刑事檢控科各律師/高級律 - Department of Justice

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 

律政司刑事檢控科出版的刊物 

General Editor 

總編輯 

I Grenville Cross, SC 

江樂士資深大律師 

CRIMINAL APPEALS BULLETIN 

刑事上訴案判例簡訊 

May Edition/2006 

2006 年 5 月號 

Associate Editors 

副編輯 

D G Saw, SC 

邵德煒資深大律師 

Patrick W S Cheung 

張維新 

Assistant Editors 

助理編輯 

Denise F S Chan 

陳鳳珊 

Lily S L Wong 

王詩麗 

Vinci W S Lam 

林穎茜 

This Bulletin summarises recent judgments which the editors consider of significance. 

本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。 

( * Denotes Government Counsel 

( * 代表政府律師 

# Denotes Appellant’s/Applicant’s/Respondent’s Counsel) 

# 代表上訴人 / 申請人 / 答辯人的律師 )

2 

c.c. 

副本送 : 

e mail 

電郵送 : 

SJ 

律政司司長 

DDPPs 

各副刑事檢控專員 

LOs 

各律政專員 

D of AD 

律政司政務專員 

DSG 

副法律政策專員 

Secretary, Law Reform Commission 

法律改革委員會秘書 

Editor/Hong Kong Law Reports & Digest 

《香港法律匯報與摘錄》編輯 

DLA 

法律援助署署長 

Bar Association (Attn : Administrative Secretary) 

香港大律師公會行政秘書 

Law Society (Attn : Secretary General) 

香港律師會秘書長 

Editor/Hong Kong Cases 

Hong Kong Cases 編輯 

Faculty of Law, HKU (Attn : Dean of Faculty) 

香港大學法律學院院長 

Librarian (Law), City University 

香港城市大學高級助理圖書館館長 ( 法律組 ) 

PHQ/HKPF (Attn : ACP/Crime) 

香港警務處警察總部警務處助理處長 ( 刑事 ) 

ICAC (Attn : Head/Ops) 

廉政公署執行處首長 

PTS/HKPF (Attn : FTO(Exam)) 

香港警務處警察訓練學校警察訓練主任 ( 考試 ) 

Administrator/Duty Lawyer Service 

當值律師服務總幹事 

C & E Training Development Group (Attn : Staff Officer) 

香港海關訓練發展課參事 

C & E Prosecution Group (Attn : Superintendent) 

香港海關檢控課監督 

LegCo Secretariat (Legal Service Division) 

立法會秘書處法律事務部 

D of Imm (Attn : AD(EL)) 

入境事務處助理處長 ( 執法及聯絡 ) 

Judiciary (PM/JISS Project) 

司法機構資訊系統策略計劃策略經理 

Librarian/D of J 

律政司圖書館館長 

Director of Advanced Legal Education 

法律專業進修總監 

Hung On-to Memorial Library (HK Collection)/HKU 

香港大學孔安道紀念圖書館 ( 特藏部 ) 

Departmental Prosecution Sections 

各部門的檢控組

3 

INDEX 

目錄 

A. p. 4 - p. 5 

第 4 至 5 頁 

B. p. 6 - p. 17 

第 6 至 17 頁 

C. p. 18 - p. 25 

第 18 至 25 頁 

D. p. 26 - p. 28 

第 26 至 28 頁 

E. p. 29 

第 29 頁 

Hong Kong Court of Final Appeal/Appeal Committee 

香港終審法院 / 上訴委員會 

Criminal Appeals/Against Sentence 

刑事上訴案件 / 針對定罪 

Magistracy Appeals/Against Conviction 

刑事上訴案件 / 針對刑罰 

Magistracy Appeals/Against Sentence 

裁判法院上訴案件 / 針對刑罰 

Costs in Criminal Cases 

刑事案件的訟費

4 

Appeal No. 

(Date of Case Significance 

Judgment) Title 

A. HONG KONG COURT OF FINAL APPEAL/ 

APPEAL COMMITTEE 

香港終審法院 / 上訴委員會 

FAMC 9/2006 

Bokhary 

Chan & 

Ribeiro PJJ 

(25.4.2006) 

*Eddie Sean & 

Richard Ma 

#S K Khattak 

TANG 

Chi-lun 

Persistently making telephone calls/Not necessary to establish 

direct call/Ingredients of offence under s 20(c), Cap 228/ 

Whether 134 telephone calls showed persistence 

不斷致電 – 無需證明是直接致電 – 第 228 章第 

20(c) 條所訂罪行的原素 – 撥電 134 次是否屬不斷 

致電 

The Applicant was convicted of an offence of persistently 

making telephone calls without reasonable cause for the purpose 

of causing annoyance, inconvenience or needless anxiety to any 

other person, contrary to s 20(c) of the Summary Offences 

Ordinance, Cap 228. 

The Applicant, a clerk in the Highways Department, had 

formed a dislike for Ms Cheung Tak-mei under whom he had once 

worked. He decided to cause her annoyance by repeatedly 

misusing a telephone system set up by the Immigration 

Department as part of its exercise of replacing ID Cards with new 

Smart ID Cards. To do this, he dialled a phone number, giving 

access to an interactive voice response system for making 

appointments for replacing ID Cards. He entered false ID Card 

numbers and then entered Ms Cheung’s telephone number as the 

number to which a fax confirmation should be sent. Ms Cheung 

would therefore receive such fax signals on her telephone. When 

the calls were diverted to a fax machine, it was revealed that they 

were purported notifications of appointments for replacing ID 

Cards. The Applicant did this partly to lessen the workload of his 

girlfriend, who was employed in the ID Card replacement 

exercise, so that she would have more free time to chat with him 

on the phone. In doing so, on some occasions, he would make 

phone calls without relaying a fax signal to Ms Cheung. But 

where the signal was sent to Ms Cheung, he plainly also intended 

to annoy or inconvenience her by his acts. 

The Applicant submitted, first, that the offence was not 

made out since he had only called the Immigration Department 

computer which had then itself caused a fax signal to be sent to 

Ms Cheung’s phone, and that only ‘directly ’ calling Ms Cheung

5 

could constitute ‘making ’ a phone call. Second, it was said that 

proof of an offence under s 20(c) required proof of the matters set 

out in s 20(a), namely, that the call must be grossly offensive or of 

an indecent, obscene or menacing character. Third, it was 

contended that the element of ‘persistently ’ was not made out, as 

the word connoted some degree of continuance or repetition: Dale 

v Smith [1967] 1 WLR 700; Re Arctic Engineering Ltd [1986] 1 

WLR 686; R v Tuck [1994] Crim LR 375. 

