CCAB 2011 Sentence (Quantum) – Dangerous Drugs

127

Sentence (Quantum) 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 刑刑 事 罪 判 刑刑 事 罪 判 刑刑 事 罪 判 刑 －－－－ 販 運 危 險 藥 物販 運 危 險 藥 物販 運 危 險 藥 物販 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 素加 刑 因 素加 刑 因 素加 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 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 刑刑 事 罪 判 刑刑 事 罪 判 刑刑 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 重在 所 有 危 險 藥 物 相 關 罪 行 中 以 製 造 危 險 藥 物 為 最 嚴 重在 所 有 危 險 藥 物 相 關 罪 行 中 以 製 造 危 險 藥 物 為 最 嚴 重在 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 與製 造 危 險 藥 物 與製 造 危 險 藥 物 與製 造 危 險 藥 物 與 作 出 準作 出 準作 出 準作 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.

CCAB 2011 Sentence (Quantum) – Dangerous Drugs

128

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]. 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

CCAB 2011 Sentence (Quantum) – Dangerous Drugs

129

刑事罪判刑刑事罪判刑刑事罪判刑刑事罪判刑 －－－－ 販運危險藥物販運危險藥物販運危險藥物販運危險藥物 －－－－ 12.8512 .8512 .8512 .85 克克克克 ““““ 冰冰冰冰 ”””” －－－－ 被告人將毒品從香港出口往澳門被告人將毒品從香港出口往澳門被告人將毒品從香港出口往澳門被告人將毒品從香港出口往澳門 －－－－ 若毒品是被若毒品是被若毒品是被若毒品是被

告 人 擬 供 自 用告 人 擬 供 自 用告 人 擬 供 自 用告 人 擬 供 自 用 ，，，， 則 以 管 有 毒 品 供 自 用 為 基 礎則 以 管 有 毒 品 供 自 用 為 基 礎則 以 管 有 毒 品 供 自 用 為 基 礎則 以 管 有 毒 品 供 自 用 為 基 礎 定 出定 出定 出定 出 刑 罰 後 再 以 被 告 人 出 口 毒品為理由加刑是錯刑 罰 後 再 以 被 告 人 出 口 毒品為理由加刑是錯刑 罰 後 再 以 被 告 人 出 口 毒品為理由加刑是錯刑 罰 後 再 以 被 告 人 出 口 毒品為理由加刑是錯

誤的誤的誤的誤的

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]. 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 刑事罪判刑刑事罪判刑刑事罪判刑刑事罪判刑 －－－－ 管有危險藥物管有危險藥物管有危險藥物管有危險藥物 －－－－ 潛在風險判刑原則是否違憲潛在風險判刑原則是否違憲潛在風險判刑原則是否違憲潛在風險判刑原則是否違憲

CCAB 2011 Sentence (Quantum) – Dangerous Drugs

130

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 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 Sheung-sum [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].

CCAB 2011 Sentence (Quantum) – Dangerous Drugs

131

(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].

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 刑刑 事 罪 判 刑刑 事 罪 判 刑刑 事 罪 判 刑 －－－－ 在 藥 物 影 響 下 駕 駛 汽 車在 藥 物 影 響 下 駕 駛 汽 車在 藥 物 影 響 下 駕 駛 汽 車在 藥 物 影 響 下 駕 駛 汽 車 －－－－ 兩 次 吸 服 危 險 藥 物兩 次 吸 服 危 險 藥 物兩 次 吸 服 危 險 藥 物兩 次 吸 服 危 險 藥 物 －－－－ 被 告 人 是 的 士 司 機被 告 人 是 的 士 司 機被 告 人 是 的 士 司 機被 告 人 是 的 士 司 機 －－－－ 在 開 始 駕 駛在 開 始 駕 駛在 開 始 駕 駛在 開 始 駕 駛

前 服 用 氯 胺 酮前 服 用 氯 胺 酮前 服 用 氯 胺 酮前 服 用 氯 胺 酮 －－－－ 被 告 人 在 第 一 次 的 保 釋 期 間 犯 第 二 次被 告 人 在 第 一 次 的 保 釋 期 間 犯 第 二 次被 告 人 在 第 一 次 的 保 釋 期 間 犯 第 二 次被 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 公被 告 人 的 行 為 顯 示 蓄 意 並 公 然 罔 顧 公被 告 人 的 行 為 顯 示 蓄 意 並 公 然 罔 顧 公被 告 人 的 行 為 顯 示 蓄 意 並 公 然 罔 顧 公

