To : All Counsel/Senior Law Clerks/Prosecutions All Court Prosecutors/Magistracies 致:刑事檢控科各律師/高級律政書記 裁判法院各法檢控主任 A Publication of the Prosecutions Division of the Department of Justice 律政司刑事檢控科 律政司刑事檢控科 律政司刑事檢控科 律政司刑事檢控科出版 出版 出版 出版的刊物 的刊物 的刊物 的刊物 CRIMINAL APPEALS BULLETIN 刑事上訴案判例簡訊 刑事上訴案判例簡訊 刑事上訴案判例簡訊 刑事上訴案判例簡訊 June Edition/2011 2011 6 月號 月號 月號 月號 General Editor 總編輯 Robert S K Lee, SC 李紹強 資深大律師 Editors 編輯 Wesley W C Wong 黃惠沖 William Y H Tam 譚耀豪 David C Y Leung 梁卓然 Martin S T Hui 許紹鼎 Edmond C M Lee 李俊文 Virginia S Y Lau 劉少儀 Irene Fan 范凱琳 Hermina W H Ng 吳穎軒 Betty Y Y Fu 傅悅耳
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To : All Counsel/Senior Law Clerks/Prosecutions All Court Prosecutors/Magistracies 致:刑事檢控科各律師/高級律政書記 裁判法院各法庭檢控主任 A Publication of the Prosecutions Division of the Department of Justice 律政司刑事檢控科律政司刑事檢控科律政司刑事檢控科律政司刑事檢控科出版出版出版出版的刊物的刊物的刊物的刊物
Wesley W C Wong 黃惠沖 William Y H Tam 譚耀豪 David C Y Leung 梁卓然 Martin S T Hui 許紹鼎 Edmond C M Lee 李俊文 Virginia S Y Lau 劉少儀 Irene Fan 范凱琳
Hermina W H Ng 吳穎軒 Betty Y Y Fu 傅悅耳
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INDEX
Page(s)
A. Case-stated Appeal
以案件呈述方式上訴
3 – 4
B. Criminal Appeal / Against Conviction
刑 事 上訴 案件 /針對定 罪
5 – 10
C. Criminal Appeal /Against Sentence
刑 事 上訴 案件 /針對刑 罰
11 – 12
D. Magistracy Appeals / Against Conviction
裁 判 法院 上訴 案件 /針 對 定罪
13 – 18
E. Practice and Procedure
常 規 與程 序
19 – 24
[ ] – denotes paragraph number in the judgment.
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A. Case-stated Appeal 以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴 SFC v TSOI BUN COURT OF FIRST INSTANCE HCMA 451/2010 Lunn J Date of Hearing: 5 October 2010, 3 March & 3 June 2011 Date of Judgment: 13 June 2011 Counsel for the Appellant: Adrian Bell SC Counsel for the Respondent: Gary Plowman SC & Derek Chan Criminal Law and Procedure – Appeal by way of case stated – Magistrate required to set out the basis on which he acted and came to the verdict Criminal Law and Procedure – Deputy magistrate declined to be reappointed – whether this amounts to “absence” within the meaning of s 118(1)(f) of Magistrates Ordinance Cap 227 刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序刑事法及訴訟程序----以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴以案件呈述方式上訴----裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據裁判官須列明其行事和達成裁決的理據
222227272727 章章章章《《《《裁判官條例裁判官條例裁判官條例裁判官條例》》》》第第第第 118(1)(f)118(1)(f)118(1)(f)118(1)(f)條所指的條所指的條所指的條所指的「「「「缺席缺席缺席缺席」」」」 The Respondent faced 5 summonses for “price-rigging”, contrary to s 296(1)(b) and (4) of the Securities and Futures Ordinance, Cap 571 (“SFO”) to which he pleaded not guilty. The prosecution case was that the Respondent intentionally or recklessly rigged the ‘calculated opening price’ by artificially increasing/depressing it, thereby allowing him to sell/buy at a profit. He did so by placing large orders in the last few seconds of the period before the market opened, which were in the opposite direction (buy/sell) to orders he had placed earlier. In consequence, the ‘calculated opening price’ was moved significantly. As soon as the market opened, the Respondent unwound the positions that he had created in the pre-market opening period. It was the Respondent's case that his trading activity was legitimate and there were legitimate reasons for the adjustments that he made to his trading position shortly before the end of the premarket opening sessions. The Respondent elected not to give evidence. Expert evidence was led on behalf of the prosecution and defence, with 2 lengthy reports from each of the experts. In his oral reasons for verdict, the deputy magistrate said:
“The central issue in this case is the contest of different expert opinions between PW1 [Mr Cheng] and DW1 [Mr White] to decide the question if the defendant had entered into artificial transaction or device by his trading activities. I have considered PW1 and DW1’s evidence in court, and the content of their expert reports. While I must say the defendant’s trading activities in respect of the five summonses did give rise to great suspicion, I am not satisfied beyond all reasonable doubt that the defendant had entered into artificial transactions or device. Hence I acquit the defendant of the five summonses on the benefit of doubt.”