Held : 

(1) The first submission was misconceived as the Applicant 

plainly ‘made ’ the call which involved dialling the relevant 

number and using the interactive system. He did so for the 

purpose of causing Ms Cheung annoyance. Those elements were 

clearly established; 

(2) The second submission was not, as a matter of construction, 

reasonably arguable. The elements of s 20(c) involved persistently 

making telephone calls without reasonable cause for the purposes 

set out in s 20(b). Section 20(a) was plainly separate and not 

relevant; 

(3) As regards the third submission, the charge concerned the 

period between 5 May 2004 and 5 August 2004 when records 

showed 134 telephone calls from the Applicant’s telephones 

resulting in 2,300 false bookings. Since there was concern as to 

whether an offence based on some of the earlier calls might be 

time-barred, the charge was amended to relate only to calls made 

on dates in July and August 2004, resulting in 18 false bookings 

which were plainly not time-barred. The facts related to such calls 

were admitted. The magistrate was fully entitled to find that the 

Applicant had ‘persistently ’ made the relevant calls and the 

contrary was not reasonably arguable; 

(4) It was hard to think of a clearer case for liability under 

s 20(c). 

Result - Application dismissed.

6 

B. CRIMINAL APPEALS/ 

AGAINST SENTENCE 

刑事上訴案件 / 針對刑罰 

CA 486/2005 

Ma CJHC 

Stock JA 

(28.4.2006) 

*Tam Sze-lok 

#C Coghlan 

LAM 

Chun-fai 

Manslaughter/Accused acquitted of murder on basis of 

provocation/Homicide in a domestic context/Trial judge in 

best position to acquire true feel of the case/Difficulty in 

sentencing in domestic violence cases/Offence all too 

often/Nine years’ imprisonment not manifestly excessive 

誤殺 – 被告基於受激怒的理由被裁定謀殺罪不成 

立 – 涉及家庭的殺人罪行 – 原審法官處於能真正 

感受案件的最佳位置 – 對家庭暴力案件判刑是困 

難的 – 這類罪行實在太普遍 – 9 年監禁並非明顯過 

重 

After trial, the Applicant was convicted of manslaughter and 

sentenced to 9 years’ imprisonment. 

The Applicant was charged with murder, but his offer to 

plead guilty to manslaughter was rejected by the prosecution. 

When the matter proceeded to trial, the Applicant was acquitted of 

murder but convicted of manslaughter on the basis of provocation. 

At the date of the killing, the Applicant lived with the 

victim, Madam Choi, in Tsing Yi, and with their two children, a 

boy aged 6 years and a girl aged 5 years. He was then aged 36, 

had no prior convictions and was employed as a driver by an 

engineering company. He had met Madam Choi in 1996 when she 

worked in a nightclub and they married in 1998. The marriage 

was unsuccessful and, in 2004, they divorced, although they 

continued to live in the same premises. Although it was said that 

the divorce was an arrangement whereby the wife could claim 

Comprehensive Social Security Assistance, it seemed that Madam 

Choi viewed the divorce as real in fact as well as in law. Although 

the Applicant’s view of matters was unclear on the evidence, it 

was clear that, for some time prior to the killing, Madam Choi 

engaged upon an intimate relationship with a much younger man 

called Ah Ming. The Applicant was much irked by this. 

On the fatal night, the Applicant and Madam Choi had been 

out together but when he returned home she said she would be 

staying out. The Applicant telephoned Madam Choi to ask her to 

return to the flat as there was difficulty with one of the children. 

When she returned, a dispute arose between the two, and although 

Madam Choi wanted to leave he stopped her from doing so. The 

boy testified that Madam Choi sat down, and the Applicant struck 

her, grabbed her by the neck and said ‘I’ll strangle you to death ’.

7 

Madam Choi became motionless, and after the Applicant’s brother 

was sent for the Applicant said Madam Choi had fainted as a result 

of his ‘clutching her ’. When police arrived Madam Choi was 

dead, and her neck was swollen, her face green and there was 

blood at the corner of her mouth. The Applicant told police that 

after a quarrel over custody of the children Madam Choi became 

crazy and wanted to strike him and that he became very angry and 

grabbed her neck but that he did not know if she was dead. 

The Applicant killed Madam Choi by manual strangulation. 

According to the pathologist, there were few asphyxial signs 

which suggested that a vigorous or long struggle was unlikely. 

She probably died, he said, of pressure on the neck due to manual 

strangulation within a fairly short period of time. There was a 

fracture of a thyroid cartilage indicating that considerable pressure 

had been placed on that area. There was no alcohol in the body, 

the significance of which evidence was that in his testimony the 

Applicant suggested that Madam Choi had consumed some 

alcohol. 

In his testimony, the Applicant said there had been an 

argument over custody of the children, and that when Ah Ming 

rang up he abused him. Madam Choi became angry, and told the 

Applicant that Ah Ming was ‘much better than me in all aspects 

and used foul language ’. Then Madam Choi taunted him for 

having to go for public assistance and made a threat that Ah Ming 

would come to the flat with somebody and he (the Applicant) 

would be doomed. He said that then he used his left hand to cover 

Madam Choi’s mouth and how the hand then moved to clutch the 

neck. Madam Choi then admitted the affair, and when she said Ah 

Ming was coming to the flat with someone he was very angry and 

wished to stop her speaking. Apart from the provocation arising 

on the evening itself, the Applicant relied also upon suggested 

cumulative provocation. On one occasion he had found her in bed 

with Ah Ming, and on another his children told him that on a trip 

to the Mainland she slept with Ah Ming. 

In sentencing, the judge said it appeared that the jury had 

‘accepted the defendant’s claim that he was provoked by the 

behaviour of the deceased, by the events of that particular date 

and the cumulative events of the days before and that was the 

reason he launched the attack’. She took into account the offer to 

plead guilty to manslaughter at an early stage. Then the judge 

said: 

I note, however, that the defendant appears to have 

engineered this argument by telephoning his wife to 

return home and thereafter refusing to let her leave. 

As I said, although he claims the argument was 

ostensibly about the custody of children, it appears

8 

that the argument was really about the young man 

who was accused of being the woman’s lover. 

This is a serious offence and sadly one that is all too 

common, where a martial dispute is dealt with by way 

of violence. Whatever sympathy one has for the 

defendant and the children of the relationship, it is 

also important to note that the deceased died 

unnecessarily as a result of the defendant’s action. He 

compounded the offence by failing to seek medical 

help at a time when he was able to do so. He also 

answered telephone calls in which he lied about where 

the deceased was after inquires were made. I take into 

account the defendant’s clear record and I notice his 

remorse. I accept that he wished to plead to 

manslaughter at an early stage. I sentence him to 9 

years’ imprisonment. 

On appeal, it was submitted that the sentence was manifestly 

excessive for four reasons. First, the judge had over-emphasised 

the Applicant’s conduct in turning away the ambulanceman, as 

there seemed to have been some assumption by the judge that had 

this not occurred Madam Choi might have been saved. In fact, the 

ambulance people attended to Madam Choi not long after and the 

suggestion of earlier resuscitation was unrealistic. Secondly, it 

was said inadequate credit was given for the offer of a plea of 

guilty to manslaughter. Thirdly, the judge was incorrect in her 

assessment that the argument was engineered by the Applicant. 

Fourthly, it was said that the sentence was out of line with the type 

of sentences revealed by the authorities for manslaughter in a 

domestic context. 

