Classified Criminal Appeals Bulletin 2006 Part 2 - Department of ...

CCAB 2006 Sentence (Quantum) - Assault / Wounding 

Sentence (Quantum) 

Assault / Wounding 

CA 198/2004 

Stuart-Moore 

VP 

Stock JA 

Burrell J 

(21.2.2006) 

*Alain Sham 

#Gary Plowman 

SC 

CA 341/2005 

Stuart-Moore 

VP 

Burrell J 


*Sin Pui-ha 

#Phillip Ross 

MACH 

Sindy 

NGUYEN 

Van-phuong 

Assault occasioning actual bodily harm/Plea rejected by prosecution but 

substituted after successful appeal against conviction/Maximum sentence as 

starting point 

襲擊他人致造成身體傷害襲擊他人致造成身體傷害 – 控方不接納被告就較輕的罪行認罪 

控方不接納被告就較輕的罪行認罪, 

控方不接納被告就較輕的罪行認罪 

但原來的判罪經上訴後被推翻並獲得改判該較輕的罪行但原來的判罪經上訴後被推翻並獲得改判該較輕的罪行 – 以最高 

刑罰為量刑起點 

刑罰為量刑起點 

The Applicant’s conviction for murder was quashed, and substituted with 

a conviction for assault occasioning actual bodily harm. 

The evidence at trial had shown that the Applicant (D2 at trial) was the 

instigator of a series of assaults upon the deceased, who at no stage offered any 

resistance. The Applicant not only gave encouragement to D1 and D3 at various 

stages during the assaults when they attacked the deceased with fists, with feet 

and with blunt weapons in the form of a water pipe and a metal broom handle, 

she also physically participated on at least two occasions. However, the main 

attack, which proved to be fatal, appeared to have occurred some hours after the 

Applicant had gone to sleep in her room. 

The Applicant’s responsibility was confined to assaulting the deceased 

thereby occasioning him actual bodily harm. As regards the sentence for the 

substituted offence, the maximum for which was 3 years’ imprisonment under s 

39 of the Offences against the Person Ordinance, Cap 212, the court 

Held : 

(1) Beyond the fact that a plea of guilty to assault occasioning actual bodily 

harm was offered at the second pre-trial review, well before the start of the trial, 

there was no mitigation. That offer was rejected by the prosecution, but defence 

counsel, in his final speech, invited the jury to convict the Applicant of assault 

occasioning actual bodily harm; 

(2) The Applicant was entitled to the usual one-third discount for a guilty 

plea. 

Result - Sentence of 2 years’ imprisonment imposed. 

Wounding with intent/Offence in prison/Fellow prisoner repeatedly 

stabbed from behind/Whether consecutive sentence appropriate 

有意圖而傷人有意圖而傷人 – 在監獄內犯罪 – 從後多次刺向獄中另一囚犯 – 

刑期分期執行是否恰當 

刑期分期執行是否恰當 

In June 2003, the Applicant was sentenced to 7½ years’ imprisonment for 

offences of robbery, assisting unauthorised entrants into Hong Kong and 

remaining in Hong Kong unlawfully. 

In April 2005, whilst in prison, the Applicant committed an offence of 

wounding with intent, contrary to s 17 of the Offences against the Person 

Ordinance, Cap 212. The Applicant’s attack was on a fellow prisoner. He had 

sharpened a toothbrush and used it to stab the victim whilst he stood in line for a 

meal. He stabbed him five times from behind, on the side of his head close to 

his right eye, on his shoulder and on his chest. The stabs caused lacerations and 

172


CA 332/2005 

Ma CJHC 

Stock JA 


*Tam Sze-lok 

#Phillip Ross 

HEMANT 

Gurung 

scratches which were not deep but which drew blood. 

The judge said she regarded the offence as ‘extremely serious’ , and 

noted that the victim was unarmed and had been attacked from behind. The 

violence had been motivated by a grudge stemming from a trivial verbal 

exchange the day before. She said the revenge attack was disproportionate, 

premeditated and cowardly. The fact it occurred in a prison was another serious 

feature. 

The judge, having taken 3 years’ imprisonment as the starting point, 

sentenced the Applicant to 2 years’ imprisonment, of which 18 months was 

ordered to be served consecutively to the 7½ years he was serving at the time. 

On appeal, it was submitted, first, that the starting point of 3 years for the 

s 17 offence was too high, and, second, that the consecutive period should have 

been about 12 months. 

Held : 

(1) All offences contrary to s 17 were serious because they all contained the 

ingredient that the offender intended to inflict really serious bodily injury at the 

time. The fact that relatively minor wounds were in fact inflicted was of 

secondary importance. Given all the factors the judge referred to, the judge was 

correct to start at 3 years and to reduce the sentence to 2 years for the guilty 

plea; 

(2) When applying the totality principle, a number of factors might be 

weighed in the balance. In this case, the seriousness of the offence, the length of 

the first sentence and how much of it remained to be served were examples. In 

some cases it would be entirely proper to make the second sentence entirely 

consecutive to the first. The judge could not have been criticised had she done 

so. Her application of the totality principle was measured and proper. 

Result - Application dismissed. 

Wounding with intent/Victim attacked by gang with knives/ Little 

permanent injury/Need for deterrence/Ill-health of close relative not 

generally a mitigating factor 

有意圖而傷人有意圖而傷人 – 受害人被一夥人用刀襲擊 – 輕微的永久傷害 – 

需具阻嚇作用需具阻嚇作用 – 近親身體欠佳一般不是減刑因素 

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 

173


AR 1/2006 

Stuart-Moore 

VP Stock JA 

Burrell J 


*I G Cross SC 

& Lam Wingsai 

#Suen Kamhee 

SJ 

v 

CHAU 

Wan-fun 

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; 

(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 illhealth 

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. 


Wounding with intent/Wife attacking husband with knife/Victim reduced 

to vegetative state/Domestic violence common and result could not be 

ignored/Additional discounting of sentence on account of good character 

not appropriate/Effects of outpouring of public sympathy as mitigation 

有意圖而傷人有意圖而傷人 – 妻子用刀襲擊丈夫 – 受害人陷入植物人狀態陷入植物人狀態 – 

家庭暴力屢見不鮮 

家庭暴力屢見不鮮, 家庭暴力屢見不鮮後果亦不容忽視後果亦不容忽視 – 因良好品格而額外減免刑 

因良好品格而額外減免刑 

期並不恰當 

期並不恰當期並不恰當 – 以廣受公眾同情公眾同情作為求情因素的效力 

作為求情因素的效力 

The Respondent pleaded guilty to an offence of wounding with intent, 

contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212. 

The victim and the Respondent were, respectively, husband and wife. 

The victim had been employed by the Hong Kong Jockey Club to work in their 

stables. The couple lived with their two daughters, then aged 8 and 2, at 

quarters provided to members of staff by the Hong Kong Jockey Club. Owing 

to his indebtedness, the victim, without consulting the Respondent, resigned 

from his job and, as a consequence, the family had to move out of their quarters. 

The Respondent was upset by these events. 

174


On 21 August 2005, whilst the victim and the Respondent were preparing 

to move out of their quarters, the Respondent discovered that her gold 

ornaments and other items of jewellery, valued at about $23,000, had gone 

missing. The victim admitted he had pawned the jewellery in order to repay his 

debts. The Respondent became furious and, in a rage, she fetched a fruit knife 

from the dining table and tried to stab the victim. The victim resisted and the 

knife was broken. However, the Respondent did not give up and she then 

fetched another knife from the kitchen. This time, in front of the couple’s elder 

daughter, she successfully managed to stab the victim once in the back and once 

in the chest. 

The victim sustained a ‘chest wound, laceration of heart with open 

wound into thorax, and respiratory failure’. Exploratory sternotomy, repair of 

the heart and pericardium, and temporary tracheostomy were carried out. 

However, he remained unconscious due to deprivation of oxygen caused by the 

injuries. As a consequence of complications which developed in the left leg, it 

became necessary to amputate that leg above the knee. 

In sentencing the Respondent on 26 November 2005, the judge adopted a 

starting point of 18 months’ imprisonment, and reduced this by one-third to 12 

months to reflect the guilty plea. The judge further reduced the sentence by 3 

months ‘to take account of [the Respondent’s] hitherto good character, and also 

to ensure that the two young children can be reunited with their mother as soon 

as possible ’. This left a sentence of 9 months’ imprisonment, which was 

completed in February 2006, when the Respondent was discharged from prison. 

Held : 

On review 

(1) As the Court of Appeal had indicated that a one-third discount was 

‘usually to be regarded as the high watermark of the discount given to a 

defendant pleading guilty in good time’ (see: HKSAR v Lee Kwok-chuen Cr 

App 445/2000), the discounting of the Respondent’s sentence by an additional 

three months to take account of her hitherto good character was not appropriate; 

(2) While an outpouring of public sympathy towards the plight of an 

offender might in some circumstances be a relevant consideration for the 

purposes of mitigation, when the offence, as in this case, was grave, such 

mitigation would necessarily carry very limited weight. Some of the letters to 

which the judge referred, and which he had received from persons wanting to 

‘show their support ’ for the Respondent, showed that the conduct of the 

Respondent was entirely out of character, and this was a factor not to be 

ignored; 

(3) This was an act of violence which could hardly have been more serious. 

Significantly, having broken one knife, the Respondent went back to fetch 

another to complete what she had started. This was plainly an outburst of rage 

on the part of the Respondent when she could no longer control herself, arising 

from the discovery that her husband had pawned her jewellery, her last 

remaining personal effects, after all the wrongs she felt he had done to her. On 

the other hand, the Respondent was a decent, hard working person and a loving 

mother; 

(4) The courts could not, indeed must not, lose sight of the gravity of an 

offence of serious violence by imposing a custodial sentence which was so 

lenient that justice could not be said to have been done. As Bridge LJ said in R 

v Buchanan (1980) 2 Cr App R (S) 13, 15: 

175


Burglary 

CA 406/2005 

Stuart-Moore 

VP 

McMahon 

& Lunn JJ 


*Louisa Lai 

#I/P 

CHEUNG 

To-ming 

It is always sad when a case of this nature comes before this 

court, where an offence of gross violence has been committed in 

a purely domestic context. It is by no means an unusual feature 

of such cases that the victim, after the event, has entirely forgiven 

the offender and is anxious to minimise the punishment he must 

suffer. It is sometimes suggested, although Mr. O’Connor wisely 

has not put it in this way, that because the offence occurred in a 

purely domestic context, it was a matter of purely domestic 

concern. This is a wholly erroneous view and one which no court 

can entertain. When such offences of violence are committed, 

whoever the victim may be, the matter is inevitably one of 

considerable public concern. The courts cannot regrettably be 

deflected from their duty of imposing sentences appropriate to the 

gravity of the offence when crimes of violence of this nature are 

committed against a domestic background. 

(5) The victim had been reduced to a vegetative state. In normal 

circumstances, a very long sentence would be called for, but the circumstances 

were anything but normal. In reality, this was a case which differed very little 

from manslaughter; 

(6) Domestic violence of the kind seen in this case, with ready resort to 

dangerous weapons, albeit under great pressure, was too common, and the result 

could be very grave indeed. It was a result which could not be ignored. 

Result – SJ’s review allowed. Sentence of 3½ years’ imprisonment 

substituted. 

Burglary/Non-domestic premises/Usual starting point may be lowered in 

case of sneak thief who commits opportunistic burglary/Judge to sentence 

on basis of mitigation 

入屋犯法罪入屋犯法罪 – 非住宅樓宇 – 如屬乘機潛入樓宇偷竊的小偷 

如屬乘機潛入樓宇偷竊的小偷,可 

如屬乘機潛入樓宇偷竊的小偷 

將慣常的量刑起點降低將慣常的量刑起點降低 – 法官應基於求情因素判刑 

The Applicant pleaded guilty to an offence of burglary, involving the 

theft of two packets of instant noodles, and of remaining in Hong Kong without 

the authority of the Director of Immigration, after having landed unlawfully. 

Sentences, with consecutive effect, of 20 months and 15 months’ imprisonment, 

respectively, were imposed, making a total of 35 months’ imprisonment. 

The burgled premises were the Mai Po Marshes Wildlife Education 

Centre and Nature Reserve (‘the Centre ’ ) at Tam Kon Chau Road, where there 

was a kitchen. The Centre was locked up at 5:30 pm on 27 March 2005 but, by 

8:30 am the following day, it was discovered that the window next to the front 

door of the Centre had been broken and the main door was open. Nothing of 

any real value was taken but ten empty noodle packets were found in the 

kitchen. Police later found several sets of fingerprints. 

At 11:50 am on 28 March 2005, the Appellant was arrested with three 

other men, none of whom could produce any evidence of identity. In due 

course, it was found that one of the Applicant’s fingerprints matched a print left 

176

CCAB 2006 Sentence (Quantum) - Burglary 

on one of the noodles packets found in the kitchen. The Appellant admitted the 

offence and stated that he entered the Centre alone after noticing that the main 

door had been left open. He stole the contents of two noodles packets he found 

on the kitchen table. He then cooked and consumed these before leaving. 

In mitigation, the Applicant urged that he had been a low-paid 

construction worker who came to Hong Kong in the hope of earning more 

money so that he could provide better medical treatment for his 11-year-old son. 

The judge said that while there were no aggravating factors, it had for 

long been accepted that the starting point for a burglary of non-domestic 

premises should be 2½ years’ imprisonment after trial, and she found the only 

mitigating factor to reduce this to be the Applicant’s timely plea of guilty. 

Held : 

On appeal 

(1) The judge made no finding to indicate whether or not she accepted the 

Applicant’s account which effectively limited his criminality to a ‘walk-in ’ 

burglary, stating only that the Applicant had found the door to the Centre ajar 

and went in and cooked two packets of instant noodles because he was hungry, 

leaving RMB2 on the table to show his remorse; 

(2) It was well-established that where mitigating factors were provided to the 

court which were both plausible and uncontradicted, the judge should proceed to 

sentence on the basis of the mitigation. Whilst it might be said that it was 

unlikely that two separate burglaries must, if the Applicant’s account was to be 

relied upon, have occurred at the Centre on the same night, with the Applicant 

being able simply to walk inside the Centre after one or more other burglars had 

broken in, this was by no means an impossibility; 

(3) In HKSAR v Sim Ka-wing Cr App 450/2000, it was stated: 

The conventional starting-point of 2½ years’ imprisonment for 

the burglary of non-domestic premises relates to burglaries with 

no aggravating or mitigating features. Such burglaries will 

involve a measure of planning, and thus a degree of 

premeditation and planning is already built into the conventional 

starting-point. The conventional starting-point can be lowered in 

the case of the opportunistic burglar, akin perhaps to the sneak 

thief who walks into an open office to steal whatever he can find. 

Likewise, the conventional starting-point can be increased in the 

case of professional criminals who plan their burglaries with 

meticulous care and steal goods and cash of considerable value. 

(4) The only safe basis for dealing with the Applicant was to regard him as 

having been in the same position as a ‘sneak thief ’ who was able to walk into 

the Centre at some stage after one or more others had broken into it. On this 

basis, the Applicant was entitled to receive a lesser sentence than would usually 

be given for a burglary of this type. An 18-month starting point would meet the 

justice of the case, having regard to the most unusual circumstances in which the 

Applicant seemingly committed the burglary. As the Applicant pleaded guilty, 

the starting point must be reduced by a third to reflect this. 

Result - Appeal allowed. Sentence of 20 months’ imprisonment substituted by 

one of 12 months, to run consecutively to the 15 months, making 27 

months in all. 

177

CCAB 2006 Sentence (Quantum) - Child Abuse 

Child Abuse 


Ma CJHC 

Stuart-Moore 

VP 

Lunn J 


*K Zervos SC 

& 

Kathie Cheung 

#Bruce Tse 

SJ 

v 

(1) LAM 

Lui-yin 

(2) YIM 

Ching-ting 

Offences against the Person Ordinance/Ill-treatment or neglect of a child by 

parents/Physical abuse on a large scale and deprivation of medical care and 

attention 

《侵害人身罪條例 

侵害人身罪條例》– 侵害人身罪條例父母虐待或忽略兒童 – 身體多處受虐打並 

被剝奪接受醫療和護理的機會 

被剝奪接受醫療和護理的機會 

The Respondents were convicted after trial of the offence of ill-treatment 

or neglect of a child in their custody, charge or care, contrary to s 27(1) of the 

Offences against the Person Ordinance, Cap 212. 

R1 was aged 38, and R2 aged 33. Both did not have any previous 

convictions. 

The facts showed that a child (Lam Bok-yam) died as a result of injuries 

sustained by him to the head, this causing a ‘very severe subdural haemorrhage 

and diffuse brain swelling which were likely to have been sustained within 18 

hours of his death ’ . The Respondents were his parents who had the custody, 

charge and care of Bok-yam. The medical evidence showed that the injuries 

were likely to have been caused by an assault rather than other causes. The 

bruising and abrasions found on the boy’s face and body were extensive. The 

injuries were sustained by an assault on Bok-yam by a heavy blunt impact to his 

head within 18 hours of death. 

The judge, in his Reasons for Verdict, referred to the Respondents’ 

failure to arrange proper medical care for Bok-yam. In view of the bruises and 

abrasions to his body, the Respondents ought to have appreciated that he needed 

medical attention. The judge took into account the failure to get any medical 

care for Bok-yam when he sustained the head injuries that eventually led to his 

death. The judge then turned to the wilful ill-treatment, and identified three 

aspects: (1) the bruises and abrasions on Bok-yam’s limbs and body; (2) the 

bruises and abrasions on his cheeks; (3) the internal injuries, namely, the severe 

subdural haemorrhaging in the skull and the bruising on his scalp. 

In sentencing the Respondents, the judge had particular regard to: (1) the 

overall picture which was that the Respondents had used excessive force on a 

child who was just over 2 years old when he died; (2) the fact that the 

Respondents should have sought help to enable Bok-yam to have been properly 

looked after; (3) the fact that he felt, on the evidence, that he had to put to one 

side that the head injuries sustained by Bok-yam were caused by one or both of 

them, and to concentrate on the regular beatings and the squeezing of the cheeks. 

Held : 

The Respondents were each sentenced to 2 years’ imprisonment. 

On review 

(1) This was a case of parents having physically abused and wilfully illtreated 

a child on more than just isolated occasions. It had continually taken 

place over a period of months. Bok-yam was a child who at the time of his death 

was just 2 years 4 months old. The Respondents knew that he required more 

care and understanding than a normal healthy child. Born with heart and lung 

diseases, he had been in hospital for over 2 years. When he went home in 

December 2003, he deserved to be well looked after rather than being subjected 

to the complete opposite; 

178

CCAB 2006 Sentence (Quantum) - Child Abuse 

C & E 

MA 245/2006 

Pang DJ 


*Laura Ng 

#I/P 

NGUYEN 

Phuong Dung 

(2) Not only was Bok-yam subjected to physical abuse on a large scale, he 

was also deprived of the medical care and attention he evidently needed. He was 

deprived of the follow-up treatments he had to attend. This was not a case of 

ignorance: the Respondents deliberately chose not to take Bok-yam for treatment 

and for no good reason at all (in fact quite the opposite); 

(3) In summary, this case involved a boy who naturally placed the trust of 

looking after him on those who were responsible for his welfare, his parents. 

They let him down. Dr Li Shuk-han described him as a ‘lovely boy, playful and 

active’. All the doctors and nurses at the hospital related to him and bonded 

with him. Bok-yam deserved better at home. Instead, he was subjected to 

neglect and ill-treatment; 

(4) The sentences imposed were manifestly inadequate. 

Result - SJ’s review allowed. Sentences of R1 and R2 increased to 4 years’ 

imprisonment. 

Dealing with goods to which the Dutiable Commodities Ordinance 

applied/Possession of 68,460 dutiable cigarettes/ Immediate imprisonment 

appropriate 

處理處理《處理應課稅品條例 

應課稅品條例》應課稅品條例適用的貨品適用的貨品 – 管有管有 68,460 68,460枝 68,460 應課稅香煙應課稅香煙 – 

判處即時判處即時監禁是恰當的 

監禁是恰當的 

The Appellant pleaded guilty to an offence of dealing with goods to 

which the Dutiable Commodities Ordinance applied, contrary to s 17(1), as read 

with s 46(3) of the Dutiable Commodities Ordinance, Cap 109. 

The admitted facts showed that in a raid, customs officers entered the 

Appellant’s flat and found a stock of 68,460 dutiable cigarettes. The Appellant 

admitted ownership of the cigarettes, and that she had bought them for re-sale. 

The magistrate was told that the Appellant lived with her husband, who 

was unemployed, that she had 3 young children, and had five previous 

convictions, of which three were similar, and was in breach of a 3-month 

suspended prison sentence. 

The magistrate adopted a starting point of 9 months’ imprisonment and 

reduced it to 6 months for the guilty plea. The 3-month suspended sentence was 

activated to be served consecutively. 

Held : 

On appeal 

The sentence was irreproachable. 

Result - Appeal dismissed. 

179

CCAB 2006 Sentence (Quantum) - Computer Crime 

Computer Crime 

* 萬德豪 

Jonathan Man 

# 童秀儀 

Sylvia Tung 

香港特別行政區訴歐陽銓 

香港特別行政區訴歐陽銓 

H K S A R v A U Y E U N G C h u e n 

高等法院原訟法庭 – 高院裁判法院上訴2006年第458號 

高等法院原訟法庭法官阮雲道 

耹訊日期:ć二零零六年七月二十七日 

宣判日期:ć二零零六年八月二十一日 

COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A C Y 

A P P E A L N O . 4 5 8 O F 2 0 0 6 

N g u y e n J 

D a t e o f H e a r i n g : 2 7 J u l y 2 0 0 6 

D a t e o f J u d g m e n t : 2 1 A u g u s t 2 0 0 6 

串謀取用電腦 

串謀取用電腦,ā 串謀取用電腦目的在於不誠實地獲益目的在於不誠實地獲益 –Ė 銀行信貸管理經理提供 

客户資料給收數公司客户資料給收數公司 –Ė 9 9個月的刑期屬輕 

個月的刑期屬輕 

上訴人經審訊後 ,ā 被裁定一項「串謀取用電腦 ,ā 目的在於不 

誠實地獲益」罪罪名成立,ā判監9個月。ă 

上訴人應他的一位開設收數公司的朋友的要求 ,ā 藉着他自己 

是中信嘉華銀行的信貸管理經理的身份,ā查看儲存在銀行電腦庫內 

的客戶資料 ,ā 以提供給他的朋友。ă ( 案情載於裁判法院上訴案件/針 

對定罪部份)。ă 

上訴人不服判刑 ,ā 提出上訴。ă 他認為裁判官犯錯 ,ā 其中包括 

錯誤地�量案情的嚴重性,ā揣測沒有證據的傷害,ā又沒有考慮所有 

可供判刑的選項和過往很多相近案件的判刑都以非監禁式處理。ă 

裁決裁決:ć 裁決 

(1) 對於同類案件,ā9個月的量刑起點並非過重:ć香港特別行政區 

訴謝日開 MA 427/2006;đ 

(2) 非法進入電腦系統的行為比擬入屋犯罪 ,ā 對於濫用銀行電腦 

系統的人士,ā必須嚴懲:ćHKSAR v Tam Hei-lun & Others [2003] 3 

HKC 745;Ć謝日開一案(見上);Ć 

(3) 雖然沒有實質滋擾或損害的證據 ,ā 但潛在風險是存在的 :ć 

HKSAR v Tsun Shui-lun [1999] 3 HKLRD 215 被區別;Ć 

(4) 上訴人承認每月也會替朋友查閱客戶資料一至兩次 ,ā 每次不 

超過五個客戶。ă那麼在案發的一年間,ā上訴人查閱的資料大概是60 

個與120個之間。ă由於犯案時間長及涉案的客戶資料較多,ā故此9個 

月的量刑起點絕不為高;Ć 

(5) 上訴人的所作所為做成的破壞 ,ā 影響深遠。ă 香港是一個世界 

知名的國際金融中心,ā銀行業的專業誠信對維護香港作為一個國際 

金融中心扮演著一個非常重要的角色。ă上訴人的行為不單破壞了大 

眾對銀行業的信心,ā最嚴重的是間接破壞了香港作為世界知名國際 

金融中心的地位。ă故此上訴人的所作所為不單只損害了被獲取個人 

180


[English digest 

of MA 458 of 

2006, above] 

Nguyen J 


*Jonathan Man 

#Sylvia Tung 

AU YEUNG 

Chuen 

資料的客戶的個人權益及香港銀行界的形像,更損害了整個香港在 

國際舞台上的地位,說上訴人出賣了香港亦絕不為過。這類型的案 

件沒有明確的量刑指引。以個別情況而言由於考慮到被告的個人背 

景,將判刑起點定為9 個月而不獲任何折扣其實已是非常輕的刑罰。 

結果結果‥上訴駁回。 

結果結果 

Conspiracy to obtain access to computer with a view to dishonest 

gain/Credit control manager of bank supplied customer information to debt 

collection agency/Sentence of 9 months’ imprisonment lenient 

The Appellant was convicted after trial of one charge of ‘conspiracy to 

obtain access to computer with a view to dishonest gain’, and was sentenced to 

9 months’ imprisonment. 

Upon the request of a friend who owned a debt collection agency, and 

relying on his capacity as the credit control manger of CITIC Ka Wah Bank, the 

Appellant retrieved customers’ information stored in the computer database of 

the bank so as to supply the information to his friend. (For the facts of the case, 

see Magistracy Appeals/Against Conviction.) 

On appeal against sentence, the Appellant contended, inter alia, that the 

magistrate wrongly assessed the gravity of the case, speculated on the damage in 

the absence of evidence, failed to consider all the sentencing options available, 

and failed to consider that in many previous similar cases a non-custodial 

sentence was imposed. 

Held : 

(1) In cases of this kind, a starting point of 9 months’ imprisonment was not 

excessive: HKSAR v Tse Yat-hoi MA 427/2006; 

(2) Unlawful access to someone else’s computer was likened to burglary. 

Those who abused a bank’s computer system must be severely punished: 

HKSAR v Tam Hei-lun & Others [2000] 3 HKC 745; Tse Yat-hoi (ibid); 

(3) Although there was no evidence of substantial nuisance or damage done, 

potential risk did exist: HKSAR v Tsun Shui-lun [1999] 3 HKLRD 215 

distinguished; 

(4) The Appellant admitted that he retrieved for his friend the customers’ 

information once or twice every month, and not more than five customers every 

retrieval. That would mean that during the material year, the number of 

customers whose information was retrieved by the Appellant approximated 

between 60 and 120. As the duration of the offence was long and the 

information of the customers involved was relatively substantial, the starting 

point of 9 months’ imprisonment could not be said to be excessive; 

(5) The damage done by the acts of the Appellant was far-reaching. As 

Hong Kong was a renowned international financial centre, the professional 

credibility of the banking industry played a vital role in maintaining Hong 

Kong’s reputation as an international financial centre. The acts of the Appellant 

had damaged not only the public’s confidence in the banking industry, but more 

seriously, had indirectly damaged the status of Hong Kong as a renowned 

international financial centre. Not only the personal interests of the customers 

whose information had been stolen had been adversely affected and the image of 

181


Counterfeit Notes 

* 單偉琛 

Eddie Sean 

# 彭耀鴻 

Robert Pang 

the banking industry in Hong Kong ruined, but Hong Kong’s standing on the 

international stage, as a whole, had also been jeopardised. It was no 

exaggeration to say that the Appellant had betrayed Hong Kong. There were no 

specific sentencing guidelines in this type of cases. Having regard to the specific 

circumstances of the Appellant, the starting point of 9 months’ imprisonment 

without any discount was in fact a very lenient punishment. 


香靬港特顠別行政區訴陳祝珊 


H K S A R v C H E N Z h u - s h a n 

高等法院上訴法庭韨 – 高院刑事上訴2005年第392號 

高等法院上訴法庭韨法官張澤� 

高等法院上訴法庭韨法官楊振頄權 

高等法院上訴法庭韨法官鄧國楨 

耹訊日期:二零零六年四月廿一日 

判案頥書頟日期:二零零六年五月四日 

COURT OF APPEAL OF THE HIGH COURT 

CRIMINAL A P P E A L N O . 3 9 2 O F 2 0 0 5 

C h e u n g 

Ye u n g & 

Ta n g J J A 

D a t e o f H e a r i n g : 2 1 A p r i l 2 0 0 6 

D a t e o f J u d g m e n t : 4 M a y 2 0 0 6 

行使和管有偽鈔罪 

行使和管有偽鈔罪行使和管有偽鈔罪 - 以罪行普遍為理由 

以罪行普遍為理由, 以罪行普遍為理由 

根頨據根頨據《根頨據有組織及嚴重罪行 

有組織及嚴重罪行 

條例條例》條例加重刑罰加重刑罰 - 單以發現偽鈔的數目和被檢控人數大增為由而裁 

人數大增為由而裁 

定涉顎案頥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 , 違反香靬港法例 

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 個鞄月和 4 年 9 個鞄月。除第一項控罪的刑期中的 3 個鞄月外,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 

鈔透過自動櫃員鞬機存入其�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 , 但結果被警員鞬在途人協助下截 

獲。其後警員鞬在申請人租住的旅頖館房內的一個鞄行李喼中 , 發現 126 

張500元偽鈔。 

法官指出案頥件涉顎及面值靹共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 個鞄月。法官應控方的申 

182

CCAB 2006 Sentence (Quantum) - Counterfeit Notes 

請,以罪行普遍為理由,根頨據《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個鞄月和4年9個鞄 

月。 

支持有關罪行普遍的證據源自控方向法庭韨提供的資料頔 , 該些 

資料頔顯示自1999年至2005年首靫7個鞄月發現500元偽鈔的數目和被檢控 

涉顎及500元偽鈔罪行的人數大增。 

該些資料頔詳列如下: 

1999 2000 2001 2002 2003 2004 

2005 

1-7月 

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

數目 

張張張張張張張 

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。 

裁決裁決: 裁決裁決 

(1) 根頨據香靬港法例第 455 章《有組織及嚴重罪行條例》附表 1 及附 

表 2, 本案頥的罪行都是 ‘ 指明的罪行 ’ 。而根頨據第 27(11) 條 , 假若法 

庭韨信納被告人所犯的 ‘ 指明罪行 ’ 普遍 , 則可以加重被告人的判 

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 

的數目和涉顎及 500 元偽鈔被檢控人數的資料頔。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:香靬港特顠區訴陳家韑建和酈英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 

偽鈔的數目和涉顎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) 法庭韨在香靬港特顠區訴董海顊一等三人Cr App 268/2005案頥指出: 

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韕 

易。法庭韨必須發出明確訊息韵,表明製造偽鈔者會遭重罰, 

避免這些不法行為氾濫。 

(5) 如涉顎案頥偽鈔總值靹只是數萬港元 , 法庭韨採納的量刑基準為 3-4 

183



of CA 392 of 

2005, above] 

Cheung 

Yeung & 

Tang JJA 


*Eddie Sean 

#Robert Pang 

CHEN 

Zhu-shan 

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。 

結果結果‥ 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。 

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 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 : 

184


Number of 

$500 

counterfeit 

notes 

discovered 

Persons 

prosecuted 


$500 

counterfeit 

notes involved 

185 

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 

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.


Dangerous Drugs/Poison 

CA 220/2005 

Stuart-Moore 

VP 

Burrell J 


*David Leung 

#Giles Surman 

(1) 

Duncan Percy 

(2) 

(1) WONG 

Man-hon 

(2) LEUNG 

Fung-yee 

(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. 

Conspiracy to traffic in dangerous drugs/Courier showing no concern for 

nature of drugs imported into Hong Kong/Suitcase of drugs purchased in 

Bolivia 

串串串謀謀謀販販販運運運危危危險險險藥藥藥物物物 – 身身為為帶帶家家而對運進進香香港港毒毒品品的的性性質質不不大大理理 

會 – 在玻利維亞購買用手提箱裝載的毒品 

A2 pleaded guilty to an offence of conspiracy with others to traffic in a 

dangerous drug, contrary to ss 4(1)(a) and (3) and 39 of the Dangerous Drugs 

Ordinance, Cap 134, and s 159A of the Crimes Ordinance, Cap 200. 