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The Appellant appealed by way of case stated. In the Case Stated, the deputy magistrate set out a number of questions of law for the opinion of the Court of First Instance. On 5 October 2010, the Court of First Instance determined that the Case Stated was deficient and directed the deputy magistrate to amend the Case Stated to include the material findings of facts. At the time of the trial, the magistrate had sat as a deputy magistrate, then being a practising member of the Bar. In due course, he declined to be reappointed as a deputy magistrate as he ceased to practise as a barrister. The Appellant invited the Court to remit the case for rehearing before another magistrate. The Respondent submitted the questions of law posed in the Case Stated were ones that the Court of First Instance could resolve on the Case Stated as drafted. Held, reversing the acquittal of the 5 summonses and ordering a trial de novo in the magistracy:
(1) An appeal by way of case stated is not an appeal by way of a re-hearing. Rather, the appellate court is limited to an examination of whether or not there was an error of law or an excess of jurisdiction. Li Man Wai v Secretary for Justice [2003] 6 HKCFAR 466 applied [28].
(2) The deputy magistrate was required in stating and signing a case to set forth the grounds on which the determination was made. His reasons need not be elaborate but they must be sufficient to show the parties and the Court of First Instance the basis on which he acted. His failure to do so is an error of law which goes to the root of the appeal. Without a properly drafted Case Stated it is not possible to conduct the appeal. Accordingly, it is an error of law which is not only procedural but also substantive and one which falls within the ambit of the powers of the Court in hearing an appeal by way of case stated including the power to reverse the determination and order a trial de novo [35].
(3) The term “absence” in s 118(1)(f) of the Magistrates Ordinance connotes not only physical absence but also absence from judicial office, including such absence that has been brought about by the expiry of a term of appointment [38]. The term of the appointment of the deputy magistrate had expired and he declined to be reappointed. His absence from judicial office rendered a step in the appeal impossible. Those circumstances fall within s 118(1)(f) [39].
(4) The Court observed that there was no delay on the part of SFC or the Respondent and that the proceedings had dragged on for years and they must have caused the Respondent stress and anxiety; on the other hand, the alleged misconduct had occurred between February to September 2007 (resulting in a profit of HK$2.2 million) and it was of a serious nature and the purpose of the legislation is to protect the investing public. In all the circumstances, the Court took the view that there was good cause to order a trial de novo [40]-[44].
時,則執法機構扮演較主動角色是有需要的,亦是值得原諒的:HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621 [67]-[70]。
(8) 卧底行動是執法人員調查非法活動的重要武器之一,而對嚴重罪行,包括貪污罪行更
是不可或缺的:Secretary for Justice v Lam Tat-ming (2000) 3 HKCFAR 168 [71]。
申請人的言行是否構成不當行為
(9) 作為警隊的一份子,申請人須當作為一直在當值中。而其職責是採取合法措施以“維
持公安”和“防止刑事罪及犯法行為的發生和偵查刑事罪及犯法行為”:《警隊條例》第 21
及 10 條[87]。
(10) 申請人明知兩名卧底廉署人員打算從事一些非法業務,仍然透過可疑人物,先後兩次
和他們會面,目的只有一個,就是協助他們進行一些申請人明知是違法的行為。申請人是資
深警務人員,必然會在作出不當言行過程中,盡量作出掩飾及淡化該些不當言行的嚴重性。
申請人的行為不但違反其身為警務人員的職責,更會傷及社會風化、助長罪惡、損害公共秩
序。他向犯罪份子提供協助,令他們的罪行更容易得逞及難於偵破,必然會令警隊蒙羞。申
請人的言行完全符合藉公職作出不檢行為所需的五項犯罪要素 [88]-[89]。
[English Translation of CACC 263/2009 above] HKSAR v FUNG HIN WAH EDWARD COURT OF APPEAL CACC 263/2009 Cheung, Yeung & Yuen JJA Date of Hearing: 11 & 12 May 2011 Date of Reasons for Judgment: 31 May 2011 Counsel for the Respondent: Alex Lee SADPP Counsel for the Applicant: S K Khattak & Roy Bowie Yip Conviction – “Misconduct in public office” – Undercover operation – Entrapment – Whether trial should be stayed – Whether adverse evidence should be excluded – Whether different charges should be dealt with in the same trial
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The Applicant was a police sergeant attached to the Mongkok District Special Duty Squad. He was charged with one count of “misconduct in public office”, i.e. giving advice to the co-accused LAU, CHU and two undercover ICAC officers on illegal drug and vice activities. The case was that the ICAC, on information that a police officer had been protecting criminals by informing them in advance about police operations, launched an undercover investigation. Since then, the Applicant met the co-accused and the undercover officers twice. On the first occasion, when the Applicant learned that the undercover officers intended to open an illegal club that provided services relating to drugs and women, he gave them some advice on how to avoid or mitigate the adverse effects or inconvenience caused by police operations against the illegal club. On the second occasion, the Applicant and LAU accompanied the undercover officers to inspect the premises intended to be used as the club and gave them further advice on how to mitigate the risks of operating the club for illegal drug and prostitution activities. Both meetings were covertly audio recorded and the first meeting was even videotaped. Before the trial, the Applicant asked for a separate trial from LAU and CHU but was rejected by the trial judge. During the trial, the Applicant, LAU and CHU all applied for a permanent stay of the proceedings and exclusion of the conversations among them and the undercover officers but that was also refused by the trial judge. The Applicant did not give evidence in his own defence but called his wife and another retired police sergeant as his witnesses. The Applicant’s stance was that during the two meetings, he was merely representing what he had said and