Held : 

(1) Any comparison with sentences passed in other cases within 

this category required very careful study of the factors at play in 

the cases used for comparison. Where a case had been contested, 

the sentencing judge would necessarily be in a much better 

position than an appellate tribunal to acquire the true feel of the 

case; 

(2) The judge sentenced on the footing that not only was the 

Applicant provoked on the night in question but also by 

cumulative events preceding that night. She seemed to have 

accepted in his favour that he was taunted by her as to his 

shortcomings and failings as a husband. She noted his stable work 

record and his previous good character. Immediately after the 

attack he telephoned his brother and the authorities were called. 

Although this might have made for a significantly lower sentence, 

some of his evidence was obviously disingenuous and treated as

9 

such by the judge; in particular his suggestion that the 

strangulation was a by-product of trying to keep her quiet and 

placing his hand on her mouth. The evidence showed quite clearly 

that he applied considerable force to the thyroid cartilage. It was 

not disputed that the Applicant deliberately prevented her from 

leaving the flat by bolting the door, and this suggested he was 

intent on seeing the argument through. This fact distinguished the 

case from those in which an argument flared suddenly, and where 

both parties were - or at least the victim of the fatal attack was – 

intent upon the argument. In so far as it was said that too much 

emphasis had been placed upon his failure to seek medical help, 

the point was not so much whether she could then have been saved 

but more a question of his attitude. True, he called his brother, but 

he did not call the police himself nor did he seek assistance and it 

was his brother who suggested calling the police. Quite what his 

motive was in turning away the ambulanceman was not entirely 

possible to say, although he explained his fear that he would be 

caught. It was also to be noted that telephone calls were made in 

which he lied about where the deceased was. These were 

unattractive features of the Applicant’s conduct and took the 

sentence imposed above the range of many other domestic 

manslaughter cases: R v Wong Kwai-chuen Cr App 605/1994, R v 

Szeto Ken Cr App 87/1996; 

(3) Cases of this kind were very difficult. More often than not, 

the culpable person was a person entirely devoid of criminal 

background, and more often than not the circumstances in which 

the killings took place were complex and required an 

understanding of deeply personal emotional stresses that 

developed over time. There was, on the other hand, an inevitable 

degree of sympathy for someone like the Applicant who found 

himself out of depth in an irretrievable marital situation. The 

sentencing judge expressed that sympathy, but was entirely correct 

to state that this type of domestic violence was all too common 

and to record the fact that a life had been taken and that children 

had been deprived of their mother. The judge had the benefit of 

acquiring in the course of the trial a true feel for the circumstances 

leading up to the attack and for the nature of the attack itself. 

Whilst there was room for saying the sentence was on the high 

side of the scale, it was not manifestly excessive. 

Result - Leave to appeal granted, but appeal dismissed. 

CA 332/2005 

HEMANT 

Gurung 

Wounding with intent/Victim attacked by gang with knives/ 

Little permanent injury/Need for deterrence/Ill-health of close

10 

Ma CJHC 

Stock JA 

(21.4.2006) 

*Tam Sze-lok 

#Phillip Ross 

relative not generally a mitigating factor 

有意圖而傷人 – 受害人被一夥人用刀襲擊 – 輕微 

的永久傷害 – 需具阻嚇作用 – 近親身體欠佳一般 

不是減刑因素 

The Applicant pleaded guilty to an offence of wounding 

with intent, contrary to s 17(a) of the Offences against the Person 

Ordinance, Cap 212, and was sentenced to 4 years’ imprisonment, 

after the judge had adopted a starting point of 6 years. 

The facts showed that when the victim, a Nepalese man, 

went to a discotheque on Lockhart Road with some friends, he was 

surrounded, as he danced, by a number of persons, including the 

Applicant. The Applicant used a knife with a 16-inch blade to 

chop him twice on the head. As the victim retreated, another 

person chopped him on the elbow. When the victim looked up at 

the Applicant, he raised his hand to chop him again. After that, 

the victim was chopped by another person at the left armpit. 

The victim sustained serious injures and was admitted to 

hospital in a coma. He sustained multiple chop wounds over the 

head, left chest wall, left scapular region and left elbow. The 

blows were struck with such force that the skull and elbow were 

fractured. The cut to the elbow required nerve repair. There 

appeared to be some degree of permanent disability, but not much. 

On appeal, it was submitted that the starting point of 6 years 

was too high, so making the sentence of 4 years manifestly 

excessive. Reliance was also placed on the death of the 

Applicant’s father as a mitigating factor. As a consequence of the 

Applicant’s imprisonment, his father became so upset that he took 

to heavy drinking. He was hospitalised for two weeks, then 

discharged so he could return to Nepal to be cared for by the 

Applicant’s brothers, soon after his return, the father died. Prior to 

his imprisonment, the Applicant had lived with his parents 

together with his wife and children. 

Held : 

(1) There were no guidelines for sentence owing to the wide 

range of circumstances in which it could be committed. The court 

was therefore required to look at the relevant facts of each case. In 

HKSAR v Tse Hok-lam [2005] 3 HKLRD I8, it was said that the 

range of sentence for this offence was 3 to 12 years, (albeit that the 

maximum sentence was life imprisonment). The fact of permanent 

injury or disability to the victim was a relevant factor, but its 

absence hardly constituted any factor of mitigation nor could it be 

a factor in reducing an otherwise appropriate sentence;

11 

(2) In this case, the attack was brutal and premeditated. Knives 

with 16-inch blades were used to chop the victim. The victim was 

attacked by a gang. The judge was right to mention that there was 

a deterrent element in sentencing for this offence: Archbold Hong 

Kong 2005 at para 20-221; 

(3) In certain special circumstances, the court could take into 

account the ill-health of a relative and the impact of this on the 

accused: AG v Ling Kar-fai (No 2) [1997] 2 HKC 651. However, 

generally, in cases where the ill-health of a close relative was 

sought to be relied upon as mitigation the courts had, rightly, not 

allowed this factor to be taken into account. Those who were 

concerned about the welfare of their parents or family should 

avoid getting involved in this sort of offence in the first place: R v 

Wong Wai-lun Cr App 12/1996. 

Result - Application dismissed.