The judge adopted a starting point of 15 years’ imprisonment, which was 

reduced to 11 years to reflect the guilty plea. The full one-third discount was 

withheld as her plea of guilty was entered late and only after a voire dire in 

which the judge ruled her interviews with police to be admissible in evidence. 

On appeal, A2 submitted that the 15-year starting point was wrong in 

principle, having regard to her limited knowledge of what was involved and her 

role as a travelling companion of A1, who also pleaded guilty and received 16 

years’ imprisonment. It was said that all A2 had agreed to do was to hand over 

US$5,000 to a man in Bolivia and, in return, to receive a suitcase to take to Hong 

Kong. In such circumstances, there was said to be no basis for the judge to have 

concluded that A2 was aware either that she was bringing back expensive drugs 

or a large quantity of less expensive drugs. 

Held : 

(1) A2 was well aware that she was one of two couriers whose purpose in 

going to Bolivia was to bring dangerous drugs back to Hong Kong. Such a 

journey could only be made worthwhile if a sizeable and necessarily valuable 

quantity of drugs was involved. To her knowledge, A2 would be exchanging the 

cash she had been given for a suitcase containing drugs. She took the chance 

that the drugs might be cocaine and it was apparent that she had no concern for 

what type of drugs she brought into Hong Kong. Although the precise kind of 

drug to be imported into Hong Kong might not have been spelt out in terms to 

186

CCAB 2006 Sentence (Quantum) - Dangerous Drugs / Poison 

CA 386/2005 

Stuart-Moore 

VP 

Stock JA 

LEE 

Man-wai 

A2, what was said by Ma CJHC in HKSAR v Yip Wai-yin and Anor [2004] 

3 HKC 367 at 374-375 was important in the present context: 

In R v Edward Bilinski (1988) 86 Cr App R 147, it was 

established that in sentencing for trafficking in dangerous drugs, 

the Court could take into account as a factor to reduce what 

otherwise would be the right sentence, the fact that the defendant 

believed the drugs to be of a less potent type than they actually 

were. This reasoning has been applied in Hong Kong in a 

number of cases, among them HKSAR v Li Chi Hung, unreported, 

CACC 18 of 2002, 15 January 2003, Court of Appeal. 

While this is admittedly a factor that is relevant to sentencing, it 

is in our view important to stress the following :- 

(1) The availability of this factor depends on the Court being 

provided with evidence supporting the belief on the 

defendant's part that he was dealing with a different type of 

drug. Except where this is accepted by the prosecution, it 

will be rare that a Court will be satisfied by a bare 

assertion made in mitigation alone. The defendant will 

therefore have to demonstrate his belief on a balance of 

probabilities, unless this is already clear on the evidence 

before the Court. The Court will be required to look at all 

the circumstances of the case. For example, the Court may 

well have to be satisfied of the degree of care exercised by 

the defendant:- see Bilinski at 149. Overall, it is important 

to bear in mind the specific context in which this factor 

arises, namely, that the defendant is already admittedly a 

drug trafficker. 

(2) Even where the Court is satisfied, this would only be a 

factor that goes to a reduction in what otherwise would be 

the appropriate sentence. The defendant will not be 

entitled to be sentenced on the basis, using any appropriate 

tariff, that the drugs were in fact what he believed them to 

be:- see HKSAR v Chan Yiu Hong, unreported, CACC 592 

of 2002, 18 September 2003, Court of Appeal; R v Gena 

Ngiam [2002] 1 Cr App R (S) 150 at 152. In other words, 

where, for example, a defendant establishes to the 

satisfaction of the Court that he thought the drugs were 

Ecstasy when in fact they were Ice, he will not be entitled to 

be sentenced as though the drugs had been Ecstasy. He 

will be sentenced in accordance with the tariff for Ice but 

given a discount on account of his mistaken (but genuine) 

belief that the drugs were something else. 

(2) The judge was justified in adopting a 15-year starting point having made 

proper, and perhaps even generous allowance for the special position in which 

A2 found herself. 


Dangerous drugs/Offence committed due to financial pressure/ Financial 

problems no basis for mitigation 

危險藥物危險藥物 – 因經濟壓力而犯罪 – 經濟問題並非求情理據 

經濟問題並非求情理據 

The Applicant, aged 33, pleaded guilty to a single count of trafficking in 

a crystalline solid containing 481.63 grammes of methamphetamine 

187



*Joseph Wong 

#I/P 

AR 4/2005 

Stuart-Moore 

VP 

Stock JA 

McMahon J 


*D G Saw SC 

& Grace Chan 

#H M Mughal 

SJ 

v 

LEE 

Siu-kei 

hydrochloride (‘ice’), 9.33 grammes of cocaine and a tablet containing 12 

milligrammes of midazolam. Police found the drugs at his home in Tsing Yi. 

In mitigation, it was said that the Applicant had been motivated to traffic 

in drugs because of the financial pressure upon him arising from seven 

outstanding mortgage payments on his other home in Shenzhen. Having 

exhausted all avenues of raising money, he had allowed himself to be persuaded 

by a friend to keep and to distribute drugs in return for a reward. 

The judge adopted a starting point for sentence of 16½ years’ 

imprisonment, and reduced this by a third to 11 years to reflect the guilty plea. 

Held : 

On appeal 

(1) The starting point adopted for just over 481 grammes of ice was wholly 

appropriate: Attorney General v Ching Kwok-hung [1991] 2 HKLR 125; 

(2) It was well-established that financial pressure could not excuse or reduce 

a person’s culpability where criminal offences were concerned. This factor 

might explain why a person had resorted to crime, as here, but it could not be 

something which served to reduce a sentence which was in all respects 

appropriate to the circumstances. There were many who found themselves 

facing financial problems and this provided no sort of excuse for resorting to 

crime. 


Dangerous drugs/Trafficking in large quantity of herbal cannabis by adult 

offender/Detention centre order wrong in principle 

危險藥物危險藥物危險藥物 – 成年罪犯販運大量大麻草 – 判令進入勞教中心屬原則 

判令進入勞教中心屬原則 

上錯誤上錯誤 

上錯誤 

The Respondent, aged 23, pleaded guilty to a charge of trafficking in 

13.02 kg of herbal cannabis, and was sentenced to be detained in a detention 

centre. That was after a detention centre suitability report had indicated that he 

was a suitable candidate for the detention centre. 

In her Reasons for Sentence, the judge remarked that the Respondent’s 

offence would have attracted a sentence of ‘4 years’ imprisonment upwards’ for 

an amount in excess of 9 kg of cannabis resin, the more potent form of this drug, 

but that as this was over 13 kg of herbal cannabis, the judge was ‘looking at’ a 

starting point of 4½ years. The judge said: 

Now, you are lucky because not everybody can get a favourable 

report for detention centre. It depends on your mental attitude; it 

depends on whether you are physically fit. You happen to be one of 

the lucky ones; otherwise, you are going to face a 4½ year 

sentence. I am not going to pretend or tell you that this is not 

going to be a tough few months ahead of you in detention centre. 

Section 4(2)(a) of the Detention Centres Ordinance, Cap 239, provided 

that the period of detention for a person of the Respondent’s age (23 years) was 

‘not less than 3 months’ and ‘not more than 12 months’. 

On review, it was submitted that the sentence was wrong in principle 

and/or manifestly inadequate for a case concerning drugs in such a large 

188


quantity, being supplied on what was plainly a regular commercial basis. The 

facts showed that the Respondent played an important role in the distribution of 

the drugs. 

Held : 

(1) The sentencing guidelines for trafficking in cannabis in all its forms were 

to be found in Attorney General v Chan Chi-man [1987] HKLR 221. Roberts 

CJ used phraseology which was echoed by the judge in the present case, that for 

‘over 9,000 grammes’ of cannabis resin, ‘4 years’ imprisonment upwards’ 

would be appropriate after trial. Roberts CJ dealt with the approach to the 

remaining two forms in which cannabis was generally found, saying: 

So far, no clear distinction appears to have been drawn in 

sentences between cannabis in the three forms in which it 

commonly appears, that is to say herbal cannabis, cannabis resin 

and cannabis oil. 

The principal psychoactive constituent in the cannabis plant is 

known as tetrahydrocannabinol. The concentration of 

tetrahydrocannabol in herbal cannabis is up to about 8% of the 

bulk weight. In cannabis resin, tetrahydrocannabol concentration 

is about 15%. In cannabis oil, it is 60%. It will, therefore, be open 

to the courts, if they think fit, to take into account the less damaging 

effect, gramme for gramme, of herbal cannabis and the more 

damaging effect of cannabis oil as compared with cannabis resin 

and adjust the sentence accordingly. 

(2) It was plain therefore, that when sentencing for an offence of trafficking 

in herbal cannabis, the starting point should normally be adjusted downwards, if 

at all, based upon the cannabis resin tariffs. This was to enable the court to take 

into account the fact that the concentration of tetrahydrocannabinol (THC) in 

cannabis resin was higher than it was in the herbal variety. Towards the end of 

the judgment in Chan Chi-man, the court recognised that ‘better evidence’ 

might become available as to the dangerous effects of cannabis. This might yet 

be so. New scientific evidence had, however, been forthcoming to the effect 

that the concentration of THC to be found in cannabis resin was about ‘four 

times higher’ than the average found in herbal cannabis. This was covered by 

Attorney General v Tuen Shui-ming and Another [1995] 2 HKCLR 129, and it 

was accordingly decided that the THC concentrations referred to in Chan Chiman 

were no longer to be regarded as correct. Despite this, no adjustment was 

made to the guideline sentencing bands and the tariffs remained the same. 

Power VP, at 133, indicated that: 

The court in Chan Chi-man was plainly dealing with the total 

volume of cannabis resin and that is the amount to which the 

tariff applies. If, for example, 9,000 grammes was seized, then 

the appropriate starting point would be 48 months. It would be 

proper for the sentencing court then to adjust that figure to a 

limited extent in accordance with the concentration of THC. In 

the present case, given that more than 50 kilogrammes was 

involved, seven years would have been an appropriate starting 

point. This could properly have been varied to six years given 

the very low concentration. 

(3) Shortly after the decision on 9 June 1995 in Tuen Shui-ming, the court, 

on 31 October 1995, again made it clear in R v Chong Chak-on [1996] 1 HKC 

152, that the sentence was ‘governed by the weight of the herbal cannabis’. In 

that case, where a 20-year sentence for trafficking in over 388 kg of herbal 

cannabis was upheld, the court said that the ‘THC content was relevant only 

189


CA 436/2005 

Stuart-Moore 

VP 

Stock & 

Yeung JJA 


*Evelyn Tsang 

#I/P 

YUEN 

Wing-chuen 

insofar as it allows the court to take a more lenient view of herbal cannabis 

than it would of an equivalent amount of cannabis resin’; 

(4) The detention centre order was wrong in principle for a case as serious as 

this. There was nothing to warrant any departure from the guidelines. A 

starting point of about 5 years would have been appropriate, but having regard 

to the judge’s indication that she would have taken 4½ years, that would be 

adopted. Reducing this by a third to reflect the Respondent’s plea of guilty, the 

resulting sentence would be 3 years. As this was a review and the Respondent 

had served about 5 months in the rigorous regime of a detention centre, a 

sentence of 2 years and 9 months’ imprisonment was appropriate. 

Result - SJ’s application allowed. Sentence of 2 years and 9 months’ 

imprisonment substituted. 

Trafficking in dangerous drugs/Repeat offender/Sentencing tariffs not 

engraved in tablets of stone/Enhancement of sentence beyond suggested 

bands due to criminal record/No basis for pegging sentence for trafficking 

in midazolam to tariffs for trafficking in heroin with a 20% discount 

販運危險藥物販運危險藥物 – 屢犯 – 量刑基準並非金科玉律必須予以遵從 – 

因有刑事紀錄而加重刑罰至高於建議的量刑級別因有刑事紀錄而加重刑罰至高於建議的量刑級別 – 沒有理據將販 

運運運咪咪咪達達達唑唑侖的判刑與販運海洛英的量刑基準掛鈎並按此再扣減侖的判刑與販運海洛英的量刑基準掛鈎並按此再扣減 20% 

20% 

的刑期的刑期 

的刑期 

The Applicant was found, upon interception, to be carrying, in 70 

packets, 13.59 grammes of a mixture containing 9.98 grammes of heroin 

hydrochloride, and 70 tablets of midazolam. He admitted that he intended to 

sell the dangerous drugs for a profit. 

The Applicant had 18 previous convictions, most of which were drugrelated, 

with 4 for either trafficking in dangerous drugs or conspiracy to traffic 

in dangerous drugs. For those 4 convictions, the Applicant had served sentences 

ranging from 16 months to 8 years’ imprisonment. 

After the Applicant pleaded guilty in the District Court to a charge of 

trafficking in dangerous drugs, he was sentenced to 4 years’ imprisonment. 

The judge considered that a starting point of 5 years would be sufficient 

to reflect the quantity of drugs, including both the heroin and the midazolam 

tablets. However, the judge decided to adopt a higher starting point of 6 years 

because of the Applicant’s previous convictions, following R v Tam, Simon 

MAs 489 & 490/1996. 

Held : 

With leave, the Applicant appealed against sentence. 

(1) There was no basis for the Applicant’s complaints that the judge had 

imposed a 2-year sentence in relation to the midazolam. However, the judge did 

say that he relied upon what was said in HKSAR v Lee Hong-wing HCCC 

83/1998, where a deputy judge of the High Court had stated that the ‘sentence 

for trafficking in midazolam should be pegged to tariffs for trafficking in heroin 

with a 20% discount.’ Plainly, there was no proper foundation for this 

comment, and it should not, in the future, be relied upon; 

(2) On the issue of whether, as a matter of principle, the judge was right to 

have increased the starting point by 20% because of the Appellant’s previous 

190


convictions, the Court of Appeal, in R v Lau Tak-ming [1990] 2 HKLR 370, laid 

down the tariff for heroin trafficking offences, and stated expressly, at p 387 (C- 

D), that ‘To allow for all other factors which properly lie for the consideration 

of the sentencing judge, the bands of the sentences will be wider than those set 

out in Chan Chi-ming’ ; 

(3) The Court of Appeal also said, at p 386 E, ‘within the suggested bands 

factors which the sentencing judge may properly take into account are: the 

profit which, because of adulteration, the place of ultimate sale, or otherwise, 

may reasonably be expected to be derived from trafficking in the quantities of 

dangerous drugs involved; the number of packets; the type of mixture 

containing the narcotic; the degree of involvement of the offender; his previous 

history of narcotic offences and matters of mitigation which may be advanced 

on his behalf’ ; 

(4) The Appellant was sentenced for trafficking in 9.98 grammes of heroin, 

and a 5-year sentence was the upper limit under the tariff set out in Lau Takming 

‘for up to 10 grammes of narcotic ’ ; 

(5) It was a sad reality that drug offenders often had a history of narcotic 

offences. Repeated drug offenders could be sentenced beyond the bands 

suggested in Lau Tak-ming: HKSAR v Lau Kin-chung Cr App 79/2003, HKSAR 

v Chan Hei-kam Cr App 229/1999. The tariffs laid down in Lau Tak-ming were 

meant to reflect mainly the quantity of dangerous drugs involved and were not 

engraved in tablets of stone. Where there were aggravating factors, such factors 

might cause the limit in each of the suggested bands to be exceeded; 

(6) For a repeat offender, particularly a repeat offender of similar offences, a 

sentencing judge was entitled to enhance sentence hoping that such higher 

starting point would have a sufficient deterrent effect as ‘the constant repetition 

of this applicant’s trafficking in dangerous drugs had itself increased the 

gravity of these offences, at least so far as sentence is concerned’ , and ‘the 

greater the crime, the more obvious becomes the need for a deterrent sentence 

on repetition in order that the public are properly protected’ : HKSAR v Chan 

Pui-chi [1999] 2 HKLRD 830; 

(7) This case was an example of where the judge was right to have enhanced 

the sentence beyond the limit of the suggested bands on account of the 

Applicant’s very serious criminal record, which made this the fifth time he had 

been before the court for trafficking in dangerous drugs. It would make no 

sense that a sentence would be enhanced when the tariff lay at the lower end of 

the suggested band and not, as in this case, when the tariff lay at the very top of 

the suggested band; 

(8) If the quantity of drug involved were 0.03 grammes more, the tariff 

would be taken to be the next band, with room for substantial increase. It would 

make no sense for the court to be bound by the 5-year limit because of this 

negligible weight difference. 


191


MA 248 & 

249/2006 

Beeson J 


*Lam Tak-wing 

#I/P 

WONG 

Yuen-choi 

Injecting a dangerous drug/Defendant on two occasions found with syringe 

containing midazolam while an in-patient at a public hospital/Bad criminal 

record/Concurrent sentences of imprisonment appropriate despite ill-health 

注射危險藥物注射危險藥物 – 被告人在公立醫院留醫時兩次被發現藏有載有咪 

達唑侖的針筒達唑侖的針筒 – 被告人犯案纍纍 

被告人犯案纍纍 – 即使身體欠佳 

即使身體欠佳, 即使身體欠佳 

同期執行的 

同期執行的 

監禁刑期仍屬恰當 

監禁刑期仍屬恰當 

The Appellant was convicted in each of two cases on his own pleas of an 

offence of injecting a dangerous drug, namely, midazolam, and was sentenced 

on each offence to 6 months’ imprisonment by the same magistrate, the 

sentences to run concurrently. 

The offences occurred while the Appellant was an in-patient of Caritas 

Medical Centre. On 7 September 2005, a nurse found him in his bed, holding a 

syringe with the needle inserted into his hand. Analysis showed that the needle 

contained midazolam. On 28 January 2006, he was again found sitting on his 

bed holding a syringe, which contained traces of midazolam. 

The magistrate obtained a DATC report, which indicated the Appellant 

was not suitable for DATC because he had been there five times before and was 

in poor health. The magistrate said he did not sentence the Appellant on his 

record, but did take into account his numerous drug-related offences, which 

showed he had been a drug addict for many years. He noted that the drug 

involved was not heroin, which would have merited a longer sentence. He took 

a starting point of 9 months’ imprisonment in each case, which he reduced to 6 

months for both offences for the guilty pleas. 

On appeal, the Appellant submitted he was in poor health, in excruciating 

pain and did not want to die in prison. He used the midazloam to kill pain. The 

sentence was manifestly excessive. 

Held : 

(1) Both offences involved illicit, overt, drug consumption in a public 

hospital. The Appellant had 29 previous convictions, 19 of which were drugrelated, 

and the offence in the second case was committed while he was on 

police bail for the first. These factors justified an increased starting point, and 

the overall starting point was not excessive. Full credit was given for the guilty 

pleas, and concurrent sentences were imposed on account of totality. There was 

no basis for disturbing the sentences; 

(2) Although the state of health of the Appellant and his hapless 

circumstances were deserving of sympathy, the magistrate had not erred in the 

stance he took. 


192


* 潘展平 

Jackson Poon 

# 陳鑑全 

Petrus Chan 

香港特別低行政區訴熊美坤 

香港特別低行政區訴熊美坤 

H K S A R v H U N G M e i - k w a n 

高等法院原訟法庭 – 高院裁判住法院上訴2006年第142號 

高等法院原訟法庭暫委法官彭偉昌 

耹訊日期:二零零六年四月二十五日 

宣判住日期:二零零六年四月二十五日 

COURT OF FIRST INSTANCE OF THE HIGH COURT M A G I S T R A C Y 

A P P E A L N O . 1 4 2 O F 2 0 0 6 


D a t e o f J u d g m e n t : 2 5 A p r i l 2 0 0 6 

販運危險藥託物罪販運危險藥託物罪 – 跨境帶毒以供自用屬技侻術性販運 – 考慮 

考慮「再再再再 

分配性潛在風險」分配性潛在風險 

分配性潛在風險 

分配性潛在風險屬錯誤做法屬錯誤做法 – 販運咪達唑侖的量刑應與販運甲 

喹酮看齊 

喹酮看齊 

上訴人經認罪後被裁定一項「非法販運危險藥託物」罪成立 , 

即佘非法販運內含佳 2.26 克佉咪達唑侖的 160 片片劑,被判住處入獄 8 個 

月,與上訴人為另一案被判住處的 3 個月分期執行。 

上訴人承認的案情指他在落馬洲管制站的到境大堂被截停查 

問,由於懷觝疑體內藏毒,故轉視送到北區醫覛院作伿 X 光檢查。檢查下發 

現他的直腸內有異物,之後上訴人將一個避孕套排出體外。避孕套 

內以紙巾包裹着一個 , 內藏 160 粒疑似毒品的膠袋。在拘捕警誡 

下,上訴人承認他從內地買來這些咪達唑侖帶返香港自用。 

裁判住官判住刑時指出上訴人承認過往有 39 次刑事定罪紀錄,其 

中 20 次與毒品有關詉,亦曾有兩次販毒的定罪紀錄。裁判住官曾參考 

HKSAR v Wong Kap-si MA 640 & 702/2005 一案,案中涉及 297 

粒藥託片被發現帶過境作伿出售用途,上訴法庭認為 9 個月的刑期為恰 

當。而此案例又引述了 HKSAR v Wong Wai-man MA 658/2003 一 

案。該案涉及 80 粒供販賣予癮君佦子的咪達唑侖,上訴法庭認為 6 個 

月的監禁刑期為恰當。 

在考慮過這些案例後,裁判住官基於藥託片數目而採納 10 個月為 

量刑起點。但伽鑑於藥託片的數量,裁判住官認為不能抹殺再分配性的潛 

在風險,也因此將量刑起點提高 2 個月至 12 個月。最後因認罪而應 

得的三分一量刑折俆扣 , 故刑期為 8 個月。雖然上訴人現時正在服 

刑,鑑於兩項刑期涉及不同案件,裁判住官認為應分期執行,這亦與 

總量刑的原則沒俯有違背。 

上訴人認為刑期太長 , 因此向裁判住官申請就判住刑作伿出覆核 , 

但伽裁判住官認為並無任何理據支持上訴人的陳述,因此撤銷申請覆核 

申請。 

上訴人不服刑期的決俩定,提出上訴。他投俈訴裁判住官: 

(i) 未有根據 R v Chan Chi-man [1987] HKLR 221 的 

量刑指引擬出正確的量刑基準; 

(ii) 錯誤地未有把便涉案毒品為上訴人自用這點作伿有利佐上 

訴人的考慮; 

193



of MA 

142/2006, 

above] 

Pang DJ 


*Jackson Poon 

#Petrus Chan 

HUNG 

Mei-kwan 

裁決俩裁決俩: 裁決俩 

(iii) 錯誤地因應涉案毒品的數量而考慮「再分配性的潛 

在風險」,並因此把便量刑基準進一步俞推高;及 

(iv) 錯誤理解「總量原則」應如何應用。 

(1) 近年的司法意見倝普遍認為 , 販運咪達唑侖的量刑 , 應與甲喹 

酮(methaquelone)看齊:香港特別低行政區訴蔡同祥 MA 759/2005。 

而甲喹酮的量刑,則以 Chan Chi-man 一案為準,即佘 500 克佉以下, 

由法庭酌情處理;500 克佉以上 1,000 克佉以下,則入獄 6 至 12 個月; 

(2) 因 160 片共 2.26 克佉咪達唑侖而以考慮「再分配性潛在風險」 

前的 10 個月為量刑基準,這本身倧已肯定過重。這點無論上訴人的前 

科多麼惡劣,案件又是否佞涉及跨境販運也好,都是肯定的; 

(3) 雖然裁判住官在判住詞中提到 HKSAR v Wong Kap-si 一案,但伽它 

的內容根本並未提到 Chan Chi-man 在販運咪達唑侖上的適用性, 

所以似乎幫助佔不大; 

(4) 加插 ‘ 再分配性潛在風險 ’ 這個考慮 , 實無必要,因為控罪本 

身倧已是「販運」,而且因販運而適用販運的量刑基準,亦即佘比「普 

通管有」要重得多。倒過來,判住例清楚指出,跨境帶毒乃技侻術性的 

販運,如控方不爭議毒品是干犯者所自用的,那倴刑期應獲得部份扣 

減 :香港特別低行政區訴紀建全 MA 1219/2005 和 R v Chan Manlung 

[1992] 2 HKCLR 127; 

(5) 裁判住官下令本案的刑期與他案的刑期分期執行,並無不妥侑。 

結果結果: 結果結果上訴得直 , 原來的刑期撤銷 , 改俌判住入獄 2 個月 , 但伽仍須與 

他案的3個月分期執行。 

Trafficking in a dangerous drug/Cross-border carrying of drug for selfconsumption 

technically trafficking/Wrong consideration of ‘latent risk of redistribution’/Sentence 

for trafficking in midazolam should be no different 

from that for trafficking in methaqualone 

The Appellant was convicted and sentenced to 8 months’ imprisonment 

upon his plea of guilty to a charge of unlawful trafficking in a dangerous drug, 

namely, unlawful trafficking of 160 tablets containing 2.26 grammes of 

midazolam. The sentence was to run consecutively to the 3 months imposed on 

the Appellant in another case. 

The admitted facts revealed that the Appellant was intercepted at the 

Arrival Hall of Lok Ma Chau Border Crossing Point. He was taken to North 

District Hospital for X-ray examination on suspicion of having concealed 

dangerous drugs inside his body cavity. Under examination, he was found to 

have something hidden inside his rectum. Subsequently, the Appellant excreted 

a condom which contained a plastic bag of 160 tablets of suspected drugs 

wrapped with tissue paper. The Appellant was arrested and he admitted under 

caution that he had bought the midazolam in the mainland and then brought them 

to Hong Kong for his own consumption. 

In passing sentence, the magistrate remarked that the Appellant had 

194


admitted that he had 39 previous convictions, 20 of which were drug-related 

with two for drug trafficking. The magistrate had referred to HKSAR v Wong 

Kap-si MA 640 & 702/2005, a case in which a total of 297 tablets were found to 

have been carried across the border for sale, and where a sentence of 9 months’ 

imprisonment was considered appropriate by the appellate court. The court 

referred to HKSAR v Wong Wai-man MA 658/2003, a case in which 80 tablets 

of midazolam were for sale to drug addicts and a sentence of 6 months’ 

imprisonment was regarded as appropriate by the appellate court. 

After considering these cases, the magistrate adopted 10 months as the 

starting point on the basis of the number of the tablets involved. However, 

having regard to the quantity of the tablets involved, the magistrate considered 

that the latent risk of re-distribution could not be ruled out and so increased the 

starting point by 2 months to 12 months. With a discount of one-third for the 

guilty plea, a sentence of 8 months was finally imposed. Although the Appellant 

was then serving a term of imprisonment, the magistrate took the view that the 

two terms of imprisonment should run consecutively as they were related to 

different cases, and this was not contrary to the totality principle. 

As the Appellant thought that the term of imprisonment was excessive, he 

applied to the magistrate for a review of the sentence which was dismissed by 

the magistrate on the ground that it was without merit. 

The Appellant appealed against sentence on the grounds that the 

magistrate: 

Held : 

(i) had failed to adopt a proper starting point in accordance with 

the sentencing guidelines given in R v Chan Chi-man [1987] 

HKLR 221; 

(ii) had mistakenly failed to consider, as a factor in favour of the 

Appellant, that the drugs involved were for the Appellant’s 

own consumption; 

(iii) had wrongly taken ‘the latent risk of re-distribution’ into 

consideration in view of the quantity of drugs involved, and 

hence had further pushed up the starting point; and 

(iv) had a misapprehension of the application of ‘the totality 

principle’. 

(1) The general consensus of the courts in recent years was that the sentence 

for trafficking in midazolam should be no different from that for trafficking in 

methaqualone: HKSAR v Choi Tung-cheung MA 759/2005. As regards the 

sentence for methaqualone, the tariff set down in Chan Chi-man should be 

followed, namely, for an amount under 500 grammes, the sentence was 

discretionary and for an amount between 500 and 1,000 grammes, the range of 

sentence should be from 6 to 12 months’ imprisonment; 

(2) For 160 tablets containing a total of 2.26 grammes of midazolam, the 

starting point of 10 months’ imprisonment, before considering ‘the latent risk of 

re-distribution’, was definitely excessive. No matter how bad the Appellant’s 

previous record and no matter whether the case involved cross-border 

trafficking, it was undoubtedly excessive; 

(3) Although the magistrate mentioned HKSAR v Wong Kap-si, the case did 

not say anything at all about the applicability of Chan Chi-man to the trafficking 

in midazolam, and seemed of little assistance; 

195



Line DJ 


*Laura Ng 

#Kenneth Lam 

(1) WONG 

Kam-luen 

(2) CHONG 

Hingkwan 

(4) It was not necessary to further take into account ‘the latent risk of redistribution’ 

because the charge itself was already for ‘trafficking’, and the 

starting point applicable to trafficking was much higher than that applicable to 

‘simple possession’. Conversely, it was unequivocally stated in the precedent 

cases that cross-border carrying of drugs was, in a technical sense, tantamount to 

trafficking. So long as the self-consumption of the drugs by the offender was not 

an issue disputed by the prosecution, the sentence should be partially discounted: 

HKSAR v Gi Kin-chuen MA 1219/2005 and R v Chan Man-lung [1992] 2 

HKCLR 127; 

(5) It was not improper for the magistrate to order that the sentence in the 

present case be served consecutively to that in another case. 

Result - Appeal allowed. The original sentence set aside and varied to 2 

months’ imprisonment, to be served consecutively to the 3 months 

imposed in the other case. 

Pharmacy and Poisons Ordinance/Pharmacy selling unlabelled poison, 

unlawfully selling Part I poison and selling scheduled poison without a 

prescription/Sentences for operator of pharmacy and probationary 

salesman/Duty of courts to enforce will of legislature 

《藥劑業及毒藥條例 

藥劑業及毒藥條例》– 藥劑業及毒藥條例藥房銷售未加標籤的毒藥 

藥房銷售未加標籤的毒藥、藥房銷售未加標籤的毒藥 

非法銷售毒藥 



表第表第I 表第部所列毒藥及沒有處方而銷售附表所列毒藥部所列毒藥及沒有處方而銷售附表所列毒藥 – 藥房東主及試 

用期中的推銷員的判刑 

用期中的推銷員的判刑用期中的推銷員的判刑 – 法庭有責任執行立法機關的意願 

The Appellants were convicted of offences contrary to the Pharmacy and 

Poisons Ordinance, Cap 138, and the Antibiotics Ordinance, Cap 137. 

A2 ran a pharmacy in Tseung Kwan O and A1 was a probationary 

salesman there. The authorities carried out a test purchase, which gave rise to 

the supply of controlled substances, a small number of tablets. The Appellants 

were charged jointly with selling an unlabelled poison (Charge 1), unlawful sale 

of Part I poison (Charge 2), and selling a Third Schedule poison without 

prescription (Charge 3). A1 was charged alone with an offence contrary to the 

Antibiotics Ordinance. 

In sentencing, the magistrate took a serious view, and emphasised the 

problems that concern the use and misuse of antibiotics. 

A1 was sentenced to fines of $1,000 on each of the four charges and to 

terms of imprisonment on each of 4 months, suspended for 3 years. 

A2 was sentenced to fines of $10,000 on each of the three charges and to 

terms of imprisonment on each of 4 months, suspended for 3 years. 

Held : 

On appeal 

(1) Although the pleas tendered by A2 had nothing to do with antibiotics, a 

suspended sentence of imprisonment was justified as he had committed a similar 

offence in March 2005. He was sentenced for the first offence before he was 

sentenced for this offence; 

(2) Anyone could go to pharmacies in Hong Kong and purchase drugs which 

required a prescription, but without one. This provided some people with a 

convenient service, cutting out a trip to the doctor, but it was in breach of the 

196


CA 118/2006 

Yuen & 

Tang JJA 


*Sin Pui-ha 

#I/P 

CHENG 

Tak-lam 

Ordinances. If the courts only fined the pharmacist for breaching the 

Ordinances, they would carry on selling regardless, and the fines would become 

an overhead; 

(3) The courts were there to enforce the will of the legislature. If the 

legislature said these substances had to have a doctor’s prescription before they 

could be in the hands of the public, the courts should do their best to ensure the 

will of the legislature was followed. The only way to encourage compliance 

with the Ordinance was for the court to say that ‘If you keep doing this, you will 

end up in prison ’ . That was why it was right for A2 to have a suspended 

sentence of imprisonment hanging over him; 

(4) Had a sentence of immediate imprisonment been passed for continuing to 

run the pharmacy in breach of the Ordinance involving imprisonment for the 

first time, it would not have called for a starting point of 6 months’ 

imprisonment, which was about the magistrate had taken. A sentence with a 

starting point of 3 months would have been appropriate; 

(5) A blanket approach to the three charges faced by A2 was inappropriate. 