done without any substantive criminal act. The opinions he expressed were just common knowledge. The defence submitted that the Applicant could not have given any assistance to the undercover officers given his position and therefore what he had said and done did not constitute serious misconduct. The Applicant was convicted after trial and sentenced to 6 months’ imprisonment. The Applicant applied for leave to appeal against conviction on the ground that the trial judge should not have allowed the charge against the Applicant and that against LAU and CHU to be tried together. Before the Applicant was involved in this case, the undercover officers had already had a number of contacts with LAU and CHU and had, in the course of it, talked about the Applicant which was very unfavourable to the Applicant. Therefore the trial judge should have dealt with the Applicant’s case separately from that of LAU and CHU. Joinder of offenders had caused great prejudice to the Applicant and deprived him of the opportunity to call LAU and CHU to give evidence for him. He was thereby denied a fair trial. The Applicant also contended that the evidence in support of the charge was obtained by entrapment and improper use of leading questions by the investigators. Therefore the trial judge should not have refused to stay the proceedings or exclude the evidence against the Applicant. The Applicant also argued that what he had said and done in the two meetings did not satisfy the essential elements of the offence of misconduct in public office. What he had said and done, even if improper, was not grossly serious. Held, application for leave to appeal against conviction dismissed: Joinder of offenders (1) The court has a discretion to decide whether several offenders charged with committing individual offences may be tried together. Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, then they can, subject always to the discretion of the court, be tried together on one indictment: Assim [1996] 2 QB 249 [38]. The law and the facts have been and should be taken into account in deciding
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whether offences are similar or dissimilar in character: Ludlow v Metropolitan Police Commissioner [1970] 1 All ER 567 [39]. The decision on joinder is discretionary and the chances of success on appeal on the ground of wrongful exercise of discretion are small [40]. (2) In the present case, though the charge against the Applicant was different from that against LAU and CHU, both arose from the same undercover operation and involved common background and witnesses [42]. LAU and CHU had pleaded guilty before the trial. The Applicant could have called them to give evidence for him. By electing not to do so, the Applicant could not use it in support of his assertion that the trial was unfair to him. Moreover, having regard to the offences to which LAU and CHU pleaded guilty, it would be unreal to say that the Applicant would have called them to give evidence [44]. Although LAU and CHU had said something unfavourable to the Applicant in his absence, the trial judge, being a professional judge sitting alone, should be able to distinguish which evidence could be used against the Applicant and which could not [45]. The trial judge had sufficient reasons to exercise his discretion to decide hearing the charge against the Applicant and that against LAU and CHU together in the same trial. It had not caused any injustice to the Applicant. Entrapment (3) Whatever be the ambit of the judicial discretion to exclude admissible evidence, evidence of a crime is not excluded because the crime was instigated by an agent provocateur. The reason is that there is no defence of entrapment: R v Sang [1980] AC402 [51]. (4) When entrapment is involved, if the court always refuses to stay such proceedings, the perception will be that the court condones criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the court were always to stay proceedings in such cases, it would incur the reproach that it is failing to protect the public from serious crimes: R v Latif [1996] 1 WLR 104 [54]. (5) The present case is different from Tei xeira de castro v Portugal [1998] 28 EHRR 101. The conduct of the two undercover ICAC officers should by no means be put on a par with that of the police officers in Tei xeira de castro case. Their investigation had not violated any rules. They investigated the Applicant because they had information and reasons to believe that a police officer had been sheltering criminals. The Applicant’s offence was giving assistance to those having the intention to engage in illegal activities and the essential basis of the offence was what he had said and done. There was no evidence to show that he was pressurised, incited, enticed or instigated to say anything that constituted the offence. It was not necessary for the Applicant to go to the premises to be used for the club. Nor did anyone in any manner pressurised, incited, enticed or instigated him to say anything [55]-[60]. (6) When dealing with undercover operations, it is necessary to balance two competing ends: first, those who commit crimes should be convicted and punished; second, there should not be an abuse of process which results in a public outcry. It is not possible to formulate a rule that will cover all cases that arise when an accused person seeks to stay a prosecution on the ground that the offence was induced by or was the result of the conduct of law enforcement authorities. The ultimate question must always be whether the administration of justice will be brought into disrepute because the process of the court is being used to prosecute an offence that was artificially created by the misconduct of law enforcement authorities. That question should be determined after considering four matters: (1) Whether the conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the