12 

香港特別行政區訴陳祝珊 

HKSAR v CHEN Zhu-shan 

高等法院上訴法庭 – 高院刑事上訴 2005 年第 392 號 

* 單偉琛 

Eddie Sean 

# 彭耀鴻 

Robert Pang 

高等法院上訴法庭法官張澤 

高等法院上訴法庭法官楊振權 

高等法院上訴法庭法官鄧國楨 

耹訊日期 : 二零零六年四月廿一日 

判案書日期 : 二零零六年五月四日 

COURT OF APPEAL OF THE HIGH COURT 

CRIMINAL APPEAL NO. 392 OF 2005 

Cheung 

Yeung & 

Tang JJA 

Date of Hearing: 21 April 2006 

Date of Judgment: 4 May 2006 

行使和管有偽鈔罪 - 以罪行普遍為理由 , 根據《有 

組織及嚴重罪行條例》加重刑罰 - 單以發現偽鈔的 

數目和被檢控人數大增為由而裁定涉案的罪行普遍 

並不正確 

申請人被控兩項行使偽鈔及一項管有偽鈔罪 , 

違反香港法例第 200 章《刑事罪行條例》第 

99(1)(a) 條和第 100(1) 條。 

經審訊後 , 申請人被裁定全部罪名成立 , 刑期 

分別為入獄 3 年、4 年 4 個月和 4 年 9 個月。除第一項 

控罪的刑期中的 3 個月外 , 其餘刑期全部同期執 

行 , 即總刑期為 5 年。 

2004 年 11 月 25 日 , 申請人將一張 500 元真紙幣 

和一張 500 元偽鈔透過自動櫃員機存入其豐銀行 

戶口。 

2004 年 12 月 15 日 , 申請人用一張 500 元偽鈔購

13 

買雜誌。申請人的不法行為被識破後 , 試圖逃跑 , 

但結果被警員在途人協助下截獲。其後警員在申請 

人租住的旅館房內的一個行李喼中 , 發現 126 張 

500 元偽鈔。 

法官指出案件涉及面值共 63,000 元的偽鈔。她 

認為每項控罪的適當量刑基準為 3 年 , 而總量刑基 

準為 3 年 6 個月。法官應控方的申請 , 以罪行普遍為 

理由 , 根據《有組織及嚴重罪行條例》將第 2 及第 3 

項控罪的 3 年量刑基準 , 分別加刑 45% 和 60% 至 4 年 

4 個月和 4 年 9 個月。 

支持有關罪行普遍的證據源自控方向法庭提供 

的資料 , 該些資料顯示自 1999 年至 2005 年首 7 個月 

發現 500 元偽鈔的數目和被檢控涉及 500 元偽鈔罪 

行的人數大增。 

該些資料詳列如下 : 

1999 2000 2001 2002 2003 2004 

2005 

1-7 月 

發現 500 元偽鈔數目 243 張 379 張 210 張 105 張 248 張 4,473 張 2,755 張 

被檢控人數 0 3 1 2 2 19 23 

500 元偽鈔數目 0 221 1 1 4 4,049 290 

法官指出在 2004 年本港出現的 500 元偽鈔數量 

最為顯著 , 因此申請人所犯的罪行普遍 , 需要加 

刑。 

申請人就刑期提出上訴 , 指出搜獲 500 元偽鈔 

數目大增不一定表示申請人被控的控罪普遍 , 因此 

以申請人的控罪普遍而加刑並非適當。 

裁決 : 

(1) 根據香港法例第 455 章《有組織及嚴重罪行條 

例》附表 1 及附表 2, 本案的罪行都是 ` 指明的罪 

行 '。而根據第 27(11) 條 , 假若法庭信納被告人所 

犯的 ` 指明罪行 ' 普遍 , 則可以加重被告人的判

14 

刑 ; 

(2) 控方指申請人所犯的 ` 指明罪行 ' 普遍 , 全建 

基在 500 元偽鈔的數目和涉及 500 元偽鈔被檢控人 

數的資料。但發現偽鈔數目和因該些偽鈔而被檢控 

的人數增加 , 不一定和《有組織及嚴重罪行條例》 

附表 1 及附表 2 所列的罪行有關 : 香港特區訴陳家 

建和酈英 Cr App 474/2004; 

(3) 發現偽鈔數目和因該些偽鈔而被檢控的人所面 

對的罪行可能是《刑事罪行條例》第 99(2) 條 ( 將 

偽鈔交付他人 ) 或第 100(2) 條 ( 保管或控制偽 

鈔 ), 而這些罪行並非是《有組織及嚴重罪行條 

例》附表 1 或附表 2 所列出的 ` 指明罪行 '。因此 

單是以發現 500 元偽鈔的數目和涉及該些偽鈔被檢 

控的人數大增而裁定申請人被控的罪名普遍並不正 

確 ; 

(4) 法庭在香港特區訴董海一等三人 Cr App 

268/2005 案指出 : 

製造偽鈔屬極為嚴重罪行。該等罪行嚴重影 

響金融巿場運作 , 可能令巿民大眾對流動貨 

幣失去信心。 

再者 , 在目前科技先進的環境 , 製造偽鈔亦 

變成較簡單容易。法庭必須發出明確訊息 , 

表明製造偽鈔者會遭重罰 , 避免這些不法行 

為氾濫。 

(5) 如涉案偽鈔總值只是數萬港元 , 法庭採納的量 

刑基準為 3-4 年 : 香港特區訴林偉明 Cr App 

44/2004 、香港特區訴陳家建和酈英 Cr App 

474/2004; 

(6) 申請人個人行事 , 亦沒有嚴重的犯罪記錄 , 雖 

然案件涉及偽鈔的總值達 60,000 萬元 , 但像真度不 

高。本案亦沒有其他加重罪責因素 , 法官就每項控 

罪所採納的三年基本量刑基準和三年半總量刑基準 

都屬適當。

15 

結果 .. 第 2 項和第 3 項控罪的 45% 和 60% 加刑撤銷 , 

三項控罪每項的判刑都是 3 年監禁 , 除了第 

一項控罪判刑中的 6 個月分期執行外 , 其餘 

刑期全部同期執行。總刑期由 5 年減至 3 年 6 

個月。 

[English digest 

of CA 392 of 

2005, above] 

Cheung 

Yeung & 

Tang JJA 

(4.5.2006) 

*Eddie Sean 

#Robert Pang 

CHEN 

Zhu-shan 

Passing and possession of counterfeit notes/Enhancement of 

sentence based on prevalence of offence under OSCO/Ruling 

that offences were prevalent based solely on the increase of 

counterfeit notes discovered and of number of people 

prosecuted inappropriate 

The Applicant was charged with two charges of passing 

counterfeit notes and one charge of having in his custody 

counterfeit notes, contrary to, respectively, s 99(1)(a) and s100(1) 

of the Crimes Ordinance, Cap. 200. 

The Applicant was found guilty of all offences after trial. 

The sentences were terms of imprisonment of, respectively, 3 

years, 4 years and 4 months, and 4 years and 9 months. Apart 

from 3 months of the first charge, all sentences were to run 

concurrently, producing a total sentence of 5 years’ imprisonment. 

The evidence showed that on 25 November 2004, the 

Applicant deposited one genuine and one counterfeit note each in 

the value of $500 into his HSBC bank account via the ATM. 

On 15 December 2004, the Applicant used a $500 

counterfeit note to buy a magazine. His illegal act was detected. 

He tried to flee but was intercepted by the police through the 

assistance of a passer-by. The police later discovered 126 pieces 

of $500 counterfeit note in a suitcase inside the guest house room 

that the Applicant rented. 

The total value involved was $63,000. The judge adopted a 

starting point of 3 years’ imprisonment in respect of each charge 

and an overall starting point of 3 years and 6 months. In view of 

the prevalence of the offences, the judge acceded to the 

prosecution’s application made pursuant to the Organized and 

Serious Crimes Ordinance to enhance the starting points for 

Charge 2 and Charge 3 by, respectively, 45% and 60% to 4 years 

and 4 months and 4 years and 9 months. 