With Charge 1, the mischief was selling an unlabelled poison. A fine was 

appropriate, but not a suspended sentence of imprisonment; 

(6) On Charges 2 and 3, the suspended sentences of imprisonment on A2 

would be reduced from 4 months to 2 months, leaving the fines in place; 

(7) A1 was only a probationary salesman. He admitted knowledge of what 

the substances were. He had a clear record, and imprisonment was not right. A 

big distinction was to be made between those who had a warning shot across 

their bow and had been told not to do it by the authorities and had been caught 

doing it, and those who came to it afresh, especially when they were strangers to 

the profit-making exercise. A1 was a paid employee and a probationer. If it 

was thought that the way round the efforts of the courts to stop breaches of the 

Ordinance was to employ such people as A1, then a time might come when they 

might have to receive sentences of imprisonment. That time had not yet come. 

Result - Appeals allowed. A1’s sentences of imprisonment quashed, with 

fines remaining. A2’s sentence of imprisonment on charge 1 

quashed, with fine remaining, and the sentences of imprisonment on 

Charges 2 and 3 reduced from 4 months to 2 months, with the fines 

remaining. 

Trafficking in dangerous drugs/Applicant absconding and returning for 

health reasons/Absence of remorse/Ill-health not normally a ground for 

reducing sentence 

販販販運運危危危險險險藥藥物物 – 申請人棄保潛逃後因健康理由而回港港 – 沒沒有悔 

意 – 身體欠佳通常不可作為減刑的理由 

The Applicant pleaded guilty to two offences of trafficking in salts of 

esters of morphine, which offences occurred in 1992. The quantities involved 

were, respectively, 166.99 grammes and 11,195.39 grammes. He was sentenced 

to imprisonment for 6 years and 8 months for the first offence, and 16 years for 

the other. Both sentences were ordered to run concurrently. 

The sentence of 16 years was arrived at from a starting point of 27 years. 

The Applicant was given a one-third discount for his plea, notwithstanding that 

he had absconded while on bail in 1992. He only returned to Hong Kong in 

2004 after he had suffered a serious stroke on the Mainland. The judge gave a 

197



Stuart-Moore 

VP 

Yeung JA 


*Simon Tam 

#Peter Pannu 

SINGH 

Jarhia Kuldeep 

further discount of 2 years on compassionate grounds for his medical condition. 

An updated medical report indicated that the Applicant’s condition had 

not deteriorated since his sentence, and that ‘his general condition was found to 

be satisfactory ’. 

Held : 

On appeal 

(1) Having regard to the quantity of drugs involved, the adoption by the 

judge of 27 years as a starting point was appropriate: R v Lau Tak-ming and 

Others [1990] 2 HKLR 370; 

(2) As the Applicant had absconded previously and had returned to Hong 

Kong not out of remorse but for his health, no further discount over the 

maximum one-third he had already received could possibly be justified; 

(3) Although it was submitted that the Applicant had a miserable time after 

he absconded, it was within his power to cut short his misery by returning earlier 

to Hong Kong. The judge had already cut his sentence by 2 years on 

compassionate grounds, and in Yip Kai-foon v HKSAR [2000] 3 HKCFAR 31, 

the Appeal Committee of the Court of Final Appeal said: 

... ill health or injuries were not normally a ground for reducing 

sentence. This applied whether or not the defendant’s physical 

condition resulted from injuries received in the course of 

criminal acts. For crimes of gravity, medical grounds would 

seldom, if ever, be a basis for reducing the sentence. 


Dangerous drugs/Simple possession of a solid containing 6.82 grammes of 

ice/Sentencing range/Latent risk factor 

危險藥物危險藥物 – 純粹管有內含 6.82 6.82克 6.82 冰冰冰冰的固體的固體 – 判刑幅度 – 潛在風潛在風 

險因素險因素 

險因素 

The Appellant’s conviction for trafficking in a crystalline solid 

containing 6.82 grammes of ice was quashed, a conviction for simple possession 

was substituted. 

The facts showed that when the Appellant was stopped in the street on 11 

October 2005 by police officers who noticed he was acting suspiciously, he was 

found to have a transparent bag in his trouser pocket which contained the ice. It 

had a street value of approximately $2,246. 

At trial, the Appellant testified that he had been taking ice since April 

2005, and a medical examination conducted on 14 October 2005 at the Lai Chi 

Kok Reception Centre revealed the presence of ice in his body. 

The DATC report indicated that as the Appellant had not been able to 

consume drugs from the time he was first remanded in custody in October 2005, 

a period of drug abstinence treatment would not be beneficial to him. As such, 

he was not suitable for admission to a DATC. 

The Appellant had admitted possession of the ice throughout, but the 

prosecution had not accepted his offer to plead guilty to simple possession. At 

198


CA 437/03 

Ma CJHC 

Stock JA 

Beeson J 


*K Zervos SC 

& Chiu Wai-tin 

#E Mumford 

(1) MAK 

Wingcheung 

(2) LING 

Kai-man 

no stage of his trial did the Appellant deny possession of the ice, so he was 

entitled to be dealt with as someone who had always been prepared to plead 

guilty to this offence. 

Held : 

(1) In HKSAR v Mok Cho-tik [2001] 1 HKC 261, 267, the court indicated 

that an appropriate starting point for the mere possession of a quantity of ice 

which a genuine user would normally have in his possession should be ‘in the 

range of 12 to 18 months ’. This particularly applied in cases at High Court and 

District Court levels. Stock JA said: 

… But that is not the be all and end all of the appropriate starting 

point. It assumes cases in which a sentence of imprisonment 

rather than a rehabilitative measure is deemed necessary; and it 

does not seek to exclude magistrates from imposing lesser terms 

for very small quantities where the circumstances so warrant. 

(2) In Mok Cho-tik, the quantity of ice was 15.724 grammes. The court 

adopted a starting point of 18 months’ imprisonment. The latent risk factor (in 

regard to the risk that a proportion of the drugs might find their way into the 

hands of other users) was described as ‘self-evidently high ’. This was said to 

warrant an enhancement by 12 months’ imprisonment, although certain 

mitigation which had not been put before the sentencing judge then brought 

about a reduction of the overall sentence by 6 months; 

(3) In the present case, the quantity of ice was neither very small nor very 

large in terms of mere possession. It was plain that this quantity would have 

lasted a considerable time, and represented far more than a two or three-day 

supply subject to the high probability, at that rate, of others participating in its 

consumption; 

(4) The judge characterised the Appellant, aged 27 at the time of his 

conviction, as an unemployed addict. This was an apt description, albeit he was 

not any longer to be regarded as an addict as a result of the time he had now 

been in custody. The Appellant had one previous conviction in 2001 for 

possessing dangerous drugs for which he was placed on probation; 

(5) A starting point of 15 months’ imprisonment would be taken and 

enhanced by 12 months to take into account the ‘latent risk ’ factor, making a 

starting point of 27 months’ imprisonment in all. This would then be reduced by 

one-third to reflect the Appellant’s firm intention to plead guilty to this offence 

had he been permitted to do so. 

Result - 8 months’ imprisonment imposed. 

Dangerous drugs/Conspiracy to traffic in 4,760 grammes of ice/Starting 

point for sentence of 25 years’ imprisonment appropriate 

危險藥物危險藥物 – 串謀販運 4,760 4,760 克冰 – 以25 年監禁為量刑起點是恰當 

的 

A2 pleaded guilty to an offence of conspiracy to traffic in 4,760 gms of 

methamphetamine hydrochloride, or ‘ice’. The trial judge adopted a starting 

point of 25 years’ imprisonment, and reduced that by one-third to 16 years and 8 

months’ imprisonment. A1 pleaded not guilty, and upon conviction was 

sentenced to 27 years’ imprisonment, and he did not appeal against sentence. 

199


SC 

& Valerie Lim 

(1) 

IP (2) 

False Instruments 

CA 468/2005 

Stuart-Moore 

VP 

Yeung JA 


*Evelyn Tsang 

#I/P 

CHENG 

Sui-yin 

At the trial of A1, evidence was given about how A2 had helped to swap 

the drugs onto two couriers with the intention that the drugs were to be taken to 

Guam for onward transmission to the United States mainland. He also helped to 

test the drug samples for quality, and some of the consignment was stored in his 

flat. He was instrumental in booking the passage to Guam for the two couriers. 

He helped package the drugs into smaller packets, and he went to the hotel 

where the couriers were and brought them clothes. The judge found that A2 had 

played a leading role in the conspiracy. 

Held : 

Given the enormous quantity of drugs involved, and the international 

aspect of the offence, as well as the key role played by the Applicant, this 

starting point of 25 years’ imprisonment was not excessive. The reduction on 

account of the guilty plea was appropriate. 

Result - Applications dismissed. 

Possession of counterfeit credit cards/Seriousness of offence/ Potential 

losses not to be ignored/Impact of sentence on family carried little weight if 

offence serious/Defendant absent at trial 

管有偽製信用卡 

管有偽製信用卡管有偽製信用卡 – 罪行的嚴重性 – 潛在損失不容忽視 – 若罪行 

嚴重嚴重, 嚴重則以判刑對家庭產生 

則以判刑對家庭產生衝則以判刑對家庭產生擊作為求情理由的作用甚微擊作為求情理由的作用甚微 – 被告 

人缺席審訊 

人缺席審訊 

When the Applicant was stopped at the Arrival Hall of the Lowu border 

control point, she was found by Customs to be carrying a total of 14 counterfeit 

Visa and MasterCard credit cards purportedly issued by banks in Hong Kong. 

The numbers of the counterfeit credit cards were traced and were found to 

belong to credit cards issued by banks in England, the Netherlands and Turkey. 

Each of the counterfeit credit cards had caused the issuing banks an average loss 

of about US$3,000. The Applicant claimed to have picked up the counterfeit 

credit cards together with some ketamine tablets at the rear seat of a taxi in 

Shenzhen. 

After the Applicant was charged with the offence of possession of false 

instruments, namely the 14 counterfeit credit cards, she failed to appear at trial 

and was convicted in her absence. The judge sentenced her to 4 years and 6 

months’ imprisonment. 

On appeal, it was submitted, inter alia, that the sentence was too severe, 

that the sentence was imposed in her absence, that she had surrendered herself 

and returned to Hong Kong voluntarily and that the sentence had a significant 

impact on her family, particularly her parents and aged grandparents. 

Held : 

(1) It was the Applicant’s choice to be absent and such absence could not be 

said to have led to an unfair trial. The judge did not treat her absence as an 

aggravating factor, although he did comment that the Applicant had not been 

200

CCAB 2006 Sentence (Quantum) - False Instruments 

CA 390/2005 

Cheung 

Yeung 

& Yuen JJA 


*Ho May-yu 

#I/P 

HAU 

Ka-kit 

able to put forward any mitigation because of her absence; 

(2) The impact of sentence on an individual, including the accused and 

his/her family members, could be a mitigating factor. However, such a 

mitigating factor carried little weight when the offence was serious; 

(3) Credit card frauds were very serious offences. As Litton JA observed in 

R v Kwan Ying-ho Cr App 527/1992, ‘credit card frauds have in recent years 

been an insidious poison in the community. It affects a large number of 

citizens. It erodes the credit card system and damages Hong Kong’s standing 

in the international community ’; 

(4) In R v Chan Sui-to and Another [1996] 2 HKCLR 128, 134, Yang CJ 

said: 

Allowing for the different facts and the varying degrees of 

culpability, it is impossible to formulate a set of principles of 

sentencing from these decisions. We think however it would be 

helpful to the courts if they were guided by some criterion. We 

would therefore suggest that an accused who plays an active but 

not necessarily a key role in a medium size operation involving 

between $50,000 and $150,000, with no elaborate planning and 

equipment, and without an international dimension, should 

receive a sentence of five to six years after trial. Sentences may 

be adjusted upwards or downwards according to the 

circumstances. 

(5) The evidence suggested that each of the counterfeit credit cards in the 

Applicant’s possession had caused the issuing banks an average loss of about 

US$3,000. The total loss of US$42,000 (over $300,000) was a large sum. The 

reasons for bringing in the counterfeit credit cards were obvious, and the 

potential losses caused by their possible future use if the Applicant had not been 

apprehended could not be ignored: HKSAR v Watt Siu-hung Cr App 93/2001, 

HKSAR v Ng Swee-thiam [2000] 1 HKLRD 772. 


Using false instruments/Forged credit cards used to make purchases on five 

occasions/Offences repeated whilst on bail/ Importance of credit card 

system/Deterrent sentences required 

使用虛假文書使用虛假文書 – 使用偽造信用卡五次購物 – 保釋期間再度犯案 

保釋期間再度犯案 – 

信用卡系統的重要性信用卡系統的重要性 – 須判處阻嚇性刑罰 

The Applicant was convicted after trial of five offences of using a false 

instrument, contrary to s 73 of the Crimes Ordinance, Cap 200, two offences of 

possession of a false instrument, contrary to s 75(1) of the Crimes Ordinance, 

and one offence of resisting a police officer in the due execution of his duty, 

contrary to s 36(b) of the Offences against the Person Ordinance, Cap 212. 

The false instruments referred to in the charges were forged credit cards, 

and all bore the name of the Applicant. The forged credit cards were used by 

the Applicant to: buy dry seafood valued at $1,080 from Yue Hwa Chinese 

Products Emporium Ltd (Charge 1); buy a mobile phone valued at $2,780 from 

Goleasy Ltd (Charge 2); buy a gold bracelet valued at $2,700 (Charge 4) to buy 

a Tudor watch valued at $19,758 from Chow Tai Fook Jewellery Company Ltd 

(Charge 5); to buy items valued at $695 from the Economic Pets Accessories 

(Charge 7). 

201


CA 480/2005 

Stuart-Moore 

VP 

Stock JA 


*David Leung 

#(1) I/P 

(2) HM 

Mughal 

(1) ZHOU 

Jianguo 

(2) LUO 

Guangning 

Charge 3 involved possession of a forged American International Group 

Visa card, while Charge 8 involved possession of a forged Dao Heng Bank 

Cable Power Gold Visa card. 

The judge imposed sentences of imprisonment of 4 years on each of the 8 

charges involving false instruments, ordering that these run concurrently. He 

imposed an additional sentence of 3 months’ imprisonment for the offence of 

resisting a police officer, making a total sentence of 4 years and 3 months’ 

imprisonment. 

Held : 

On appeal 

(1) The aggravating feature of the case was that the Applicant had used 

forged credit cards on five occasions within a short period of one and a half 

months. He also committed two further sets of offences after he was put on 

police bail. The last two offences occurred while he was on the second police 

bail; 

(2) The credit card system was an important financial structure in Hong 

Kong. Those who undermined the reputation or the operation of this structure 

would receive a deterrent sentence. The 4-year sentence adopted in respect of 

each of the credit card charges was appropriate; 

(3) The overall sentence of 4 years and 3 months’ imprisonment was 

appropriate, and the application was unmeritorious. As the Applicant was not 

yet 21 years of age when he committed the offences, time would not be 

disallowed under s 83 W of the Criminal Procedure Ordinance, Cap 221. 


Credit card fraud/Potential for loss/Mitigation procedures/ Assessment of 

totality/False passports possessed for identity purposes only and not for 

travel 

信信信用用用卡卡欺欺詐詐案案 – 潛在的損損損失失 – 請求輕輕判的的程序 – 整體刑期的評 

整體刑期的評 

定 – 管有虛假護照只作身分證明而非旅行證件用途 

The Applicants pleaded guilty to a series of charges related to the use of 

false credit cards. 

A1 admitted four offences, all committed on 9 July 2005. A2 pleaded 

guilty to seven offences, committed on three separate days including 9 July 

2005, when he was arrested in A1’s company. 

A1, aged 39, pleaded guilty to charge 3 (obtaining property by 

deception), charge 7 (using a false instrument), charge 4 (possession of forged 

travel documents) and charge 11 (possessing a false instrument). In effect, A1 

had used the same false credit card on two occasions, and he had another false 

credit card and two false passports in his possession when he was arrested. His 

criminality was confined to a single day, and he had arrived the day before on a 

7-day permit from the Mainland. 

A2, aged 38, pleaded guilty to charges 1, 2, 4 and 5 (obtaining property 

by deception), charge 8 (using a false instrument), charge 10 (possession of 

forged travel documents) and charge 12 (possessing false instruments). He had 

made use of four different false credit cards on five occasions spread over two 

202


trips to Hong Kong occupying nine days until his arrest. The five credit cards in 

his possession at the time of his arrest included three which he had not 

previously utilised. Like A1, he was carrying two false Japanese passports. 

A1 was sentenced to 3 years’ imprisonment and A2 to 5 years’ 

imprisonment, having given the appropriate discounts for the pleas. In her 

calculation of sentence for the false credit card offences, the judge referred to R 

v Chan Sui-to and Another [1996] 2 HKCLR 128, 134, where it was said: 

Held : 

... an accused who plays an active but not necessarily a key role 

in a medium size operation involving between $50,000 and 

$150,000, with no elaborate planning and equipment, and 

without an international dimension, should receive a sentence of 

5 to 6 years after trial. Sentences may be adjusted upwards or 

downwards according to circumstances. The sum of money 

involved is of course only one of the factors to be taken into 

account. It is not even the most significant factor. 

On appeal 

(1) As regards A1’s perception that the judge was biased against him as a 

result of the interruption of his counsel as he tried to mitigate, the court had 

some sympathy with him. This was not a case where, realistically, A1’s 

mitigation extended beyond his pleas of guilty. Counsel had a duty to put such 

mitigation as he felt appropriate before the court and this difficult task was made 

no easier by the judge’s constant interruptions none of which favoured A1. In 

the end, however, A1’s mitigation was placed before the court and no harm was 

done. Just as it was counsel’s duty to mitigate, it was incumbent on the judge to 

take heed of the mitigation even if, in the end, it amounted to very little. If there 

were comments to be made to enable counsel to make a reply to them, or there 

were points requiring further clarification, these were usually best left until 

counsel had finished the particular topic in his mitigation which called for the 

comment. If a short speech in mitigation could, as in this case, be anticipated, it 

was a better practice to leave all comments until counsel had concluded his 

remarks; 

(2) A1’s concurrent sentences on charges 3, 7 and 11 were appropriate. 

However, for the possession of false passports in charge 9, an 18-month starting 

point would have been proper, and the judge’s sentence after plea was 

excessive. The sentence on charge 9 was reduced to 12 months’ imprisonment 

to take account of his plea, of which 6 months would run consecutively to his 2year 

sentence on the other charges; 

(3) A2 had admitted offences where the value of the goods he obtained was 

just over $93,000 and his attempt to obtain a further item valued at $7,388 had 

led to his eventual arrest. A2 was not acting alone in the commission of the 

offences and none of the property he obtained was recovered. He was directly 

concerned in the use of four false credit cards and the five cards found on him 

included three which had not previously been used. On the day of arrest, A2 

had visited three different shops within an hour and, with the number of false 

credit cards in his possession, it would be bordering on the absurd to think that, 

but for his arrest, the shopping spree would not have continued. The potential 

for loss was considerable; 

(4) The proper approach to be taken by a judge dealing with a number of 

offences was to decide, first and foremost, on a proper starting point for each 

203



Barnes DJ 


*David Leung 

#I/P 

SUEN 

Tat-yeung, 

Ricky 

offence. It was not appropriate to take a global view. The sentence for each 

offence needed to be looked at separately. After this had been done, the 

sentence must, in appropriate circumstances, be reduced to take account of the 

mitigation. The final step was to deal with the totality. By approaching the 

matter in that way, an appropriate sentence on charges 1, 2, 4, 5, 8 and 12 would 

have been 3 years’ imprisonment for each offence. Reducing this starting point 

to take into account the pleas of guilty, the sentence on each charge was 2 years’ 

imprisonment; 

(5) As regards the sentence of 18 months after plea on charge 10 for 

possession of false travel documents, this was manifestly excessive as the two 

passports were never intended to be used for travel purposes. It was accepted 

that the passports were ‘for identity purpose only’. They were, in other words, 

to be used only in the furtherance of the credit card frauds. The appropriate 

sentence was 12 months’ imprisonment to reflect the plea: HKSAR v Bin Kei-chi 

and Another Cr App 181/2005, considered. 

Result - Appeals allowed. Sentence of A1 adjusted to 4 years’ imprisonment. 

Sentence of A2 reduced to 2½ years’ imprisonment. 

Crimes Ordinance/Using false instrument/Forged credit card used to make 

purchase/Starting point of 24 months’ imprisonment 

《刑事罪行條例 

刑事罪行條例》刑事罪行條例 – 使用虛假文書使用虛假文書 – 使用偽造信用卡購物使用偽造信用卡購物 – 以24 

個月監禁為量刑起點 

個月監禁為量刑起點 

The Appellant pleaded guilty to a charge of using a false instrument, 

contrary to s 73 of the Crimes Ordinance, Cap 200, and was sentenced to 16 

months’ imprisonment. 

The facts showed that the Appellant had gone to a shop in Disneyland 

and tried to purchase a pair of gold bracelets worth $19,800 with a credit card. 

During the transaction, the credit card was found to be a forged one and the 

police were called. 

In mitigation, the Appellant told the magistrate that he had stupidly taken 

the advice of friends and used the forged credit card to drain money, and that the 

Appellant’s share was 15% of the proceeds. 

The magistrate took a starting point for sentence of 24 months’ 

imprisonment, having regard to these factors: 

Held : 

(a) the Appellant was charged with one offence of using a 

forged credit card but there was a risk of future use; 

(b) the Appellant was involved in the crime with someone who 

had given him the credit card. That person also took the 

lion’s share of the proceeds of crime; 

(c) the value of the transaction was relatively small; and 

(d) it was the first time the defendant committed an offence 

involving dishonesty. 

(1) In light of the circumstances of the offence and the authorities, the 

starting point of 24 months’ imprisonment was neither wrong in principle nor 

manifestly excessive: R v Chan Sui-to [1996] 2 HKCLR 128; HKSAR v Ng 

204


Homicide 

CA 51/2005 

Ma CJHC 

Woo VP 

Stock JA 


*D G Saw SC 

& Vincent 

Wong 

#C Coghlan 

VU 

Thanh Binh 

Swee-thiam and Others [2000] 1 HKLRD 722; HKSAR v Cheng Sui-yin Cr App 

468/2005; HKSAR v Shum Chung-wai [2002] 2 HKLRD 81. 


Murder/Life imprisonment imposed in 1994 upon 17-year-old youth/Fixed 

term of 28 years substituted/Offence brutal, calculated and serious 

謀殺謀殺 – 於 1994 1994 年對 17 17 歲年青人判處終身監禁 – 代以 28 28 年的固定 

監禁刑期監禁刑期監禁刑期 – 屬殘暴屬殘暴、屬殘暴 

有計劃和嚴重的罪行 

有計劃和嚴重的罪行 

The Applicant was convicted on 7 July 1994, together with another, of 

murder. The murder took place in a transit centre for Vietnamese boat people at 

Kai Tak on 25 May 1990. The Applicant was sentenced to life imprisonment 

but was aged 17 years when the offence was committed. 

The judge took a sentence of 30 years’ imprisonment as the appropriate 

starting point but reduced that by 2 years from the original term on account of 

certain assistance given by the Applicant to the authorities. He imposed a term 

of 28 years’ imprisonment pursuant to the provision of s 67C(4)(b) of the 

Criminal Procedure Ordinance, Cap 221. 

Prior to the murder, the Applicant had twice been convicted of a criminal 

offence, including an offence of possession of an offensive weapon. The reports 

before the judge revealed quite a number of disciplinary offences whilst 

incarcerated and some improvement in his behaviour since the question of a 

minimum term had come to the fore, although it was said by the prison 

superintendent that ‘overall speaking, slight improvement was noted, but still far 

from satisfactory ’. The Applicant had told one of the psychiatrists that the 

stabbing itself occurred when he was scared ‘and in order to hold the people 

[accomplices of the victim whom he thought were pressing in towards him] back 

he stabbed the victim once ’. The judge concluded from this that even to date it 

could not be said that this Applicant was completely remorseful. He remarked 

that the circumstances were particularly serious, the assailants having armed 

themselves with a gun and each with a knife; and that it was a vicious attack 

with an obvious intention to kill; and that a bystander who was later to become a 

prosecution witness was assaulted by the Applicant with a knife in the hope of 

silencing him. The judge referred to the killing as ‘a very brutal killing where 

the unarmed victim was given no chance whatever ’. 

The Secretary for Justice brought the matter afresh before the courts (s 

67C(I), Criminal Procedure Ordinance, Cap 221), so that a determination could 

be made whether to pass an indeterminate sentence together with a minimum 

term or, on the other hand, a fixed term of imprisonment. The judge decided 

upon a fixed term, and it was from that term that this application for leave to 

appeal was brought. 

Held : 

(1) The court had been engaged in a series of cases within this category, 

involving cases of murder committed by those under the age of 18 years at the 

205

CCAB 2006 Sentence (Quantum) - Homicide 

CA 486/2005 

Ma CJHC 

Stock JA 


*Tam Sze-lok 

#C Coghlan 

LAM 

Chun-fai 

date of their offences and in respect of whom some years later and by virtue of 

statutory provisions coming into force in and after 1993, a judge of the Court of 

First Instance had been called upon to put a time limit on the sentences, either by 

a determinate term or by fixing a minimum term that would have to be served. 

The facts of these cases differed as to the circumstances of the offenders. Some, 

although convicted of murder, admitted the attack in question and offered pleas 

of guilty to manslaughter; others did not. Some had previous convictions, others 

did not. Some attacks were premeditated, others were not. In some, the 

offender went to the place of the attack already armed; in at least one, the 

weapon was picked up at the scene of the crime. And, beyond that, although all 

aged under 18 years at the date of the offence, some were only just under that 

age, others younger; 

(2) This offence was a particularly brutal, calculated and serious one and no 

complaint could have been made had the judge adopted a higher starting point. 

The deduction given by the judge was generous. The effort said to have been 

expended by the Applicant in prison to rehabilitate himself was not exceptional 

and did not evidence remorse. 

Result – Application dismissed. 

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 

殺人罪行殺人罪行 – 原審法官處於能真正感受案件的最佳位置 

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 

力案件判刑是困難的力案件判刑是困難的 – 這類罪行實在太普遍 

這類罪行實在太普遍 – 9 年監禁並非明顯過 

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, 

206


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 ’. 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 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. 

207


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 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 

208


CA 444/2005 

Stuart-Moore 

& & Tang 

VPP 

Stock JA 


*Alain Sham 

#I/P 

LEE 

Sai-yau 

the high side of the scale, it was not manifestly excessive. 

Result - Leave to appeal granted, but appeal dismissed. 

Immigration Tower fire/Manslaughter/Inflammable liquid spread and 

flames flourished/Unlawful and dangerous act causing death of 

immigration officer/Sentencing of 17-year-old defendant 

入境事務大樓火警入境事務大樓火警 – 誤殺誤殺 – 灑潑易燃液體並燃點火舌灑潑易燃液體並燃點火舌 – 非法及危 

非法及危 

險作為引致入境事務主任死亡險作為引致入境事務主任死亡 – 17 歲被告人的判刑 

歲被告人的判刑 

歲被告人的判刑 

The Applicant was convicted of manslaughter after trial, and sentenced 

to 5½ years’ imprisonment. 

The case arose from the fire at the Immigration Tower building in 

Wanchai on 2 August 2000 when a group of persons seeking the right of abode 

in Hong Kong gathered in a room to demand that they be issued with Hong 

Kong identity cards. A number of immigration officers were in the room trying 

to evict those demonstrating and who refused to leave. Some of the 

demonstrators flourished bottles containing thinner and one or more displayed 

flames with cigarette lighters and a conflagration occurred during which one of 

the abode seekers and a senior immigration officer died. 

At trial, the Applicant faced two counts of manslaughter. His defence 

was that he had no idea that there was any thinner in any of the water bottles in 

the room. He was acquitted of manslaughter alleging the unlawful killing of the 

abode claimant but convicted of the second count of manslaughter, which 

concerned the death of the senior immigration officer. The basis of that 

conviction was manslaughter by reason of an unlawful and dangerous act, which 

referred to the setting alight of the thinner. 

The Applicant had been arrested in hospital on 3 August 2000 and 

detained, and remained in detention until released from prison on 2 August 

2003, in relation to the arson offence, for which he was separately convicted and 

sentenced to 4½ years’ imprisonment. Accepting that none of the time during 

which he had been detained in custody from August 2000 to August 2003 would 

be treated as reducing the period of imprisonment to be imposed for the 

manslaughter offence, it followed, the judge said, that it was necessary to 

impose what, in isolation, was ‘technically a wrong sentence ’ in respect of the 

specific offence of manslaughter. ‘Clearly ’, he said, ‘the sentence to be 

imposed must be reduced by what would otherwise have been imposed by 4½ 

years’ imprisonment ’. The effect of what transpired, in practical terms, was a 

sentence of 10 years’ imprisonment for manslaughter and arson. 

In sentencing the Applicant, the judge referred to the fact that the 

Applicant was present in the room at the Immigration Tower with others. He 

noted that the others had been present at that building on other occasions in July 

2000 when demonstrations or sit-ins had been staged but that 2 August 2000 was 

the first occasion upon which the Applicant was present. The right of abode 

seekers heard repeated requests for them to leave but they refused to do so. He 

noted that Sze Kwan-lung was the leader of the group and that upon his 

instructions the Applicant and two other men left their positions at the rear of the 

room and moved to sit on benches closer to the front. The Applicant was 

holding a water bottle and, as he knew, it contained thinner. Immigration 

officers came into the room from both its entrances at which point the Applicant, 

together with a number of other men, rose to his feet and the Applicant 

unscrewed the cap of the bottle and brandished it by raising it aloft. He was not 

the only one holding such a container. He also held a lit lighter in his hand, and 

209


other men poured and splashed thinner indiscriminately from the water bottles. 

A struggle took place that was brought to an end when a fireball erupted in the 

middle of the room. As a result of the fire, the officer died nine days later. The 

judge concluded that it was not certain by whom the fire was actually ignited, 

but that ‘by their verdict the jury determined that you (the Applicant) acted with 

the others with the intention that a fire be started ’. 

At the date of the offence, the Applicant was aged 17 years, and he had 

not made any intimidating utterances whilst in the room. 

Held : 

On appeal 

(1) The spreading of inflammable liquid in a high-rise building and the 

flourishing of open flames, at the same time, was conduct that was bound to be 

visited with condign punishment. The basis of the Applicant’s conviction was 

an unlawful and dangerous act, and in that regard the jury was directed that they 

might convict on that basis if sure that the acts of the defendant were done with 

the intention of carrying out an argument or plan to pour and splash out thinner 

and set fire to it. It was a matter of pure chance that the consequences, though 

tragic, were not more widespread; 

(2) Young though this Applicant was, he could hardly have been unaware of 

the grave danger that, by his conduct, he was causing. It was not to be forgotten 

that the life of a serving immigration officer was taken; 

(3) The sentences of the co-accused, who pleaded guilty, were based on 

gross negligence and not on the basis of an unlawful and dangerous act, the 

gross negligence asserted being the flourishing of flames when there was thinner 

about, as part of threatening behaviour. The finding of guilty of the Applicant 

on the basis of an unlawful and dangerous act presupposed the deliberate 

ignition of the fire by someone and the Applicant’s agreement that that be done. 

That was a distinguishing fact, but the starkly distinguishing fact was that the 

Applicant contested the allegation of manslaughter whereas the others did not; 

(4) A 10-year sentence imposed for the act of deliberately setting a fire in a 

building housing many people in which fire death was caused, he having gone to 

the building with fire paraphernalia in hand, could not be said to be manifestly 

excessive, age notwithstanding. 