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accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if the opportunity arose. (4)Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence. In balancing the relevant factors the court has placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer: R v Loosely [2001] 4 All ER 897 and Ridgeway v The Queen (1995) 184 CLR 19 [61]-[62]. (7) Even if the trial of a defendant could be conducted fairly, the court still had jurisdiction to stay proceedings in a criminal trial on the basis that the defendant was subjected to entrapment by the law enforcement authority. Before exercising the discretion to stay, the court would have to be satisfied that the trial was an abuse of process which amounted to an affront to the public conscience with severe consequences for public confidence in the administration of justice. The considerations for the court included the "opportunity test" and reasonable proportionality between the nature and seriousness of the offence and the conduct of the law enforcement authority. In considering the question of proportionality, the court would have to determine whether the law enforcement authority's activities and behaviour remained within acceptable bounds or went too far. Even if they went too far, the court must be satisfied that the investigators' role in the defendant's commission of an offence was an affront to the public conscience before a stay would be granted. If the law enforcement authority did no more than provide the defendant with an unexceptional opportunity to commit the offence where that person had already formed a generic intent to commit the offence, then it might well be that no “entrapment” had taken place. Where serious offences were of a sort normally carried out in secrecy and were difficult to detect, then a more pro-active role on the part of the law enforcement authority was necessary and excusable: HKSAR v Wong Kwok Hung [2007] 2 HKLRD 621 [67]-[70]. (8) The use of undercover operations is an essential weapon in the armoury of the law enforcement agencies. It plays an important part in combating crimes especially serious crimes, including corruption: Secretary for Justice v Lam Tat-ming (2003) 3 HKCFAR 168 [71]. Whether what the Applicant had said and done amounted to misconduct (9) Being a member of the police force, the Applicant was deemed to be always on duty which was to take lawful measures for “preserving the public peace” and “preventing and detecting crimes and offences”: Sections 21 and 10 of the Police Force Ordinance [87]. (10) The Applicant, knowing the two undercover ICAC officers had the intention to engage in illegal business, met them on two occasions through the suspects. His sole purpose was to assist them to do some act which he knew was illegal. Being a senior police officer, the Applicant when saying or doing anything improper, would during the course of which, conceal and tone down the seriousness of it. The Applicant’s conduct was not only a breach of his duties as a police officer, but also would corrupt public morals, encourage crimes and undermine public order. By giving assistance to criminals so that the offences would succeed more easily and be more difficult to detect, he would certainly bring disgrace to the police force. What the Applicant had said and done fully satisfied the five elements required for the offence of misconduct in public office [88]-[89].
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C. Criminal Appeal / Against Sentence 刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件刑 事 上訴 案 件 / 針對針對針對針對 刑 罰刑 罰刑 罰刑 罰 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----潛在風險潛在風險潛在風險潛在風險判刑原則判刑原則判刑原則判刑原則是否違憲是否違憲是否違憲是否違憲 The Applicant was convicted in the District Court upon his own pleas of 2 offences of possession of dangerous drugs. On the day in question, a party of police officers entered a bar at Lamma Island and demanded to search the Applicant therein. The Applicant took out 2 plastic bags containing a total of 0.85g of cocaine from his trousers’ pocket and threw them to the floor. Under caution, the Applicant said that they were for his own consumption (Charge 1). Thereafter, the Applicant was taken to his residence. Upon search, a total of 1.05g of cannabis resin and 5.63g of cocaine were seized. Under caution, the Applicant admitted that the cannabis resin and cocaine seized from his residence were for his own consumption (Charge 2). In sentencing, the Judge adopted a starting point of 6 months’ imprisonment for Charge 1 and 12 months for Charge 2. He then considered the latent risk factor and increased the starting points by 3 months to 9 months and 15 months’ imprisonment respectively. Taking into account mitigation and the pleas, the Judge imposed concurrent sentences of 6 months and 10 months respectively. On appeal, the Applicant accepted that, without the enhanced element, the prison sentences for the two offences would not be susceptible to challenge. However, he sought to appeal against the uplift of 3 months on each sentence referable to the latent risk sentencing principle. The basis of the Applicant’s challenge was that the latent risk sentencing principle was unconstitutional since it imputed to a person convicted of a possession offence an unproven predilection or propensity to commit the more serious offence of trafficking. This contravened the presumption of innocence protected in Article 87 of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap 383. Held, application for leave dismissed:
(1) There can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender’s. That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but that simply
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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].
