌情權時越權，否則上訴庭並無干預的基礎或理由。

3. 終審法院常任法官烈顯倫在HKSAR v. Tong Cun Lin [2000] 1 HKLRD 113第 117 頁中指出：
「……如果被告人為某些控罪受審而後來獲判無罪，在正常情況下，他顯然應當獲得補償，由公帑支付他為抗辯該等控罪而招致的訟費。當法官行使酌情權，考慮是否即使有該一般原則，也應判被告人不得獲付全部或部份訟費時，很明顯，法官必須整體審視被告人的行為，但大前提是該等行為須與被告人的控罪有關，這不得局限於某段時間。不過，既然法官是在被告人獲判無罪的情況下行使酌情權——換言之，構成控罪的事實陳述已被陪審團裁定為不足以作為罪證——一般而言，與斟酌事項最有關的行為，必定是被告人在接受調查及審訊時的行為：諸如被告人最初對調查人員有何反應，面對指控時如何應對，其應對與其後的抗辯是否一致。最後還須考慮的是：對被告人不利的理據的強弱，以及被告人在何種情況下獲判無罪。……」

4. 一般來說，假若被告人的行為本身招致嫌疑，或被告人令控方相信控方案情較實際情況有力，或被告人之獲釋乃基於技術上的情況，則被告人不應獲得訟費。

5. 夏正民法官在HKSAR v. Li Siu Tong & Others, HCMA547/2000一案中，詳細分析了何謂行為本身招致嫌疑，他認同如果要拒絕頒下訟費令：
“… there must be such a proximity between the behaviour that is condemned and the alleged criminal conduct that it can reasonably be said not just that the Appellants behaved badly but that their conduct brought suspicion upon themselves in respect of their alleged criminal conduct.”

他又指出：
“… What amounts to ‘relevant’ conduct will differ according to the circumstances of each and every case. While the relevant conduct, generally speaking, will be the conduct of the Appellants during the police investigation and at trial, that does not, in my opinion, prevent the magistrate from considering the Appellants’ actions directly surrounding the alleged criminal conduct.”

6. 賴盤德暫委法官在HKSAR v. Lam Chiu Fong and Ors, HCMA1148/2007一案中，處理訟費上訴時考慮了Qamar Sheraz v. HKSAR, FACC5/2007，他說：
“Quamar Sheraz decides that if a judge on appeal is sure a man committed the crime in question, the man’s acquittal at first instance by a magistrate prevents that finding, being used as a basis to deprive him of his costs as, without a conviction, the presumption of innocence is engaged. Conduct indicating guilt there, that amounts to something less than proof of guilt, even though blameworthy, obviously falls to the same argument.
The conduct identified by the magistrate here as attracting suspicion was either the commission of the crime charged or something falling short of it.
It follows that this appeal must be allowed …”

7. 在本案中，裁判官以上訴人回應證人價格查詢一點，作為構成她自招嫌疑之事實基礎：
「雖然被告人在證供中指出她曾向PW1表示那小販攤檔並不是屬於她的，但無論如何，被告人都回應了PW1有關售價的查詢。本席認為，任何合理的人看到被告人的表現都會認為被告人就算不是東主，都會是售貨員或類似身份的人士。被告人回應來自可能是客人的價格查詢，毫無置疑就是以行為將自己和有關貨品扯上關係。如果被告人所說屬實，她大可以向客人表示東主不在，但會在很短時間就回來，這樣便可以解決了所有問題。再者，被告人又聲稱她是不會代阿梅做買賣的，那為何她不將實情向PW1相告？本席認為，只要被告人沒有回應價錢的查詢，可能就沒有她被拘捕這一回事。結論是被告人在本案確有自招嫌疑的行為，因此本席拒絕了辯方的訟費申請。」

8. 然而，此作為正正就是賴盤德暫委法官所指“amounts to something less than proof of guilt, even though blameworthy”的作為。

9. 本席認為裁判官在本案中錯誤行使酌情權，本席須介入干預，下令上訴得直，頒下上訴及審訊時的訟費令。

SECRETARY FOR JUSTICE v. MAN KWONG CHOI & HO YAN KIU CAAR 8 / 2007 and CAAR 9 / 2007

S’s words:-

This judgment provides the guidelines for sentences in the offence of possession of child pornography. For images with no sexual activities, a defendant may still have the chance not to be imprisoned. However, as soon as sexual activities can be found from child pornography, immediate custodial sentence cannot be avoided.

So, if one wants to browse through websites with child pornography, he takes the risk of committing an offence of possession of child pornography if he downloads the images and keeps the same.