眾 安 全眾 安 全眾 安 全眾 安 全 －－－－ 藥 物 駕 駛 的 問 題 愈 趨 普 遍藥 物 駕 駛 的 問 題 愈 趨 普 遍藥 物 駕 駛 的 問 題 愈 趨 普 遍藥 物 駕 駛 的 問 題 愈 趨 普 遍 －－－－ 總 共 監 禁總 共 監 禁總 共 監 禁總 共 監 禁 1 81 81 81 8 個 月 及 取 消 駕 駛 資 格個 月 及 取 消 駕 駛 資 格個 月 及 取 消 駕 駛 資 格個 月 及 取 消 駕 駛 資 格 2222 年 是 否 明 顯 不 足年 是 否 明 顯 不 足年 是 否 明 顯 不 足年 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.

CCAB 2011 Sentence (Quantum) – Driving under Influence of Drugs

132

(5) 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 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], (6) 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], (7) 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]. (8) 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 – Non-custodial 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

CCAB 2011 Sentence (Quantum) – Failure to Provide Breath Specimen

133

刑 事 罪 判刑 事 罪 判刑 事 罪 判刑 事 罪 判 刑刑刑刑 ———— 沒 有 提 供 呼 氣 樣 本沒 有 提 供 呼 氣 樣 本沒 有 提 供 呼 氣 樣 本沒 有 提 供 呼 氣 樣 本 （（（（ 香 港 法 例 第香 港 法 例 第香 港 法 例 第香 港 法 例 第 3 7 43 7 43 7 43 7 4 章章章章 《《《《 道 路 交 通 條 例道 路 交 通 條 例道 路 交 通 條 例道 路 交 通 條 例 》》》》 第第第第 3 9 B ( 2 )3 9 B ( 2 )3 9 B ( 2 )3 9 B ( 2 ) 及及及及 ( 6 )( 6 )( 6 )( 6 ) 條條條條 ）））） ————

罰 款罰 款罰 款罰 款 5 , 0 0 05 , 0 0 05 , 0 0 05 , 0 0 0 元元元元 、、、、 取 消 駕 駛 資 格取 消 駕 駛 資 格取 消 駕 駛 資 格取 消 駕 駛 資 格 1 21 21 21 2 個 月 及 修 習 駕 駛 改 進 課 程 的 判 刑 是 否 明 顯 不 足 及個 月 及 修 習 駕 駛 改 進 課 程 的 判 刑 是 否 明 顯 不 足 及個 月 及 修 習 駕 駛 改 進 課 程 的 判 刑 是 否 明 顯 不 足 及個 月 及 修 習 駕 駛 改 進 課 程 的 判 刑 是 否 明 顯 不 足 及 //// 或 原 則 上 錯或 原 則 上 錯或 原 則 上 錯或 原 則 上 錯

誤誤誤誤 ———— 如 無 人 受 傷 亦 無 證 據 顯 示 因 神 智 不 清 而 嚴 重 損 害 能 力如 無 人 受 傷 亦 無 證 據 顯 示 因 神 智 不 清 而 嚴 重 損 害 能 力如 無 人 受 傷 亦 無 證 據 顯 示 因 神 智 不 清 而 嚴 重 損 害 能 力如 無 人 受 傷 亦 無 證 據 顯 示 因 神 智 不 清 而 嚴 重 損 害 能 力 ，，，， 則則則則 初 犯 者 通 常 被 判 處初 犯 者 通 常 被 判 處初 犯 者 通 常 被 判 處初 犯 者 通 常 被 判 處 非 監 禁 刑非 監 禁 刑非 監 禁 刑非 監 禁 刑

罰罰罰罰 ———— 如 有 證 據 顯 示 神 智 不 清 引 致 嚴 重 能 力 受 損如 有 證 據 顯 示 神 智 不 清 引 致 嚴 重 能 力 受 損如 有 證 據 顯 示 神 智 不 清 引 致 嚴 重 能 力 受 損如 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 的則 監 禁 刑 罰 屬 可 容 許 的則 監 禁 刑 罰 屬 可 容 許 的則 監 禁 刑 罰 屬 可 容 許 的 範 疇 之 內範 疇 之 內範 疇 之 內範 疇 之 內