(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].
[English Translation of HCMA 809/2010 above] HKSAR v HONG KONG MOTOR INSPECTION LIMITED COURT OF FIRST INSTANCE HCMA 809/2010 Pang J Date of Hearing: 25 March 2011 Date of Judgment: 13 May 2011
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Counsel for the Respondent: Noelle Aileen Chit PP Counsel for the Appellant: Vivian Wong Employees’ Compensation Ordinance – Employer’s failure to take out valid insurance policy for employee – Whether employer-employee relationship between Appellant Company and the prosecution witness existed at material time On the material day, the Appellant failed to take out a valid policy of insurance for the prosecution witness Mr Au. The only issue in the present case is whether the prosecution could prove beyond reasonable doubt that Mr Au was an employee of the Appellant on 13 October 2009. The magistrate eventually accepted the prosecution witness’ evidence, having referred to the CFA case of Poon Chau Nam v Yim Siu Cheong trading as Yat Cheung Air Conditioning & Electric Co. [2007] 2 HKC 135 and found that all the indicia in the present case were in support of an actual employer and employee relationship between both parties. The status of the prosecution witness was not a contractor as claimed by the defence. Held, appeal allowed, conviction quashed and the Appellant’s fine refunded: (1) Poon Chau Nam is a civil case. The principles in that case are of great assistance to the court in drawing an inference on the actual relationship between the employer and the employee. However, in a criminal case, the court’s inference must be based on proved facts, and it must be the only reasonable inference to be drawn. Only under such circumstances can the court convict the defendant. Even though the magistrate had examined each of the relevant indicia in the case to form an overall impression, she still had to move one step further to consider the evidence in the case that might be favourable to the defence. Only then could she determine whether the prosecution had proved beyond reasonable doubt that the defendant had committed the offence charged [13]-[15]. (2) The Court made a list of evidence which was favourable to the defence as follows: (I) Between October 2008 and December 2009, Mr Au served the Appellant company.
Prior to that, the Appellant’s vehicle inspection work was contracted out to another company. Later, as the said company increased the inspection fee, the Appellant proceeded to contract out the vehicle inspection work to the prosecution witness [16].
(II) At the beginning and in the middle of each month, the prosecution witness submitted
the record of his work, income and expenditure in a return form via e-mail to the Appellant, and deposited the fees he collected on behalf of the Appellant Company into the bank account designated by the Appellant Company. The documentary exhibits showed that from 1 March 2009 to October 2009 the amount of $350 payable to the prosecution witness was entered in the column of ‘Contractor/Inspector’ in the return forms submitted via e-mail by the Appellant [17].
(III) The word ‘Contractor’ appeared in the column of ‘Remark’ in the lower portion of
the return forms between the 15th and 30th of September 2009. If, as the prosecution witness claimed, he personally entered the figures in the return forms, then why was he blind to the word ‘Contractor’, and why did he never ask the Appellant for correction [18]?
(IV) The relationship between the prosecution witness Mr Au and the Appellant lasted for
more than one year. Mr Au completed the return forms twice each month. The documentary evidence and Mr Au’s behaviour both supported the contention that Mr Au’s status was a contractor [19].
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(V) Viewing from another angle, if the relationship between the Appellant and the prosecution witness was one of employer and employee, the Appellant should make monthly contribution payment to the Mandatory Provident Fund for the prosecution witness as required by law, and the prosecution witness should also make contribution to the Mandatory Provident Fund out of his own income. Even though the Appellant omitted, wilfully or negligently, to make contribution for the prosecution witness, the prosecution witness should proactively remind the Appellant of the relevant arrangement. In the present case, there is no evidence to show that the prosecution witness had requested or reminded the Appellant of the obligation to make payment to the Mandatory Provident Fund, and the prosecution witness also evaded making monthly payment to the Mandatory Provident Fund. Such a situation lasted for more than one year. The prosecution witness was obviously happy to maintain that situation [20].
(VI) The evidence from both parties showed that the number of vehicles inspected by the
prosecution witness dropped substantially after October 2009. The defence explained that part of the work was contracted out to two other vehicle inspectors surnamed Lam and Pang respectively because the prosecution witness performed unsatisfactorily. Such arrangement was actually in support of the contention that the prosecution witness’ status was the contractor of the Appellant [21]-[22].
(VII) The prosecution witness claimed that when they first worked together, the Appellant
had promised him the number of vehicle inspection orders would not be less than 30 each month. However, when the number of vehicle inspection orders dropped substantially after October 2009, no evidence showed that the prosecution witness had requested the Appellant to provide the minimum number of vehicle inspection orders, or to pay a monthly sum calculated on the basis of $350 multiplied by 30. Hence, it can be seen that to some extent the two parties cooperated on a flexible basis, and the remuneration arrangement was not one in the form of monthly salary or all-inclusive salary [23].