How about if the cache of his computer keeps the image?

--- quote from judgment ---

Date of Handing Down Judgment : 16 July 2008

The Prevention of Child Pornography Ordinance, Cap.579 (“the PCPO”) was enacted to deal with the problems associated with child pornography. We are in these applications for review concerned with the appropriate sentences for the offence of possession of child pornography. Section 3(3) of the PCPO states :

“3. Offences relating to child pornography
(3) Any person who has in his possession any child pornography (unless he is the only person pornographically depicted in the child pornography) commits an offence and is liable —

on conviction on indictment to a fine of $1,000,000 and to imprisonment for 5 years; or

on summary conviction to a fine of $500,000 and to imprisonment for 2 years.”

Guidelines
We have in mind the following guidelines appropriate, after trial, to a first time offender who is in possession of child pornography (involving real children) :

Level 1
The least serious level is Level 1 (“Images depicting erotic posing with no sexual activity”). There, the effect on the children in the depictions might be said to be much less harmful than in the case of Levels 2 to 4, which, it may be assumed, will be substantially more harmful. In the case of possession of Level 1 depictions, it may be that a community service order, probation or fine is appropriate where the number is small (say 20 or less). Where the numbers are large or the depictions are extremely suggestive, terms of imprisonment from 1 month to 6 months will be appropriate.

Level 2
In the case of Level 2 (“sexual activity between children, or solo masturbation by a child”), this is already much more serious than mere posing. Here, depending on the number of depictions, an immediate custodial sentence of up to 9 months will be appropriate. Even the possession of a few depictions at this level will generally attract a custodial sentence.

Level 3
For Level 3 cases (“non penetrative sexual activity between adults and children”), the degree of seriousness is increased even further. Again, depending on the numbers involved, sentences of between 6 and 12 months will be appropriate.

Level 4
We consider Level 4 cases (“penetrative sexual activity between children and adults” and “sadism or bestiality”) as meriting the most serious treatment. Here, at Level 4, the range of custodial sentences should generally be from 12 months (even for a few images) to 36 months.

The four levels of sentence set out in the previous paragraph provide starting points for sentence after trial. As in any other case, there may be mitigating or aggravating factors that will have to be taken into account.

The principal mitigating factor will be a timely plea of guilty but the usual principles of sentencing will otherwise apply.

Aggravating features would include the following :

A previous record involving a similar offence (or offences) against children.

The age of the children depicted. Where the depictions involve particularly young children, this would be an important consideration.

The purpose for which the accused possesses the depictions will also be relevant. Where it is proved that the accused intends to disseminate the images for commercial (or even non commercial) gain, or intends to publish, these will be significant aggravating factors.

As mentioned earlier, the number of images is relevant.

It is important to stress that we are, in the two cases now before us, solely concerned with offences of possession of child pornography. Higher maximum sentences are provided under section 3(1) and (2) of the PCPO where more than mere possession is involved.

HKSAR v. CHOW TIN SHING (周天勝) CACC 85/2007

S’s words:-

We should have heard many cases that defendants were charged of dangerous driving causing death and finally sent to prisons.

For the appeal against conviction for Charge 1 (that suggested that the Applicant endangered the life of his own crew), the conviction was quashed without surprise. In fact, the breach of the International Regulations for Preventing Collisions at Sea did not automatically suggested that the Applicant was endangering the life of his own crew. The Court of Appeal used the words:-

We are not not sure why the judge referred to the prosecution having “proved beyond reasonable doubt the defendant’s conduct in not keeping a proper lookout”.

Then leaving the sentencing for Charge 2.

The Court refused to rely motor vehicles offences to consider the sentencing. In no doubt, we do not have much case authorities as reference for the sentencing of such charges pursuant to Section 72 of the Shipping and Port Control Ordinance. My personal view is that, motor vehicles offences are relevant, but that was not accepted by the Court of Appeal.

Fortunately, the Court of Appeal also agreed that those cases involving high speed chases were distinguished. The Applicant performed no deliberately dangerous maneouvres but a life was lost. That was the reason why the sentence of the Applicant was reduced to 17 months but not any further.

If there was no loss of life but injuries only, would the Applicant be sent to prison for only 12 months or even shorter period? I feel some doubt on whether immediate custodial sentence would be imposed if that was the situation.