210

CCAB 2006 Sentence (Quantum) - Immigration 

Immigration 

CA 411/2005 

Yeung & 

Yuen JJA 

(20.12.2005) 

*Gary Lam 

#David Boyton 

CHAN 

Yip-chi 

Possession of a false instrument/Supply of forged temporary identity cards 

to persons staying illegally in Hong Kong/ Deterrent sentence 

required/Supplying of false passports a more serious offence 

管有虛假文書管有虛假文書 – 向在香港非法逗留的人提供偽造臨時身分證 – 須 

判處阻嚇性刑罰判處阻嚇性刑罰 – 提供虛假護照屬更為嚴重的罪行 

The Applicant was arrested in a ‘sting operation’, conducted by the 

ICAC and the Immigration Department, into the sale of a document commonly 

known as a ‘Temporary Identity Card’, or ‘TIC’. 

The Applicant claimed to be in the gravestone photo business and at the 

same time would assist others to obtain TICs at the price of $3,500 each and for 

extensions of such TICs at $1,500 per extension. 

On two occasions, the Applicant supplied TICs to an undercover officer 

and obtained the requisite payments, having been told that those TICs would be 

used to facilitate the hiring of illegal workers. 

The incidents led to four charges of possession of a false instrument 

against the Applicant. He pleaded guilty to the first and third charges, and was 

sentenced to 32 months’ imprisonment on each charge, with 7 months to run 

consecutively, producing a total sentence of 3 years and 3 months’ 

imprisonment. That was after the judge had adopted a starting point of 4 years, 

having regard to the Applicant’s previous convictions, including convictions for 

possession of forged documents. The other two charges were left on the court 

file. 

Held : 

On appeal 

(1) The problem of mainlanders illegally remaining in Hong Kong with the 

use of forged identity documents was serious and prevalent. Visitors, who 

otherwise would not be entitled to seek employment, would use these false 

documents to stay and work in Hong Kong, taking away job opportunities of 

local residents and thus creating serious social and economic problems: HKSAR 

v Li Chang-li [2005] 1 HKLRD 865; 

(2) Thus, for simple possession of a forged identity card by a visitor, a 

starting point of 18 months was called for; 

(3) The Applicant was in the business of supplying TICs to people who 

wished to remain in Hong Kong illegally. The number of people who wished to 

remain in Hong Kong illegally and the need to renew the TICs once a month 

meant that the Applicant’s business was likely to be brisk. His conduct had to 

be deterred; 

(4) The supply of TICs was not as serious as the offence of supplying false 

passports, which called for a starting point of 4 years. A starting point of 3½ 

years was adequate to reflect the seriousness of the offence and was a sufficient 

deterrent sentence. With discount for plea, the proper sentence for each of the 

two charges was 28 months’ imprisonment. A consecutive term of 7 months 

remained appropriate. 

Result - Appeal allowed. Sentences of 28 months’ imprisonment substituted 

211


MA 

1104/2005 

McMahon J 

(6.1.2005) 

*H Melwaney 

#Philip T S 

Tam 

DOU 

Yuping 

for each offence, with 7 months to run consecutively. Total 

sentence: 35 months’ imprisonment. 

Possession of forged identity card/Appropriate sentence after guilty 

plea/Sick parent in Mainland/Discount for humanitarian reasons 

管有偽造身分證管有偽造身分證 – 認罪後的恰當刑罰 – 內地父親患病 

內地父親患病 – 基於人 

道理由的刑期減免 

道理由的刑期減免 

The Appellant pleaded guilty to an offence of possession of a forged 

identity card, contrary to s 42(2)(c)(i) of the Immigration Ordinance, Cap 115. 

The facts showed that the Appellant came to Hong Kong legally, 

pursuant to a China two-way permit. Some two months later, she was stopped 

by police officers for an identity check. She produced her two-way permit, but 

when an officer searched her handbag a forged identity card was found in her 

name. 

Although mitigation was advanced that the Appellant’s father had 

terminal stomach cancer, which was supported by a medical chit which 

purported to have been issued by a hospital in China, the magistrate, having 

taken a starting point for sentence of 15 months’ imprisonment, imposed a 

sentence of 12 months’ imprisonment. 

On appeal, it was submitted that the magistrate did not take a proper 

starting point and did not properly allow for the ill-health of the Appellant’s 

father. 

Held : 

(1) Courts in Hong Kong had learnt from bitter experience to treat Mainland 

offenders who claimed a close relative had a terminal illness and who produced 

certificates to that effect with justified cynicism. Forged documents, such as 

falsified medical chits, were occasionally produced before Hong Kong courts, 

and it was necessary to be wary particularly where the offender who produced 

such documents had admitted possession of other forged documents. But the 

magistrate in this case gave, as he was entitled to do, some credence to the 

medical chit produced on behalf of the Appellant, and instead of sentencing her 

to what he said was the appropriate sentence of 15 months after plea, sentenced 

her to 12 months, thereby giving a sentencing discount for humanitarian reasons 

of 3 months; 

(2) The magistrate erred in adopting 15 months’ imprisonment as the 

appropriate sentence after plea to possession of a forged identity card. In 

HKSAR v Li Chang-li [2005] 1 HKLRD 865, the Court of Appeal suggested 

that the guideline sentence for these offences was 15 months’ imprisonment after 

plea, but only in circumstances where the offender used the forged identity card 

in some way. In cases of simple possession, as here, a sentence of 12 months’ 

imprisonment after plea was suggested. 

Result - Appeal allowed. Sentence of 9 months’ imprisonment substituted. 

212



Longley DJ 


*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 

《入境條例入境條例》– 入境條例逾期逗留並管有香港身分證以從事僱傭工作 

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 

類罪行須處以阻嚇性刑罰— 類罪行須處以阻嚇性刑罰 12 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港前已知的情況不得作為人道理由成為相關考慮因素 

相關考慮因素 

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 twoway 

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 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, 

213



Wright DJ 


*Wong Sze-lai 

#James 

Campbell 

ZHANG 

Dan 

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. 


Possession of a false instrument/Two-way permit altered to extend stay of 

China visitor/Absence of sentencing decisions to guide court justifying 

reference to immigration and unlawful persons cases/Twelve months an 

appropriate starting point after trial 

管有虛假文書管有虛假文書 – 更改雙程證以延長內地訪客的逗留期限 

更改雙程證以延長內地訪客的逗留期限 – 法庭在 

缺乏量刑指引下可合理地參考入境及非法逗留者的個案缺乏量刑指引下可合理地參考入境及非法逗留者的個案 – 審訊後以 

12 12 個月刑期作為量刑起點屬恰當 

The Appellant, a 21-year-old female, pleaded guilty to an offence of 

possession of a false instrument, contrary to s 75(2) of the Crimes Ordinance, 

Cap. 200, and to an offence of breach of condition of stay, contrary to s 41 of 

the Immigration Ordinance, Cap 115. 

The admitted facts showed that the Appellant arrived in Hong Kong on 

22 January 2006, and was granted permission to stay for seven days. She came 

to Hong Kong on a China two-way permit, and after arrival she gave the permit 

to a third party who altered the impression of the Immigration Department to the 

effect that she was entitled to remain in Hong Kong for 90 days. 

The Appellant was found in a park in Mongkok at night, and told police 

she was unemployed. In mitigation, she told the magistrate that she was a 

factory worker earning RMB 800 per month, and was in Hong Kong for an 

‘extended holiday’. She told the police that she had paid the unnamed person 

$7,000 in order for the alteration to be effected to her permit. 

The magistrate sentenced the Appellant to 12 months’ imprisonment on 

the first charge, and to 3 days’ imprisonment on the second charge, the sentences 

to be served concurrently. 

In arriving at the sentence imposed, the magistrate had regard to HKSAR 

v Li Chang-li [2005] 1 HKLRD 865. [This case contains sentencing guidelines 

for possessing a forged identity card or a card belonging to another, and 

indicates that for simple possession of any such card the normal sentence will be 

12 months’ imprisonment, after a guilty plea, rising to 15 months if the identity 

card was displayed or used for seeking illegal employment or extending the 

period of stay in Hong Kong: Ed] 

Held : 

On appeal against the sentence on charge 1 only 

(1) Although this was an offence which involved a false instrument, it related 

to matters concerning immigration and the unlawful presence of persons in Hong 

Kong. It was appropriate therefore to have regard to the overall sentencing 

trends which dealt with matters of that nature; 

214


(2) It seemed there was no decision relating to an offence of this precise 

nature, where the document concerned was an unlawfully altered China two-way 

permit. This might be due to a number of options being open as to the nature of 

the charge laid. It was hard to perceive any consistent pattern in the way in 

which matters were charged. For example, in HKSAR v Yim Lee-kuen MA 

1187/2002, the appellant had used a false instrument, a false two-way permit, to 

make representations to an immigration officer, and she was charged under s 

42(1)(a) of the Immigration Ordinance, Cap 115; 

(3) Reference was made in Yim Lee-kuen to HKSAR v Ou Bian-hu MA 

1029/2002, where it was held that the appropriate starting point for an offence 

under s 42(1)(a) of the Immigration Ordinance, Cap 115, where a false two-way 

permit was used to make the representation, was 9 to 12 months’ imprisonment; 

(4) Although it was submitted that the magistrate had erred in treating the 

Appellant’s ‘motive’ for possession of the instrument, namely, to prolong her 

stay in Hong Kong, as the point of comparison with Li Chang-li, what in fact the 

magistrate was saying was that the mischief with which he was concerned, 

namely, a person remaining in Hong Kong beyond the permitted length of stay, 

was the same whether a forged China two-way permit or a forged identity card 

was the document which was to be used to achieve that purpose. In this sense, 

the nature of the document used did not change what he referred to as ‘the 

degree of culpability’, and in that regard the magistrate was plainly correct; 

(5) The effect of the alteration was to enable the Appellant to remain in 

Hong Kong beyond the authorised date. The purpose of the falsification of the 

document was to conceal from any person legitimately enquiring the fact that 

she was not entitled to be present in Hong Kong. A distinction between the 

possession of a forged Hong Kong identity card (as in Li Chang-li’s case) and 

the instant charge was justifiable. That was so because, firstly, the legislature 

recognised such a distinction as the maximum sentence for the offence of 

possession of a forged identity card was 10 years’ imprisonment, whilst the 

maximum sentence for the present offence was 3 years’ imprisonment. 

Secondly, there was no attempt by the Appellant to conceal her identity, which 

would be the usual inevitable consequence of possession of a forged identity 

card. However, there might well be cases where the holder of a China two-way 

permit might also be concealed, where, for example, a person subject to a 

deportation order returned to Hong Kong using a permit with false personal 

particulars. In such instances, there might be no justification for any distinction 

being made between the two offences in terms of sentencing; 

(6) Although there was force in the suggestion that a more substantial 

sentence would be appropriate in this case given the nature of the document to 

which the falsity had been applied, the nature of the document was offset by the 

fact that in the decided cases there was every reason to believe that the 

respective holder intended to use the document primarily for the purpose of 

obtaining employment; 

(7) An appropriate starting point after trial would have been 12 months’ 

imprisonment, and that would attract the customary one-third discount after a 

guilty plea. 

Result - Appeal allowed. Sentence on charge 1 reduced to 8 months’ 

imprisonment, concurrent to the sentence on charge 2. 

215



Longley DJ 


*H Melwaney 

#I/P 

ICAC 


Nguyen J 


*Jonathan Man 

#W K Chu (1) 

A Hoo SC & 

Ivy Chui (2) 

KE 

Yuqiong 

(1) SO 

Hoi-chuen 

(2) NGAN 

Chun- 

ming 

Use of forged identity card to obtain employment/Breach of condition of 

stay/Total sentence of 15 months’ imprisonment 

使用偽造身分證找工作使用偽造身分證找工作 – 違反逗留條件 – 總刑期為 15 15 個月監禁 

The Appellant pleaded guilty to an offence of using a forged identity 

card, contrary to s 7A of the Registration of Persons Ordinance, Cap 177, and to 

an offence of breaching the conditions of her stay, contrary to s 41 of the 

Immigration Ordinance, Cap 115. She was sentenced to terms of imprisonment 

of, respectively, 15 months and 6 weeks, the sentences to be served 

concurrently. 

The facts showed that the Appellant entered Hong Kong from the 

Mainland on 20 March 2006, and was permitted to remain as a visitor for 90 

days on condition that she did not take up employment. On 25 May 2006, she 

was found working in a noodle shop in Quarry Bay, which employment she had 

obtained the previous day. In doing so, she had used a forged Hong Kong 

Identity Card bearing her photograph. She admitted that she had obtained the 

identity card on payment of $500. 

Held : 

On appeal, it was submitted that both sentences were too severe. 

(1) The sentence of 15 months’ imprisonment for the offence of possession 

of a forged identity card was perfectly proper, bearing in mind that there was a 

link between the Appellant’s status in Hong Kong and the forged identity card 

and that she had used it to work illegally: HKSAR v Shamim Narwaz MA 

804/1993, HKSAR v Lee Chang-li [2005] 1 HKLRD 864; 

(2) The sentence of 6 weeks’ imprisonment to run concurrently for the 

offence of breach of condition of stay could not be criticised. 


POBO/Bribery of public servant/Fifteen months’ an appropriate starting 

point 

《防止賄賂條例賄賂條例》賄賂條例 

– 賄賂公職人員賄賂公職人員 – 15 個月監禁屬恰當的量刑起 

個月監禁屬恰當的量刑起 

點 

A1 was convicted of being a public servant accepting an advantage. A2 

was convicted of offering an advantage to a public servant. The convictions 

were after trial. 

The prosecution case was that A1, being at the time a detective station 

sergeant of the Hong Kong Police Force, accepted an advantage from A2, 

consisting of free accommodation in a flat in Macao for 6 months as an 

inducement to or reward for or otherwise on account of A1 abstaining from 

performing acts in his capacity as a public servant, namely, treating A2 

favourably in a manner, contrary to his duty as a police officer at some future 

time. 

216

CCAB 2006 Sentence (Quantum) - ICAC 

Industrial Safety 

MA 986/2005 

Wright DJ 

(23.12.2005) 

*Tsang Oi-kei 

#Lau Yiu-kan 

Chuen Kee 

Construction 

Co Ltd 

Each Appellant was sentenced to 15 months’ imprisonment, and whereas 

A1 appealed against his conviction, A2 appealed against his sentence. 

Held : 

On appeal 

(1) In the majority of cases of bribery tried in the Magistrates Court, under s 

4 of the Prevention of Bribery Ordinance, Cap 201, the starting point was less 

than 15 months. In more serious cases, higher sentences were passed: R v Kwok 

Siu-wa MA 689/1995; 

(2) A2 had bribed A1, the most senior rank-and-file detective in the Antitriad 

Unit of Kowloon West Headquarters, and the bribe was not insubstantial. 

Having regard to previous cases, the sentence of 15 months’ imprisonment was 

neither wrong in principle nor manifestly excessive. 


Construction Sites (Safety) Regulations/Deterrent sentence for first 

offender/Duty to ensure safety at work place/Concern over level of fines 

《建築地盤建築地盤( 建築地盤安全安全) 安全規例規例》– 規例初犯者的阻嚇性刑罰 – 確保工作地 

方安全的責任方安全的責任 – 對罰款級數的關注 

對罰款級數的關注 

The Appellant pleaded guilty to two summonses alleging offences 

contrary to regulations 38B(1A), 68(1)(a) and 68(2)(g) of the Construction Sites 

(Safety) Regulations, made under the Factories and Industrial Undertakings 

Ordinance, Cap 59. Fines of $50,000 were imposed in respect of each 

summons. 

The contractor had direct control over construction work which was 

being carried out on a residential construction site at the corner of Cornwall 

Street and Tat Chee Avenue, where it had failed to take adequate steps to 

prevent a person from falling from a height of two metres or more. 

The first summons related to workers engaged in formwork fixing and 

formwork preparation work at the first floor of Block 2 of the proposed 

residential development. The second summons related to workers engaged in 

checking the walings and the screws at the column VC 77 of house 21 on the 

same site. There had been no accident. 

On appeal, it was submitted that the sentences were wrong in principle, 

and manifestly excessive in all the circumstances. 

Held : 

(1) There was no absolute bar to the imposition of a deterrent sentence upon 

even a true first offender when the circumstances were appropriate: HKSAR v 

Teemway Engineering Ltd MA 1081/2003. Offences under these regulations 

were common and came before the courts with monotonous regularity; 

217

CCAB 2006 Sentence (Quantum) - Industrial Safety 

Obscene and Indecent Articles 

MA 

1050/2005 

Wright DJ 

(22.12.2005) 

*David Leung 

#I/P 

SIU 

Chee-keung 

(2) The magistrate was well aware of the factual situation, and concluded 

that the safety facilities were so inadequate as to amount to none at all; 

(3) The magistrate was aware of the average fine imposed in cases such as 

this, and said this was not appropriate in this case. It had repeatedly been said 

that in the absence of guideline or tariff cases, the reference to sentences 

imposed in previously decided cases was of limited assistance. The reference to 

an average of fines was even less meaningful. There had, however, been 

growing concern about the levels of fines which had been imposed over the 

years and which appeared to have become some sort of ‘informal tariff’: HKSAR 

v Teemway Engineering Ltd (above), HKSAR v Paul Y-ITC Construction Ltd 

[1998] 2 HKLRD 35, HKSAR v Hyundai-CCECC Joint Venture and Another 

MA 530/2005; 

(4) The magistrate dealt with the necessary aspects of the offences, took into 

account the mitigation which was laid before him, carefully considered his 

approach and determined that, on the facts, the fines he imposed were 

appropriate, particularly bearing in mind the fact that the maximum fine which 

could be imposed in respect of each summons was $200,000; 

(5) The magistrate correctly categorized these offences as serious. The 

offences were commonly before the courts. Courts had repeatedly expressed 

concern over the state of safety on construction sites in Hong Kong, and 

emphasized the duty that was imposed in law upon contractors and, now, 

persons who had direct control over facets of construction. It might be that the 

level of fines being imposed was no longer commensurate, in many instances, 

with breaches of the duty. There was no suggestion in this case that the 

Appellant was not able to pay the fines imposed. 


Obscene articles/Acts depicted within medium range of obscenity/Repeat 

offender with prison experience/Appropriate- ness of substantial prison 

term 

淫褻物品褻物品 – 所描述的行為屬中等淫褻程度 – 經常進出監獄的累 

犯 – 相當長的監禁刑期是否恰當 

The Appellant pleaded guilty to three offences involving obscene 

articles. Charge 1 related to the publication of five obscene DVDs, on specified 

premises, in August 2005. Charge 2 related to the publication of five DVDs, on 

the same premises, in September 2005. Charge 3 related to possession of 1,838 

obscene DVDs stored in a room on the same date. 

The acts depicted in the various DVDs fell towards the midrange of 

levels of obscenity, and the magistrate imposed an aggregate sentence of 18 

months’ imprisonment. He took a starting point of 15 months for each of the 

first two charges and 18 months for the third charge, reducing all three by the 

usual one-third for plea. He directed that the sentences on the second and third 

charges be served concurrently with one another as he regarded the offences as 

part and parcel of the same overall operation on that date. Having considered 

218

CCAB 2006 Sentence (Quantum) - Obscene and Indecent Articles 


Longley DJ 


*Grace Chan 

#I/P 

LO 

Wai-san 

totality, the magistrate directed that six months of the sentence on the first 

charge be served consecutively to the sentence on the second and third charges. 

The magistrate noted that the Appellant had appeared in court on 19 

different occasions, that since October 1998 he had been convicted of over 20 

offences involving both obscene articles and infringing copies of copyright 

works, and had spent substantial periods of time in jail. The magistrate took this 

into account in assessing his starting point. 

Held : 

On appeal 

The sentences imposed were well within the current sentencing range. 

The aggregate sentence was in no way excessive for this Appellant in respect of 

these offences. 


Publishing obscene DVDs/Possessing obscene DVDs for purpose of 

publication/Fine in addition to imprisonment/Need for stern penalties 

發布淫褻數碼影像光碟發布淫褻數碼影像光碟 – 管有淫褻數碼影像光碟以供發布 

管有淫褻數碼影像光碟以供發布 – 除 

監禁外再處以罰款監禁外再處以罰款 – 必須嚴厲處罰 

The Appellant pleaded guilty to an offence of publishing obscene 

articles, namely, 8 obscene DVDs, contrary to s 21(1)(a) of the Control of 

Obscene and Indecent Articles Ordinance, Cap 390 (‘the Ordinance ’), and to an 

offence of possession of obscene articles, namely, 10,896 obscene DVDs, for 

the purpose of publication, contrary to s 21(1)(b) of the Ordinance. For Charge 

1, the Appellant received 4 months’ imprisonment, and, for Charge 2, he 

received 12 months’ imprisonment and a fine of $5,000. The sentences were 

ordered to run concurrently, producing a total sentence of 12 months’ 

imprisonment and a fine of $5,000. 

The facts showed that on 12 January 2006, an undercover police officer 

purchased eight obscene DVDs from the Appellant in Manly Commercial 

Building, Mongkok. Many DVDs were on display, and a further 10,896 

obscene DVDs were seized from the premises. 

The discs depicted sexual intercourse between a man and a woman, oral 

sex and sexual organs. At the time he entered his pleas, the Appellant admitted 

that the police officer had watched all the discs included in the two charges and 

they were obscene. 

The Appellant was aged 44 years, and had 14 previous convictions, four 

of which were for similar offences. 

In her reasons for sentence, the magistrate said: 

There is ample authority that directs that offences of this nature 

are prevalent and that immediate custodial sentences are 

appropriate even for first offenders of young age, when training 

centre may be appropriate. The starting point is 9 to 12 months 

for first offenders. In the circumstances of this defendant I 

considered that a starting point of 18 months was appropriate of 

the 2nd charge and I gave him full credit for his pleas of guilty. 

No other matters were put in mitigation that in my judgment 

warranted any further reduction in sentence. I directed that both 

219



Pang DJ 


*Leung Sun-yee 

#I/P 

LAU 

Wai-keung 

the sentences were to run concurrently, as they arose out of the 

same incident. Substantial sums of money are made in this trade. 

The fine was paid from his bail money by consent. 

On appeal, the Appellant submitted that the sentences were too severe. 

He submitted that of the 10,896 discs to which Charge 2 related, about 3,000 

were either blank or included discs which the authorities had approved. It was 

also said that the fine of $5,000 which was deducted from his bail money, was 

money borrowed by his mother from friends. 

Held : 

(1) Even if 3,000 of the 10,896 discs were not obscene, the sentence on 

Charge 2 was well within the range of sentences imposed by the courts in similar 

cases and for even smaller numbers of offending discs: HKSAR v Lam Chungleung 

MA 595/2002, HKSAR v Tang Kam-cheung [2000] 3 HKLRD 516, 

HKSAR v Cheng Koon-chau MA 176/2001; 

(2) It was proper for the magistrate to impose a fine in addition to a term of 

imprisonment on Charge 2. As the magistrate commented, these were offences 

committed for financial gain. The magistrate was entitled to act upon the 

indication of the Appellant’s legal representative that the fine would be taken 

from the Appellant’s bail money; 

(3) It was worth repeating that said by Lugar-Mawson J in HKSAR v Tang 

Kam-cheung [2000] 3 HKLRD 516: 

There is a clear need for a firm response against those who 

peddle in pornographic VCDs. The message needs to be sent out 

to offenders and their legal advisors that stern penalties, 

involving punishment for meaningful periods and fines, will be 

imposed, magistrates need to be assured that such sentences will 

be upheld if appealed. 


[See also Sentencing in Hong Kong, 4th ed., at p 556: Ed] 

Obscene articles/Possession for publication of large quantity 

of pornographic DVDs/Starting point of 15 months’ 

imprisonment appropriate/Fine and imprisonment justified 

淫褻物品淫褻物品 – 管有大量色情數碼光碟以供發布之用 

管有大量色情數碼光碟以供發布之用 – 以 15 15 個月監 

禁為量刑起點是恰當的禁為量刑起點是恰當的 – 罰款及監禁是有理據的 

The Appellant pleaded guilty to one offence of publishing obscene 

articles, contrary to s 21(1)(a) of the Control of Obscene and Indecent Articles 

Ordinance, Cap 390, (Charge 1), and to one offence of possession of obscene 

articles for publication, contrary to s 21(1)(b) of the same ordinance (Charge 2). 

He was sentenced, respectively, to imprisonment for 4 months and 10 months, 

the terms to run concurrently, and to a fine of $5,000 on Charge 2. 

The facts showed that on 12 January 2006, at President Commercial 

Centre, Nathan Road, Mongkok, the Appellant sold an undercover police agent 

seven obscene DVDs, which were selected from those displayed in the flat 

(Charge 1). When police reinforcements arrived, a total of 8,880 DVDs were 

seized. The DVDs depicted sexual intercourse, oral sex and sex organs. 

220



Ma CJHC 

Stuart-Moore 

VP 

Lunn J 


*Kevin Zervos 

SC & June 

Cheung 

#Po Wing-kay 

SJ 

v 

HKDN Ltd 

In sentencing, the magistrate said there was no aggravating feature 

constituted by the nature of the obscenity, but he noted the large quantity of 

discs involved in Charge 2. The Appellant had been before the court on nine 

previous occasions, and on two occasions had faced similar charges. The 

magistrate said: 

There is ample authority that directs that offences of this nature 

are prevalent and that immediate custodial sentences are 

appropriate even for first offenders of young age, when training 

centre may be appropriate. The starting point is 9 to 12 months 

for first offenders. In the circumstances of this defendant I 

considered that a starting point of 15 months was appropriate for 

the second charge and I gave him full credit for his pleas of 

guilty. No other matters were put in mitigation that in my 

judgment warranted any further reduction in sentence. I directed 

that both sentences were to run concurrently, as they arose out of 

the same incident. I also imposed a fine as substantial profits are 

made as a result of these offences. I ordered that the fine was to 

be paid after his release from custody. 

On appeal, against the second sentence only, it was submitted that the 

length of the 10-month sentence was excessive, and that the imposition of a fine 

amounted to double punishment. 

Held : 

(1) The usual starting point for this offence was 9 to 12 months’ 

imprisonment; HKSAR v Chan Mau-lung [2003] 4 HKC 202. For cases 

involving a very large number of offensive articles sold in shop premises, a 

higher starting point should be adopted. In Chan’s case, a 12-month starting 

point was considered appropriate for a defendant manning a makeshift stall with 

98 VCDs in Temple Street. The starting point in this case was not excessive; 

(2) As regards the fine, in HKSAR v Tang Kam-cheung [2000] 3 HKLRD 

516, 520, it was said: 

There is a clear need for a firm response against those who 

peddle in pornographic VCDs. The message needs to be sent out 

to offenders and their legal advisors that stern penalties, 

involving imprisonment for meaningful periods and fines, will be 

imposed. 


Control of Obscene and Indecent Articles Ordinance/Indecent articles 

published without cover or packaging and without a notice/Fines for 

recidivist/Material at lower end of offending/ No complaint made of 

pornographic text/Need to direct allegations at real target of complaint 

《淫褻及不雅物品管制條例 

淫褻及不雅物品管制條例》– 淫褻及不雅物品管制條例發布既沒有封面和封底或包裝物亦 

沒有告示的不雅物品沒有告示的不雅物品 – 對積犯判處罰款 – 屬低度違例的內容韕 – 無 

人就色情文字提出申訴人就色情文字提出申訴 – 指控須針對申訴的真正目標 

The Respondent pleaded guilty to three summonses alleging the 

publication of indecent articles on three separate days in February 2006. In each 

instance, the summons alleged that ‘the said article had no cover or packaging 

and did not bear a notice in the form as specified under section 24(1D) of the 

Control of Obscene and Indecent Articles Ordinance, Cap 390 ’. 

221


In respect of the first two summonses, the Respondent was fined $7,500 

on each, and in respect of the third summons, a fine of $5,000 was imposed. 

After an application by the prosecution to review the sentences, the magistrate 

doubled the fines to $15,000 on each of the first two summonses, and to $10,000 

on the third summons. 

On review, the Applicant submitted that HKDN was in the same position 

as a ‘recidivist’, having been convicted on 47 previous occasions for the same 

offence leading to the imposition of fines ranging from $3,000 to $80,000. It 

was said that fines at the level passed in these proceedings would have no 

deterrent effect whatsoever. These were cases where enhanced sentences were 

called for as the constant repetition of such offences by HKDN had increased 

their gravity: HKSAR v Chan Pui-chi [1999] 2 HKLRD 830. 

The Applicant pointed to the fact that it was clearly the intention of the 

legislature to provide adequate deterrence against the public display of indecent 

articles in view of the high profitability likely to be derived from the publication 

of such material and coupled with its potentially harmful effects. The maximum 

penalty for this offence had been increased in 1995 on first conviction from 

$200,000 to $400,000 and to $800,000 for any subsequent conviction. As such, 

it was said to be the duty of the courts to reflect the legislative view in the 

sentences imposed for these offences. Since the Respondent had offended on 13 

occasions since the legislative amendments in 1995, the sentences were 

manifestly inadequate. 

Held : 

(1) Whilst it was perfectly true that the present penalties were far below the 

level of the maximum, the publication about which complaint was made in each 

of the summonses related specifically to certain pictures appearing in these 

editions of the HKDN. When these were viewed in isolation, and whilst they 

undeniably fell within the category of ‘indecent material’, they were not in the 

worst category, and at the lower end of offending; 

(2) The pictures, in themselves, would not these days be likely to give rise to 

any serious complaint from the public. On the other hand, the written material 

which accompanied the articles, about which no complaint was made in the facts 

describing these offences, was where the gravamen of the offences lay. If the 

prosecution had been principally aimed at the written words accompanying the 

pictures (rather than exclusively at the pictures), the sentence to be expected 

would no doubt have been far greater; 

(3) Here, in editions of a daily newspaper readily available to all members of 

the public, were highly explicit articles, going well beyond mere titillation, 

describing the fantasies of sauna girls and a girl named ‘Apple’. The text was 

written in the unmistakable style of a pornographic magazine, and had no place 

whatsoever in a daily newspaper. The lesson to be learned from this case, 

therefore, was that the prosecution should be careful to direct its allegations at 

the real target of the complaint. The Brief Facts made no reference at all to the 

written articles accompanying the pictures; 

(4) The review before the magistrate had almost solely concentrated, as had 

the present proceedings, upon the increased gravity of HKDN’s offences in the 

light of its numerous previous convictions. The magistrate obviously heeded the 

submissions when he doubled all the fines he had originally imposed. Rightly, 

no attention was paid, in view of the way the prosecution had presented its case, 

to the articles accompanying the pictures. 

Result - SJ’s application dismissed. 

222



Poon DJ 


*Bianca Cheng 

#Francis Burkett 

LAM 

Sze-mui 

Control of Obscene and Indecent Articles Ordinance/ Publishing an 

indecent video disc not sealed as required/ Possession of 20 such video 

discs/Prevalence of offences/Repeat offender/Mathematical comparison 

with other offence provisions not appropriate/Sentencing considerations for 

offence under s 24 

《淫褻及及不雅物品管制條例》 – 發發布一張沒有按規定密封的不雅 

影像光影像光碟影像光 – 管有 20 20 張該等影像光碟 – 罪行的普遍程度 

罪行的普遍程度 – 累犯 

者 – 與其他罪行條文作出數學上的比較並不恰當 

與其他罪行條文作出數學上的比較並不恰當 – 就第就第24 就第 

24 條所 

訂罪行判刑時須考慮的事宜 

訂罪行判刑時須考慮的事宜 

The Appellant pleaded guilty to two offences: (1) publishing an indecent 

video disc ‘not sealed in a completely opaque wrapper ’, as required under s 24 

of the Control of Obscene and Indecent Articles Ordinance, Cap 390, and (2) 

possessing 20 such video discs, ‘not sealed in a completely opaque wrapper ’ for 

the purpose of publication, contrary to s 27A of the said Ordinance. He was 

sentenced to 4 months’ imprisonment on each offence, to run concurrently to 

each other, but consecutive to a pre-existing sentence. 

The Appellant sold the disc referred to in Charge 1 to an officer of the 

Television and Entertaining Licensing Authority, during a control buy operation. 

Upon subsequent inspection of the discs in the premises, 20 video discs were 

found to be indecent and not ‘sealed in completely opaque wrappers ’. 