The supporting evidence of the prevalence of the offences

16 

came from the information provided by the prosecution to the 

court. The information showed that from 1999 to the first seven 

months in 2005, the number of $500 counterfeit notes and the 

number of persons prosecuted as a result had increased 

substantially. 

The information was as follows : 

Number of $500 

counterfeit notes 

discovered 

Persons 

prosecuted 

Number of 

$500 counterfeit 

notes involved 

1999 2000 2001 2002 2003 2004 

2005 

Jan-July 

243 379 210 105 248 4,473 2,755 

0 3 1 2 2 19 23 

0 221 1 1 4 4,049 290 

The judge considered that the number of $500 counterfeit 

notes that appeared in Hong Kong in 2004 was significant, the 

offences were therefore prevalent and sentences should be 

enhanced. 

The Applicant appealed against the sentence. He contended 

that the increase in the number of $500 counterfeit notes did not 

necessarily mean that the charges he faced were prevalent. The 

enhancement of sentence based on prevalence was inappropriate. 

Held : 

(1) According to Schedules 1 and 2 of the Organized and 

Serious Crimes Ordinance, Cap. 455, the offences involved in the 

present case were ‘specified offences’. Pursuant to s 27(11), if the 

court accepted that the ‘specified offence’, that an accused 

committed was prevalent, it could enhance the sentence to be 

imposed on the accused; 

(2) The prosecution alleged that the ‘specified offences’ 

committed by the Applicant were prevalent, this was entirely 

based on the number of $500 counterfeit notes discovered and the 

number of persons prosecuted therefor. However, the increase in 

these numbers did not necessarily mean that offences listed in 

Schedules 1 and 2 of the Organized and Serious Crimes Ordinance 

were involved : HKSAR v Chan Ka-kin and Lai Ying Cr App 

474/2004; 

(3) The number of counterfeit notes discovered and the number 

of persons prosecuted therefor could be related to offences 

contrary to s 99(2) (delivery of counterfeit notes) or s 100(2) (has 

in custody or under control counterfeit notes) of the Crimes 

Ordinance. These offences were not ‘specified offences’ as listed

17 

in Schedules 1 and 2 of the Organized and Serious Crimes 

Ordinance. Accordingly, it was wrong to rule that the offences 

that the Applicant committed were prevalent by simply relying on 

the increase of counterfeit notes discovered and of the number of 

people prosecuted therefor; 

(4) In HKSAR v Tung Hoi-yat and 2 others Cr App 268/2005, 

the court pointed out that : 

Manufacturing of counterfeit notes is a very serious 

offence. Such offence seriously affects the operation of 

the financial market and may erode public confidence in 

the currency. 

Moreover, it is easier to manufacture counterfeit notes 

in light of today’s advance technology. In order to 

prevent the prevalence of such illegal activities, the 

court must send out a clear message that those who 

manufacture counterfeit notes will be severely punished. 

(5) If the total value involved was several ten thousand dollars, 

the appropriate starting point would be 3 to 4 years : HKSAR v 

Lam Wai-ming Cr App 44/2004, HKSAR v Chan Ka-kin and Lai 

Ying Cr App 474/2004; 

(6) The Applicant committed the offences alone and had no 

serious criminal record. Although the total value involved was 

over $60,000, the degree of resemblance of the notes was not high. 

There were no aggravating factors. The individual starting point 

of 3 years and the overall starting point of 3½ years were 

appropriate. 

Result - Appeal allowed. The enhancements of, respectively, 

45% and 60% in respect of Charges 2 and 3 were set 

aside. The sentence of each of the three offences would 

be 3 years’ imprisonment, 6 months of Charge 1 to be 

served consecutively. Total sentence reduced from 5 

years to 3 years and 6 months.

18 

C. MAGISTRACY APPEALS/ 

AGAINST CONVICTION 

裁判法院上訴案件 / 針對定罪 

MA 1029/2005 

MA 313/2006 

Beeson J 

(28.4.2006) 

*Cheung Wai-sun 

& Lam Tak-wing 

#Philip Dykes SC 

PEARCE 

Matt 

James 

Behaving in disorderly manner with intent to provoke a 

breach of the peace/Political activist running onto Shatin 

race-track dressed as a horse/Whether breach of the peace 

likely to be caused/Race delayed by one minute while 

defendant removed/Actions amounted to a tiresome nuisance 

but not a public nuisance/Public nuisance committed when 

defendant caused crowds to gather and congestion to occur by 

climbing onto a big TV screen in Central to stage a political 

protest/Choice of charges a matter within the discretion of the 

prosecution/Right to demonstrate borne in mind 

作出擾亂秩序的行為意圖破壞社會安寧 – 政治活 

動份子打扮成馬匹跑到沙田馬場賽道上 – 是否相 

當可能會導致社會安寧破壞 – 因要帶走被告人而 

令賽事延遲了 1 分鐘 – 有關的行為構成煩人的滋擾 

而非對公衆的妨擾 – 被告人在中環爬上大電視屏 

幕提出政治抗議造成人群聚集和交通擠塞則屬對公 

衆的妨擾 – 控罪的選定在控方的酌情決定權範圍 

內 – 顧及示威的權利 

The Appellant, aged 30, was the leader of a small group of 

self-appointed political activists called ‘International Action’. He 

told the Probation Officer it aimed at ‘propagandising social 

justice, democracy, human rights and betterment of society 

through non-violent action arousing the attention and concern of 

the public.’ 

The non-violent action consisted of the Appellant drawing 

attention to the cause of the moment by dressing in costume and 

making a nuisance or a spectacle of himself, in some manner 

which satisfied his undoubted exhibitionistic streak. He was 

assisted in these activities by other members of the group, none of 

whom featured in starring roles. 

The Appellant was convicted of three offences which were 

dealt with in two separate cases heard by different magistrates. 

HCMA 1029/2005 

The Appellant was convicted, first, of behaving in a 

disorderly manner in a public place, Shatin Race Course, with 

intent to provoke a breach of the peace or whereby a breach of the 

peace was likely to be caused, contrary to s 17B(2) of the Public

19 

Order Ordinance, Cap 245. Second, he was convicted, on the 

same occasion, of causing a nuisance to the public by unlawfully 

running on the race-track dressed in a mock horse costume just 

before the start of the televised horse race No. 8 for the Cathay 

Pacific Hong Kong Cup, contrary to common law. 

The evidence showed that on 12 December 2004, the 

Appellant attended a big race meeting at the Shatin Race Course 

dressed in a horse costume which incorporated a yellow shirt 

bearing the words ‘demand democracy now’. He amused the 

crowds in the Public Enclosure by prancing about, apparently to 

promote public awareness of democracy. 

Just before the scheduled start of Race 8 at 5:10 pm, the 

Appellant was assisted to scale the barrier fence onto the track. 