--- quote from judgment ---

Date of Judgment : 22 October 2007

On 13 March 2007, the applicant was convicted after trial before Her Honour Judge Chua in the District Court of two offences of endangering the safety of others at sea, contrary to section 72 of the Shipping and Port Control Ordinance, Cap. 313 (“the Ordinance”), being Charges 1 and 2 respectively. In respect of the offence the subject of Charge 1, the applicant was sentenced to six months’ imprisonment and in respect of the offence the subject of Charge 2, to two years’ imprisonment. The sentences were ordered to be served concurrently, resulting in a totality of sentence of two years’ imprisonment.

The applicant has been granted leave to appeal out of time his conviction in respect of the 1st charged offence. He seeks leave also to appeal the sentences imposed for both offences.

Appeal against conviction for Charge 1

In all those circumstances, independently of any breach of the Regulations by the applicant, it is difficult to see how the prosecution on the evidence before the court had proven to the requisite standard that the applicant’s actions in failing to alter course so as to leave the tug to port had created a real risk of danger.

Accordingly, we grant leave to appeal against conviction so far as the 1st charged offence is concerned, treat the hearing of the application as the hearing of the appeal and allow the appeal. The applicant’s conviction of the 1st charged offence is quashed and his sentence in respect of that conviction is set aside.

Appeal against sentence

Mr Ross has provided us with a number of authorities related to sentences imposed in respect of motor vehicle offences, but we do not think those of direct application to a sentence imposed pursuant to section 72 of the Ordinance. As a matter of general principle, any sentence imposed pursuant to a section 72 offence will primarily depend upon the degree of danger created by the acts of the offender in the circumstances as they existed at the time of the offence. Those circumstances will vary enormously. The weather, degree of visibility, sea state, speed of vessels, manouvres performed and other factors pertaining to those circumstances will often be relevant.

In cases involving high speed chases by police launches of sampans carrying illegal immigrants in Hong Kong waters, sentences of 2½ years and three years’ imprisonment after trial have been approved by this court : see A.G. v. Chan Siu Yun (1995) 2 HKCLR 223 and R. v. Sze Yui, unreported, CACC 348 of 1995. In the latter case, a subsequent similar offence by the same applicant led to a starting point at the maximum of four years’ imprisonment being endorsed : see HKSAR v. Sze Yu,unreported, CACC 143 of 2003. It should be noted in these cases, however, that the acts of endangerment were deliberately reckless and of great risk to the safety of the passengers in the sampans and to a lesser extent to the crew of the pursuing police launches.

We do not think the same considerations apply in the circumstances of the present case. The applicant performed no deliberately dangerous maneouvres. He proceeded at the barge’s maximum speed, but at a speed well within the limit for the fairway. It is true he had elected to proceed on the wrong side of the fairway and in the vicinity of possible inshore traffic in circumstances where he knew his forward vision was reduced and that the applicant’s act brought about a person’s death. But it was not a situation where the applicant in a calculated way risked the lives and safety of others such as was so in the above cited cases. Indeed, immediately after the collision the applicant stopped and contacted the authorities in a successful attempt to bring assistance to the scene. Marine police came and rescued the injured son of the deceased. This is to be distinguished from the callous indifference to life displayed by the defendants in the cited cases. The fact that in those cases there was no loss of life is a matter of pure chance.

Given the maximum term for the sentence of four years’ imprisonment, the contrast between the applicant’s conduct and the conduct of those involved in intentionally risking the lives of others, should have been given greater recognition in the sentence imposed in this case.

For these reasons, we consider the sentence imposed to have been manifestly excessive. In our view in the circumstances of this offence a sentence of 18 months’ imprisonment after trial was called for. There was some mitigation available for the applicant given his clear record and his immediate calling of assistance to the scene, and that sentence should be discounted to 17 months’ imprisonment. We do not regard the applicant’s relative inexperience as a master of such vessels to be a mitigating factor in the circumstances of this case.

HKSAR v. LIU QIANQING HCMA 103/2007

S’s words:-

This is a classical case of bogus marriage that the Defendant appealed against sentence (after the guilty plea).

The Defendant was sent to prison for 21 months of which 12 months in relation to making false representation whilst 9 months for conspiracy to defraud.

9 months for conspiracy to defraud is not excessive at all.

12 months for making false representation is also reasonable.

Attention has to be paid to the fact that the Court is entitled to impose consecutive sentence (but not concurrent) for making false representations and conspiracy to defraud.

Thus, before she pleaded guilty in the lower Court below, is it possible for the Defendant’s counsel asking for a plea bargain? Unfortunately, I do not want to speculate further on this point.

Not only Shatin’s Principal Magistrate is well aware of bogus marriage. Most of the magistrates in Shatin are well familiar with the same as well.

To conclude, don’t ever try to enter into any bogus marriage, or otherwise, one would fact the risks of entering into the jail at last.