On appeal, it was submitted: (a) the magistrate failed sufficiently to take 

into account that out of the 2,525 video discs in the Appellant’s possession, only 

21 were not wrapped as required by the Ordinance; (b) the magistrate, by 

adopting a starting point of 6 months’ imprisonment, had failed to distinguish 

between the less serious nature of the s 24 offences, under which the present 

summonses were brought, and where the maximum term of imprisonment was 12 

months, and the s 21 offences, involving obscene articles, where the maximum 

term was 3 years; (c) the 4 months’ imprisonment was manifestly excessive in 

the circumstances. 

The Appellant argued that in HKSAR v Chan Mau-lung [2003] 4 HKC 

202, the Court of Appeal had set down a tariff of 9 to 12 months for first 

offenders under s 21. The maximum term of imprisonment under s 21 was three 

times of that of s 24, and a first offender under s 24 should face a maximum 

starting point of 4 months’ imprisonment. Although it was accepted that this was 

a purely mathematical approach, it was said that it was one which endeavoured 

to strike a fair balance and proportionality between different types of offences 

under the Ordinance. 

Held : 

(1) Although, at first sight, the submission seemed to have some force, it lost 

sight of the fact that, even for offences of the like, guidelines were not 

immutable. Starting points could be adjusted upwards or downwards in the 

presence of aggravating or mitigating factors. That would include, as in Chan 

Mau-lung , the quantity of the material, the audience targeted, the degree of 

depravity and repulsiveness. Prevalence of the offence, whether the trade was 

carried out in a notorious spot and whether the offender had previous such 

convictions were all factors to be taken into account and the sentencer had a 

wide discretion. A mathematical comparison as suggested was not appropriate; 

(2) The magistrate noted that the offences ‘took place in a building which is 

notorious for housing businesses which offend as to obscene, indecent and/or 

223


Obstructing Public Officer 


Longley DJ 


*H Melwaney 

#I/P 

copyright breaching articles. On at least a weekly if not daily basis, the Eastern 

Magistracy deals with several such cases ’ ; 

(3) The magistrate noted that the Appellant had made 33 appearances before 

the courts with 47 previous convictions. Since 2000, he had engaged himself in 

trades offending the Copyright Ordinance as well as s 21 offences. For the 

latter, he was sentenced to a total of 14 months’ imprisonment on 25 April 2003. 

At the time of the present sentence, he was still serving 6 months’ imprisonment 

in relation to an offence of using a false instrument from 24 May 2006. The first 

of his s 21 offences happened on 27 March 2003, and the second on 17 April 

2003; 

(4) Although the present offences arose under s 24, it was clear that previous 

sentences had not deterred him from committing further like offences. The 

starting point of 6 months’ imprisonment could not be faulted. 


RAI Binay Wilful obstruction of police/Repeat offender/Deterrent sentence inevitable 

故意阻撓警務人員故意阻撓警務人員 – 屢犯者 – 判處阻嚇性刑罰是無可避免的 

The Appellant was convicted after trial of wilfully obstructing a detective 

police constable in the execution of his duty, contrary to s 36(b) of the Offences 

against the Person Ordinance, Cap 212. 

In his reasons for sentence, the magistrate said: 

The defendant is a persistent offender and the situation 

warranted a deterrent sentence. A police officer must be 

protected when they (sic) are performing their duties. The 

circumstances of the obstruction were rather serious but I have 

taken into consideration that nothing illegal was found on the 

defendant and it might have been over-reaction on his part when 

being told that he was to be questioned by the police. I adopted a 

starting point of 6 months’ imprisonment and since he was 

convicted after trial, no discount was given. 

The Appellant was aged 28 years, had 15 previous convictions and had 

been imprisoned on several occasions. Three of his convictions were for 

possession of an offensive weapon, including his most recent conviction in 2005 

when he was sentenced to 6 months’ imprisonment. In 2001, he was sentenced 

to 2 months’ imprisonment for assaulting a police officer in the execution of his 

duty. 

Held : 

On appeal 

(1) A significant sentence of imprisonment was warranted. The Appellant 

was involved in a violent struggle with the police over some time that night. A 

deterrent sentence was inevitable in the circumstances. The previous sentence 

of 2 months’ imprisonment in 2001 for assaulting a police officer appeared to 

224

CCAB 2006 Sentence (Quantum) - Obstructing Public Officer 

Offences Against Public Justice 

CA 198/2004 

Stuart-Moore 

VP 

Stock JA 

Burrell J 


*A Sham & 

A Pang 

#D Percy 

LI 

Wai-yan, 

Jessica 

have had no effect in deterring him from committing this offence. Any sentence 

passed had to bring home to the Appellant that this sort of conduct would not be 

tolerated; 

(2) In light of the authorities, 6 months’ imprisonment was on the high side. 

No police officer was injured. 


Conspiracy to pervert the course of public justice/Disposal of body of 

murder victim and of material articles/Seriousness of agreement to impede 

homicide investigation 

串謀妨礙司法公正串謀妨礙司法公正 – 處置謀殺案受害人的屍體及案中關鍵物品 – 

與人協議阻礙兇殺案的調查屬嚴重罪行 

與人協議阻礙兇殺案的調查屬嚴重罪行 

Yung Cho-hing, the deceased, died as a result of multiple injuries. Three 

persons were duly convicted of his murder. 

Following the killing, the three persons each became a party to a coverup 

where they engaged in the removal of the deceased’s body and a number of 

articles from the original crime scene in an attempt to distance themselves from 

the killing. Those three persons, together with the Applicant, and a fifth 

defendant, were charged with a conspiracy to pervert the course of public 

justice. Except for the Applicant, all those charged pleaded guilty. 

The evidence against the Applicant, of her involvement in the disposal of 

the deceased’s body and other items connected with the killing, was based 

entirely upon her confession to the police which, in turn, was borne out by the 

police investigation. The Applicant described how, having learnt about the 

death of the deceased, she discussed with others what should be done. She was 

a party to the disposal of the body by acting as a look-out. She also helped in 

cleaning away the bloodstains left behind on the stairs and in getting rid of such 

items as clothes which might have been bloodstained. 

The judge adopted a 5-year starting point. Having described the 

Applicant’s only real mitigation as being the fact that she was not the leader of 

the conspiracy, and had acted to ‘protect another or others ’, the judge passed a 

4-year sentence. The judge pointed out that a conspiracy of this kind was 

‘always serious and is particularly serious when it is in respect of a homicide 

investigation ’. 

On appeal, it was submitted that this was an offence which had been 

carried out in an amateurish way and that, when compared to the facts of a 

number of other cases, the 5-year starting point was too high. It was said that a 

sentence of 3½ years, as opposed to 4 years, would have been appropriate. 

Held : 

A sentence of 4 years’ imprisonment was not manifestly excessive. A 

conspiracy of this kind, where the investigation involved homicide, was serious 

because it involved an agreement to dispose of evidence and to distance the 

225

CCAB 2006 Sentence (Quantum) - Offences Against Public Justice 

Offences Against Public Order 


Toh DJ 


*Lam Tak-wing 

#Bina Sujanani 

CHAU 

Yiu-ming 

body from the scene of the crime. The Applicant had shown no contrition 

despite her earlier confession to the police, and the mitigation, such as it was, 

seemed to have been fully taken into account. 


[See also Criminal Appeals/Against Conviction: Ed] 

Behaving in a disorderly manner/Prevalence of offence/First offender of 

good standing/Community service order sufficient to deter defendant from 

re-offending 

作出擾亂秩序的行為作出擾亂秩序的行為 – 罪行的普遍程度 – 品行良好的初犯者 – 社 

會服務令足以阻嚇被告人使其不再犯案頥 

會服務令足以阻嚇被告人使其不再犯案頥 

The Appellant, an assistant training officer, pleaded guilty to an offence 

of behaving in a disorderly manner in a public place. 

The magistrate felt that this type of offence was becoming prevalent and 

a deterrent sentence was required, notwithstanding the Appellant’s clear record. 

The facts showed that the Appellant was going up an escalator and was 

seen holding a camera which he extended away from him. He was standing in a 

strange position and the witness thought he might be taking a photograph of the 

victim, who was standing on the step above him. The witness tapped the victim 

on her shoulder and informed her. After a short chase, the Appellant was 

caught. 

Although the magistrate was aware that if pre-sentence reports were sent 

for they would probably recommend a community service order, he decided on a 

term of imprisonment of 2 months, having adopted 3 months as his starting 

point. 

Held : 

On appeal 

(1) The Appellant had not previously shown bad habits. He was said to be a 

responsible and hard-working person, and his wife thought the offence arose 

from stress. He had a very supportive family, and was said to be a filial son. 

Despite suffering from epilepsy, he always worked hard to support his family; 

(2) The probation officer did not recommend probationary supervision as the 

Appellant’s chance of re-offending was not high. However, a community 

service order was recommended; 

(3) Although this type of offence was becoming more prevalent, and in some 

cases a deterrent sentence ‘in rem’ was appropriate, the Appellant had an 

exemplary background and the offence was completely out of character. He had 

a stable job and a stable family life, and should be given a chance. There was no 

evidence he actually succeeded in taking any pictures. Considering the 

Appellant’s background, the performance of community service should deter 

226

CCAB 2006 Sentence (Quantum) - Offences Against Public Order 

OSCO 

* 單偉琛 

Eddie Sean 

# 彭耀鴻 

Robert Pang 

him from re-offending in the future. It would serve as a constant reminder 

during 160 hours that he should not re-offend. 

Result - Appeal allowed. Sentence set aside, and substituted with a 

community service order of 160 hours. 



H K S A R v C H E N Z h u - s h a n 

高等法院上訴法庭韨 – 高院刑事上訴2005年第392號 

高等法院上訴法庭韨法官張澤� 

高等法院上訴法庭韨法官楊振頄權 

高等法院上訴法庭韨法官鄧國楨 

耹訊日期:二零零六年四月廿一日 

判案頥書頟日期:二零零六年五月四日 

COURT OF APPEAL OF THE HIGH COURT 

CRIMINAL A P P E A L N O . 3 9 2 O F 2 0 0 5 

C h e u n g 

Ye u n g & 

Ta n g J J A 


D a t e o f J u d g m e n t : 4 M a y 2 0 0 6 

行使和管有偽鈔罪 

行使和管有偽鈔罪行使和管有偽鈔罪 - 以罪行普遍為理由 

以罪行普遍為理由, 以罪行普遍為理由 

根頨據根頨據《根頨據有組織及嚴重罪行 



條例條例》條例加重刑罰加重刑罰 - 單以發現偽鈔的數目和被檢控人數大增為由而裁 



申請人被控兩項行使偽鈔及一項管有偽鈔罪 , 違反香靬港法例 

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 個鞄月和 4 年 9 個鞄月。除第一項控罪的刑期中的 3 個鞄月外,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 

鈔透過自動櫃員鞬機存入其�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 , 但結果被警員鞬在途人協助下截 

獲。其後警員鞬在申請人租住的旅頖館房內的一個鞄行李喼中 , 發現 126 

張500元偽鈔。 

法官指出案頥件涉顎及面值靹共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 個鞄月。法官應控方的申 

請,以罪行普遍為理由,根頨據《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個鞄月和4年9個鞄 

月。 

227

CCAB 2006 Sentence (Quantum) - OSCO 

支持有關罪行普遍的證據源自控方向法庭韨提供的資料頔 , 該些 

資料頔顯示自1999年至2005年首靫7個鞄月發現500元偽鈔的數目和被檢控 

涉顎及500元偽鈔罪行的人數大增。 

該些資料頔詳列如下: 

1999 2000 2001 2002 2003 2004 

2005 

1-7月 

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

數目 

張張張張張張張 

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。 

裁決裁決: 裁決 

(1) 根頨據香靬港法例第 455 章《有組織及嚴重罪行條例》附表 1 及附 

表 2, 本案頥的罪行都是 ‘ 指明的罪行 ’ 。而根頨據第 27(11) 條 , 假若法 

庭韨信納被告人所犯的 ‘ 指明罪行 ’ 普遍 , 則可以加重被告人的判 

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 

的數目和涉顎及 500 元偽鈔被檢控人數的資料頔。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:香靬港特顠區訴陳家韑建和酈英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 

偽鈔的數目和涉顎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) 法庭韨在香靬港特顠區訴董海顊一等三人Cr App 268/2005案頥指出: 

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韕 

易。法庭韨必須發出明確訊息韵,表明製造偽鈔者會遭重罰, 

避免這些不法行為氾濫。 

(5) 如涉顎案頥偽鈔總值靹只是數萬港元 , 法庭韨採納的量刑基準為 3-4 

年:香靬港特顠區訴林偉明Cr App 44/2004、香靬港特顠區訴陳家韑建和酈 

英Cr App 474/2004; 

228



of CA 392 of 

2005, above] 

Cheung 

Yeung & 

Tang JJA 


*Eddie Sean 

#Robert Pang 

CHEN 

Zhu-shan 

(6) 申請人個鞄人行事 , 亦沒有嚴重的犯罪記錄 , 雖然案頥件涉顎及偽 

鈔的總值靹達 60,000 萬元,但像真度不高。本案頥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。 

結果結果‥ 結果結果第 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個鞄月分期 

執行外 , 其餘刑期全部同期執行。總刑期由 5 年減至3年6 

個鞄月。 

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 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. 

229


The information was as follows : 


$500 

counterfeit 

notes 

discovered 

Persons 

prosecuted 


$500 

counterfeit 

notes involved 

230 

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 

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


CA 464/2005 

Stuart-Moore 

VP 

Yeung JA 

Beeson J 


*G Shiu 

#F Yip 

XU 

Mai-qing 

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. 

Street deception/50% enhancement of sentence under OSCO/ Prosecution 

must prove prevalence of offence, not in increase/ Street deception a grave 

offence which must be deterred 

街街街頭頭頭騙騙騙案案 – 根據《有組織及嚴嚴重罪行條例》加加刑百分之五十 – 

控方必須證明罪案的普遍程度 

控方必須證明罪案的普遍程度, 控方必須證明罪案的普遍程度 

控方必須證明罪案的普遍程度而非罪案正在增加 

而非罪案正在增加而非罪案正在增加 – 街頭騙案是 

必須阻嚇的嚴重罪行 

必須阻嚇的嚴重罪行 

The Applicant, a visitor from the Mainland, together with two others 

approached the victim in the street and tried to befriend her with a view to 

deceive her; this was a case of street deception. 

They suggested that the victim’s son would have an accident that might 

cost his life. They then persuaded the victim to seek ‘spiritual blessing ’ from a 

‘Fung Shui ’ master who required valuables such as gold ornaments and cash to 

perform the necessary ritual to drive away the evil spirit in order to save her son. 

The victim, however, reported the matter to the police and the Applicant 

was arrested after she failed to persuade the victim to give her the bag 

supposedly containing the valuables. 

On 10 October 2005, the Applicant pleaded guilty in the district court to 

a charge of conspiracy to defraud, and was sentenced to 3 years’ imprisonment. 

The judge adopted a starting point of 3 years and reduced it by 1/3 to 2 years to 

reflect the guilty plea. On the prosecution’s application, the judge then 

enhanced the sentence by 50% under section 27(11) of the Organized and 

Serious Crimes Ordinance, Cap 405, (‘OSCO ’) by reason of the prevalence of 

the offence, to bring the sentence back to 3 years’ imprisonment. 

The judge explained that the number of reported street deception cases 

employing the modus operandi of ‘spiritual treatment ’ was 137 for the first 

eight months of 2005, representing 48.4% of the total number of reported street 

deception cases, whereas the percentages in 2002, 2003 and 2004 were 42.6, 

24.6 and 44, respectively. She therefore concluded street deception adopting the 

modus operandi of spiritual treatment was the prevalent modus operandum of 

street deception in 2004 and 2005. 

The judge also emphasised that the detection of street deception cases 

was difficult. 

231



Stuart-Moore 

ACJHC 

Yeung JA 


*Simon Tam 

#M Moosdeen 

WEN 

Zelang 

On appeal, it was submitted the judge erred in increasing the sentence 

under OSCO as the offence in question was no longer prevalent at the time the 

Applicant was sentenced. 

Held : 

(1) The statistics supplied to the judge indicated that the number of reported 

street deception cases in 2001, 2002, 2003 and 2004 were, respectively, 623, 

811, 576 and 479. For the first eight months in 2005, the number of reported 

street deception cases was 283 and the total value of stolen properties exceeded 

$16 million. While the number of street deception cases might have decreased 

since its peak in 2002, it was still widespread and was still being commonly 

practised in 2005; 

(2) Under s 27(11) of OSCO, what the prosecution had to prove was the 

prevalence of the offence, not the increase in the number of such offences. 

Street deception was still prevalent in 2005, and the offence had to be deterred. 

The number of street deception cases adopting the modus operandum of 

‘spiritual treatment ’ was not decreasing, and the figures were 142 for 2003 and 

212 for 2004, and 137 for the first eight months of 2005; 

(3) The judge was right to take the view that street deception adopting the 

modus operandum of ‘spiritual treatment ’ was prevalent and that its detection 

was difficult. She was justified in enhancing the sentence under OSCO. Street 

deception was a grave offence and had to be deterred. In HKSAR v Huang Yuhuan 

[2002] 2 HKC 682, 686, it was said: 

The offences, of necessity, have to be both premeditated and well 

planned. They are certainly cynical and heartless crimes. If the 

fraud is successful, the consequences for the victim can be 

exceptionally distressing. They stood to lose the whole or a 

substantial part of their lifesavings upon which they are 

dependent for their living. This is something which could reduce 

them to penury. 


Theft/Incense tree wooden blocks/Mainlanders to be deterred from cutting 

Buddhist pines or incense trees/Clear record a neutral factor as 

mitigation/Lesser culpability of young offender acting under uncle’s 

influence 

盜盜竊竊竊罪罪 – 土沉香的木材 – 有需要阻嚇中國內地人砍伐羅漢松或土 

有需要阻嚇中國內地人砍伐羅漢松或土 

沉沉香香 – 無無定定罪罪紀紀錄錄是是沒沒有作用的求情因素有作用的求情因素 – 受叔伯影響而行事的 

受叔伯影響而行事的 

年少犯罪者刑責較輕 



The Applicant, and others, on 24 March 2006, was travelling on a bus on 

Lantau Island when an identity check was conducted. They were found to be 

carrying wooden blocks weighing 5.6 kgs which had been taken from an incense 

tree. 

The Applicant and the other defendants were two-way permit holders. 

They came to Hong Kong on 19 March 2006 with woodchoppers for the 

purpose of finding incense trees so that the wood they cut from such trees could 

be sold in the Mainland. The blocks of wood had been cut from a large and 

mature incense tree on 20 March 2006. 

The defendants had intended to look for more incense trees, but were 

232


unsuccessful. At the time of arrest, they were about to return to the Mainland. 

‘Aquilaria Sinensis ’, a species of ‘Aquilaria ’ commonly known as 

‘incense tree ’, grew chiefly in South China, including parts of Hong Kong. It 

was also a ‘fung shui ’ tree, and was therefore sometimes planted in ‘fung shui ’ 

woods in villages in the New Territories. The fragrance of incense tree wood 

made it an ideal material for the making of joss sticks and the resin it produced 

was a valuable Chinese herbal medicine. The heavy demand for incense tree 

wood led to its over-exploitation and it was under the threat of extinction. 

Since January 2005, the Convention on International Trade in 

Endangered Species of Wild Fauna and Flora had restricted the import and 

export of wood from incense trees. 

In Hong Kong, the Protection of Endangered Species of Animals and 

Plants Ordinance, Cap 586, gazetted on 10 March 2006, imposed a restriction 

on the export of all ‘Aquilaria ’ species, although the ordinance was not yet in 

operation. The ‘List of Wild Plants under State Protection ’ in the Mainland 

also included the incense tree in the categories listed for protection. 

The defendants pleaded guilty to theft of the incense tree wood blocks, 

and each of them was sentenced to 30 months’ imprisonment. The judge did not 

distinguish the Applicant from the other defendants, and adopted a starting point 

of 3 years’ imprisonment for all of them. The judge reduced the starting point 

by one-third to 2 years on account of their guilty pleas, and then, on the 

prosecution’s application, enhanced the sentence by 25% under s 27 of the 

Organized and Serious Crimes Ordinance, Cap 455 (‘OSCO ’), by reason of the 

prevalence of the offence to bring the sentence to 30 months’ imprisonment. 

On appeal, it was submitted that both the starting point and the 

enhancement under OSCO were excessive. 

Held : 

(1) The judge was right to have taken a serious view of the offence when the 

defendants had expressly come to Hong Kong for the purpose of cutting 

endangered trees for profit. A clear and strong message was needed to deter 

Mainland people from coming to Hong Kong to cut endangered trees, be they 

Buddhist pines or incense trees. Neither the 3-year starting point nor the 25% 

enhancement for prevalence of the offence under OSCO was manifestly 

excessive; 

(2) The Applicant was not entitled to more than a one-third discount on the 

basis that he had no previous conviction: HKSAR v Leung Shuk-man [2002] 3 

HKC 424. The policy of giving the generous discount, set at one-third, to those 

who plead guilty, was designed to achieve equality in the approach taken by 

sentencers towards those who had to be punished by means of a custodial 

sentence for their crimes. This applied as much to a person who had a clear 

record as to someone who had not although an offender might receive an 

enhanced sentence where an offence of the same or a similar kind had been 

repeated. The fact that an offender had a clear record was in reality a neutral 

feature in the case. The judgments in HKSAR v David Vilma V MA 11/2003, 

and HKSAR v Wong Wai-man MA 615/2006, which suggested that a clear 

record justified an additional discount, were erroneous; 

(3) The judge failed to differentiate between the Applicant and the other 

defendants. He was aged 17 years and the others were mature men in their 

thirties and forties. That factor, of itself, was not a strong mitigating factor: 

HKSAR v Yeung Wai and Others [2005] 1 HKC 646, 660. More importantly, 

233


Peristent Phone Call 


Toh DJ 


*Paul Ho 

#I/P 

HA 

Cheuk-fung 

one of the defendants was the Applicant’s paternal uncle, and had assumed a de 

facto parental role towards the Applicant from a time when he was very young. 

It could be assumed that the uncle might have exercised a considerable influence 

over the Applicant when he decided to embark upon this criminal enterprise. 

For that reason, his culpability was less than that of the other defendants, and he 

deserved a more lenient sentence. 


Persistent telephone calls/Respondent making 220 calls to annoy his exlover/No 

threats or obscenities/Fine appropriate for first offence 

不斷打電話不斷打電話 – 答辯人撥電 220 220 次對前度情人造成煩擾 – 並無作出恐 

嚇亦非淫褻嚇亦非淫褻 – 對首次犯罪判處罰款是恰當的 

The Appellant pleaded guilty to an offence contrary to s 20(c) of the 

Summary Offences Ordinance, Cap 228, which alleged that, without reasonable 

cause, he persistently made telephone calls to the victim for the purpose of 

causing annoyance to her. 

The facts showed that the Appellant was the victim’s ex-lover. After 

they broke up, the Appellant started making numerous calls to her, and police 

eventually traced these to the Appellant. He admitted he had made the calls. 

There were a total of 220 calls, most of them silent. When he did speak, he 

asked her not to break up with him, and it was accepted that there were no 

threats or obscenities. 

The magistrate imposed a fine of $1,000. 

On appeal, the Appellant indicated that he did not want a conviction 

recorded against him, as he feared it might affect his future. 

Held : 

(1) Given the great number of calls, the fine imposed was not excessive; 

(2) If the Appellant did not commit another offence, the sentence would be 

spent in three years’ time. 


[For spent convictions generally, see Sentencing in Hong Kong, 4th 

ed., at pp 457 to 464: Ed] 

234

CCAB 2006 Sentence (Quantum) - Public Nuisance 

Public Nuisance 


Beeson J 


*Cheung Waisun 

& Lam Takwing 

#Philip Dykes 

SC 

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. 

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] 

235

CCAB 2006 Sentence (Quantum) - Road Traffic 

Road Traffic 

MA 

1047/2005 

MA 

1048/2005 

Lunn J 


*Tsang Oi-kei 

#R Donald 

CHAN 

Wing-kuen 

Road traffic/Appalling traffic record/Detention centre a valid sentencing 

option for driving whilst disqualified/Consecutive terms of disqualification 

appropriate 

道路交通道路交通 – 駭人的交通犯事紀錄 

駭人的交通犯事紀錄 – 對於在取消駕駛資格期間駕 

駛的罪行判令進入勞教中心是有效的判刑選擇駛的罪行判令進入勞教中心是有效的判刑選擇 – 分期執行取消駕 

分期執行取消駕 

駛資格的處罰是恰當的 



In these conjoined appeals, the Appellant appealed against the sentences 

imposed on him following his pleas of guilty on 28 September 2005 to seven 

separate charges, four of which arose from events that occurred on 1 September 

and three of which arose from events which occurred on 13 September 2005. 

All charges, except for that of using a vehicle without third-party 

insurance, of which the Appellant was convicted and sentenced, were brought 

under the Road Traffic Ordinance, Cap 374. 

The offences that arose out of the events of 1 September 2005 were: 

speeding, contrary to s 41(1)(a); driving whilst disqualified, contrary to s 

44(1)(b); using a vehicle without third-party insurance, contrary to ss 4(1) and 

4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 

272; and driving a motor vehicle with an alcohol concentration in breath 

exceeding the prescribed limit, contrary to s 39A(1). 

For Charge 1, the Appellant received an absolute discharge; for Charge 

2, he was sentenced to detention in the detention centre and disqualified from 

driving for 3 years; for Charge 3 he was sentenced to the detention centre and to 

a disqualification from driving order for 12 months, to be served concurrently 

with the disqualification order made on Charge 2; and on Charge 4 to detention 

in the detention centre. 

The offences that arose out of the events of 13 September 2005 were: 

speeding, contrary to s 41(1)(a); driving whilst disqualified, contrary to s 

44(1)(b); and using a vehicle without third-party insurance, contrary to ss 4(1) 

and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 

272. 

For Charge 1, the Appellant received an absolute discharge; for Charge 

2, he was sentenced to detention in the detention centre and disqualified from 

driving for 3 years, the said disqualification to run consecutively to the term 

imposed on Charge 2 related to the events of 1 September 2005; for Charge 3, 

he was sentenced to detention in the detention centre and disqualified from 

driving for 12 months, to be served concurrently with the disqualification order 

of 3 years imposed in respect of Charge 2. 

The overall effect of the sentences was that he was ordered to be detained 

in a detention centre and disqualified from driving for 6 years. 

In respect of the offences of driving whilst disqualified, contrary to s 

44(1)(b) of the Road Traffic Ordinance, the magistrate concluded that s 

44(2)(iii) was quite specific, and the periods of disqualification had to be 

consecutive. Given that the minimum term for disqualification was 3 years, a 

period of 6 years, concluded the magistrate, was ‘the absolute minimum period 

that I could impose ’. 

The Appellant, aged 24, was employed as a technician, and had 

previously committed similar offences, for which he received non-custodial 

236



McMahon J 


*Yam Ho 

#I/P 

DA 

CONCEICAO 

DOMINGUES, 

Luis 

Fernando 

sentences. 

The detention centre report recommended a period of disciplinary 

training, and described the Appellant as suitable for detention in a detention 

centre. 

On appeal, it was submitted, inter alia, that the magistrate had erred in 

imposing a sentence of detention in a detention centre for the offence of driving 

whilst disqualified, as this was not authorised by law. It was further said that the 

magistrate erred in concluding that he was compelled to impose consecutive 

periods in respect of Charge 2 in each set of offences. The sentences and 

disqualification periods were described as manifestly excessive and wrong in 

principle. 

Held : 

(1) It was clear that under the current legislation it was open to the 

magistrate to impose a detention centre order; 

(2) Having regard to the Appellant’s traffic record and his commission of 

these offences, a detention centre order was fully justified; 

(3) As regards the issue of mandatory disqualification in respect of s 44 of 

the Road Traffic Ordinance, the magistrate, in dealing with two separate 

offences of driving whilst disqualified, was not obliged by s 44(3) to make the 

minimum periods of disqualification, namely 3 years, consecutive with one 

another. They were not disqualifications ordered ‘under any other provision of 

this ordinance ’. They were disqualifications ordered under the same provision 

of the Ordinance, namely, s 44(2); 

(4) Having regard to the appalling traffic record of the Appellant, and the 

fact that the second set of offences was committed whilst the Appellant was on 

bail for the first set, the magistrate imposed the appropriate orders of 

disqualification upon the Appellant. 


Drink-driving/Drink contributing to collision with another vehicle/Driving 

licence required for work/Disqualification from driving for 6 months 

appropriate/Need to discourage such offending 

酒後駕駛酒後駕駛 – 飲酒導致與另一車輛相撞 – 駕駛執照為工作所需 – 

取消駕駛資格 

取消駕駛資格6 取消駕駛資格個月恰當 – 必須阻嚇酒後駕駛 

The Appellant pleaded guilty to an offence of careless driving, contrary 

to s 38(1) of the Road Traffic Ordinance, Cap 374, and to an offence of driving 

a motor vehicle with an alcohol concentration in his breath exceeding the 

prescribed limit, contrary to s 39A(1) of the same Ordinance. For the first 

offence, the Appellant was fined $1,000, and for the second offence $4,000, and 

disqualified from holding or obtaining a driving licence for six months. 

On appeal, complaint was made that the sentence of disqualification of 

six months for the second offence was too severe. The Appellant said he needed 

his licence for his work, as he was the pastor of a Christian charitable 

organisation which provided assistance to drug addicts, alcoholics, the homeless 

and the needy, and was the only staff person with an operable driving licence. 

The facts showed that the Appellant had driven his vehicle in Ma Tong 

237


MA 

1225/2005 

Poon DJ 


*Sin Pui-ha 

#Daniel Marash 

SC & Kenneth 

Chan 

SIN 

Kit-sang 

Road in Yuen Long, and come to a halt at red traffic lights, with a public light 

bus stopped behind him. He had been drinking. When the lights turned green, 

the Appellant mistakenly placed his gears into reverse and accelerated into the 

bus, causing slight damage. When his breath was tested, it was found to contain 

60 mg of alcohol per 100 ml of breath, which was more than double the limit of 

22 mg per 100 ml specified by the legislation. 

Held : 

(1) On the facts, no complaint could be made as to the period of six months’ 

disqualification, even given that this was the Appellant’s first offence: HKSAR v 

Lau Shu-wing MA 1124/1998, HKSAR v Wong Sau-kwan MA 53/2001; 

(2) The level of alcohol in the Appellant’s breath was high and no doubt was 

a contributing factor to the accident which occurred; 

(3) Whilst the work of the Appellant was no doubt of value to the 

community, drink-driving must be discouraged in the interest of the community. 


Dangerous driving causing death/Consequences of offence relevant to 

sentence/Blatantly irresponsible driving posing danger to the 

public/Imprisonment appropriate 

危險駕駛引致他人死亡危險駕駛引致他人死亡 – 罪行引致的後果與量刑是相關的 – 肆意肆意 

妄為不負責任的駕駛態度對公眾構成危險妄為不負責任的駕駛態度對公眾構成危險 – 判處監禁是恰當的 

The Appellant was convicted after trial of an offence of dangerous 

driving causing death, contrary to s 36(1) of the Road Traffic Ordinance, Cap 

374, and sentenced to 4 months’ imprisonment. 

The Appellant was the driver of a private car which collided with a taxi. 

The impact caused the taxi to spin round, and its passenger was thrown against 

the interior and then out of the taxi on to the road. He was fatally injured and 

died subsequently. 

The magistrate found that the Appellant was driving at a speed of at least 

80 km/h, which was well over the speed limit, and also failed to keep a proper 

look out. He concluded that the Appellant’s driving in terms of speed and 

manner fell far below what would be expected of a competent and careful driver, 

and it was obvious to such a driver that to drive in such a manner would be 

dangerous. 

Held : 

On appeal 

(1) Although Bewley J in R v Chu Tai MA 960/1989, had held that the 

consequences of an accident might sometimes have little relevance to the 

penalty that should be imposed, as momentary inattention could have tragic 

results while bad driving could have no results, these dicta did not accord with 

the sentencing principles expounded in recent cases of dangerous driving and 

should not be followed: SJ v Ko Wai-kit [2001] 3 HKLRD 751, HKSAR v Mok 

King-yin [2002] 2 HKLRD 76, applied; 

(2) The Appellant had an appalling traffic record. He had been disqualified 

in 1996, but had not learnt his lesson. The magistrate was right to find the 

238



Longley DJ 


*H Melwaney 

#P Ross 

KO 

Kwong-shing 

manner of driving of the Appellant not merely a momentary inattention, but 

blatantly irresponsible, and posed a potential danger to the public, which 

required an immediate custodial sentence; 

(3) Given the absence of aggravating factors and the fact that this case was 

not the worst of its kind, the sentence of 4 months’ imprisonment was 

appropriate, and a more severe sentence would have been justified. 