(VIII) The present case arose as a result of the pecuniary dispute between the prosecution
witness and the Appellant’s shareholder Mr Chu. Although the magistrate had reminded herself that the prosecution witness was not an independent witness, she should have handled the credibility of the two witnesses with extra caution because they each stated their own version of the case, and on the basis of the documentary evidence it is impossible to rule out that the prosecution witness could be a contractor [24].
(3) The crux of the present case is not that the prosecution had to prove beyond reasonable doubt an employer-employee relationship between the Appellant and the prosecution witness. Rather, the crux is whether the prosecution could prove beyond reasonable doubt that the Appellant was the employer of the prosecution witness on 13 October 2009. On the evidence of the prosecution witness and the exhibits of the present case, it is unable to establish that an employer-employee relationship is the only reasonable inference that could be drawn. Furthermore, the prosecution witness’s conduct in handling his Mandatory Provident Fund was not consistent with his allegation that he was an employee of the Appellant. The magistrate’s inference of an employer-employee relationship between the two parties is not the only reasonable inference that could be drawn. Therefore, the conviction of the Appellant is not safe. Because of the way in which the magistrate draw the inference and her refusal to accept the evidence of the defence witness Mr Chu, the Appellant could not rely on the defence that the Appellant had held a mistaken but honest belief in the prosecution witness’s status as a contractor. This is unfair to the Appellant [25]-[26].
[English Translation HCMA 699/2010 above] HKSAR v YEN KWOK KEI COURT OF FIRST INSTANCE HCMA 699/2010 Tong J Date of Hearing: 24 March 2011 Date of Judgment: 3 June 2011 Counsel for the Respondent: Winnie Mok PP Counsel for the Appellant: Caesar Lo Criminal law and procedure – Indecent assault – Prosecution witness’ evidence given in court apparently inconsistent with contents of recent complaint – Counsel failed to question prosecution witness on this matter – Fairness of trial affected – Conviction unsafe The Appellant was charged with indecently assaulting a female in an MTR train. He was convicted of one charge of indecent assault. He appealed against conviction [1, 3]. The victim gave evidence that at the material time she felt something touching her hip [5]. She thought it was an object such as a handbag. However, when she glanced at her back, she saw a hand withdrawing. It was the back of the left hand of the Appellant who was standing behind her [6]. The victim’s “recent complaint” about the incident was recorded by a policewoman in her statement [17]. In this record, there was no mention about seeing a hand [22]. Defence counsel failed to cross-examine the victim regarding this relevant part [18]. One of the grounds of appeal was that counsel for the Appellant at trial was flagrantly incompetent [15]. Held, appeal allowed, conviction dismissed and sentence set aside: (1) A competent counsel would have definitely questioned the prosecution witness about the record made by the policewoman. However, it would be another matter whether the prosecution witness could reasonably explain about these apparent inconsistencies in the description, or whether the policewoman could add anything to or clarify the record [23]. Defence counsel explained that no question was raised because: (1) the statement taken by the policewoman was only an initial record; and (2) it was not confirmed by the signature of the prosecution witness. These two points should not constitute any reasons which hindered the defence from raising any question. What the policewoman put in the record was the recent complaint made by the prosecution witness to her. The correctness of the record could be confirmed by the policewoman. If the record was correct, despite absence of the prosecution witness’ signature, defence counsel could still cross-examine [24]. Obviously there was some misunderstanding about the record and the applicable principles on the part of defence counsel, causing him to refrain from asking questions. This was not a tactical decision in defence. One of the vital points in the present case was whether the prosecution witness did see the appellant “withdrawing his hand”. Defence counsel should have raised it for the magistrate to fairly consider the overall circumstances. Such cross-examination might not ultimately affect the finding. However, to the Appellant, his defence counsel’s failure to raise this point for him would be sufficient to affect the fairness of the trial. Thus, the conviction was rendered unsafe [25].