--- quote from judgment ---

Date of Judgment: 16 August 2007

The Appellant was originally 1 of 2 defendants who appeared before the Principal Magistrate in Shatin Court. The Appellant was charged with 6 counts of making a false representation to an Immigration Officer under Part II of the Immigration Ordinance, Cap. 115 and a joint charge of conspiracy to defraud which is the 7^th charge.

The other defendant in the case is the person with whom she entered into a bogus marriage. The Appellant pleaded guilty and after mitigation she was sentenced to a total term of 21 months imprisonment. She appeals against that sentence.

First of all, I do not agree that is not a serious offence. It is extremely serious because, not only had the Appellant come to Hong Kong previously on the strength of a bogus marriage, she had been in and out of Hong Kong for a total of 6 times. Whether she intended to settle in Hong Kong eventually is not the point. The point is that she would be able to eventually have that option. The bogus marriage was a fraud perpetrated on the government of Hong Kong. It is extremely serious and as the learned Magistrate had noted its prevalence in Hong Kong. The courts have tried to deter this kind of offence with strict sentences so as to deter others from acting in this way.

These cases are hard to detect and the offender should be punished accordingly. I do not consider the sentence to be manifestly excessive or indeed excessive at all. The learned Magistrate had imposed correct sentences and so I consider that the sentences are not wrong in principle nor manifestly excessive and so the appeal is dismissed.

HKSAR v. ALLIANCE ENGINEERING CO. LTD. HCMA1154/2006

S’s words:-
No case authorities have been referred to in this judgment, not surprising.
What’s surprising is that the trial took for 4 days.
Also, the challenge against the Magistrate for raising questions with bias at trial has been considered, but failed to convince the Court again.
I’m not trying to say the Judge is wrong (of which I am of the view a correct decision has been reached).
On the contrary, I have heard that some Magistrates are considered whether to ask legal representatives to bear the costs if a trial runs too lengthy without purpose. I am not yet sure how often that happens. But, would it be extended to appeal cases in the future? No one knows ...

--- quote from judgment ---

Date of Judgment : 6 July 2007

This is an appeal against a conviction after trial on an information that alleged that the Appellant limited company was the contractor responsible for a construction site at a shop on the 1st Floor of Hutchison House, in Harcourt Road, in Central, saying that they failed to take all reasonable steps to ensure that a workman who was not wearing a suitable safety helmet did not remain on the site, contrary to Regulations 48(1)(b), 68(1)(a) and 68(2)(b) of the Construction Site Safety Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59. The issue was thus, really, a very simple one: had all reasonable steps been taken to ensure that a workman did not remain on the site without wearing a suitable safety helmet.

The trial lasted some four days. I note that with dismay.

The final matter that was argued in support of this appeal against conviction is set out at ground 2 of the perfected grounds of appeal and it reads as follows: “The learned Magistrate wrongly entered the arena of trial and created an impression of bias by asking an inordinate number of questions, by suggesting cases which had never been part of the prosecution cases and by advancing arguments which had never been relied upon by the prosecution both in the trial and in the cost application.”

That is a serious allegation to make against a Magistrate, especially a Magistrate who enjoys the reputation this one did and who has long sat on the Bench. I want to say straightaway that there is a full transcript, we have been through it, and there is absolutely nothing in the allegation that her conduct created an impression of bias. She did ask questions and it is as well she did because, in fact, the questions she asked were some of the sensible ones that went to the material that helped both sides in the case. What happened was, at the end of a witness’s evidence, she very politely would say, “Do you mind if I clarify some matters?” and then she asked, in a perfectly neutral way, a series of questions of the witnesses designed to elicit information that she had judged was important that she should know in order to decide the case fairly.

This is the second case I have done this week where an identical allegation has been made against a Magistrate because they asked questions. In my judgment, members of the profession, taking these points, need to think very carefully about what they are doing. It is not our law, especially in these modern days of case management, that the Bench cannot ask questions. Obviously, it cannot involve itself in the trial in the way that demonstrates bias but it certainly can ask factual questions of which it wants to know the answer.

Let me turn to the question of costs. This case took four days. One of the days resulted from having to recall a witness or the like, which was not the fault of the Appellant, so I will take it as a three-day hearing. The Magistrate prompted the prosecution below to apply for some costs. I am not surprised. I would have done exactly the same thing.

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.

香港特別行政區 v. 伍浩賢HCMA1176/2007

S’s words:-

The Magistrate in this case raised too much questions. However, it was decided that such was not the sole ground for appeal. In fact, two old case authorities were referred to explain when such would be sufficient. Some relevant parts of those two case authorities were translated into Chinese as well. In no doubt, that would assist in future solicitors for appellants to assess whether such a ground can be sufficient to assist their clients.