Failing to provide a specimen of breath/Disqualification from driving for 18 

months/Long disqualification period necessary for this 

offence/Disqualification for a proprietor of a transportation company 

simply an inconvenience 

沒有提供呼氣樣本沒有提供呼氣樣本 – 取消駕駛資格 18 18 個月個月 – 本罪行有需要判處 

取消駕駛資格一段長時間 

取消駕駛資格一段長時間取消駕駛資格一段長時間 – 運輸公司東主被 

運輸公司東主被取消駕駛資格純粹令 

取消駕駛資格純粹令 

他不便 

他不便 

The Appellant pleaded guilty to an offence of failing to provide a 

specimen of breath, having been suspected of committing a traffic offence, 

contrary to s 39B(1)(a) and (6) of the Road Traffic Ordinance, Cap 374. 

The Appellant was fined $6,000 and disqualified from driving for 18 

months. 

The facts showed that the Appellant drove a private car in Tong Mei 

Road in the early hours of 24 May 2006 when he was seen to violate a ‘no 

entry ’ sign and turn into a one-way street, driving in the wrong direction. He 

was stopped by the police, but despite smelling of alcohol he refused to provide 

a specimen of breath. 

In mitigation, the magistrate was told that the Appellant, aged 59 years, 

had driven for 35 years, was of clear record, and was the proprietor of a 

transportation company employing some 30 drivers and earning about $30,000 

per month. He required his driving licence for his business in order to assist 

drivers who were on leave and to oversee his business. 

In his reasons for sentence, the magistrate said: 

My baseline sentence for driving with excess alcohol is a fine of 

$6,000 with disqualification of 12 months. This is increased or 

decreased according to circumstances especially the level of 

reading and any serious aggravating features. However this was 

a refusal to provide a specimen of breath and in my opinion, is 

much more serious than providing the test. In this case the 

admitted facts was to the effect that the defendant had a strong 

smell of alcohol on his breathe. Also conspicuous by its absence 

was any reasonable explanation for his refusal. I would strongly 

suggest the court must treat this offence more seriously than an 

average breathalyzer case as to do otherwise would encourage 

and fortify the resolve of the profoundly intoxicated to refuse the 

test. This denies the court essential information extremely 

relevant to sentence. Were it to be argued that the court could 

not and should not assume a high alcohol intake would be 

patently absurd. A sober defendant would naturally wish to 

establish his fitness to drive. 

239


Also the need for a driving licence is a two edged sword in that a 

view could properly be taken that if one depends on one’s driving 

licence then one must be careful and not to offend and risk its 

loss. In sentencing the defendant I paid full regard to his 

excellent driving record and took into account the mitigation. 

The brief facts and the mitigation acknowledge that he was in a 

state of drink. What he prevented the court from knowing is just 

how bad that state was. 

On appeal, it was submitted that the magistrate erred, first, by treating the 

Appellant as having a high alcohol intake, second, by treating the offence more 

seriously than the average breathalyzer case, rather than as a case of driving with 

alcohol just exceeding the prescribed limit, and, third, by failing to take into 

account that the Appellant worked as a professional driver. 

Held : 

The reasoning of the magistrate in imposing a disqualification for 18 

months in this case was compelling. It accorded with the view of the editors of 

Wilkinson’s Road Traffic Offences, 22nd edition (paragraphs 4334-4337): 

It is submitted that whilst the court is by the very nature of the 

offence handicapped by not knowing the exact alcohol level of the 

defendant, the level of penalties and the period of disqualification 

should approximate as nearly as possible to the penalties which 

would have been imposed if the defendant had supplied a 

specimen and the analysis had shown a high blood-alcohol level. 

It may be difficult for a defendant who refuses to supply a 

specimen to persuade a court that his alcohol level would have 

been low since he could have demonstrated that fact by supplying 

specimens for analysis. Of necessity he can only have committed 

the offence by failing to supply a specimen without reasonable 

excuse. 

(2) The editors of Wilkinson also concurred with the view of the magistrate 

when they commented that if it were to become the general policy of the court 

only to impose a sentence equivalent to that imposed on someone just over the 

limit for the offence of refusing to provide a specimen, it would encourage 

drivers who had been drinking heavily to refuse to supply specimens for testing, 

rather than to supply them; 

(3) Although the Appellant was described as a professional driver, he was 

not someone who would lose his livelihood in the event of disqualification. He 

was a proprietor of a transportation company employing 30 drivers who drove in 

the course of running his business. Disqualification might inconvenience him in 

the running of his business, but it did not prevent him carrying it on. 


240



Poon DJ 


*Polly Wan 

#C Morley 

RAIFORD 

Richard 

Driving without third party insurance/Driver relying on agent to renew 

insurance/Agent failing to insure/Absolute duty imposed in law on motor 

vehicle owner to ensure vehicle insured/Reliance on agent not a special 

reason to waive disqualification/Legislative intent to be upheld 

沒有第三者保險而駕駛汽車沒有第三者保險而駕駛汽車 – 司機倚賴代理人續保 – 代理人沒 

有有代代購購保保保險險 – 法律對汽車車車主施加絕絕對責任以確保保車輛輛受保保 – 

倚賴代理人辦事並非免被取消駕駛資格的特殊理由倚賴代理人辦事並非免被取消駕駛資格的特殊理由 – 立法原意須 

予維護 

予維護 

The Appellant pleaded guilty to using a motor vehicle without third party 

insurance, contrary to ss 4(1) and 4(2) of the Motor Vehicles (Third Party Risks) 

Ordinance, Cap 272. He was fined $2,000 and disqualified from holding all 

forms of driving licence for 12 months. 

The Appellant was the registered owner of a private car which was 

involved in a traffic accident on 22 October 2005. The car was uninsured on 

that day. The Appellant explained that he had purchased the car on 2 July 2005, 

and had entrusted his car agent to negotiate the endorsement of the balance of 

the insurance of his previous car to this car and to renew the insurance when the 

old policy expired on 1 September 2005. Unknown to him, his agent forgot to 

renew his insurance policy for him. The agent, by two letters to the court, 

admitted it was entirely his oversight in failing to renew the insurance on his 

behalf. 

On appeal, it was submitted, inter alia, that the Appellant held an honest 

and reasonable belief at the time of driving that the insurance had been renewed, 

which amounted to a special reason not to disqualify him. 

Held : 

(1) The old policy expired on 1 September 2005. The Appellant did nothing 

between that date and 22 October 2005 to confirm that the agent had renewed 

the insurance for him and the car had a valid third party insurance, albeit that he 

had paid the agent the premium; 

(2) In HKSAR v Lui Kim-ying [2000] 3 HKLRD 622, it was held that a 

simple assumption that there was a policy of insurance, because it was the 

Appellant’s belief that persons who hired out taxis to drivers effected the 

insurance, was not belief based on reasonable grounds. The law required much 

more than that; 

(3) The spirit of the legislation was expressed in HKSAR v Kwan Chi-wah 

[2000] 2 HKLRD 667: 

In my view, because of the very important objective to be 

achieved by the Ordinance, the Ordinance imposes a strict 

liability on the owner to insure for third party risks. Because 

this is a strict liability, one cannot delegate responsibility 

without retaining residual supervision. If an owner may 

delegate responsibility and rely on that as a special reason then 

the second most powerful sanction under section 4 would be 

rendered nugatory. … Delegation without proper supervision 

cannot be a special reason. 

Further, in my view, it is not enough just to place an order for 

renewal, he must check that the order is received and the 

renewal effected. This is not an unreasonable obligation ... 

241



Ma CJHC 

Stuart-Moore 

VP 

Stock JA 


*David Leung 

#G Mackay (1) 

J Haynes (2) 

SJ 

v 

(1) POON 

Wing-kay 

(2) LIU 

Chun- 

pong 

(4) In HKSAR v Luk Wai-keung MA 23/2004, it was said: 

The underlying spirit of the Motor Vehicles Insurance (Third 

Party) Risks Ordinance is to protect third parties from the risk 

caused by drivers on the road through mandatory insurance 

and draconian penalty. A registered vehicle owner has an 

absolute duty in law to ensure that his vehicle is insured against 

third party risk and his duty does not simply cease after he has 

entrusted someone to take out a policy for him. He certainly 

cannot rely on an excuse that he has entrusted the wrong 

person ... Otherwise the intention of the legislature would be 

otiose. 

(5) The magistrate was correct in saying that ‘being the registered owner, it 

is incumbent to make enquiries and supervise that the renewal is effected. The 

seriousness of the offence and the possible consequences demand nothing less.’ 

Although the Appellant ensured the agent insured the new car and paid $2,500, 

this did not mean that the Appellant had done what was required of him and had 

a reasonable and honest belief when he drove on 22 October 2005 that the 

insurance had been renewed when it expired. The magistrate was right to find 

no special reason in this case. 


Dangerous driving causing death/Furious driving/Drivers racing minibuses 

against each other in North Point/Worst case of its type/Maximum 

penalty of 5 years’ imprisonment appropriate/Disqualification order of 12 

years 

危危危險險險駕駕駕駛駛駛引引致致他他人人死死亡亡 – 狂亂駕駛狂亂駕駛 – 兩名小巴司機在北角馬路上 

兩名小巴司機在北角馬路上 

互相競逐互相競逐互相競逐 – 同類罪行中最惡劣的情況同類罪行中最惡劣的情況 – 判處最高刑罰 

判處最高刑罰5 判處最高刑罰年監禁是恰 

年監禁是恰 

當的當的 – 命令取消駕駛資格 

命令取消駕駛資格12年 

命令取消駕駛資格 

The Respondents were convicted after trial of the offences of causing 

death by dangerous driving, contrary to s 36(1) of the Road Traffic Ordinance, 

Cap 374 (‘RTO’ ), and of causing harm to persons by racing vehicles, contrary to 

s 33 of the Offences against the Person Ordinance, Cap 212 (‘OAPO’ ). 

The judge sentenced R1 to 2 years’ imprisonment for the dangerous 

driving charge and 15 months’ imprisonment for the racing charge (both 

sentences to run concurrently). He was also disqualified from driving for 2 

years under s 36(2) of the RTO. As for R2, he was sentenced to concurrent 

terms of imprisonment of 2½ years for the dangerous driving charge and 15 

months for the racing charge. Like R1, he was disqualified from driving for 2 

years. 

The offences related to events that took place in the early morning of 22 

October 2004, when two public light buses were travelling in a westerly 

direction on King’s Road, North Point, both picking up passengers along the 

way. At some stage, they began racing against one another in an attempt to 

compete for passengers. In the event, R1’s bus collided with a taxi and then 

with the public light bus driven by R2, who was overtaking R1’s vehicle at the 

time. R1’s vehicle overturned. R1’s vehicle was carrying some 8 or 9 

passengers, R2’s vehicle had 14 passengers, and the taxi had 3 passengers. The 

result of the accident was that 2 passengers in R2’s vehicle suffered multiple 

injuries from which they died later the same day and 17 other persons were 

injured. The injuries ranged from bruising to fractures and medical attention 

was required. 

242


The accident caused extensive damage to both public light buses and the 

taxi. The central divide along King’s Road was ploughed into by R1’s vehicle. 

There was rubble everywhere: damaged bollards, bumpers, broken glass, 

railings, etc. 

Held : 

On review 

(1) The sentences imposed by the judge on the Respondents were manifestly 

inadequate and wrong in principle. For both defendants, the maximum term of 5 

years’ imprisonment should be imposed for the dangerous driving charges and 

the maximum term of 2 years be imposed for the racing charge. They should 

also be disqualified for a period of 12 years each. The reasons were these: 

(1) The conduct of both Respondents showed an utter and 

selfish disregard, if not contempt, for the safety and wellbeing 

of all who came into contact with their driving: their 

own passengers, other passengers and other road users. 

Driving through red lights as if the lights did not exist and 

as if they were the only users of the road, racing against one 

another in an attempt to grab passengers, no attempts made 

to slow down at junctions (in fact quite the opposite) were 

all indicative of this; 

(2) The Respondents’ conduct was without doubt reckless and 

in the words of the judge ‘prolonged, persistent and 

deliberate ’. These were not momentary lapses of 

judgment. The evidence indicated that R1 went through 

about 10 sets of traffic lights and R2, 6 sets without 

stopping or slowing down; 

(3) The consequences of this driving, which both Respondents 

must have known was dangerous, were tragic. Two persons 

lost their lives, many more were injured; 

(4) The Respondents were no doubt in a rush but in doing what 

they did, they deliberately took the risk not just of being 

prosecuted for breaching traffic laws, but, far worse, of 

endangering people’s lives; 

(5) The standard of driving of the Respondents was appalling 

and totally unacceptable and must rightly be condemned. 

The safety and well-being of members of the public in Hong 

Kong were paramount and the public must be adequately 

protected from the type of driving the Respondents 

displayed. Many of the witnesses testified to the very real 

fear they felt at the time for their lives; 

(6) The traffic offence records of the Respondents were 

appalling. R1 had a record since 1996 of having been 

convicted of 10 traffic offences, one of which was 

committed after the present offence. Four were for careless 

driving. He had been disqualified twice. R2’s record was 

far worse. Since November 2002, there had been 27 

convictions for traffic offences including 9 for failing to 

comply with traffic signals. Two of the convictions for 

failing to comply with traffic signals were committed after 

the present accident when he was driving a bus in Lantau. 

His record was truly appalling; 

243


Robbery 

* 梁卓然 

David 

(7) Additionally, the Respondents were each driving vehicles 

for the carriage of members of the public. Such 

professional drivers must be acutely aware of the necessity 

to be safe and not to risk people’s lives and safety. This 

provided yet another aggravating feature in the present case; 

(8) What the Respondents did come within the worst category 

of the type of offences under consideration. The utter 

disregard for the lives and safety of others might well have 

attracted manslaughter charges where, upon conviction, 

sentences in excess of 5 years might well have been 

imposed. The maximum sentences were appropriate, and it 

was to the category or type of seriousness or culpability that 

the court looked when sentencing; 

(9) The culpability of the Respondents was the same. The 

periods of disqualification reflect the seriousness of the 

offences and their poor previous records. It was a 

disturbing fact that persons such as R2 found themselves in 

a position where they were enabled to drive public transport 

vehicles despite a simply appalling driving record. 

(2) The judge erred by failing to consider the gravity of the overall 

circumstances of the offences. In some parts of his Reasons for Sentence, he 

seemed to regard as important the fact that only some of the aggravating features 

mentioned in R v Cooksley [2004] 1 Cr App R(S) 1, but not others, existed, and 

this might explain his low starting points. However, once account was taken 

overall of those aggravating features and other circumstances, it was clear that 

the present offences were in the most serious category and that maximum 

sentences ought to be imposed. The judge was also wrong to reduce R1’s 

sentence by 6 months on account of his remorse and good character. In the 

circumstances of the present case, these factors were of little or no weight. 

Additionally, the evidence of remorse was thin. 

Result - SJ’s review allowed, as follows: 

(1) For the offences of dangerous driving causing death, there 

would be substituted a sentence of 5 years’ imprisonment for 

each Respondent; 

(2) For the racing offence, there would be substituted a sentence of 

2 years for each Respondent; 

(3) Both sentences would run concurrently; 

(4) Each Respondent would be disqualified from driving for a 

period of 12 years on the dangerous driving charges. 

香港特別行政區訴香港特別行政區訴區志恆 

區志恆 

李敏華 

李敏華 

區俊立 

區俊立 

H K S A R v A U C h i - h a n g 

L I M a - w a h 

A U C h u n - l a p 

244

CCAB 2006 Sentence (Quantum) - Robbery 

Leung 

# 鄭明斌 

Francis 

Cheng 

高等法院上訴法庭 – 覆核申請2005年第2號擽 

高等法院上訴法庭副庭長胡國興 

高等法院上訴法庭法官張澤� 

高等法院上訴法庭法官楊摏振權 

耹訊日期:二零零六年二月二十一日 

宣判日期:二零零六年三月一日 

COURT OF APPEAL OF THE HIGH COURT CRIMINAL 

APPEAL NO. 2 OF 2005 

Date of Hearing: 21 February 2006 

Date of Judgment: 1 March 2006 

搶搶劫劫劫罪擕罪擕罪擕 – 茆茆茆茆廣廣廣廣生生生生案案就就使使用用「用用危險武器」危險武器危險武器危險武器的判刑指引原意的判刑指引原意 – 木棍和 

木棍和 

鐵通是否屬 

鐵通是否屬「鐵通是否屬危險武器」危險武器危險武器危險武器 – 適當撔的量刑基準摮 

適當撔的量刑基準摮 

第三答辯人被控第1、第2及第3項控罪擕,第一及第二答辯人與 

第三答辯人一同被控第 3 項控罪擕 , 而另一與本申請無關詉的被告人則 

與第三答辯人一同被控第 1 項控罪擕。三項都是搶劫罪擕 , 違反香港法 

例第210章《盗竊罪擕條例》第10(1)及(2)條。 

第三答辯人承認所有三項控罪擕,第一及第二答辯人否認第3項 

控罪擕。經操審訊後 , 陪審團裁定第一及第二答辯人第 3 項控罪擕罪擕名成 

立,但另一被告人第1項控罪擕罪擕名不成立。 

就第1項、第2項及第3項控罪擕,原審法官分別採納12 個月、2 

年及 3 年為量刑基準摮。因第三答辯人承認控罪擕 , 所以刑期分別為入 

獄8個月、16個月和2年。第1項控罪擕和第2項控罪擕的刑期同時執行, 

但其中 12 個月刑期和第 3 項控罪擕的刑期分期執行。就三項控罪擕,第 

三答辯人的總刑期為3年。 

就第3項控罪擕,第一及第二答辯人各被判入獄3年。 

案情 – 第1項控罪擕 

2004 年 6 月 11 日晚上 , 兩名 14 歲摚和 15 歲摚的初中學生在九龍彩 

虹道球場打籃球。約十時左右,兩人正打算離覭開球場時,有四名頭 

戴鴨舌帽的中國籍男子向他們大聲呼叫。他們看見該攗四名男子向著 

他們跑來,感到驚慌,於是快步離覭開現場。但四名男子從後追逐他 

們。經操過約 5 分鐘的追逐後 , 在九龍新搼蒲崗一所工業摇大廈外的後 

巷,該攗四名男子兩前兩後的把兩名受害人截停。其中兩名男子折返 

後巷的入口把風,餘下的其中一人問兩名受害人有沒有錢。稍後, 

有一名男子說 : 「郁佢哋 ! 」。另一名男子則說 : 「抄拒哋啲嘢 

先。」。因感到驚慌,一受害人打開自己的腰擟包。其中一名男子搜 

索該攗腰擟包,看見袋內有八達通卡,便要求受害人交出該攗卡。四名男 

子取了受害人的八達通卡後便逸去。 

四名劫匪沒有對受害人使用武力,受害人亦沒有受傷。 


2004 年6月11 日晚上約十一時半,即第1項控罪擕發生後不久。 

當撔時張姓受害人獨自在旺角新搼塡地街近奶路臣街附近步行。其間, 

有四名頭載鴨舌帽的男子把他截停。該攗四名男子問受害人有沒有 

245


錢 , 並對他說他們的「大佬」被人拘捕 , 所以他們需要錢替「大 

佬」保釋。受害人回答說他沒有錢,攗四名男子便要求他交出手提 

電話攠。 

第三答辯人是四名劫匪之一 , 他從附近的垃圾堆中拾起一支 

三尺長的木棍,拿在手上,作勢打受害人。受害人受驚,便從袋中 

拿出自己的手提電話攠,交給四名男子。事件中受害人沒有受傷。 


2004 年6月12 日凌晨2時45 分左右,李姓受害人在九龍黃大仙 

東頭邨遇上四名頭戴鴨舌帽的男子。當撔時四人沒有任何武器。其中 

一人問受害人有沒有金錢,並要求他把金錢及電話攠交出。攗四名男 

子說他們的「大佬」有事,需要金錢,要求受害人幫忙。 

受害人感到驚慌 , 便從袋中拿出一百元 , 交給其中一名男 

子。接著另一名男子要求受害人交出電話攠。受害人發足逃跑,但走 

了十多步後便被四人追到。 

第一答辯人從街上拾起一支尺多長的掃把木棍 , 而另一名男 

子則拾起一支尺多長的鐡通追趕受害人。他倆一邊追一邊用木棍及 

鐵通打受害人。受害人用雙手擋著木棍及鐵通,嘗試攙自衞。當撔受害 

人停止逃走時,兩人亦沒有繼續再襲擊受害人。 

受害人交出電話攠後,對其中一名匪徒說他的SIM卡內儲有很多 

電話攠號擽碼 , 所以希望要求取回SIM卡。第二答辯人回答說因他們急 

需金錢,提議受害人月底到樂富找他或打電話攠給他,到時他會摅把手 

提電話攠交還受害人。第二答辯人接著把自己的電話攠號擽碼告知受害 

人。受害人即時打這號擽碼,第二答辯人的手提電話攠亦隨即響起。警 

方調查後,證實攗電話攠號擽碼是第二答辯人一直源摤用的電話攠號擽碼。受 

害人的手提電話攠當撔時價值約港幣二千元。 

根據受害人案發後不久給警方的口供 , 他右手近手腕有兩條 

半吋的傷痕,近拇指手掌處亦有一條約吋半的傷痕。受害人頭部右 

後側近耳朶的位置擓受傷並有紅腫擤,右手手臂及手腕亦有受傷流血。 

李姓受害人確認因傷勢並不嚴重,故沒有到醫院檢驗。他供稱已不 

能肯定受襲後近耳朶的位置擓是否有受傷。對於其餘的傷勢,他則沒 

有存疑。 

原審法官只以受害人手部受傷作為判刑的基礎。 

原審法官首先考慮第3項控罪擕的量刑。經操控辯雙方向她就茆廣 

生訴女皇 [1981] HKLR 610一案的量刑指引是否適用於本案作出攘 

細陳詞後,原審法官裁定攗案指引並不適用,因為她認為攗案所指 

的「危險武器」不包括第3項控罪擕所涉的木棍和鐵通。 

申請人認為「危險武器」是應從攗物品的性質及賊攭人持有攗 

物品的意圖去界定 ( 一 ) 攗物品是否可作武器之用及 ( 二 ) 攗可作武器 

的物品是否茆廣生案所指的「危險武器」。在考慮一件用在搶劫中 

的物品是否茆廣生案中所說的「危險武器」時,重點是攗物品是否 

存在有導致受害人受傷的風險。如沒有,則攗物品並非武器。如存 

在這種風險,只要匪徒向受害人展示攗物品,意圖使受害人就範, 

申請人認為攗物品便是茆廣生案所指的「危險武器」,而茆廣生案 

的量刑指引便適用。 

246


裁決裁決: 裁決 

(1) 在茆廣生一案頥,上訴法庭韨對持械搶劫有以下的判刑指引: 

本庭韨建議法庭韨日後如此判刑:普通持械搶劫案頥的被告人 

犯案頥時頗若攜帶刀或其他危險武器,並曾向受害韐人展韙露其 

所攜武器,一般應判刑五年。 

如被告人作案頥時頗還闖入私人處所 ( 包括住宅和商用處 

所 , 以及該攗等處所的公用地方 , 例如升降機、樓梯 

等),則宜判刑六年。 

如被告人對受害韐人施以暴力,包括綑擏綁擐對方,則應考慮 

判刑七年。 

如果還有其他罪擕加一等的因素,更應延長上述建議的刑 

期。這些因素,包括夜闖私人住所、糾黨行劫、恐韱嚇受 

害韐人、虐待長者及兒童、屢犯同類案頥件,凡此種種,不 

勝枚舉。 

上述指引僅適用於經操審訊後被定罪擕者。因此,如被告人 

認罪擕,以上建議的刑期可按法庭韨認為適當撔的幅度遞減。 

當撔然我們靽無意阻撓法庭韨根頨據被告人的犯案頥記錄、年齡或 

其他個鞄人境遇,或考慮案頥中的具體事實,而酌量調整上 

述刑期。(劃線後加) 

(2) 有導致人身體受傷風靨險的物品並非都是「武器」 , 更遑論是 

「危險武器」。就算物品是武器,從茆廣生指引之原鞝意而論,武器 

也有「危險」與「非危險」的區別,茆廣生所指的「危險武器」必 

定是指與刀有相若威力的物件。任何形式的武器,皆可有導致人身 

體受傷害韐的風靨險,問題只是程度上不同而已。因此,這並不是茆廣 

生案頥中對用刀或其他危險武器行劫定立指引的原鞝意; 

(3) 大部份硬物 , 不論其性質 , 均能傷人 , 所以便存在有導致受 

害韐人身體受傷的風靨險。若申請人的論點成立,則一眾能傷人的硬物 

均會摅被視作為「危險武器」,這並非茆廣生指引的原鞝意; 

(4) 刀是可造成即時頗嚴重傷害韐的物件。就一名被搶劫者而言 , 刀 

的即時頗性及嚴重傷害韐性或殺傷力一般會摅帶來使人恐韱慌的壓迫力令他 

就範,否則就算冷靜孔武的人,唯一的選擇就是面對很大可能發生 

的嚴重受傷後果。一條木棍雖然也可能造成傷害韐,其即時頗性及殺傷 

力一般來說會摅比刀為輕。當撔然,刀和木棍的大小、長短、輕重等對 

其造成的恐韱慌性和可怕性有絕大關連,而案頥發時頗的環境對受害韐者的 

驚嚇也有影響; 

(5) 茆廣生指引的原鞝意是若一件物件於搶劫過程中能産生有刀一 

般的殺傷力,該攗物件便應視為「危險武器」。相同的衡量準摮則可見 

於香靬港特顠別行政區訴郭卓文 Cr App 7/2005 和香靬港特顠別行政區訴吳 

啓光 Cr App 198/1999; 

(6) 法庭韨對不同方式的搶劫、以不同的武器去搶劫、武器使用的 

方法、搶劫的對象,以及受害韐人在搶劫中所得到的待遇等等作為量 

刑的考慮,是有其需要的。這並非只為了因事態之嚴輕而量刑,對 

不同罪擕責者處以不同刑罰、對罪擕犯的處理希能達致相符而讓公眾及 

法律界有所依從 , 而其中的重要目的是對欲犯罪擕者加以警惕及阻 

嚇,從而使公眾得到較好的保障。在香靬港特顠別行政區訴安玲 [2005] 

247


1 HKC 227 一案頥,上訴許可申請人以一卷報紙指着受害韐人的胃部, 

聲稱搶劫。上訴法庭韨認為若使用假武器與刀的判刑均為 5 年 , 則匪鞛 

徒韫便沒有遏跷制因素在搶劫中不使用刀。以搶劫來說,無虐待傷人而 

非糾黨但使用刀或其他「危險武器」的罪擕犯,法庭韨一般會摅以茆廣生 

的量刑指引判刑 , 基本底線是 5 年監禁撺 ; 用非危險武器的 , 會摅處以 

較跨輕刑罰;而不用武器的,則刑罰更輕; 

(7) 一般來說 , 劫匪鞛在行劫過跸程中向受害韐人展韙露有殺傷力的鐵 

通、金屬水管等物件,法庭韨必會摅視該攗等物件為「危險武器」而根頨據 

茆廣生案頥的量刑指引判刑。原鞝因是劫匪鞛使用該攗等物件目的是明確 

的,劫匪鞛是要威嚇受害韐人,使受害韐人屈服,以便他的罪擕行能更方便 

及順利進行,受害韐人亦會摅恐韱懼而就範。更重要的是,若以具有殺傷 

力的鐵通和金屬水管施用於受害韐人身體,輕者會摅造成腫擤痛瘀撖傷,重 

者會摅造成骨折創傷,若施用於頭部或身體其他易受損部位,更可能 

會摅致命。因此以具殺傷力的鐵通或金屬水管襲擊受害韐人頭部來搶劫 

的罪擕行會摅被視為屬「扑頭黨」罪擕行而招致不少於8年的量刑基準摮; 

(8) 控方有責任在毫無合理疑點下證訥明可以導致更重刑罰的案頥 

情:R v Langridge (1996) 87 A Crim R 1。相反,法庭韨可依賴有 

利於被告而又在合理可能性範圍內之案頥情作為量刑基礎:女皇訴鄭 

靜江 Cr App 335/1985; 

(9) 原鞝審法官裁定第3項控罪擕涉顎案頥之一支呎多長的掃把棍及一支呎 

多長的鐵通不屬「危險武器」。這是法官經操聆聽所有証供後所作出 

的事實蹴裁定。涉顎案頥的木棍及鐵通皆由街上拾起,不是預踣先攜帶作案頥 

的。它們靽沒有被檢取作為證訥物,故未能確定其性質,亦不能知悉它 

們靽是否具有殺傷力; 

(10) 原鞝審法庭韨對蹹於涉顎案頥武器只有以下資攮料頔: 

(a) 涉顎案頥之掃把棍及鐵通雖有呎多長,但並不是事先攜 

帶作案頥,兩者皆為街上被棄置擓之廢物; 

(b) 鐵通是空心的,只有證訥據顯示其長度為一呎多,但 

不知其重量、硬度或大小; 

(c) 受害韐人所受的是手部之輕傷。 

原鞝審法官憑以上僅有資攮料頔而認為涉顎案頥武器不一定屬「危險武器」, 

是於合理可能性範圍內依賴有利於答辯人之案頥情。這是符合鄭靜江 

案頥的原鞝則,並無不妥; 

(11) 上訴法庭韨並沒有原鞝審法庭韨於聽取證訥供時頗對蹹案頥件感覺的優勢 , 

實蹴在難詋以推翻原鞝審法官視涉顎案頥武器是否屬非「危險武器」之裁定。 

原鞝審法官對蹹本案頥涉顎案頥武器裁定為不屬「危險武器」的做法並不一定 

錯誤。她因此不需要採納茆廣生有關詉「危險武器」的指引,量刑基 

準摮亦不需要收跟隨茆廣生指引定於5年或以上監禁撺; 

(12) 在《香靬港的判刑》一書頟,作者指出 : 

刑罰覆核頤申請程序並不是為了使被告人面對蹹上訴庭韨若就 

原鞝審案頥中的情況可能會摅判處比原鞝審法庭韨更高刑罰的風靨險 

及其帶來的焦慮而設的。覆核頤程序只適用於最明顯的案頥 

件,而上訴庭韨亦須全面考慮原鞝審法官的酌情權及其對蹹案頥 

件的「感覺」。 

248



of AR 2/2005, 

above] 

Woo VP 

Cheung & 

Yeung JJA 


(1) AU 

Chi-hang 

(2) LI 

Man-wah 

(3) AU 

Chun-lap 

(13) 就「糾黨行劫」應獲較高刑期方面 , 上訴庭韨在香靬港特顠別行政 

區訴丁超 [2003] 3 HKLRD 378, 383E 一案頥作出了解攕釋: 

本庭韨接納,法庭韨應視牽涉顎多於一名犯罪擕者的搶劫比只有 

一名犯罪擕者的較為嚴詫重。原鞝因是,為數多於一名的罪擕犯 

對受害韐人所産生的壓力和威嚇明顯較單獨一名罪擕犯所産 

生的嚴詫重。 

(14) 綜觀第3項控罪擕的嚴詫重案頥情,四人糾黨及於凌鞓晨時頗分行劫、使 

用武器及暴力、其中兩人追打受害韐人而令他受傷等,適當撔的量刑基 

準摮為5年監禁撺。既然原鞝審法官並無提及有任何減刑因素而酌情採用3 

年的量刑基準摮 , 而案頥中又的確並無任何減刑因素 , 因此 3 年的刑罰 

是明顯不足; 

(15) 引用同樣原鞝則,就第2項控罪擕方面,有四名賊攭人參與犯案頥,搶 

劫時頗間亦是接近午夜時頗分,第三答辯人手持一支三尺長的木棍作勢 

打向受害韐人,雖然並無打下,受害韐人也沒有受傷,但已展韙露了武器 

逼使受害韐人就範,適當撔的量刑基準摮應為4年; 

(16) 關詉於第1項控罪擕的案頥情,雖然沒有案頥例對徒韫手搶劫作出量刑指 

引,但如一般不涉顎及暴力的街頭盗竊,俗稱「打荷包」的量刑基準摮 

是 12 到 15 個鞄月 , 則搶劫罪擕應採納更高的刑期為量刑基準摮。在第1項 

控罪擕中,兩名受害韐人只是14及15歲摚的初中學生。他們靽先被四名賊攭人 

向他們靽大聲呼叫,及後更被四人由球場追逐約五分鐘至新搼蒲崗的一 

工業摇大廈的後巷,兩前兩後的把他們靽包圍。雖然四名賊攭人沒有展韙露 

武器,兩名學生受驚的情度必然非輕。適當撔的量刑基準摮應是2年6個鞄 

月; 

(17) 第三答辯人在短短數小時頗內糾黨進行連環搶劫 , 屢犯同類詑案頥 

件,茆廣生案頥清楚摈說明屢犯是一個鞄加刑因素。涉顎及暴力的程度更一 

宗比一宗嚴詫重:先是追逐及包圍兩青少年學生,繼而手持武器恐韱嚇 

一成年受害韐人,最後甚至為求手提電話攠而不惜對另一受害韐人施以暴 

力。縱使他是四名犯案頥男子中最年輕的,他在每案頥中均扮演最積極摌 

的角色。他的總體刑罰應為 7 年 , 因他認罪擕而應獲三分一減免後 , 

他的總刑期應為4年8個鞄月監禁撺。 

結果結果: 結果批準摮申請人覆核頤的申請,撤銷原鞝審法官的判刑,而代之以 

以下刑罰:第一答辯人和第二答辯人就第3項控罪擕,各判5 

年監禁撺。第三答辯人 , 就第 1 項罪擕行 , 量刑基準摮為 30 個鞄 

月,刑期為20個鞄月監禁撺;就第2項罪擕行,量刑基準摮為4年, 

刑期為36個鞄月監禁撺;就第3項罪擕行,量刑基準摮為5年,刑期 

為 40 個鞄月監禁撺;第1項罪擕行其中的6個鞄月和第2項罪擕行其中 

的 10 個鞄月 ,與第3項罪擕行的40 個鞄月刑期分期執行,其他刑 

期餘額覷則一併同期執行,總刑期為4年8個鞄月監禁撺。 

Robbery/Intended meaning of Mo Kwong-sang sentencing guidelines 

regarding use of ‘dangerous weapon’/Whether wooden pole and metal pipe 

were ‘dangerous weapons’/ Appropriate starting point 

R3 was charged with Counts 1, 2 and 3. R1, R2 and R3 were jointly 

charged with Count 3, while R3 and another defendant, not in the current 

application, were jointly charged with Count 1. All three counts alleged 

robberies, contrary to s 10(1) and (2) of the Theft Ordinance, Cap 210. 