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E. Practice and Procedure 常 規 與程 序常 規 與程 序常 規 與程 序常 規 與程 序
HKSAR v CHENG KAM SHUI COURT OF FIRST INSTANCE HCMA 744/2010 Deputy Judge Stuart-Moore Date of Hearing: 8 June 2011 Date of Judgment: 24 June 2011 Counsel for the Respondent: Cecilia Chan SPP Counsel for the Appellant: Cheng Huan SC, Charlotte Draycott SC, Francis Cheng Magistrate giving reasons - Time within which magistrate to make a statement of findings for purposes of appeal - Section 114(b) of Magistrates Ordinance - In giving reasons, magistrate not duty-bound to deal with each and every difference in the evidence 裁判官給予理由裁判官給予理由裁判官給予理由裁判官給予理由----裁判官裁判官裁判官裁判官為上訴為上訴為上訴為上訴而而而而作出裁斷陳述書的時限作出裁斷陳述書的時限作出裁斷陳述書的時限作出裁斷陳述書的時限-《-《-《-《裁判官條例裁判官條例裁判官條例裁判官條例》》》》第第第第
114(b)114(b)114(b)114(b)條條條條----裁判官裁判官裁判官裁判官在在在在給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧給予理由時並沒有職責處理證據上所有的分歧 The Appellant appealed against conviction on two out of seven charges of offering an advantage to an agent, contrary to ss 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. He was found to have, without lawful authority or reasonable excuse, offered advantages to an agent, as an inducement to or reward for or otherwise on the account of the said agent showing or having shown favour to his company in relation to the affairs or business of the agent’s principal. When convicting the Appellant on 23 August 2010, the magistrate gave brief reasons for verdict and the Appellant was sentenced on 6 September 2010. The Appellant filed his appeal against conviction on 7 September 2010 and that was followed by a notice of appeal against sentence (since abandoned) on 20 September 2010. On 4 October 2010, the magistrate gave “a statement of the findings on the facts and other grounds of the decision” (“2nd Reasons”). The magistrate issued his 2nd Reasons just 14 days after the Appellant’s notice of appeal against sentence. Relying on the filing date of the notice of appeal against conviction, the Appellant sought to argue on appeal that because the magistrate had exceeded the “15 days either mandated or required under s 114(b) of the Magistrates Ordinance, Cap 227”, the 2nd Reasons were defective in law; they also violated two cardinal principles, namely, that justice must be seen to be done and that a defendant should “face a trial without undue delay”. It was further suggested that it was unfair that the magistrate should be allowed to cover “lacunas” in his brief reasons for verdict by issuing the 2nd Reasons. Held, appeal dismissed: (1) The Court agreed with the judgment in HKSAR v Ong Siu-kin Kevin HCMA 733-735/2009 that s 114(b) of the Magistrates Ordinance, Cap 227, which allows 15 days for the production of the statement of findings, is directory rather than mandatory. In any event, the trial process had not concluded until sentence had been passed and, on this basis, the 2nd Reasons were provided within the timescale visualised in the Ordinance [19]-[24]. (2) The further suggestion that the magistrate, in providing the 2nd Reasons, was attempting to cover “lacunas” in the brief reasons for verdict is effectively a contradiction of the complaint that “justice delayed is justice denied”. Here, after a lengthy trial, the magistrate had provided the brief
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reasons for verdict without any delay, enabling the Appellant to know immediately on what basis he had been convicted. There is no validity in the criticism that the magistrate had supplemented his brief reasons for verdict when that is precisely what the procedure under the Magistrates Ordinance provides that he should do and where there had been no material departure from anything said in the brief reasons [25]. (3) A magistrate, confronted with a number of discrepancies, is not duty-bound to deal with each and every difference which arises in the proceedings before him so long as really significant differences appear to have been grasped and not merely ignored. The magistrate, for his part, had shown that he was alive to the point taken by the defence at trial. As a result of his enquiry, PW1 had given an explanation which made perfectly good sense and enabled the magistrate to say that “on closer examination” he considered there was “no significance” in the discrepancy [40]-[42]. HKSAR v HABIBULLAH ABDUL RAHMAN & OTHERS COURT OF APPEAL CACC 302/2008 Stock VP, Hartmann JA & Wright J Date of Hearing: 17 September 2010 Date of Ruling: 13 May 2011 Counsel for the Respondent: David Leung DDPP (Ag.) Counsel for the Appellants: Adrian Bell SC (A2), Michael Blanchflower SC & Chyvette Ip (A4),
Collingwood Thompson QC & Lincoln Cheung (A6) Costs – Appeal against convictions of some charges successful – Appropriate costs order is to adopt a global approach – Drawing a line based on time is artificial – Unsuccessful application for bail pending appeal – No reason to exclude it from the general costs order made – Application for a certificate of 3 counsel – Evidence was complicated but not to the extent to require the attention of more than 2 counsel – Certificate of 2 counsel granted
名大律師的證明書名大律師的證明書名大律師的證明書名大律師的證明書 A2 (Ng) was convicted of one count of conspiracy to defraud after trial (Charge 1) and her appeal against conviction was allowed by the Court of Appeal. A4 (Fan) was convicted of two counts of conspiracy to defraud (Charges 1 and 2) and one count of making of a false statement by a company director (Charge 5). Her appeal against conviction of Charges 1 and 5 was allowed but her appeal against conviction of Charge 2 was dismissed. A6 (Koo) was convicted of Charges 2 and 5. His appeal against conviction of Charge 2 was allowed but that of Charge 5 was dismissed. They made the following applications for costs:- Ng applied for costs of trial and appeal together with costs of all preliminary and incidental proceedings. Fan applied for 75% of her overall costs. Koo applied for 90% of his costs of the appeal and trial together with costs of all preliminary and incidental proceedings and also a certificate for 3 counsel.