In any event, I have to say the Magistrate should not take the role of a prosecutor. On the contrary, he should be allowed to act as the role for the defendants in particular when such defendants are without legal representatives.

--- quote from judgment ---

裁決日期：2007年7月11日

上訴人被控一項猥褻侵犯，違反香港法例第200 章《刑事罪行條例》第122(1) 條，被判120 小時社會服務今，他現不服定罪，提出上訴。

上訴理由現歸納重組如下：

(1) 在上訴人作供時，裁判官多次積極界入干預盤問，問題帶壓逼性和引導性，令一名聆聽案件及知情的旁觀者會認為他擔當了主控官的角色。而及後原審裁判官利用上訴人在盤問下的答案與他的會面紀錄的內容不符之處，以上訴人證供前後矛盾為由，而拒納其證供，難免給予他人裁判官對上訴人的盤問，純粹為拒納上訴人證供製造彈藥之印象，令至上訴人不能獲得公平的審訊；及

(2) 基於上述，定罪不安全及不穩妥。

根據女皇訴楊茂林，CACC550/1989一案，該案指出法官干預的數量並非影響審訊公平的主要決定性因素，另外需要考慮的因素包括法官的態度和干預的性質，及該些干預對辯方抗辯所產生的影響。

上訴法庭在該案有以下的評論 ：

「本庭認為有關案例確立了下列五項建議。該等建議對本庭要考慮的問題適用：

(1) 法官發問問題的數目本身並非決定性之因素；

(2) 必須考慮問題之性質及數量及二者互動下所引起之後果；

(3) 無需確立法官事實上有偏見，只要法官之行為令一名對事件有認知的旁觀者認為法官已取代了主控官之職能，便已足夠；

(4) 如果原審時法官是單獨行事而非聯同陪審員審理事件，上訴法庭應考慮以下問題：究竟一名聆聽案件的人士會否合理地得出一個結論，就是法官提出之問題顯示他已經加入了『格鬥場』，而並非保持客觀之態度；

(5) 上訴法庭最終要考慮的問題是究竟原審法官的行為會否令一名聆聽案件及知情之旁觀者認定被告人沒有獲得一個公平之審訊。

本庭亦需強調在考慮原審法官之詢問是否恰當時，須謹記由始至終，原審法官有責任確保審訊是正當地及有條理地進行。」

有關之原則在香港特別行政區訴曾偉民，CACC190/2001中有詳細之闡釋，上訴庭楊振權法官指 ：

「一般情況下及當雙方都有律師代表時，雙方律師都會在証人之主問，盤問及覆問過程，將一切有關証供從証人口中套取，令法官有充份証據就有爭議之事實問題，作出裁定。

但很多時事與願違，由於對事件之觀感不同，或基於審訊過程時之策略運用，或証人回應問題之態度，或律師能力等等因素，法官未必能在雙方律師對証人之主問盤問及覆問過程中，獲得應有之資料，而令法官要向証人親自發問，以求對事件有更清晰的瞭解後才作出裁定。

只要在詢問証人時，法官能採取不偏不倚之態度，不會令一名合情合理之旁觀者，在知情的情況下，覺得法官有偏幫一方之嫌，上述做法不但無可厚非，更是合理及必須的。雖然另一較合適的做法是透過雙方律師向証人發問以求獲得所需資料。」

綜合以上兩件案件，因應情況所需，法官在聆訊過程中是可以親自提問證人包括被告人的。在此層面上，上訴法庭須考慮該些來自裁判官提問之性質、數量及兩者互動所引起的後果，以決定原審法官是否加入了「格鬥場」，審訊是否有欠公允。

審訊並無不公之處，上訴理據不足，駁回，維持原判。

HKSAR v. CHO HOI KIT HCMA 490/2007

S’s words:
Many magistrates always regard themselves that they are duty bound to call for DATC reports before sentencing. They may be right to do so. However, sometimes, with the assistance of such DATC reports, they may have failed to notice that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. Cho Hoi Kit’s case with the assistance of AG v. To Ka-shing’s case can in suitable case scenarios assist some defendants’ legal representatives to ask for what such defendants are looking for – imprisonment.