He ran along the track heading away from the starting gate 

towards the winning post. He was pursued by security guards, 

who had tolerated his earlier antics in the Public Enclosure. As he 

ran, the Appellant waved to the crowd, who were applauding and 

calling out, although the magistrate surmised some were angry or 

annoyed. When caught, the Appellant was pushed to the ground 

without offering any resistance. This incident took about two 

minutes and though the race was delayed by one minute, it was run 

without incident. The Appellant’s behaviour was peaceful at all 

times; and the force used to apprehend him was reasonable. 

The race-track was a public place. The race meeting was the 

biggest in the Racing Calendar. The maximum crowd at the racecourse 

was 48,000 and the race was to be televised to more than 

13 countries. 

HCMA 313/2006 

The Appellant was convicted of an offence of public 

nuisance, contrary to common law. It was alleged that on 3 June 

2005, he caused a nuisance to the public by unlawfully climbing 

up a big TV screen dressed as Spiderman at Luk Hoi Tung 

Building at No. 31 Queen’s Road Central. The Appellant used a 

ladder to climb to the first floor podium of Luk Hoi Tung 

Building, a commercial building. A large TV screen erected on 

the podium was used to show commercial messages to passers-by. 

At 1245, having climbed up the screen, the Appellant hung a 

banner 16 ft x 10 ft in front of it, effectively obstructing any 

messages that might be shown. The message on the banner, in 

Chinese and English, stated: 

Tiananmen Square 4-6-1989 

Justice Must Prevail

20 

Injustice anywhere is a threat to Justice everywhere 

www.thebiggerpicture.hk 

The Appellant stayed on top of the screen, generally drawing 

attention to himself. Large pedestrian crowds gathered to watch 

him and police were needed for crowd and traffic control. 

At 1348, Fire Services came and placed a rescue cushion 

below the screen, in case the Appellant jumped or fell. It was 

necessary at that stage to cordon off that part of Queen’s Road and 

Theatre Lane which ran off it and in consequence vehicular traffic 

had to be diverted into Pedder Street and away from D’Aguilar 

Street which met Queen’s Road Central as a T-junction at that 

spot. Traffic lights were suspended and police officers directed 

traffic. Traffic congestion lasted for about two hours. Movement 

was slow, drivers unhappy. 

Pedestrians had to be directed by a circuitous route from the 

building through to Theatre Lane, which offered MTR access. 

Access to and from shops in the building was impeded, some 

shops closed and staff of the management company shepherded 

pedestrians along the detour route. Shops in the vicinity 

experienced reduced lunchtime business or had no business at all. 

After a Senior Fire Service Officer was raised to the 

Appellant’s level via the hydraulic platform of a fire engine 

brought to the scene, he asked the Appellant to come down. The 

Appellant refused unless he was fed with dim sum, which was 

duly provided some 30 minutes later. During that time the 

Appellant continued his posturing and at intervals affected to read 

a newspaper. When the serious congestion was pointed out to 

him, the Appellant apologised but continued eating. He finished 

the food and left the screen with the officer. The screen eventually 

had stopped working because the Appellant’s banner caused it to 

overheat. No permission for access was sought by the Appellant, 

or granted by the management company of the building or the 

owner of the screen. The Appellant knew the building and screen 

were private property and expected that the police and fire services 

would arrive to bring him down. He knew and expected a crowd to 

gather. He considered his action justified. 

Held : 

On appeal 

(1) In both appeals, the comments of Sedley LJ in Redmond- 

Bate v Director of Public Prosecutions [1999] Crim LR 998, were 

to be borne in mind:

21 

Free speech includes not only the inoffensive but the 

irritating, the contentious, the heretical, the 

unwelcome and the provocative provided it does not 

tend to provoke violence. 

HCMA 1029/2005 

First summons: 

(2) The magistrate found the elements of ‘public place ’ and 

‘disorderly conduct ’ established by the evidence. He was correct 

in finding that the Appellant’s conduct became disorderly when 

transferred to the race-track. The track was closed to anyone not 

specifically permitted to have access. That was particularly the 

case when races were being prepared for, or run. Such a measure 

was necessary for the good administration of the race meeting, 

particularly for ensuring the safety of jockeys, horses and 

spectators. Although the Appellant’s behaviour on the track 

followed much the same pattern as his behaviour in the Public 

Enclosure, his repetition of such behaviour in proximity to horses 

and riders made it possible, or likely, that one or more horses 

would bolt and/or throw their riders. It was also possible that one 

or more horses would baulk at entering the starting gate. The 

Public Order Ordinance did not define ‘disorderly conduct ’, and 

the magistrate noted that this was a matter of fact for him to 

determine; 

(3) The Appellant at no time resisted capture and cooperated 

with the security guards, who themselves used only reasonable 

force to subdue him. The security guards had specific duties to 

perform and were trained to deal with situations such as this 

incident. It seemed improbable that faced with a co-operative, 

non-resisting, unarmed, pantomime horse after a chase lasting less 

than 30 seconds, the security guards would resort to violence. It 

was even less likely they would resort to violence under the gaze 

of the head of security, 48,000 spectators and police officers 

dealing with crowd control; 

(4) As for angry spectators taking violent action against the 

Appellant, that appeared even more unlikely. Given that the 

Appellant’s conduct was not directed at provoking, nor intended to 

provoke the public it would have been wholly unreasonable if any 

spectator had behaved as the magistrate feared they might. The 

magistrate had to be satisfied there was a real risk of a future 

breach of the peace, so any violence or the threat of violence must 

be a natural consequence of the conduct of the Appellant. The 

magistrate made no specific finding about this matter; 

(5) There was no basis for the magistrate’s finding that a breach 

of the peace was likely to be caused, and the conviction on the first

22 

summons must be quashed; 

HCMA 1029/2005 & HCMA 313/2006 

Public nuisances 

(6) In R v Rimmington [2005] 2 WLR 982, the House of Lords 

held that a public nuisance was committed when a person did an 

act not warranted by law, or omitted to discharge a legal duty, and 

the effect of the act or omission was to endanger the life, health, 

property or comfort of the public, or to obstruct the public in the 

exercise of rights common to everyone; 

(7) An essential ingredient of the offence of causing a public 

nuisance was that it must cause common injury to the public - the 

community as a whole or a significant section of it. Individual 

acts which caused injury to several different people could not 

constitute criminal public nuisance. The mens rea which had to be 

proved against a defendant to convict him of causing a public 

nuisance was that he knew or ought to have known, because the 

means of knowledge were available to him, the consequence of 

what he did or omitted to do; 

HCMA 1029/2005 

Second summons: 

(8) The magistrate fixed on the 1-minute delay in the start of 

Race 8 as the basis for finding ‘common injury ’. In Rimmington 

such injury was described as follows ‘central to the content of the 

crime was the suffering of common injury by members of the 

public by interference with rights enjoyed by them as such ’; 

(9) Assuming, as the magistrate found, that the delay was 

caused by the Appellant, there was no evidence to show that the 

public were aware of the delay; that they experienced any 

problems with placing bets in consequence; that their enjoyment in 

watching the race had been interfered with; or that they had any 

disappointed expectation that the race would begin precisely at the 

time fixed; 

(10) The evidence showed that delays of one or two minutes at 

the start of a race were usual for a variety of reasons, although on 

this occasion it was the Appellant’s action which caused the delay. 