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Held, allowing the application for costs by each of the Applicants with certificate for two counsel: (1) There were no grounds for suggesting that Ng had by her conduct brought suspicion upon herself. There was no direct evidence of any intimate involvement by Ng in the drafting of the documents forming the subject matters of Charges 1 and 2 nor the fact that her particular attention was drawn to the two representations forming the subject of the two charges. Ng should be compensated for her costs of trial, appeal and those of all preliminary and incidental proceedings [9]-[11]. (2) There was no basis to suggest that Fan had brought suspicion upon herself as to deny her costs of the trial. Though 14 grounds were raised and only a limited number of them were successful, none of the grounds was totally lacking in merit or supported in argument by manifestly unsubstantiated allegations. Fan must be awarded a percentage of her costs. Drawing a line based on time would be artificial and a global approach should be taken. A just and reasonable proportion of Fan’s costs which she should be entitled to recover is two thirds of her costs of trial and of appeal [22]-[26].
(3) Although the application for bail pending appeal by Fan was unsuccessful, it was a legitimate application made in the course of the appeal to secure her liberty pending appeal. There is no good basis for excluding the bail application, though unsuccessful, from the general costs order made [27] & [28]. (4) Similar to the case of Fan, Koo’s application for bail was a legitimate application and there is no good basis for excluding the costs of his bail application, though unsuccessful, from the general costs order made [34]. (5) Taking into consideration of all matters, including the fact that Charge 5 did not stand entirely in isolation and had to be understood in terms of the broader evidence, Koo should be awarded three quarters of his costs [34] & [36]. (6) Although there was a substantial body of evidence which was complex, it was not so great or complex that it reasonably required the attention of more than two counsel. Koo was not charged with the first conspiracy to defraud which was the most complex and heavily laden with evidence. The fact that Koo faced professional ruin is relevant but of itself can never be determinative. A certificate for two counsel is appropriate [38]-[42].
HKSAR v CHAN KAM MAN, BARRY AND OTHERS COURT OF APPEAL CACC 293/2009 Yeung, Kwan & Chu JJA Date of Hearing: 14 June 2011 Date of Reasons for Judgment: 29 June 2011 Counsel for the Respondent: Alice Chan SPP Counsel for A1: Albert Poon Counsel for A2, A4 & A5: Cindy Lee Counsel for A3: Gibson Shaw Practice and Procedure – Preparation for criminal appeal cases – Purpose for obtaining transcripts of proceedings – Requests for large quantities of unnecessary transcripts cause delay to transcription of genuinely useful records of proceedings – Duty of counsel to ensure that the requested transcripts are essential There were 10 defendants at trial. They were charged with a total of 18 offences of “conspiracy to defraud”. The facts of this case were not complicated but the trial lasted for as long as 176 days. All the Applicants were convicted after trial and they applied for leave to appeal against conviction. While preparing for the appeal, counsel for the A2 to A5 made two requests to the Court of Appeal for provision of transcripts of the proceedings below. Their requests were granted by the Master, resulting in the production of about 3,500 pages of transcripts. In her written submissions for the appeal, counsel for A2, A4 & A5 referred to only 50 pages or so of the transcripts. In his written submissions, counsel for A3 referred to only a few pages of the transcripts of evidence from one of the witnesses; he did not refer to any of the transcripts of evidence from other witnesses. The two counsel, in their oral submissions, did not even, out of their own volition, mention one page of the transcripts of proceedings. When counsel for A2, A4 & A5 was queried by the Court about obtaining a large quantity of transcripts she had no use for, she explained that the purpose was to avoid raising untenable arguments and wasting court time. Counsel for A3 did not explain to the Court the reason for requesting the lot of transcripts he had no use for. Both counsel were instructed by the Legal Aid Department to act for A2 to A5 in the trial. They were present throughout the 176 days of hearing. Hence, they should have a good knowledge of the evidence. Held, application for leave to appeal against conviction refused: (1) Transcripts provided by the Court are neither intended as souvenirs for both parties nor to assist defence counsel in finding and/or preparing grounds of appeal. The purpose of the transcripts of proceedings is only to assist the Court to resolve the issues arising from the grounds of appeal [19].
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(2) Counsel in criminal appeals must appreciate that a great deal of manpower and resources are involved in transcribing the proceedings. The costs for preparation of 3,500 pages of transcripts amount to hundreds of thousands of dollars. In the present case, the costs were all paid for by public funds. In addition, preparation of unnecessary transcripts will cause delay to transcription of genuinely useful records of proceedings, which in turn will hamper the progress of other appeals. Counsel should also be aware that the Court in deciding whether to grant requests for transcripts of proceedings relies almost entirely on the integrity and competence of counsel. Hence, counsel have a responsibility to ensure that they only request for transcripts that are necessary and keep the quantity of transcripts to a minimum, so as not to waste public resources. Regrettably, not all counsel in this case have performed their duties properly [20].