--- quote from judgment ---

Date of Judgment : 10 July 2007

The Appellant appeals against the sentence of detention in a Drug Addiction Treatment Centre (“DATC”) passed on him by T.S. Jenkins, Esq. in the Magistrate’s Court at Shatin on two charges under the Dangerous Drugs Ordinance, Cap. 134, to which he had pleaded guilty, namely possession of a dangerous drug, contrary to section 8(1)(a) and (2), and possession of apparatus fit and intended for the inhalation of dangerous drugs, contrary to sections 36(1) and (2). He appeals on the ground that he was serving a prison sentence at the time and that it is wrong in principle to order detention in a DATC of a person currently serving a term of imprisonment. The prosecution (through Mr Cheung Wai-sun who is highly experienced and always helpful) concedes that that is wrong in principle. On the decided cases, principally that of AG v To Ka-shing [1987] HKLR 69 decided by the Court of Appeal, I consider the prosecution’s concession to be correct. Accordingly, I set aside the order for detention in a DATC and will, as the Appellant asks, impose a sentence of imprisonment instead.

香港特別行政區 v. 王文亮CACC345/2005

S’s words:-
Many defendants intend to use incompetence of their legal representatives as the grounds of appeal. Whether the appeal Court would accept such grounds have been explained in the case authorities of Chong Ching Yuen v. HKSAR, (2004) 7 HKCFAR 128 and HKSAR v. Pang Oi Kwok, CACC463/2003. The following judgment is one of the Chinese judgments that have considered this issue, although the appellant’ application (and in particular his allegation of incompetence) was dismissed.
Don’t merely try to blame your legal representatives for incompetence when you are convicted.

--- quote from the judgment ---

判案理由書日期：2007年7月11日

申請人亦指在審訊時代表他的大律師處事不當，有失職之嫌。

雖然申請人及植大律師就事實上有分歧，但考慮了下列就「律師失職」的一般性原則後，本庭認為不需聽取證供，就事實作裁定：

(1) 辯護律師有權在不論他當事人的意願為何的情況下，依據他認為是對他當事人最有利的方式處理案件。

(2) 單指辯護律師所作的決定是沒有其當事人的指示、或與其當事人的指示相違背、又或涉及錯誤判斷或疏忽是不足以構成推翻定罪的理由。

(3) 就辯護律師犯錯此論點，舉證責任在上訴人，準則是「衡量何者可能性較高」。

(4) 即使在事後認為某決定或策略是不智或錯誤的，仍不足以推翻定罪，必須顯示是嚴重不稱職才可。

(5) 一般而言，辯護律師採取的策略性決定，若在事後回想會認為應另作其他決策，是不足夠作為上訴理由的，另若是其他純粹是錯誤判斷的情況亦不構成上訴理由。

(6) 案件關鍵的是申請人是否未獲得公平審訊。

(參照香港終審庭案例Chong Ching Yuen v. HKSAR, (2004) 7 HKCFAR 128，及香港上訴庭案例HKSAR v. Pang Oi Kwok, CACC463/2003。)

CACC / 2007

S’s words:-

This case attracts my attention due to the fact that the judgment has no case number and the name of the defendant was concealed. Such information is covered for the protection of the defendant.

For paid police informer, one should not expect that he/she would get more than 1/3 reduction for his/her guilty plea.

---

CACC / 2007

Date of Reasons for Judgment: 5 July 2007

The defendant was convicted on his own plea of, inter alia, one count of trafficking in a dangerous drug. He was given the usual one-third reduction for his plea.

Whilst on bail, he was a paid police informer. His effort led to one conviction of bookmaking. The bookmaker was sentenced to a short term of imprisonment.

However, what the Court of Final Appeal said about paid informer is relevant:

(at page 273 F to H, para. 20)

“… Secondly, the defendant may have received payment or other consideration for his assistance. It has to be recognised that payments to police informers are a fact of life and the use of informers is necessary in society’s fight against crime. Although assistance for which payment or other consideration was given may be recognised as a mitigating factor, the court should carefully consider all the circumstances in deciding whether the assistance in the case in question deserves any reduction and if so, the amount of reduction. The more substantial the payment or consideration, the less sympathetic should the court be in this regard.”

Here, the information related to bookmaking on soccer matches carried out in a bar, and the amount was determined in accordance with a guideline formula. In response to our inquiry we were told that the police regard the payments under the guideline formula to be adequate. That being the case, we see no reason why any reduction of sentence should be given as a further reward for such information.

HKSAR v. Choi Wai kwong (蔡偉光) CACC 137/2006

S’s word:-
Just two points I would like to highlight here, they are Paragraph 36 and Chapter 46 of the Police Force Procedures Manual. Although the Appellant failed to succeed in his appeal by relying on the non-compliance of the same, it can amount to be good attacks on the prosecution’s ID parade evidence for Defendants’ counsels/solicitors that they could adopt in future.

