LEUNG WAI KEUNG v. CHOI YEE MAY, THE PERSONAL REPRESENTATIVE OF CHOI KWOK PING, DECEASED trading as CHOICE OPTICAL CENTRE HCPI 917 / 2005

S’s words:-

The Plaintiff failed his claim on the issue of quantum with the issue of liability not in dispute. The employees’ compensation award was about HK$1.5 million. Such a huge amount for ECC compensation so received by a plainitff do make me feel surprising. If we understand about the formula for ECC claims well, it is too difficult to get an ECC award for such a huge amount bearing in mind in particular the plaintiff was very much over 50 years old at the time of the accident. Thus, one should have expected that the ECC award (which I believe the same was settled without a trial) did have at least partially taken into account of the common law claim (which later became the subject matter of this action).

I have no idea how the ECC award was so resolved but one should be careful as to how to proceed with a common law claim incidental to the same accident. If I were given the opportunity to handle such a case, Counsel’s advice to give a more precise estimate of the quantum was highly preferred even at pre-action stage. Certainly, only the handling solicitor/counsel would be in the best position to make comments or better estimate to the quantum of a claim.

Last to say, it is quite unusual for a defendant choosing to defend an action without any offer or payment into Court with the issue of liability being entered. If such settlement proposals was/were given to the plaintiff, the plaintiff might be regarded as having a hopeless case even before the assessment hearing. In any event, the case was just decided, it is not known yet whether the plaintiff would choose to appeal against the decision.

--- quote from judgment ---

Date of Judgment : 31 October 2008

1. By the Writ of Summons filed on 30 September 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of employment arising out of negligence and breach of contract of employment and statutory duty of the Defendant, its servant or agents at Shop G33, Ground Floor, Empire Centre Shopping Arcade, Tsimshatsui East, Kowloon, Hong Kong (“the Shop”) on 19 May 2003.

2. Interlocutory judgment on liability was obtained on 10 May 2006 with damages to be assessed.

3. The Plaintiff was born on 30 September 1949. He was almost 54 at the time of the accident. He is 59 at the time of this assessment.

87. Credit must be given to the sum of $1.5 million received by the Plaintiff in the Employees Compensation Claim. The award is less than the compensation received by the Plaintiff under the Employee Compensation Claim.

(i) Costs for the hearing on 6 March 2008
89. This assessment was first listed before me on 6 March 2008. The Plaintiff, then represented by Mr. T. Wong of Counsel instructed by Messrs. Yip, Tse and Tang, made an application for adjournment on the ground that the Plaintiff had a hoarse voice and was unable to give audible evidence. Mr. Sakhrani opposed the application on the ground that the Plaintiff’s complaint was not a genuine one. There was no medical evidence before me to support or contradict the Plaintiff’s complaint. I granted the application and with costs reserved. I also observed that it was very likely that I would order costs against the Plaintiff. Yet, should the Plaintiff be in the position to produce medical evidence to support his complaint was a genuine one, the position would be different.

90. Up till now, there is no evidence to support the complaint of the Plaintiff on 6 March 2008. The Plaintiff sought the adjournment and should bear the costs. Although there is no need for me to make any order in the light of the costs order made hereinbelow, ...

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.

Who can be LEGAL EXECUTIVES in future?

The Law Society of Hong Kong has recently issued a set of benchmarks for legal executive courses that entitle their graduates to describe themselves as "Legal Executive" in law firms ("Benchmarks"). The Benchmarks will apply to courses commencing from the academic year 2008/09.

The following courses commencing from the academic year 2008/09 have met the new Benchmarks:-

1. Advanced Diploma in Legal Studies (Professional Stream) from the School of Professional and Continuing Education of the University of Hong Kong;

2. Higher Diploma in Legal and Administrative Studies from the Hong Kong Institute of Vocational Education (Tuen Mun); and

3. Professional Diploma in Legal Executive Studies from the School of Continuing and Professional Studies, the Chinese University of Hong Kong and the English Institute of Legal Executives.
   

There are further new admission requirements for such Legal Executives Courses.

The purpose of making this new Benchmarks is good. However, it is still far away from improving the qualities of those existing Legal Executives and those intended to be Legal Executives.

Besides, apart from the title "Legal Executive", the works to be assigned to Legal Executives or Litigation Clerks/Conveyancing Clerks are not very much different. To be frank to say, only a very small portion of Legal Executives would be entrusted to attend 3-minutes hearings as an advocate on behalf of their employers.