刑 事 罪 判刑 事 罪 判刑 事 罪 判刑 事 罪 判 刑刑刑刑 ———— 無 人 因 財 富 或 關 係 可 獲 得 優 待無 人 因 財 富 或 關 係 可 獲 得 優 待無 人 因 財 富 或 關 係 可 獲 得 優 待無 人 因 財 富 或 關 係 可 獲 得 優 待 ———— 不 會不 會不 會不 會 純 粹 為 確 保 免純 粹 為 確 保 免純 粹 為 確 保 免純 粹 為 確 保 免 被 指 責 優 待 來 自 有 特 權 背 景被 指 責 優 待 來 自 有 特 權 背 景被 指 責 優 待 來 自 有 特 權 背 景被 指 責 優 待 來 自 有 特 權 背 景

的 被 告 人 而 對 該 人 施 加 額 外的 被 告 人 而 對 該 人 施 加 額 外的 被 告 人 而 對 該 人 施 加 額 外的 被 告 人 而 對 該 人 施 加 額 外 懲 罰懲 罰懲 罰懲 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

CCAB 2011 Sentence (Quantum) – Failure to Provide Breath Specimen

134

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].

(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

CCAB 2011 Sentence (Quantum) – False Imprisonment

135

刑事罪判刑刑事罪判刑刑事罪判刑刑事罪判刑 －－－－ 非法禁錮非法禁錮非法禁錮非法禁錮 －－－－ 傷人傷人傷人傷人 －－－－ 在寓所禁錮前女友在寓所禁錮前女友在寓所禁錮前女友在寓所禁錮前女友 9999 小時並以小時並以小時並以小時並以刀傷其頸部及下巴刀傷其頸部及下巴刀傷其頸部及下巴刀傷其頸部及下巴 －－－－ 加重刑罰加重刑罰加重刑罰加重刑罰

因素因素因素因素 －－－－ 屢犯者屢犯者屢犯者屢犯者 －－－－ 對受害人有不良心理影響對受害人有不良心理影響對受害人有不良心理影響對受害人有不良心理影響 －－－－ 求情求情求情求情 前的恰當刑罰應是前的恰當刑罰應是前的恰當刑罰應是前的恰當刑罰應是 4½4½4½4½年監禁年監禁年監禁年監禁

判 刑判 刑判 刑判 刑 －－－－ 矯 作 地 分 開 案 中 兩 項 罪 行矯 作 地 分 開 案 中 兩 項 罪 行矯 作 地 分 開 案 中 兩 項 罪 行矯 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

本案判刑法官考慮本案判刑法官考慮本案判刑法官考慮本案判刑法官考慮

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

CCAB 2011 Sentence (Quantum) – False Imprisonment

136

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]. (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].

Immigration HKSAR v ZHONG MING JING ( 鍾明青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 罪刑 事 罪刑 事 罪刑 事 罪 判 刑判 刑判 刑判 刑 －－－－ 協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程 －－－－ 在在在在 海 上 危 及 他 人 的 安 全海 上 危 及 他 人 的 安 全海 上 危 及 他 人 的 安 全海 上 危 及 他 人 的 安 全 －－－－ 身 為 掌 管 在 航身 為 掌 管 在 航身 為 掌 管 在 航身 為 掌 管 在 航

舢 舨 的 人舢 舨 的 人舢 舨 的 人舢 舨 的 人 ，，，， 沒 有 按 水 警 小 艇 展 示 燈 號 的 要 求 停 船沒 有 按 水 警 小 艇 展 示 燈 號 的 要 求 停 船沒 有 按 水 警 小 艇 展 示 燈 號 的 要 求 停 船沒 有 按 水 警 小 艇 展 示 燈 號 的 要 求 停 船 －－－－ 申 請 人 是 載 有申 請 人 是 載 有申 請 人 是 載 有申 請 人 是 載 有 8888 名 未 獲 授 權 進 境 者 的 機 動名 未 獲 授 權 進 境 者 的 機 動名 未 獲 授 權 進 境 者 的 機 動名 未 獲 授 權 進 境 者 的 機 動

舢 舨 的舢 舨 的舢 舨 的舢 舨 的 船 長船 長船 長船 長 －－－－ 舢 舨 沒 有 裝 設 滅 火 器 具 或 救 生 裝 置舢 舨 沒 有 裝 設 滅 火 器 具 或 救 生 裝 置舢 舨 沒 有 裝 設 滅 火 器 具 或 救 生 裝 置舢 舨 沒 有 裝 設 滅 火 器 具 或 救 生 裝 置 －－－－ 被 水 警 小 艇 追 逐 時被 水 警 小 艇 追 逐 時被 水 警 小 艇 追 逐 時被 水 警 小 艇 追 逐 時 ，，，， 申 請 人 將 舢 舨 駛 入 水申 請 人 將 舢 舨 駛 入 水申 請 人 將 舢 舨 駛 入 水申 請 人 將 舢 舨 駛 入 水