---

Date of Judgment: 3 July 2007

Police Force Procedures Manual states:
36. Sometimes a witness may request to see the members of the parade either wearing hats or with headwear removed. There is no objection to such a request. However, if a witness wishes to hear any parade member speak, adopt a specified posture or see the member move, the witness will be first asked whether or not he can identify any person(s) on parade on the basis of the appearance only. The reply will be recorded. When the request is to hear members of the parade speak, the witness should be reminded that the participants on the parade were chosen on the basis of physical appearance only. Members of the parade may then be asked to comply with the witness’ request. Full details of the incident, including the stages at which any identification is made, will be recorded.”

Chapter 46 of the Police Force Procedures Manual provides that the officer in charge of a case may be present at the parade but should not take part in the proceedings. Furthermore, it is specifically stated in the Identification Parade Book: “Do not ask the OC case to call in the witness.”

CHIU WING NAM, DICK v. HKSAR FACC 10/2006

S’s words:-
Section 47 of the the Dangerous Drugs Ordinance, Cap. 134 states, inter alia, any person who is proved to have had in his physical possession shall, until the contrary is proved, be presumed to have had such drug in his possession.

The onus of proof remains on the prosecution (not against Basic Law and the Bill of Rights) and that was why the Court in Hung’s case decided that there was no reverse onus but only an evidential onus which would do no more than require that there be evidence which raised the issue.

A “standard direction” was given that placed the burden of proof on a balance of probabilities on the appellant. That explains why the appeal was allowed.

Is there still any other criminal offence in Hong Kong having such similar presumption of knowledge section?

---

Handing Down of Reasons: 3 July 2007

At the conclusion of the hearing, [the Honourable Court] allowed the appeal, quashed the conviction, ordered a retrial and remanded the appellant in custody pending his retrial.

The Defendant was convicted of trafficking in a dangerous drug.

He had been arrested on a staircase in a building in Yuen Long and was found to be carrying 705.90 grammes of a mixture containing 295.42 grammes of heroin hydrochloride some of which was in a shoulder bag and some concealed in his underpants. He maintained to the police, and at trial, that he thought that he was carrying counterfeit mobile telephone batteries which he had agreed to bring into Hong Kong from Shenzhen for a reward of $1,000 dollars.

On 19 August 2004 an application was made to the Court of Appeal for a certificate on a point of law of great and general importance namely that s.47 was inconsistent with the provisions of the Basic Law. The contention was that “On the basis that the standard of proof required before the presumptions provided for in [section 47]… are rebutted requires proof on the balance of probabilities, in relation to a person charged with trafficking in a dangerous drug contrary to section 4 of the Dangerous Drugs Ordinance, is the required standard of proof inconsistent with the rights of such a person in the Basic Law and elsewhere to be presumed innocent, to equality and to a fair trial?”. This point had not been raised at the trial or before the Court of Appeal. On 22 September 2004 to Court of Appeal refused to certify.

On 14 October 2004 an application was made to the Court of Final Appeal seeking leave to appeal on the point of law set out above and seeking an extension of time as the application was by then 4 months and 10 days out of time. By the time of this application the point of law had already been raised in an appeal to the Court of Appeal in HKSAR v. Hung Chan Wa and Atsushi Asano (“Hung’s case”). This Court then successively adjourned this application to await the outcome of the appeal in Hung’s case. Judgment was given on the point of law issue in Hung’s case by the Court of Appeal on 23 June 2005 [2005] 3 HKLRD 291. The matter was then appealed to this Court which gave judgment on 31 August 2006 (2006) 9 HKCFAR 614.

The Court in Hung’s case was called upon to decide whether s.47(1) and (2) reversed the onus of proof so as to impose a persuasive (legal) burden on an accused or whether they imposed only an evidential onus. If the former was so it was argued that this would derogate from the presumption of innocence and the right to a fair trial which are guaranteed by the Basic Law and the Hong Kong Bill of Rights. If the latter was so no reverse onus would be placed upon the accused but only an evidential onus which would do no more than require that there be evidence which raised the issue. The onus of proof beyond reasonable doubt would remain squarely on the prosecution and there would then be no infringement of the Basic Law and the Bill of Rights.

Having canvassed the arguments for each side and referred to the majority decision in R. v. Lambert [2002] 2 A.C. 545 Sir Anthony Mason was satisfied “that the persuasive burdens imposed by s.47(1) and (2) are disproportionate and that in each subsection, an evidential onus would be a sufficient means of achieving the legitimate objective.” It was accordingly held that the Court of Appeal had been right to apply a remedial interpretation to s.47(1) and (2) by treating the burdens of proof as creating an evidential onus only.