As delays were usual, it was highly improbable that the anxiety, 

concern, discomfort and disappointment which the magistrate 

considered the likely result of one minute’s delay, would have had 

time to manifest itself. The position might have been different if 

the Appellant’s actions had caused false start to the race, or if it 

had to be cancelled or postponed for a significant period of time. 

The fact that much administrative inconvenience had been caused

23 

to the Jockey Club did not establish the significant number of 

persons required to be affected to substantiate common injury; 

(11) While the magistrate was correct in finding the Appellant’s 

conduct was disorderly and not warranted by law, he nevertheless 

erred in finding that his delaying the start of the race amounted to 

a public nuisance. On the evidence it was not possible to find the 

necessary common injury caused to the community as a whole, or 

to a significant portion of it. Although the Appellant was 

undoubtedly a tiresome nuisance, his behaviour did not constitute 

a public nuisance, and the conviction on the second summons must 

be quashed; 

HCMA 313/2006 

(12) Although the Appellant contended that the Appellant should 

not have been charged with the offence of public nuisance, when s 

4(28) of the Summary Offences Ordinance, Cap 428, was ‘tailormade 

’ for the behaviour complained of, and that, on the basis of 

Rimmington, if a statutory offence existed it should be used, rather 

than the common law equivalent, unless there was good reason not 

to do so, the choice of charge and venue for trial was the 

responsibility of the Secretary for Justice and his designated 

officers. The prosecution had a wide discretion as to the charge or 

charges it might lay and in the absence of bad faith, abuse of 

process or perverse action a court was unable to question the 

decision. Charges were laid and venues chosen according to 

prosecution policy and guidelines taking into account the gravity 

of the offence, the elements that could be proved and other factors 

such as prevalence, deterrence, community mores, etc. The 

prosecutorial burden was a heavy one and it was for the Secretary 

for Justice to decide in what manner it was to be borne. The 

Appellant did not suggest that the common law offence was 

chosen, in the manner deprecated in Rimmington, to circumvent 

mandatory time limits, or limits on penalties; 

(13) The Appellant was disingenuous in submitting that the 

magistrate erred by concentrating on whether the Appellant’s 

demonstration had caused congestion, rather than considering the 

reasonableness of the public stopping in the street to watch. The 

crowds gathered as a direct consequence of and in response to the 

Appellant’s activities. Many pedestrians undoubtedly stopped 

because the crowds watching the Appellant impeded their 

progress, or blocked their access to shops, offices or MTR, or 

because the positioning of the Fire Services cushion obliged them 

to take a lengthy detour. The longer the Appellant remained aloft, 

the greater the crowds and congestion and the less reasonable their 

user of the highway;

24 

(14) The magistrate concluded that the Appellant’s 

demonstration, lawful and peaceful as it was, was unduly lengthy, 

given the well-aired topic he wished to bring to the public 

attention; the time and place chosen for the demonstration and the 

further lengthening of the time of disruption by his bizarre 

insistence on being fed as a condition of his leaving the podium. 

He found that the Appellant’s message, although important and 

legitimate, could have been conveyed within a much shorter timeframe 

than the two hours he was on top of the screen. The 

Appellant was aware his activities were likely to cause congestion, 

and it was an integral part of his demonstration that such 

congestion or disturbance would be caused. By refusing to come 

down when, after a lengthy period, congestion below was pointed 

out to him, he had extended the time by demanding dim sum. At a 

certain point the crowd’s user became unreasonable, as a direct 

result of the Appellant’s acts. That point was for the magistrate to 

find; 

(15) In Rimmington it was held that the mens rea which had to be 

established against a defendant on a public nuisance charge was 

that he knew or ought to have known, because the means of 

knowledge was available to him, the consequences of what he did 

or omitted to do. The magistrate considered the question of the 

Appellant’s knowledge and drew the irresistible inference that the 

Appellant had the requisite mens rea; 

(16) To establish ‘public nuisance ’ the effect of the act or 

omission must be shown ‘to endanger the life, health, property or 

comfort of the public, or to obstruct the public in the exercise of 

rights common to everyone ’. The magistrate found that many 

road users and shop owners and customers in the vicinity plus the 

TV owner were seriously affected by the Appellant’s act ‘to 

varying significant degrees enough to constitute a substantial 

number of the public ’. The magistrate could also have found on 

the evidence that potentially all citizens, residents and visitors in 

Hong Kong could be regarded as suffering the public nuisance 

caused by the obstruction of the highway, which in normal 

circumstances was available for ordinary use by anyone as a 

pedestrian or driver. Such user was not limited to simple passing 

and re-passing; 

(17) In Yeung May-kwan and Others v HKSAR (2005) 8 

HKCFAR 137 at 157, Bokhary PJ gave instances of how various 

uses of the road or footpath might impede other persons using the 

highway to some extent, and how the law sought to strike a 

balance between ‘possibly conflicting interests of different users of 

the highway based on a requirement of reasonableness. Whether 

any particular instance of obstruction goes beyond what is 

reasonable is a question of fact and degree depending on all the

25 

circumstances, including its extent and duration, the time and 

place where it occurs and the purpose for which it is done ’. The 

court reiterated that where an obstruction resulted from a peaceful 

demonstration, it was essential that the constitutionally protected 

right to demonstrate, which was enshrined in Art 27 of the Basic 

Law, was recognised and given substantial weight; 

(18) The magistrate had borne in mind the important matter of 

the Appellant’s right to demonstrate. He found the elements of the 

offence established. He was apprised of the relevant case law and 

directed himself accordingly. In particular, he carried out the 

required balancing act, in which the Appellant’s right to 

demonstrate had to be balanced against the public right to use the 

highway, not just to pass and repass, but to use it for what might 

be described as social and community purposes. The conviction 

was not wrong. 

Result - Appeal allowed in HCMA 1029/2005, and convictions 

quashed, but appeal dismissed in HCMA 313/2006.

26 

D. MAGISTRACY APPEALS/ 

AGAINST SENTENCE 

裁判法院上訴案件 / 針對刑罰 

MA 15/2006 

Longley DJ 

(7.2.2006) 

*Polly Wan 

#I/P 

GUO 

Jingxing 

Immigration Ordinance/Overstayer in possession of HK 

identity card taking up employment/Twelve months’ 

imprisonment lenient as deterrent sentence required/ 

Humanitarian considerations not relevant as defendant knew 

of these before arrival in Hong Kong 

《入境條例》– 逾期逗留並管有香港身分證以從事 

僱傭工作 – 此類罪行須處以阻嚇性刑罰 —12 個月 

監禁屬寬大的判刑 – 被告人到港前已知的情況不 

得作為人道理由成為相關考慮因素 

The Appellant pleaded guilty to three offences. First, breach 

of condition of stay, contrary to s 41 of the Immigration 

Ordinance, Cap 115, and by virtue of regulation 2(1)(a) of that 

Ordinance, he was sentenced to 2 months’ imprisonment. Second, 

using a forged identity card, contrary to s 7A(1) of the Registration 

of Persons Ordinance, Cap 177, for which he was sentenced to 12 

months’ imprisonment. Third, using a false instrument, namely a 

false Construction Industry Safety Training Certificate, contrary to 

s 73 of the Crimes Ordinance, Cap 200, for which he received 4 

months’ imprisonment. The magistrate adopted starting points of, 

respectively, 3 months, 18 months and 6 months, and gave the 

Appellant a discount of one-third. All sentences were made 

concurrent, producing a total sentence of 12 months. 