警 小 艇 的 航 道警 小 艇 的 航 道警 小 艇 的 航 道警 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. Held, leave granted and appeal allowed:

CCAB 2011 Sentence (Quantum) – Immigration

137

(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]. 香港特別行政區香港特別行政區香港特別行政區香港特別行政區 訴訴訴訴 阮成坤阮成坤阮成坤阮成坤 高等法院原訟法庭 HCMA 959/2010 原訟法庭法官潘敏琦 聆訊及判案日期： 2011年4月14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 事 罪 判 刑刑 事 罪 判 刑刑 事 罪 判 刑 －－－－ 刑 期 同 期刑 期 同 期刑 期 同 期刑 期 同 期 / 分 期 執 行分 期 執 行分 期 執 行分 期 執 行 －－－－ 在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港 罪罪罪罪 ( 《《《《 入 境 條入 境 條入 境 條入 境 條

例例例例 》》》》 第第第第 38(1)(b)條條條條 ) 及 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪及 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪及 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪及 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 例入 境 條 例入 境 條 例入 境 條 例 》》》》

第第第第 42(2)(c)( i i )及及及及42(4) 條條條條 ) 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 42(2)(c)( i i )及42(4) 條，分別被判監禁18個月及10 個月，弟二項判刑當中8 個月分期

執行，即總刑期為26 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。

裁決裁決裁決裁決，上訴得直，總刑期減為21 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 935/2004後的大勢所趨，亦比較合理 [13]。 (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 [14]。

CCAB 2011 Sentence (Quantum) – Immigration

138

(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21 個月 [15]。 [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].

CCAB 2011 Sentence (Quantum) – Indecent Assault

139

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 刑刑 事 罪 判 刑刑 事 罪 判 刑刑 事 罪 判 刑 －－－－ 猥 褻 侵 犯猥 褻 侵 犯猥 褻 侵 犯猥 褻 侵 犯 －－－－ 觸 摸 投 訴 人 的 臀 部觸 摸 投 訴 人 的 臀 部觸 摸 投 訴 人 的 臀 部觸 摸 投 訴 人 的 臀 部 －－－－ 即 使 是 嬉 戲 式 觸 摸 未 必 絶 不 令 人 高 度 反 感即 使 是 嬉 戲 式 觸 摸 未 必 絶 不 令 人 高 度 反 感即 使 是 嬉 戲 式 觸 摸 未 必 絶 不 令 人 高 度 反 感即 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].

Money Laundering 律政司司長律政司司長律政司司長律政司司長 訴訴訴訴 雲國強雲國強雲國強雲國強 上訴法庭 CAAR 13/2010 上訴法庭法官張澤祐、楊振權及袁家寧 聆訊日期： 2011 年5月13日 判決日期： 2011 年5月13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 刑期覆核刑期覆核刑期覆核刑期覆核—“ 洗黑錢罪洗黑錢罪洗黑錢罪洗黑錢罪 ”— 加重罪責因素加重罪責因素加重罪責因素加重罪責因素

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 21 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 14 個月 [8] 。

CCAB 2011 Sentence (Quantum) – Money Laundering

140

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 1,400 多萬元；及（三） 答辯人有直接參與和 “ 黑錢 ” 有關的罪行

[11]。 裁決裁決裁決裁決，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 Javid Kamran CACC 400/2004 (unreported)、香港特別行政區訴 Xu Xia Li 及另一人 [2004] 4 HKC 16 等案） [12]。 (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 [13]。 (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 [14]。 (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

15萬元。以 “ 洗黑錢 ” 罪行而言，本案並非是十分嚴重的一宗 [16]。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1,400萬元，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 [17]。 (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]。 [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:

CCAB 2011 Sentence (Quantum) – Money Laundering

141

(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 ill-gotten 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]. 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 刑事罪判刑刑事罪判刑刑事罪判刑刑事罪判刑 ———— 在兩年間清洗在兩年間清洗在兩年間清洗在兩年間清洗 300300300300 萬元的信用證欺詐罪行得益萬元的信用證欺詐罪行得益萬元的信用證欺詐罪行得益萬元的信用證欺詐罪行得益 ———— 年老的被告人年老的被告人年老的被告人年老的被告人 ———— 參與程度有限參與程度有限參與程度有限參與程度有限 ————

審訊後被判監禁審訊後被判監禁審訊後被判監禁審訊後被判監禁 12121212 個月並非過重個月並非過重個月並非過重個月並非過重

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”).