In the present case the appellant did place evidence before the trial court, both from himself and from his witness, which, if believed, could be taken to support his defence and the judge did, more than once, clearly direct the jury that the onus of proving guilt beyond reasonable doubt rested on the prosecution. It is submitted, however, that the judge did also, on a number of occasions, tell the jury that, because of s.47, there was a persuasive onus resting upon the appellant and that, given the decision in Hung’s case, a substantial and grave injustice has been done to the appellant.

Particular reliance is placed upon the passage where the judge said “So you have to look at the evidence, both in the case for the prosecution and in all that has come from the defence, and decide whether it is more likely than not that he was unaware of the nature of the drugs.” Reliance on the appellant’s behalf might equally well have been placed upon the passage which immediately preceded that set out above which reads “If he is proved or presumed to have those drugs in his possession, until the contrary is proved, he is presumed to know what they are, to know they are drugs. Therefore given the evidence which is not in dispute, and given this presumption, unless it is proved to the contrary, the accused had possession and knew what he had.” (emphasis supplied) Further the judge, in later passages, more than once clearly placed a persuasive burden on the appellant. It must in fairness be said that the judge, when so doing, was following the view, which was then universally held by prosecutors, by defence counsel and by the courts, that s.47 imposed a persuasive burden on a defendant which he had to discharge on the balance of probabilities.

The respondent conceded that the summing-up was, prior to the decision in Hung’s case, a “standard direction” which placed the burden of proof on a balance of probabilities on the appellant. Given the uncertainty that must exist as to the extent to which the jury’s decision was affected by that direction he felt unable to submit that this was an appropriate case for the application of the proviso.

The appellant did, in the circumstances, suffer a substantial and grave injustice. The appeal must be allowed and the conviction quashed.

HKSAR v. SIU KAM YUNG (蕭金容) (D1) CACC512/2006

S’s words:-
What a pity. A case that has failed to convince the Court to regard the circumstances of the applicant and her late daughter amounted to such an exceptional humanitarian ground so as to warrant a reduction in the applicant’s sentence. If I were the one who imposed sentence, would I form a different view?

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Date of Judgment : 29 June 2007

The 65-year old applicant was, on 24 October 2006, convicted on her own plea in the District Court by Deputy Judge Casewell of a single offence of conspiracy to steal (Charge 1) and seven theft offences (Charges 3–6, 13–15).

She was sentenced to 10 months’ imprisonment in respect of each of the 1st charged offence of conspiracy and the 3rd charged offence of theft, and to 6 months’ imprisonment for each of the remaining theft offences contained in Charges 4–6 and 13–15.

The judge ordered that the sentences be served partly concurrently so as to arrive at a total sentence of 32 months’ imprisonment.

The applicant had five children. Her youngest daughter sadly died from a long-standing illness on 1 December 2006, some 39 days after the applicant commenced serving her present sentences. She was 40 years old. Immediately following the death of her daughter, the applicant, who had previously suffered from bouts of depression, experienced those symptoms again and was initially treated at the Tuen Mun Mental Health Centre on 2 December 2006 where she was diagnosed as suffering a moderate episode of Recurrent Depressive Disorder.

That diagnosis was confirmed upon subsequent examinations of the applicant at Castle Peak Hospital, though the seriousness of this current episode of her illness was subsequently described as “mild to severe”. The prognosis for the applicant’s illness was stated in a report of Dr Robyn Mei Yee Ho of Castle Peak Hospital dated 11 March 2007 as being “fair”. The applicant requires continual psychiatric treatment at the present time.

Whilst [the Court had] every sympathy for the applicant, [the Court noted] that her daughter’s illness, Systemic Lupus Erythematosus, predated the present offence and she had in fact been receiving treatment for it since 1995. Her condition had deteriorated by September 2002 to the extent that she was receiving intensive care at Queen Elizabeth Hospital

The present offences were committed by the applicant between May 2003 and May 2006. They were committed, it is fair to say, whilst the applicant was well aware of the state of her daughter’s illness.

[The Court did] not think in those circumstances the death of the applicant’s daughter amounts to such an exceptional humanitarian ground so as to warrant a reduction in the applicant’s sentence. Nor [did the Court] think that the current episode of the applicant’s depressive disorder brought on by the death of her daughter amounts to such a ground. That illness is currently being treated whilst the applicant is in custody and is apparently being managed with some success. It has not been thought necessary to transfer her to Siu Lam Psychiatric Centre.

... the applications were dismissed.