The magistrate had been informed that the Applicant was 

divorced and was the sole support of his aged mother, who had 

suffered a stroke in 1999, and two children aged 13 and 8. He had 

come to Hong Kong to provide funds for his family and in 

particular the medical expenses for his mother. 

The facts showed that the Appellant entered Hong Kong on 

a China two-way permit. In breach of his conditions of stay he 

had taken up employment with a construction company. He had 

produced a forged Hong Kong identity card and Construction 

Safety Training Certificate to his employer. He was arrested while 

working in road works in Caine Road. He admitted he had bought 

the false identity card and certificate in Shenzhen. He said he 

committed the offence as his mother was sick. 

The Appellant sought leave to appeal out of time as he had 

received a letter from his daughter informing him that his mother 

had suffered a stroke and that she was suffering from paralysis of 

the right limbs and from incontinence and there was nobody to

27 

look after her save his 13-year-old daughter who had to miss 

school to do so. 

On appeal, the Appellant said his mother was still in 

hospital, but that his daughter had to look after her. He did not 

suggest the sentences were excessive at the time they were passed. 

Held : 

(1) The magistrate adopted a lenient view of the Appellant’s 

conduct, particularly in relation to the second offence. He only 

referred to the Appellant having one previous conviction for a 

similar offence in 1999. In fact the Appellant had been in Hong 

Kong a year earlier and breached his condition of stay. This was, 

therefore, the third occasion he had been in Hong Kong and 

committed offences; 

(2) In HKSAR v Li Chang-li [2005] 1 HKLRD 865, the Court of 

Appeal said that the problem of overstayers who were in 

possession of Hong Kong identity cards and took up employment 

was so serious that deterrent sentences were called for. It went on 

to say that where such an identity card was used to obtain 

employment, the sentence upon plea should, save in exceptional 

circumstances, be 15 months’ imprisonment; 

(3) Although the court had power to take into account strong 

humanitarian grounds for reducing a sentence, the Appellant was 

aware that his mother had already had one stroke before he entered 

Hong Kong on this occasion, with a view yet again to breach the 

laws of Hong Kong. He chose to take the risk that her health 

might decline. Even if, as he now maintained, his mother had 

been released home, and had only recently been hospitalised 

again, that deterioration in her condition could not have been 

wholly unexpected. 

Result - Appeal dismissed. 

MA 313/2006 

Beeson J 

(28.4.2006) 

*Cheung Wai-sun 

& Lam Tak-wing 

PEARCE 

Matt James 

Public Nuisance/Substantial inconvenience caused to a large 

number of people/Suspended sentence of imprisonment 

對公衆的妨擾 – 對很多人造成很大不便 – 緩刑 

The Appellant was convicted after trial of an offence of 

public nuisance, contrary to common law. It was alleged that on 3 

June 2005, he caused a nuisance to the public by unlawfully 

climbing up a big TV screen dressed as Spiderman at Luk Hoi 

Tung Building, No. 31 Queen’s Road, Central.

28 

#Philip Dykes SC 

The magistrate took a starting point for sentence of 28 days’ 

imprisonment, but credit was given for the Appellant’s clear 

record. The Appellant was sentenced to 21 days’ imprisonment. 

The maximum penalty for the offence on summary conviction was 

2 years’ imprisonment. The magistrate found no reason to 

suspend the sentence, but granted bail pending appeal. 

For facts of case, see Magistracy Appeals/Against 

Conviction. 

The Magistrate treated the Appellant as a man of clear 

record and noted his monthly earnings were around $7,000. He 

considered that the Appellant had caused substantial 

inconvenience to a large number of people and took the view that 

a financial penalty was inappropriate, in that it would lead others 

to ‘think they can pay for executing their belief, even to an 

unreasonable and excessive extent’. 

A community service order was considered as an alternative 

to the short prison term, but the Appellant said he had no time to 

carry out the programme. 

Held : 

On appeal 

A short term of imprisonment was, in principle, in all the 

circumstances, a proper sentence. However, justice would be 

served by suspending that sentence for a period of 18 months. 

This would recognise what was, in effect, a first offence, but 

would have a lasting deterrent influence. 

Result - Appeal allowed. Sentence of imprisonment of 21 days 

suspended for 18 months. 

[As to the circumstances in which it is proper for a court 

to suspend a sentence of imprisonment, see Sentencing in 

Hong Kong, 4th ed., at pp 466-467: Ed]

29 

E. COSTS IN CRIMINAL CASES 

刑事案件的訟費 

CA 411/2003 

CA 61/2004 

Ma CJHC 

Stuart-Moore VP 

Stock JA 

(28.4.2006) 

*G McCoy SC 

& G Shiu 

#C Grossman SC 

& H M Mughal 

B Yu SC 

(amicus curiae) 

HUNG 

Chan-wa 

ATSUSHI 

Asano 

Court appointing amicus curiae to assist it/Not right to order 

Respondent to pay costs/Order nisi varied 

法庭委任法庭之友提供協助 – 無權下令答辯人支 

付訟費 – 更改暫准命令 

On 26 January 2006, the Court handed down judgment on 

the issue of prospective overruling, which was an issue consequent 

on its decision on the constitutionality of ss 47(1) and (2) of the 

Dangerous Drugs Ordinance, Cap 134. 

The court had engaged the assistance of an amicus curiae 

because of the importance of the issue, and, the issue having been 

determined against the Respondent. The court held: 

There will be a costs order nisi that the costs of the 

amicus curiae and of the appellants be paid by the 

respondent, to be taxed if not agreed, the appellants’ 

costs to be taxed in accordance with the Legal Aid 

Regulations. 

The Respondent applied to vary the costs order nisi, 

submitting that the costs of the amicus curiae should not be borne 

by it. The Appellants made it clear that they would not make any 

submissions regarding costs unless an order was sought against 

them. The Respondent sought no such order but submitted that 

there be no order as to costs for the prospective overruling hearing. 

Held : 

The costs order nisi should be varied. It was not necessary 

to determine the point of whether the court had jurisdiction to 

order the costs of an amicus curiae to be paid by the Respondent. 

Even if such jurisdiction existed, given that it was the court on its 

own initiative which considered it necessary to appoint an amicus 

curiae, it would not be right to penalise the Respondent with an 

order to pay these costs. 

Result - Application allowed. Order nisi varied to an order that 

there be no order as to costs for the prospective 

overruling hearing.

刑事檢控科各律師/高級律 - Department of Justice

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