R3 pleaded guilty to all three counts. R1 and R2 pleaded not guilty to 

249


*David Leung 

#Francis Cheng 

Count 3, but were convicted after trial by the jury. The other defendant was 

acquitted of Count 1. 

For Counts 1, 2 and 3, the trial judge adopted 12 months, 2 years and 3 

years of sentence respectively as the starting points. R3 pleaded guilty and was 

sentenced to imprisonment of 8 months, 16 months and 2 years respectively. 

Sentences on Count 1 and Count 2 were to be served concurrently, 12 months of 

which were to run consecutively to the sentence of Count 3. The total sentence 

for R3 was thus 3 years’ imprisonment. 

With regard to Count 3, R1 and R2 were each sentenced to 3 years’ 

imprisonment. 

Facts – Count 1 

In the evening of 11 June 2004, two junior secondary students aged 14 

and 15 were playing basketball at the Choi Hung Road Playground in Kowloon. 

As they were about to leave at around 10 pm, four Chinese males wearing caps 

shouted at them. Seeing that the four men were running towards them, they 

were scared and hurried away. The four men gave chase. About five minutes 

later, they came to a back alley outside an industrial building in San Po Kong. 

The four men, two at the front and two at the back, intercepted the boys. Two 

men then went to the end of the alley to keep watch while one of the remaining 

men asked the victims whether they had money. A moment later, one of the men 

said ‘Get them! ’ Another man said, ‘Search their things first.’ Feeling scared, 

one of the victims opened his waist bag. One of the men searched the waist bag 

and found an Octopus card inside. He demanded the victim to give him the 

card. The four men fled after taking the Octopus card. 

None of the robbers used force on the victims and none of the victims 

was injured. 


Shortly after the offence described in Count 1, a man surnamed Cheung 

(victim) was walking alone at Reclamation Street near Nelson Street, Mongkok 

at about 11:30 pm on 11 June 2004, and was intercepted by four men each 

wearing a cap. They asked the victim whether he had money. They said they 

needed money to bail out their ‘Big Brother’ who had been arrested. The victim 

replied that he had no money. The four men then asked for his mobile phone. 

R3 was one of the four robbers. He picked up a 3-foot-long wooden pole 

from the trash nearby, held it in his hand and made a move as if he was going to 

hit the victim. Terrified, the victim took out the mobile phone from his pocket 

and handed it to the four men. The victim was not injured. 


About 2:45 am in the early morning of 12 June 2004, a man surnamed Li 

(victim) came across four men, each wearing a cap, at Tung Tau Estate, Wong 

Tai Sin, Kowloon. They had no weapons at the time. One of them asked the 

victim whether he had any money, and demanded that he should hand over his 

money and phone. The four men asked for the victim’s help, as their ‘Big 

Brother’ was in trouble and needed money. 

Feeling frightened, the victim took out $100 from his pocket and gave it 

to one of the men. Another man asked for the victim’s phone. The victim tried 

to run away but the men caught up with him in about a dozen steps. 

250


R1 picked up a wooden broomstick from the ground while another man 

picked up a metal pipe. Both the broomstick and the metal pipe were more than 

one foot in length. The two men ran after the victim, hitting him along the way. 

The victim tried to defend himself by warding off the attacks with his arms. 

When the victim stopped running, the two men discontinued the attacks. 

Having surrendered his phone, the victim asked one of the robbers to 

give him back the SIM card because many telephone numbers were stored in the 

card. R2 said they badly needed money, and suggested that the victim visit him 

at Lok Fu or ring him up at the end of the month to get back his phone. R2 gave 

the victim his phone number. The victim dialled the number at once and R2’s 

phone rang. Subsequent police investigations confirmed that the telephone 

number had been in use by R2 for some time. The victim’s phone was worth 

about HK$2,000 at that time. 

According to the victim’s statement taken by the police shortly after the 

incident, there were two 0.5-inch marks of injury near his right wrist and a 1.5inch 

mark of injury on his palm near the thumb. The rear part of his head was 

injured and was red and swollen behind the right ear. He was bleeding at the 

right arm and wrist. The victim confirmed that he did not go to hospital for 

examination because he was not seriously injured. He gave evidence that he was 

not sure whether he had been injured near the ear. Nevertheless, he had no 

doubt as to the other injuries. 

The trial judge based her sentence on the injuries of the upper limb of the 

victim only. 

The trial judge first considered the sentence for Count 3. Having heard 

detailed submissions from both the defence and prosecution on whether the 

sentencing guidelines in Mo Kwong-sang v R [1981] HKLR 610 should be 

applied, she decided against applying the guidelines on the ground that the 

wooden pole and metal pipe involved in Count 3 were not ‘dangerous 

weapons’ , as referred to in the guidelines. 

The Applicant contended that the meaning of ‘dangerous weapon’ 

should be defined in relation to the nature of the object and the intention of the 

offender when holding the object: (1) whether the object could be used as a 

weapon; and (2) if yes, whether the object was of the kind referred to as 

‘dangerous weapon’ in Mo Kwong-sang. In considering whether an object used 

in a robbery was a ‘dangerous weapon’ , the main point was whether the object 

carried a risk of causing injuries. If the answer was no, then the object was not a 

weapon. If there was such a risk and the robber displayed the object with the 

intention of making the victim follow his command, then according to the 

Applicant, the object would fall under the category of ‘dangerous weapon’ 

referred to in Mo Kwong-sang and accordingly the Mo Kwong-sang sentencing 

guidelines should be applied. 

Held : 

(1) In Mo Kwong-sang, the Court of Appeal laid down the following 

sentencing guidelines in relation to armed robberies: 

We suggest that, in future, the appropriate sentence in an ordinary 

case of armed robbery, where the accused was carrying a knife or 

other dangerous weapon which he displayed to his victim should 

normally be five years. 

If such a robbery also involves an invasion of private premises 

251


(which includes domestic and business premises and the common 

parts of premises such as lifts and staircases) we suggest that a 

sentence of six years would be appropriate. 

If any physical violence, which includes tying them up, is used on 

any of the victims, we suggest that a sentence of seven years should 

be considered. 

These suggested sentences should be increased if there are other 

aggravating factors. Among these, though the list is not exhaustive, 

are invasion of domestic premises during the night; the presence of 

more than one person in the group of robbers; threats made to 

victims; ill-treatment of elderly persons and children and a 

multiplicity of offences of a similar kind. 

These guidelines are intended to apply to those who are convicted 

after a trial. Thus the suggested sentences should be reduced by 

such amount as the court may think appropriate for a plea of guilty. 

Nothing which we say, of course, should be construed as inhibiting 

a court from adjusting these sentences to accord with the record, 

age or other personal circumstances of the accused or from taking 

account of the particular facts of the case before it. (emphasis 

added) 

(2) An object which carried a risk of causing personal injuries was not 

necessarily a ‘weapon’ , much less a ‘dangerous weapon’ . Even if it was a 

weapon, on the basis of the intended meaning of the Mo Kwong-sang guidelines, 

there was a distinction between a ‘dangerous’ and a ‘non-dangerous’ weapon. 

The ‘dangerous weapon’ referred to in Mo Kwong-sang no doubt meant an 

article similarly powerful as a knife. A weapon in any form carried a risk of 

causing personal injuries. It was only a matter of degree. This was certainly not 

the intended meaning of the Mo Kwong-sang guidelines with regard to the use 

of knives or other dangerous weapons in robbery cases; 

(3) Most hard objects, regardless of their nature, could do harm. Hence 

there was a risk of causing personal injuries. If the Applicant’s argument stood, 

all hard objects which could do harm would be regarded as ‘dangerous 

weapons’ . This was not the intended meaning of the Mo Kwong-sang 

guidelines; 

(4) A knife was an object which could do immediate and grievous harm. A 

knife, being lethal and capable of doing immediate and grievous harm, would 

bring fear and pressure to a robbery victim. In most cases, the victim, even if he 

was cool-headed and fearless, would give in, otherwise the only alternative was 

to face a strong likelihood of suffering from serious injuries. Although a 

wooden pole could do harm, the power of causing immediate injury or death 

was generally lower than that of a knife. The size, length, and weight of the 

knife or wooden pole of course had a lot to do with the degree of the fear and 

panic caused. The circumstances at the time of the robbery also contributed to 

the level of fright suffered by the victim; 

(5) The intended meaning of the Mo Kwong-sang guidelines was that in a 

robbery case, if an object was as lethal as a knife, it should be regarded as a 

‘dangerous weapon’ . The same criteria could be found in HKSAR v Kwok 

Cheuk-man Cr App 7/2005 and HKSAR v Ng Kai-kwong Cr App 198/1999; 

(6) It was necessary for the court, in passing sentence, to take into account 

the mode of robbery, the kind of weapon used, how it was used, the target of the 

252


robbery and how the victim was treated in the robbery. The need arose not only 

because the court wished to achieve consistency for reference by the public and 

the legal profession by imposing appropriate sentences to accord with the 

gravity of the offences and the culpability of the offenders, but more 

importantly, to produce a deterrent effect for the potential offenders and, 

consequently, to provide better protection to the public. In HKSAR v On Ling 

[2005] 1 HKC 227, the Applicant pointed a roll of newspaper at the victim’s 

stomach and declared his intention to rob. The Court of Appeal took the view 

that if the same sentence of 5 years was given whether a dummy weapon or a 

knife was used, there would be little disincentive to the actual use of a knife. 

For robbery cases, a lone robber who used a knife or other ‘dangerous weapon’ 

but did not ill-treat or injure the victim would normally be sentenced according 

to the Mo Kwong-sang guidelines of which the baseline was 5 years’ 

imprisonment. The sentence would be reduced if a non-dangerous weapon was 

used and further reduced if no weapon was used; 

(7) Generally speaking, if iron bars or metal water pipes which were lethal 

were displayed in the course of robbery, the court would definitely treat these 

objects as ‘dangerous weapons’ and would pass a sentence according to the Mo 

Kwong-sang guidelines. The reason behind was that it could be clearly seen that 

the robber used these objects for the purpose of threatening the victim into 

submission so that the crime could be carried out more smoothly and that the 

victim would give in out of fear. More importantly, if iron bars or metal water 

pipes which were lethal were used against the victim, the consequences suffered 

could range from swelling and bruising to fracture and trauma. If the head or 

other vulnerable parts of the body were attacked, death might ensue. Offences 

which involved the use of lethal iron bars or metal water pipes for hitting a 

victim’s head during robberies were known as ‘head-bashing’ crimes, which 

would attract a starting point of sentence of at least 8 years’ imprisonment; 

(8) The burden of proof was on the prosecution to prove beyond reasonable 

doubt the facts that would be likely to result in a more severe sentence than 

would otherwise be the case : R v Langridge (1996) 87 A Crim R 1. On the 

contrary, where there were submissions made, matters of fact within the bounds 

of reasonable possibility which were favourable to the defendant were to be 

relied upon by the court: R v Cheng Ching-kwong Cr App 335/1985; 

(9) The trial judge ruled that the 1-odd-foot-long broomstick and the 1-oddfoot-long 

metal pipe used in Count 3 were not ‘dangerous weapons’ . She made 

this finding of facts after hearing all the evidence. Both the broomstick and the 

metal pipe were picked up from the ground and not brought in advance for 

committing the offence. They had not been seized as exhibits. It was therefore 

unclear what was their nature and whether they were lethal; 

(10) With regard to the weapons involved, only the following information was 

available at the trial: 

(a) The broomstick and the metal pipe, both more than one foot 

in length, were picked up from the trash on the street and not 

prepared in advance for committing the offence; 

(b) The metal pipe was hollow. There was evidence on its length 

only, which was more than one foot. Nothing was known as 

to its weight, hardness or size; and 

(c) The victim suffered minor injuries to his arm and hand. 

Based on the sketchy information above, the trial judge found that the weapons 

involved might not be ‘dangerous weapons’ She had relied on matters of fact 

within the bounds of reasonable possibility which were favourable to the 

253


Respondents. This was in line with the principle of Cheng Ching-kwong and 

there was nothing improper; 

(11) It would be difficult for the appellate court, not having the advantage of 

getting the ‘feel’ of the case as the trial judge did in hearing the evidence, to 

reverse the finding on ‘dangerous weapons’ . The finding that the weapons 

involved were not ‘dangerous weapons’ might not be wrong. The trial judge 

therefore did not need to follow the guidelines in Mo Kwong-sang with regard to 

‘dangerous weapons’ , and did not need to adopt the starting point of 

imprisonment for 5 years or more; 

(12) In Sentencing in Hong Kong, the authors pointed out that: 

The (review) procedure was not designed to subject accused to the 

risk of having their sentences increased, with all the anxiety that 

entails, merely because the appellate court, had it sentenced the 

accused in the first place, might have imposed a more severe 

sentence than was in fact imposed by the trial court. Applications 

for review are only appropriate in the most obvious of cases, and 

full weight ought always to be given to the discretion of the judge 

or magistrate who has the ‘feel’ of the case. 

(13) With regard to enhanced sentences for ‘gang robbery’ , the Court of 

Appeal gave the following explanation in HKSAR v Ting Chiu [2003] 3 HKLRD 

378, 383E: 

We accept that a robbery involving more than one culprit should be 

viewed more seriously by the courts than one involving only one 

culprit, because the threat and pressure exerted by a number of 

robbers on the victim are obviously more serious than those exerted 

by a lone robber. 

(14) Taking into account the grave circumstances of Count 3 – four men 

acting in a gang to commit robbery in the early hours, the use of weapons and 

violence, with two of the men chasing and attacking the victim who 

consequently suffered injuries – the appropriate starting point should be 5 years’ 

imprisonment. Since the trial judge did not mention any mitigating factors in 

exercising her discretion to lower the starting point to 3 years, and there were in 

fact no mitigating factors, the sentence of 3 years was manifestly inadequate; 

(15) Similarly, in Count 2, four robbers took part in a robbery and the time of 

the commission of the crime was also about midnight. R3, holding a 3-foot-long 

wooden pole, made a move as if he was going to hit the victim. Although there 

was no actual attack and the victim was not injured, the display of the weapon 

made the victim give in. Applying the same principle, the appropriate starting 

point should be 4 years’ imprisonment; 

(16) Turning to Count 1, although there were no sentencing guidelines 

regarding unarmed robbery, in view of a starting point of 12-15 months for 

street theft not involving violence (commonly known as ‘pick-pocketing’ ), a 

higher starting point should be adopted for a robbery case. In Count 1, the 

victims were junior secondary students aged 14 and 15. They were first shouted 

at by the four robbers and then chased for 5 minutes all the way from the 

playground to the back alley near an industrial building in San Po Kong and 

rounded up. Although no weapons were displayed, the two students were no 

doubt badly frightened. The appropriate starting point for this offence should be 

2 years and 6 months; 

(17) R3, within a few hours, committed a series of gang robberies of a similar 

nature. It was clearly indicated in Mo Kwong-sang that multiplicity of offences 

254


CA 513/2005 

Stuart-Moore 

VP Stock JA 

Reyes J 


*Simon Tam 

#Andrew Kan 

Ding-yang 

WU 

Yee-ki 

of a similar kind was an aggravating factor. The level of violence escalated in 

each case. First, the two young students were chased and rounded up, then an 

adult victim was threatened with a weapon and finally violence was used to get 

the mobile phone from another victim. R3 was the youngest of the four 

offenders but he played the most active role in each crime. His overall sentence 

should be 7 years’ imprisonment. After the one-third discount for the plea of 

guilty, it should come to 4 years and 8 months. 

Result - SJ’s applications for review granted. Original sentences set aside 

and substituted as follows: R1 and R2 each sentenced to 5 years’ 

imprisonment on Count 3. As regards R3, a starting point of 30 

months and a sentence of 20 months on Count 1; a starting point of 

4 years and a sentence of 36 months on Count 2; and a starting 

point of 5 years and a sentence of 40 months on Count 3 were 

imposed. Six months of the sentence on Count 1, 10 months of the 

sentence on Count 2 and 40 months of the sentence on Count 3 

were to be served consecutively. The remaining sentences were to 

run concurrently. The total sentence for R3 was therefore 4 years 

and 8 months. 

Robbery by gang in hotel room/Young offender/Defendant leading useful 

life for 5 years since offence/Absence of remorse 

在酒店房間糾黨行 

在酒店房間糾黨行劫在酒店房間糾黨行 – 青少年罪犯 – 被告人自犯案後過了 

被告人自犯案後過了5 被告人自犯案後過了 

年實幹年實幹 

的生活的生活 – 沒有悔意 

On 15 November 2005, the Applicant was convicted of robbery after 

trial, and sentenced to 3 years’ imprisonment. 

The charge alleged that on or about 20 January 2000, at the New San 

Diego Hotel, Yau Ma Tei, the Applicant, together with other persons, robbed 

the victim of a mobile telephone and $23,100 cash. 

The evidence showed that the victim was robbed by several persons in a 

hotel room, that he was subjected to violence and a knife was used. The 

Applicant had played a part in persuading the victim to rent the room for her, 

after he had met her through a chat line, and she was present during the robbery. 

The victim was also compelled after having been punched to disclose the PIN 

numbers for his ATM cards. 

The Applicant was aged 15 years and 10 months at the time of the 

offence, and was now aged 22 years. 

The Applicant was employed in a boutique as a sales lady from 2000 to 

2002, and she subsequently secured two further jobs earning a decent salary. 

Before sentence, she was earning $7,000 per month in a clerical position. 

Having noted the seriousness of the offence, the judge adopted a starting 

point of 5 years’ imprisonment. She said that ‘in view of the age of the 

defendant at the time of the offence and the background, and having considered 

that she had changed herself in the ensuing years since the robbery although 

she has been convicted after trial and showed no remorse, I will adopt a lower 

starting point. The defendant will be sentenced to three years’ imprisonment’. 

Held : 

On appeal 

255


(1) It was not clear what the judge meant by saying that she would adopt a 

lower starting point for she had not stated what that lower starting point was, 

unless she meant, inappropriately, to describe the ultimate sentence reached as 

being the same as the starting point. It was to be assumed that the judge adopted 

a starting point of 5 years’ imprisonment given the circumstances of the robbery 

and that despite the fact that this was a conviction after trial, the Applicant’s age 

and her conduct since the offence were mitigating factors such as to warrant a 

sentence that was significantly lower; 

(2) The starting point adopted by the judge was low. This was not only a 

case in which a person had been lured to private premises and in which those 

committing the robbery had brandished a knife, it was also a case in which five 

men were in the room with the victim, those numbers adding to the terror which 

the victim no doubt felt, and in which physical violence was used. No one could 

reasonably have quarrelled with a starting point of 7 years’ imprisonment: Mo 

Kwong-sang v R [1981] HKLR 610. It was necessary to look at the 

circumstances of the individual offender, her role and her age, and at such 

influence or pressure as might have been visited upon her by the older group 

with whom she then kept company; 

(3) The principle was that no young person should be sentenced to 

imprisonment if he or she could suitably be dealt with in another way: s 11, 

Juvenile Offenders Ordinance, Cap 226. But the nature or prevalence of an 

offence might be such as to demand an immediate custodial sentence despite the 

youth of the offender. Robbery had for long been recognized as an offence 

within that category. It was within a band of cases where youth was not a strong 

mitigating factor. In this case, despite her youth, the active, prolonged and 

central role played so well by the Applicant in the setting of a trap was such that 

an immediate custodial sentence was warranted. The procurement of a female to 

play the role that the Applicant played was central to a plan of this type and the 

sentencing process for such an offence must contain a suitable deterrent element. 

The only question was whether the sentence was manifestly excessive or wrong 

in principle given the Applicant's progress since the commission of the offence 

between January 2000 and the date of her apprehension in 2005; 

(4) The Applicant was now aged 22 years, and had led a lawful and useful 

life since the commission of this offence some five years before her 

apprehension. However, the fact that the trial took place 5 years or so after the 

offence was not a fact that lay in any way at the door of the investigating or 

prosecuting authorities. It was simply that the Applicant evaded apprehension 

and she must at all times have appreciated that the day might come when she 

would have to answer for her crime. There was no evidence of remorse such as 

might be indicated by a plea of guilty or by information to the police which 

might assist them in the apprehension and prosecution of the male culprits. No 

such assistance had been offered; 

(5) In the circumstances and given an appropriate starting point for an 

offence of this nature of 7 years’ imprisonment, the sentence of 3 years’ 

imprisonment adequately reflected the mitigating factors as against the gravity 

of the offence. 

Result – Application dismissed. 

256

CCAB 2006 Sentence (Quantum) - Sexual Offence 

Sexual Offence 

AR 6/2004 

Stuart-Moore 

VP 

Stock & 

Tang JJA 


*Kevin Zervos 

SC 

& David 

Leung 

#Francis 

Burkett 

SJ 

v 

KONG 

Tung-sheung 

Indecent assault/Taxi driver repeatedly assaulting 14-year-old girl late at 

night/Women and girls entitled to expect safety when travelling at 

night/Discount for sentence enhancement long after completion of original 

sentence 

猥褻侵犯猥褻侵犯 – 的士司機多次侵犯夜歸的 

的士司機多次侵犯夜歸的14 

的士司機多次侵犯夜歸的 

14 歲女童 – 理應讓婦女和 

理應讓婦女和 

女童無須擔憂晚間外出的安全問題女童無須擔憂晚間外出的安全問題 – 由於早已服刑期滿因此加重 

由於早已服刑期滿因此加重 

的刑罰獲得減免 

的刑罰獲得減免 

The Respondent pleaded guilty at Fanling Magistrates Court to three 

charges of indecent assault, contrary to s 122(1) of the Crimes Ordinance, Cap 

200. He was sentenced to concurrent terms of 2 months’ imprisonment on each 

charge on 6 September 2004, from which term he was released on 6 October 

2004. On 10 November 2004, the magistrate declined an application by the 

prosecution to review the sentence. 

All the offences occurred on 15 November 2003 within a relatively short 

space of time after the victim, aged 14 years and 9 months, had got into the back 

of a taxi driven by the Respondent at Sheung Shui Railway Station. She asked 

to be taken to Tin Ping Estate. 

During the course of a journey of about 20 minutes, the victim moved to 

the front seat at the request of the Respondent. Thereafter, she was driven to 

three separate locations in the vicinity of her home where, on each occasion, the 

Respondent indecently assaulted her by fondling her breasts. On the second 

occasion, he said that he could buy her many clothes. He also kissed the victim 

on her face and asked for her mobile phone number which she duly gave to him. 

The victim indicated that she wanted to go home each time she had been 

indecently assaulted. 

The indecent behaviour reflected in the first charge lasted about four 

minutes. The other two offences were committed over the space of about a 

minute in each case. All offences took place during the hours of darkness, soon 

after 10:20 pm, and it was an agreed fact that they were committed without the 

victim’s consent. 

In mitigation, the Respondent, who had been sentenced to a detention 

centre for offences of indecent assault and impersonating a police officer in 

1987, when he was 23, pointed out that he was aged 38, married with two 

daughters, and had been a taxi driver for about 6 years. It was said that this was 

not by any means the worst kind of indecent assault, and that the Respondent 

had thought the victim was aged between 18 and 19. 

Held : 

On review 

(1) Whilst it may have been an aggravating feature of the case if the 

Respondent had admitted a realisation of the girl’s true age, in the circumstances 

of this case the Respondent’s misunderstanding of her age made no material 

difference to the gravity of the offence. By simple virtue of his occupation, the 

victim was placed in a particularly vulnerable position and the Respondent made 

short work of taking full advantage over the victim; 

(2) Cases of this kind were never easy to decide. However, the true 

257

CCAB 2006 Sentence (Quantum) - Sexual Offence 

Theft/Handling/Deception/False Accounting 

MA 941/2005 

B Fung DJ 

(9.12.2005) 

*Alice Chan 

#I/P 

KONG 

Ching-ha, 

Priscilla 

seriousness of this case was overlooked by the magistrate. Women, travelling at 

night by taxi, and young girls in particular, were entitled to expect that they 

could do so in complete safety without the unwanted attentions of the taxi driver 

being foisted upon them; 

(3) The sentences, individually and collectively, were manifestly inadequate, 

and the offences called for a total sentence in the region of 18 months after trial. 

Having regard to the timely pleas, this would be reduced to 12 months. 

Although there was strictly no longer a requirement to make a further reduction 

on review of sentence, it was a fact that the overall sentence was originally only 

2 months and the Respondent had long since been released. Sentences of 6 

months’ imprisonment were appropriate on each charge. 

Result - SJ’s application allowed. Concurrent terms of imprisonment of 6 

months on each charge substituted for original sentences. 

Theft/Stealing mobile phones after tricking victim into lending 

them/Planned offences involving manipulation and extortion 

盜竊罪盜竊罪 – 託辭向受害人借用流動電話後將電話偷去 – 涉及操縱涉及操縱 

和敲詐的有計劃罪行 

和敲詐的有計劃罪行 

The Appellant was convicted of two offences of theft of a mobile phone, 

and sentenced to concurrent terms of imprisonment of 12 months. 

The evidence showed that the Appellant used the pretext of borrowing a 

mobile phone from a new found friend through the short message service or 

SMS system, and left without returning. In each case, they planned to meet in 

the cinema. The Appellant claimed her own mobile phone battery was 

exhausted and asked to use the victim’s mobile phone outside the cinema. She 

left behind a bag in the cinema to make believe she would return shortly. When 

eventually she did not return, the victims found that the bags contained nothing 

but useless items. 

On the first charge, the Appellant went further and made an appointment 

with the victim for the return of the mobile phone. She demanded the payment 

of $2,800 before returning the phone. The victim used the pretext of going to 

the cash machine and reporting the matter to the police. The Appellant was 

arrested. The phone related to the other convicted charge was found in her 

possession. 

When sentencing, the magistrate noted that the Appellant had a clear 

record, the offences were serious and were planned, she was manipulative and 

cunning and had lured the victims to the cinema to relieve them of the mobile 

phones. The Appellant had sought to extort money from one victim for the 

return of the phone. 

On appeal, it was submitted that no breach of trust was involved. 

258

CCAB 2006 Sentence (Quantum) – Theft / Handling / Deception / False Accounting 

MA 

1011/2005 

Line DJ 


*G Shiu 

#I/P 

BUI 

Thi Thanh 

Binh 

Held : 

(1) In HKSAR v Chou Mao-wen MA 1112/2002, it was said that lulling a 

victim into a false sense of friendship was not a breach of trust for the purpose 

of sentencing. In that case, the Appellant tricked a visitor at the airport into 

lending him $2,500. He said he needed the money for an air ticket and the 

airport departure tax. On arrival in Taiwan, his wife would meet him at the 

airport and he could then repay the victim. He asked the victim not to use the 

credit card because otherwise the purchase price would be without cash 

discount. Although originally sentenced to 15 months’ imprisonment, having 

regard to offence prevalence in that locality, the sentences were reduced on 

appeal to 12 months; 

(2) In HKSAR v Lee Cheuk-fai MA 1238/2002, the Appellant was convicted 

of one charge of theft of a mobile phone. He had borrowed the phone from the 

victim, but only returned the SIM card as he claimed that he had lent the phone 

to another friend and had only been able to retrieve the SIM card. Although 

sentenced to 6 months’ imprisonment, it was held on appeal that 4 months was 

the appropriate starting point, but this was enhanced to 5 months as the offender 

was persistent; 

(3) The magistrate was correct that there had been planning and 

manipulation in both offences. In the first charge, there was also the added 

element of extortion, and 9 months’ imprisonment was appropriate. The second 

offence was less serious, and 6 months’ imprisonment was appropriate. 

However, totality had to be considered, and the correct totality was 12 months’ 

imprisonment. 

Result - Sentences varied to, respectively, 9 months and 6 months’ 

imprisonment. Three months of the second sentence to run 

consecutively to the first sentence. Total sentence: 12 months’ 

imprisonment. 

Theft/Professional shoplifting/Family circumstances no basis for reduction 

in sentence 

盜竊罪盜竊罪盜竊罪 – 專業店舖盜竊 – 家庭狀況不是減刑理據 

The Appellant was convicted of an offence of theft, and was sentenced to 

12 months’ imprisonment. 

The facts showed she was one of three people who stole seven pieces of 

clothing worth over $4,500 from a shop in Causeway Bay. 

On appeal, it was submitted, inter alia, that the Appellant had a child 

aged 4 and a mother aged 72, and she wished to be at liberty to look after them. 

Held : 

A reduction in sentence was not justified, not least because the claims of 

her relatives upon her were well known to the Appellant when she decided 

deliberately to join in professional shoplifting. 


259


CA 238/2005 

Ma CJHC 

Stuart-Moore 

VP 

Yeung JA 


*David Leung 

#I/P 

TAN 

Hong-sheng 

Theft by pickpocketing/Starting point of 2½ years’ imprisonment where 

offence committed by organised gang/ Aggravating factor that offence 

committed shortly after arrival in Hong Kong 

扒竊罪扒竊罪扒竊罪 – 如罪行由有組織匪幫所干犯 

如罪行由有組織匪幫所干犯, 如罪行由有組織匪幫所干犯 

量刑起點為量刑起點為 2 2 ½ 年監禁年監禁年監禁 – 

來港後不久即犯案是加重刑罰的因素 

來港後不久即犯案是加重刑罰的因素 

The Applicant, together with Chen Shuda (Chen) and Lai Xianlin (Lai) 

appeared in the District Court on a joint charge of theft (pickpocketing). 

Chen pleaded guilty and was sentenced to 1 year and 8 months’ 

imprisonment. The Applicant and Lai were convicted after trial and sentenced 

to 2 years and 6 months’ imprisonment. 