CCAB 2011 Sentence (Quantum) – Money Laundering

142

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 cheque-book 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 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].

CCAB 2011 Sentence (Quantum) – Murder

143

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 罪刑 事 罪刑 事 罪刑 事 罪 判 刑判 刑判 刑判 刑 －－－－ 謀 殺謀 殺謀 殺謀 殺 －－－－ 被 告 人 在 集 體 打 鬥 中 殺 死 受 害 人被 告 人 在 集 體 打 鬥 中 殺 死 受 害 人被 告 人 在 集 體 打 鬥 中 殺 死 受 害 人被 告 人 在 集 體 打 鬥 中 殺 死 受 害 人 －－－－ 被 告 人被 告 人被 告 人被 告 人 1 51 51 51 5 至至至至 1 81 81 81 8 歲歲歲歲 －－－－ 判 刑 是 否 明 顯 過判 刑 是 否 明 顯 過判 刑 是 否 明 顯 過判 刑 是 否 明 顯 過

重重重重

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-

CCAB 2011 Sentence (Quantum) – Murder

144

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].

Theft of “Incense Tree” HKSAR v XIE JINBIN ((((謝錦彬謝錦彬謝錦彬謝錦彬) 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 刑刑 事 罪 判 刑刑 事 罪 判 刑刑 事 罪 判 刑 －－－－ 申 請 人 與 其 他申 請 人 與 其 他申 請 人 與 其 他申 請 人 與 其 他 3333 名 內 地 人 砍 伐 樹 木名 內 地 人 砍 伐 樹 木名 內 地 人 砍 伐 樹 木名 內 地 人 砍 伐 樹 木 －－－－ 偷 取 瀕 危 物 種偷 取 瀕 危 物 種偷 取 瀕 危 物 種偷 取 瀕 危 物 種 Aq u i l a r i a s i n e n s i sAq u i l a r i a s i n e n s i sAq u i l a r i a s i n e n s i sAq u i l a r i a s i n e n s i s 「「「「 牙 香牙 香牙 香牙 香

樹樹樹樹 」」」」 樹 木樹 木樹 木樹 木 －－－－ 價 植價 植價 植價 植 、、、、 數 量 或 重 量 並 非 唯 一 考 慮 因 素數 量 或 重 量 並 非 唯 一 考 慮 因 素數 量 或 重 量 並 非 唯 一 考 慮 因 素數 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 考贓 物 如 涉 及 受 保 護 瀕 危 物 種 有 不 同 的 考贓 物 如 涉 及 受 保 護 瀕 危 物 種 有 不 同 的 考贓 物 如 涉 及 受 保 護 瀕 危 物 種 有 不 同 的 考 慮慮慮慮

因 素因 素因 素因 素 －－－－ 損 害 受 保 護 植 物損 害 受 保 護 植 物損 害 受 保 護 植 物損 害 受 保 護 植 物 －－－－ 以以以以 3333 年 為 量 刑 起 點 判 處 偷 取年 為 量 刑 起 點 判 處 偷 取年 為 量 刑 起 點 判 處 偷 取年 為 量 刑 起 點 判 處 偷 取 「「「「 牙 香 樹牙 香 樹牙 香 樹牙 香 樹 」」」」 的 內 地 人 並 無 犯 錯的 內 地 人 並 無 犯 錯的 內 地 人 並 無 犯 錯的 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:

CCAB 2011 Sentence (Quantum) – Theft of “Incense Tree”

145

(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, profit-motive, 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 co-defendants, 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 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香港特別行政區訴鄧金大及其他人香港特別行政區訴鄧金大及其他人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 刑罰刑罰刑罰刑罰─沒有遵從規劃署強制執行通知書沒有遵從規劃署強制執行通知書沒有遵從規劃署強制執行通知書沒有遵從規劃署強制執行通知書─香港法例第香港法例第香港法例第香港法例第131章章章章《《《《城市規劃條例城市規劃條例城市規劃條例城市規劃條例》》》》第第第第23(6)條條條條─ 罰款金額罰款金額罰款金額罰款金額 ($30,000至至至至$100,000不等不等不等不等)是否明顯過重或違反原則是否明顯過重或違反原則是否明顯過重或違反原則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。 裁決裁決裁決裁決，上訴駁回； (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]。

CCAB 2011 Sentence (Quantum) – Town Planning

146

(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。

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

CCAB 2011 Sentence (Quantum) – Town Planning

147

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 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].