The prosecution case was that the Applicant, with Chen and Lai, stole a 

mobile phone from the handbag of the victim in the vicinity of the Star Ferry 

Pier, Kowloon. Police saw Lai standing close to the victim to prevent her from 

changing direction. The Applicant then used his hand to hold the victim’s 

handbag steady, while Chen opened the zipper of her handbag and removed 

from it a mobile telephone. 

In sentencing, the judge pointed out the 12 to 15 months’ starting point 

established in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1. The judge further 

identified four aggravating factors, namely (1) that the offence was committed in 

a crowded area where the public was at particular risk; (2) that the offence was 

carried out by three accused jointly; (3) that there was an international element 

as the Applicant and his co-accused committed the offence the very next day 

after they arrived in Hong Kong from the Mainland; and (4) that the offence was 

organised, well-planned and quite professional. 

On appeal, the Applicant pointed out that the guideline for pickpocketing 

was 12 to 15 months’ imprisonment, and emphasized that even if it was to be 

increased by one-third, the resulting sentence should not exceed 20 months. A 

sentence of 30 months’ imprisonment was excessive when there was no 

instrument used in the course of the theft and when he had not shown any 

disrespect for the court. He emphasized that he had no previous conviction, and 

whether or not the offence was committed within a day or a longer time after his 

arrival in Hong Kong should have no bearing on sentence. 

Held : 

(1) The offence of pickpocketing was both serious and nasty, as it not only 

caused financial loss, but could also result in grave inconvenience to its victim; 

(2) As said in Ngo Van Huy (supra), ‘theft by pickpocketing can be regarded 

as the type of offence that society severely and rightly condemns. Although in 

many cases, the value of the items stolen may not amount to much, the 

significant degree of inconvenience, the relative ease with which it can be 

effected by a direct invasion of or about the person and privacy of those 

minding their business in public places, and the adverse reputation that this 

type of crime collectively brings upon a city makes this offence a particularly 

serious one. It is one which attracts, justifiably in our view, a heavy penalty ’; 

(3) The applicant in Ngo Van Huy was a pickpocket who worked alone. In 

allowing his appeal and varying his sentence (from 30 months to 24 months), the 

court adopted a starting point of 15 months and increased it by 9 months ‘on 

account of the appellant’s appalling previous record of theft ’ (he had 35 

previous convictions, of which 17 were for theft) and then by another 3 months 

260


MA 

1240/2005 

Line DJ 


*Catherine Ko 

#I/P 

NG 

Mei-fung, 

Bee 

because the offence was committed in a crowded area. The court then reduced 

the sentences by one-third to 18 months to reflect the guilty plea, and then 

enhanced it by one-third under s 27 of the Organized and Serious Crimes 

Ordinance, Cap 455, to take the overall sentence to 24 months. Adopting the 

approach in Ngo Van Huy, the starting point of 30 months adopted by the judge 

appeared to be excessive when the Applicant had a clear record. However, Ma 

CJHC made it clear that where ‘an accused commits the offence in conjunction 

with another, the sentence should be higher. Where he is part of an organised 

and professional ring of thieves a substantial increase in sentence may be 

called for ’; 

(4) In R v Saldana Alca Jose and Another Cr App 655/1996, P Chan J said: 

We take this opportunity to indicate that in our view, because of 

their seriousness, organised crimes of this nature, including 

group pickpocketing, even without international ramifications, 

might in future properly attract a starting point of at least 2½ 

years’ imprisonment. 

(5) A starting point of 2½ years’ imprisonment for pickpocketing committed 

by two or more defendants had previously been approved: HKSAR v Liao Mei 

and Others Cr App 432/2004, HKSAR v Pham Ngoc Trinh Cr App 439/2004, 

HKSAR v Jiang Siyuan Cr App 160/2005, HKSAR v Zhang Liping Cr App 

403/2004; 

(6) In Liao Mei and Others and Jiang Siyuan (supra), the appellants were 

two-way permit holders who came to Hong Kong from the Mainland, in the 

guise of tourists, with the specific purpose of operating as a team to steal from 

unsuspecting victims. Although the appellants did not have any criminal record 

in Hong Kong, a starting point of 2½ years’ imprisonment was approved; 

(7) The fact that the Applicant and his co-accused committed the day after 

their arrival in Hong Kong was indeed a most serious aggravating factor. 


[See also Sentencing in Hong Kong, 4th ed., at pp 567-568: Ed] 

Theft by pickpocketing/Two offenders acting together in a busy shopping 

area/Customary starting point of 12 to 15 months’ imprisonment/Inducing 

mentally retarded person to assist in the crime an aggravating factor 

justifying sentence enhancement 

扒竊罪扒竊罪 – 兩名犯案者在繁忙的購物區合夥犯案犯案 – 慣常的量刑起 

點為點為點為 12 12至 12 15 15 個月監禁個月監禁 – 誘使弱智人士協助犯罪是加重刑罰的因素 

The Appellant, together with a co-accused, who was mildly mentally 

retarded, and who had not appealed, carried out a theft by pickpocketing. 

The co-accused, a large man, carried two bags of shopping in either hand 

and stood in the way of a short, slightly-built person who was obviously a visitor 

from the Mainland, while the Appellant came up from behind him and stole 

from him. 

The magistrate described the offence as a slick and professional theft. 

Although the starting point for an offence of theft by pickpocketing, for 

someone with a clear record, was in the bracket of 12 to 15 months, the 

magistrate increased the sentence to 18 months. That was because this was a 

practised theft, it occurred in a busy area frequented by tourists, and because he 

261



Poon DJ 


*Leung Sunyee 

#I/P 

HUANG 

Xu 

took the view that the Appellant had cynically manipulated her mildly retarded 

co-accused. 

Held : 

On appeal 

That someone who was mildly retarded was induced to play a part in a 

crime of this nature made the situation worse. It could not be ignored. The 

other factors placed the case at the top end of the bracket of 12 to 15 months. 

The modest increase of 3 months to reflect the aggravating factor was not 

disproportionate. 


Pickpocketing and going equipped to steal/Tariff/Offender coming to Hong 

Kong for quick money/Family conditions not humanitarian considerations 

justifying a reduction in sentence 

扒竊及外出時備有偷扒竊及外出時備有偷竊用的物品竊用的物品 – 量刑基準 – 犯案者來香港 

犯案者來香港‘ 犯案者來香港 

搵快搵快搵快搵快 

錢錢錢錢’ – 家庭狀況不是支持減刑的人道考慮因素 

The Appellant pleaded guilty to one charge of theft and one charge of 

going equipped for stealing. 

The facts showed that at 8:35 pm on 2 May 2006, the Appellant was seen 

acting suspiciously on Nathan Road, near the junction. He paid particular 

attention to pockets and handbags, of passers-by. He was seen by police officers 

to have taken out a silver object from his bag and held it out towards the 

handbag of a lady who was waiting to cross the road. When she started to cross 

at the change of traffic lights, the Appellant returned the silver object to his bag. 

After interception by police, a pair of metal clippers 25 cm in length and 

a mobile phone, the subject of the theft charge, were found inside his bag. 

The owner of the phone was located, and she said she had the phone in 

the left side pocket of her school dress and lost it earlier that day in Mongkok, 

after somebody bumped into her. 

In sentencing the Appellant to 8 months’ imprisonment for the theft 

charge and 6 months’ imprisonment for the going equipped charge, with 3 

months of the second sentence ordered to run consecutively, producing a total of 

11 months’ imprisonment, the magistrate said: 

I was satisfied he had been loitering in this very busy area of 

Mongkok with a view to pickpocketing. He had equipped himself 

with the clippers for that purpose and had successfully 

pickpocketed the mobile phone of the school girl. Thefts of 

mobile phones are rife in Hong Kong and particularly in this 

area. 

On appeal, the Appellant relied on the medical condition of his father, 

which he said had deteriorated since he came to Hong Kong, the pregnancy of 

his girlfriend, and other family conditions. 

Held : 

(1) The sentences passed were within the tariff: R v Vy Van Kien [1991] 1 

HKLR 422, as affirmed in HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 [12-15 

262



Longley DJ 


*Kam Yuk 

#Louisa Jorge 

TSE 

Shek-fai 

months for pickpocketing for a first offender after trial]; 

(2) Family conditions did not constitute humanitarian grounds, especially 

when an Appellant was already aware of the illness or medical condition of a 

close relative but chose nonetheless to come to Hong Kong, allegedly for quick 

money to help out with medical expenses: HKSAR v Guo Jingxing MA 15/2006; 

(3) The sentences could only be described as lenient. 


Attempted shop theft/Immediate custodial sentence for 

recidivist/Appropriate to detain defendant for observation for preparation 

of psychiatric reports 

企圖店舖盜竊企圖店舖盜竊 – 對積犯判處即時監禁 – 為製備精神科醫生報告 

而把被告人羈留以接受觀義察是恰當的 

而把被告人羈留以接受觀義察是恰當的 

The Appellant was sentenced to 21 days’ imprisonment after trial for an 

offence of attempted theft. 

The offence occurred on 5 March 2006 at the Uny Store, City Plaza, 

Quarry Bay. The magistrate summarised her findings in this way: 

At the material time and place the Appellant was seen taking a 

bottle of aftershave from the supermarket to the book display 

area where he extracted the bottle from its packing box, pressed 

flat the box and slipped it between the pages of a magazine and 

put the magazine back on the shelf. He then put the aftershave in 

his pocket and went to the lift lobby. As he was waiting for the 

lift he saw the security guard walking out, the Appellant then 

walked back and slipped the aftershave into a litterbin. When the 

lift arrived the security guard retrieved the bottle, followed the 

Appellant and intercepted him. 

The Appellant was aged 53 and single. He had been before the courts on 

five separate occasions when he was in his early 30s in respect of six offences, 

three of which involved dishonesty. On the last occasion, he received 9 months’ 

imprisonment, suspended for 18 months, for an offence of dishonesty. 

At trial, there was evidence that the Appellant had mental problems for 

which he had been receiving psychiatric treatment. It was said they followed the 

repossession of his flat after he had become the victim of a fraud. 

After conviction, the magistrate remanded the Appellant in custody for 

three weeks for the preparation of a background and psychiatric report. 

However, believing that she could not adjourn for more than 14 days for a 

psychiatric report, she ordered a background report and adjourned the matter for 

one week until 10 April 2006. On that occasion she said expressly that all 

sentencing options were open. On 10 April, the background report had not yet 

been prepared, and the Appellant’s counsel submitted that the magistrate should 

not seek for further reports; she reminded the magistrate that in HKSAR v Yan 

Kai-yip, Raymond MA 95/2005, Carlson DJ had said that a defendant should 

not be remanded in custody before sentence unless a custodial sentence was very 

much on the cards. The magistrate replied that a custodial sentence was on the 

cards. She remanded the Appellant in custody until 28 April, for a further 2 

weeks, for the preparation of the background and psychiatric reports. 

263


On 28 April both reports were available. The background report 

indicated that the Appellant was still denying an intention to steal, but the 

reporting officer commented that the period of remand appeared to have had a 

deterrent effect on the Appellant. The psychiatric report indicated that the 

Appellant was suffering from adjustment disorder with prolonged depressive 

symptoms for which he was refusing treatment. It also commented that the 

Appellant’s present offences did not appear to be connected to his mental state. 

The magistrate took into account that the Appellant had not committed 

any offence for 22 years. She did not consider a conditional discharge or 

community service order to be appropriate. Bearing in mind the comment in the 

background report that the 21-day remand appeared to have had a deterrent 

effect on the Appellant, the magistrate sentenced him to 21 days’ imprisonment. 

Held : 

On appeal 

(1) The sentence of 21 days’ imprisonment was neither manifestly excessive 

nor wrong in principle, and the magistrate had not erred in remanding the 

Appellant in custody pending receipt of background and psychiatric reports; 

(2) In Attorney General v Chung Kun-wai [1989] 1 HKLR 91, Cons ACJ 

said: 

In the realm of shoplifting the circumstances of the offence and 

the circumstances of the offender vary so much that it is quite 

impossible to suggest any general policy of approach, save that 

we may mention in passing, in deference to comments by counsel, 

that there are indeed cases in which an immediate custodial 

sentence is appropriate, even for first offenders. 

(3) In R v Chiang Wu Ming-hsiang [1989] 2 HKLR 383, Bewley J said: 

In my judgment a custodial sentence should be imposed on a first 

offender only where there is evidence of planning or involvement 

in a syndicate. 

(4) The Appellant had previous convictions, three similar, albeit 22/23 years 

previously, and he had not shown any remorse for this offence. The magistrate 

was perfectly entitled to conclude that a conditional discharge or a community 

service order were not realistic options, and that a custodial sentence was a 

likely option; 

(5) The magistrate had heard in evidence of the Appellant having suffered 

psychiatric illness, and there was nothing improper in the circumstances in 

remanding him in custody for the preparation of psychiatric reports. It enabled 

the Appellant to be observed over a period of 14 days and to be available for 

examination during that period in Siu Lam. The three-week period that elapsed 

between the time of conviction and the time of sentence was nothing out of the 

ordinary. Having learnt from the background report that the reporting officer 

took the view that the period in custody had had a deterrent effect on the 

Appellant, the sentence of 21 days’ imprisonment she then imposed was 

appropriate. 


[For shop theft generally, see Sentencing in Hong Kong, 4th ed., at p 

568: Ed] 

264



Stuart-Moore 

ACJHC 

Yeung JA 


*Simon Tam 

#M Moosdeen 

WEN 

Zelang 

Theft/Incense tree wooden blocks/Mainlanders to be deterred from cutting 

Buddhist pines or incense trees/Clear record a neutral factor as 

mitigation/Lesser culpability of young offender acting under uncle’s 

influence 

盜盜盜竊竊罪罪罪 – 土土沉沉香香的木材的木材 – 有需要阻嚇中國內地人砍伐羅漢松或土 

有需要阻嚇中國內地人砍伐羅漢松或土 

沉沉香香 – 無無無定定罪罪紀紀錄是沒有作用的求情因素錄是沒有作用的求情因素 – 受叔伯影響而行事的 





The Applicant, and others, on 24 March 2006, was travelling on a bus on 

Lantau Island when an identity check was conducted. They were found to be 

carrying wooden blocks weighing 5.6 kgs which had been taken from an incense 

tree. 

The Applicant and the other defendants were two-way permit holders. 

They came to Hong Kong on 19 March 2006 with woodchoppers for the 

purpose of finding incense trees so that the wood they cut from such trees could 

be sold in the Mainland. The blocks of wood had been cut from a large and 

mature incense tree on 20 March 2006. 

The defendants had intended to look for more incense trees, but were 

unsuccessful. At the time of arrest, they were about to return to the Mainland. 

‘Aquilaria Sinensis ’, a species of ‘Aquilaria ’ commonly known as 

‘incense tree ’, grew chiefly in South China, including parts of Hong Kong. It 

was also a ‘fung shui ’ tree, and was therefore sometimes planted in ‘fung shui ’ 

woods in villages in the New Territories. The fragrance of incense tree wood 

made it an ideal material for the making of joss sticks and the resin it produced 

was a valuable Chinese herbal medicine. The heavy demand for incense tree 

wood led to its over-exploitation and it was under the threat of extinction. 

Since January 2005, the Convention on International Trade in 

Endangered Species of Wild Fauna and Flora had restricted the import and 

export of wood from incense trees. 

In Hong Kong, the Protection of Endangered Species of Animals and 

Plants Ordinance, Cap 586, gazetted on 10 March 2006, imposed a restriction 

on the export of all ‘Aquilaria ’ species, although the ordinance was not yet in 

operation. The ‘List of Wild Plants under State Protection ’ in the Mainland 

also included the incense tree in the categories listed for protection. 

The defendants pleaded guilty to theft of the incense tree wood blocks, 

and each of them was sentenced to 30 months’ imprisonment. The judge did not 

distinguish the Applicant from the other defendants, and adopted a starting point 

of 3 years’ imprisonment for all of them. The judge reduced the starting point 

by one-third to 2 years on account of their guilty pleas, and then, on the 

prosecution’s application, enhanced the sentence by 25% under s 27 of the 

Organized and Serious Crimes Ordinance, Cap 455 (‘OSCO ’), by reason of the 

prevalence of the offence to bring the sentence to 30 months’ imprisonment. 

On appeal, it was submitted that both the starting point and the 

enhancement under OSCO were excessive. 

Held : 

(1) The judge was right to have taken a serious view of the offence when the 

defendants had expressly come to Hong Kong for the purpose of cutting 

endangered trees for profit. A clear and strong message was needed to deter 

265



Ma CJHC 

Burrell J 


*Sin Pui-ha 

#EC Mumford 

SC & Valerie 

Lim 

CHEUNG 

Mee-kiu 

Mainland people from coming to Hong Kong to cut endangered trees, be they 

Buddhist pines or incense trees. Neither the 3-year starting point nor the 25% 

enhancement for prevalence of the offence under OSCO was manifestly 

excessive; 

(2) The Applicant was not entitled to more than a one-third discount on the 

basis that he had no previous conviction: HKSAR v Leung Shuk-man [2002] 3 

HKC 424. The policy of giving the generous discount, set at one-third, to those 

who plead guilty, was designed to achieve equality in the approach taken by 

sentencers towards those who had to be punished by means of a custodial 

sentence for their crimes. This applied as much to a person who had a clear 

record as to someone who had not although an offender might receive an 

enhanced sentence where an offence of the same or a similar kind had been 

repeated. The fact that an offender had a clear record was in reality a neutral 

feature in the case. The judgments in HKSAR v David Vilma V MA 11/2003, 

and HKSAR v Wong Wai-man MA 615/2006, which suggested that a clear 

record justified an additional discount, were erroneous; 

(3) The judge failed to differentiate between the Applicant and the other 

defendants. He was aged 17 years and the others were mature men in their 

thirties and forties. That factor, of itself, was not a strong mitigating factor: 

HKSAR v Yeung Wai and Others [2005] 1 HKC 646, 660. More importantly, 

one of the defendants was the Applicant’s paternal uncle, and had assumed a de 

facto parental role towards the Applicant from a time when he was very young. 

It could be assumed that the uncle might have exercised a considerable influence 

over the Applicant when he decided to embark upon this criminal enterprise. 

For that reason, his culpability was less than that of the other defendants, and he 

deserved a more lenient sentence. 


Theft/Owner of financially troubled company stealing jewellery worth 

almost $10 million/Application of Trevor Clark guidelines/Conversion of 

Trevor Clark bands into Hong Kong dollars for future cases 

盜盜竊罪竊罪 –Ė 擁有人因公司陷財政困難而偷竊差不多值一千萬元的珠 

寶寶首首飾飾 –Ė 應用 T r e v o r C l a r k 一一一案案的的指指引引 –Ė 為日後案件而將 

Trrevvoorr Trrevvoorr Trrevvoorr Clarrk Clarrk 各量刑級別的金額折算為港幣 

各量刑級別的金額折算為港幣 

The Applicant pleaded guilty to five offences. She was aged 61 years 

when sentenced, and was of positive good character. She had been the owner 

and manager of Moon Kee Jewellery Company for 40 years. The company was 

family-run and owned two jewellery shops in Kowloon. After a business down, 

it effectively collapsed. 

Between October 2002 and May 2003, the Applicant pawned hundreds of 

items of jewellery from her stock which had been entrusted to her from other 

jewellery companies. She also pawned many items of jewellery entrusted to her 

by members of the public who had brought them to her shop for repair. Finally, 

she ordered large amounts of jewellery from suppliers which she paid for with 

post-dated cheques which were dishonoured, and these she also pawned. 

Charge 1 was conspiracy to steal, and involved 36 separate incidents of 

jewellery being pawned. The conspiracy involved 20 different suppliers, and the 

property pawned was $4,335,245. The police recovered property valued at 

about $2,875,000 having seized pawnshop receipts from her premises. The 

judge took a starting point of 4½ years’ imprisonment, and sentenced her to 3 

years. 

266


Charge 2 was theft, and jewellery worth $2,282,968, entrusted to the 

Applicant by 20 different suppliers, was pawned. None was recovered. A 

starting point of 3½ years’ imprisonment was adopted, and 2 years and 4 months 

imposed. 

Charge 3 was theft, and jewellery worth $206,350, brought to the 

Applicant’s shop for repair, was pawned. None was recovered. A starting point 

of 2 years’ imprisonment was adopted and 1 year and 4 months imposed. 

Charge 4 was conspiracy to steal, and involved a diamond ring worth 

$24,000, which was also pawned, but later recovered. A sentence of 6 months’ 

imprisonment was imposed. 

Charge 5 was conspiracy to defraud. The Applicant ordered jewellery 

worth $3,124,418, from 26 suppliers, and paid with post-dated cheques which 

were dishonoured. These were pawned, and items worth $72,000 were 

recovered. A starting point of 4 years’ imprisonment was adopted, and 2 years 

and 4 months imposed. 

All the money received by the Applicant from the various pawnbrokers 

was put into company accounts, which were heavily in debit. The total value of 

all the goods pawned in all five accounts was almost $10 million. 

The judge, when sentencing, considered the overall criminality and the 

total value of the goods stolen. He concluded that after trial a sentence of 6 

years and 6 months would have been appropriate. He reduced the sentence to 4 

years and 4 months ‘having considered the whole circumstances of the case, 

including the previous good character of the 1st accused, the recovery of some 

of the stolen items and the contents of the various letters’. To achieve that 

result, he made the sentence on charges 1, 2, 4 and 5 concurrent (a total of 3 

years) and the sentence on charge 3 consecutive (1 year and 4 months) making a 

total of 4 years and 4 months. 

In his reasons, the judge referred to R v Clark (1998) 2 Cr App R 137, 

and his sentences closely followed the guidelines of that case which were 

applicable in Hong Kong. That was a case in which an employee abused his 

position of trust and stole large sums of money from his employer and from a 

charity. The court set five financial bands, in pounds sterling, and set the 

appropriate range of sentence within each band. 

The Clark bands and their HK$ equivalent at $12.5 to £1 (the 

approximate exchange rate at the material time) were: 

Band 1 –Ė over £1 million (HK$12.5 million) : 10 years’ 

imprisonment or more; 

Band 2 –Ė between £250,000 (HK$3.125 million) and £1 million 

(HK$12.5 million): 5 - 9 years’ imprisonment. Charge 1 

came within this band. An application of Clark would 

therefore have resulted in a starting point of 5½½ years. In 

fact, 4½½ years was adopted; 

Band 3 –Ė between £100,000 (HK$1.25 million) and £250,000 

(HK$3.125 million): 3 - 4 years’ imprisonment. Charges 

2 and 5 came within this band. On a strict application of 

Clark, starting points of 3½ years and 4 years, 

respectively, would have been applied; which were 

precisely the sentences in fact adopted; 

Band 4 –Ė between £17,500 (HK$220,000) and £100,000 (HK$1.25 

267


Held : 

268 

million): 2 - 3 years’ imprisonment; 

Band 5 –Ė less than £17,500 (HK$220,000): up to 21 months’ 

imprisonment. Charges 3 and 4 fall within this band. 

Charge 3 would therefore merit a sentence of 21 months 

(in fact 24 months was selected) and Charge 4 

considerably less (9 months was selected). 

On appeal 

(1) Other than the fact that the judge’s sentence on charge 1 could be said to 

be on the low side and the sentence on charge 3 was 3 months higher than it 

would have been under Clark, no criticism could be made of the judge’s starting 

points. More important, however, was the next stage in the sentencing process. 

The overall picture and the question of totality had to be considered; 

(2) Nearly $10 million worth of jewellery was stolen. Had the overall 

criminality been reflected by a single charge, and by applying the Clark 

guidelines, a starting point of at least 7½½ years (for a sterling equivalent of 

£800,000) would have been appropriate. The starting point taken by the judge 

of 6½½ years was clearly a generous one; 

(3) There was indeed considerable mitigation in this case. The Applicant 

was a 61 years old lady with a positive good character who, together with her 

husband, had worked hard all her life running a successful business and bringing 

up a decent and successful family. However, on a sensible reading of the 

judge’s reasons for sentence, it was plain that he had all such matters in mind at 

the time of sentencing. The discount of one-third to reflect all mitigating factors 

could not be criticized. Moreover, the discount was made from a generously low 

starting point. The overall sentence of 4 years and 4 months was neither wrong 

in principle nor manifestly excessive; 

(4) The mechanics which the judge employed to achieve the final sentence 

were perfectly proper. The offences were committed on numerous different days 

over a seven months’ period. He was therefore entitled to make some sentences 

consecutive to others, subject to the question of totality. This is exactly what he 

did. He made the sentence on charge 3 (1 year and 4 months) consecutive to 

charge 1 (3 years) which was ordered to run concurrently with the other three 

charges. 


per cur: The principles laid down in R v Clark remained applicable in Hong 

Kong. However, in order to avoid the unsatisfactory result of the 

bands changing with fluctuating exchange rates, the Clark bands would 

be converted into Hong Kong dollar bands to be adopted in future 

cases of a similar nature. These guidelines would be set: 

(a) over $15 million —Ę 10 years or more; 

(b) $3 million to $15 million —Ę 5 to 9 years; 

(c) $1 million to $ 3 million —Ę 3 to 4 years; 

(d) $250,000 to $1 million —Ę 2 to 3 years; 

(e) less than $250,000 —Ę less than 2 years.

CCAB 2006 Sentence (Quantum) – Unlawful Assembly 

Unlawful Assembly 

MA 926/2005 

Wright DJ 

(16.12.2005) 

*Cheung Waisun 

#I/P 

(1) CHUNG 

Tin-yau 

(2) CHENG 

Kai-ngai 

(3) LEE 

Wai-king 

Unlawful assembly/Gang attack on shop staff with damage to 

property/Custodial sentence appropriate for young offender of prior good 

character/Benefit of detention centre regime 

非法集結非法集結 – 糾黨襲擊店舖職員並損毁財物 – 對以往品格良好的 

青少年罪犯判處監禁式刑罰屬恰當青少年罪犯判處監禁式刑罰屬恰當 – 勞教中心制度的好處 

The Appellants were convicted after trial of an offence of unlawful 

assembly. 

The evidence showed that on 22 July 2004 a group of men burst into 

premises situated at Golden Computer Arcade, Sham Shui Po. They set about 

the staff, pulled over display racks and damaged light fittings. The group then 

departed. 

Before sentencing A1, who was aged 23 years, and of previous good 

character, the magistrate called for a report on his suitability for detention in a 

detention centre. He proved to be suitable, and the magistrate duly committed 

A1 to the detention centre. 

Held : 

On appeal by A1 against his sentence 

(1) A custodial sentence was appropriate for conduct of this nature, 

notwithstanding the previous good character; 

(2) The magistrate was properly concerned about rehabilitation and saw the 

detention centre regime and its aftercare service as potentially of benefit to A1; 

(3) The sentence was entirely proper. 


269

CCAB 2006 Sentence (Quantum) – Vice / Gambling 

Vice/Gambling 

*梁燊頤 

Rosaline 

Leung 

#陳銚明 

Chan Siu-ming 

香港特別行政區訴陳淑娟 

香港特別行政區訴陳淑娟 

HKSAR v CHAN Shuk-kuen 

高等法院原訟法庭 – 高院裁判法院上訴2005年第838號 

高等法院原訟法庭暫委法官張慧玲 

耹訊日期:二零零五年十二月七日 

宣判日期:二零零五年十二月七日 

COURT OF FIRST INSTANCE OF THE HIGH COURT MAGISTRACY 

APPEAL NO. 838 OF 2005 

Barnes DJ 

Date of Hearing: 7 December 2005 

Date of Judgment: 7 December 2005 

管理賣淫場所管理賣淫場所 –「火苗行動」火苗行動火苗行動火苗行動 – 判刑上的差異差異 – 處理上訴時應 

處理上訴時應 

採取的步驟 


上訴人經認罪後被總裁判官裁定兩項管理賣淫場所罪罪名成 

立 , 違反香港法例第200 章《刑事罪行條例》第139(1)(b) 條。上訴 

人就兩項控罪分別被判處監禁8個月,同期執行。 

關於第一項控罪,上訴人承認於2003 年11 月18 日在「名門卡 

拉OK夜總會」接持一名喬裝顧客的警員,她向該警員介紹不同的性 

服務和收費詳情。其間,她向該警員介紹公關小姐提供性服務。她 

亦留下自己的電話號碼給該警員以便日後聯絡。 

關於第二項控罪 , 上訴人承認於 2004 年 3 月 4 日至 3 月 23 日在 

「名門卡拉OK夜總會」受僱為「大班」。她的職責包括向顧客介紹 

不同性服務和收費詳情,介紹女子提供性服務和執拾房間等。這段 

時間,據一名喬裝受僱為「大班」的警員所觀察,上訴人曾經指示 

提供性服務的公關小姐拖長性服務的時間、提供避孕套給她們、代 

那些公關小姐與顧客交涉收費和服務等等問題。 

上訴人於2005年7月26日被捕。她向警方承認曾在「名門卡拉 

OK夜總會」工作,只負責帶領提供性服務的公關小姐給顧客,送飲 

料和收錢。 

上訴人不服刑期,提出上訴。上訴理由有三: 

(1) 本案是「火苗行動」的其中一件案件。其他「火苗行動」案 

件的被告的刑罰包括緩刑,罰款和社會服務令。判刑者有責任考慮 

受刑者的刑罰不致與其他同類人士有較大的差距,以免做成嚴重不 

公平情況。原審裁判官明顯漠視了此點。 

(2) 上訴人為初犯人士 , 育有一幼女 , 且犯事後努力改過自新 , 

包括改做文員及參與義工。原審裁判官只以案情嚴重,未有考慮以 

罪犯改過自新的角度判刑,刑罰是明顯嚴苛。 

(3) 案中的場所並不大 , 沒有牽涉未成年少女 , 上訴人只是受僱 

270


工作,且是初犯。因此以十二個月監禁為起點是明顯嚴苛。 

裁決裁決‥ 裁決 

(1) 由控方提供的列表可見 , 「火苗行動」中被定罪的人士 , 絕 

大部份被判以緩刑,只有少數人士被判以即時監禁,有些人士更被 

判社會服務令。牽涉「名門卡拉OK夜總會」的有四宗案件(本案是 

其中一宗)。以該場所而言,除了上訴人外,所有被裁定「管理賣淫 

場所」罪名的人士均被判以 4 至 6 個月監禁 , 並得到緩刑 ( 另加罰 

款)。總裁判官在判刑時已知悉其中兩宗的判刑; 

(2) 雖然其他在同一場所干犯相同罪行的人被判以較輕的刑罰 , 

但法庭應採取的步驟,是不須理會其他人被判處的刑罰,只須考慮 

本案上訴人的判刑是否恰當 : R v Stroud (1977) 65 Cr App R 

150,香港特別行政區訴余栢麟 [2003] 2 HKLRD 567; 

(3) 一般而言 , 首次即時監禁的刑期過長、或與罪行的刑事責任 

不成比例、或作為阻嚇別人並不理想,首次監禁的刑期應為一段恰 

當足以對該名犯人起警惕作用的刑期 : R v Curran (1973) 57 Cr 

App R 945; 

(4) 但法官須針對犯人的罪責及個別情況而考慮刑罰。若罪行屬 

於嚴重或普遍的違法行為,基於公眾利益,法庭可偏離一般量刑原 

則,以收阻嚇作用; 

(5) 涉案場所佔上海街某樓宇的三樓全層。職員共有六人 , 其中 

五人是「大班」,而涉案的公關小姐則有六名。由此可見,涉案場 

所不可算沒有組織或不具規模; 

(6) 香港特別行政區訴林詩琪等 MA 1249/2004 是另一宗「火苗 

行動」案件。該案涉及另一場所,但犯案人罪責與本案相若。法庭 

認為以12個月為量刑起點並無不妥; 

(7) 在 HKSAR v Lee Tang-yau MA 602/2001 一案中 , 上訴人承 

認管理賣淫場所罪。該賣淫場所有七個房間,提供八名妓女,她們 

全部是非法居民。法庭認為12個月為量刑起點並無不妥; 

(8) 在香港特別行政區訴張招財及另一人 MA 531/2003 一案中 , 

兩名上訴人被控管理賣淫場所罪。涉案的賣淫場所是位於元朗鄉村 

內的一間鐵皮屋,屋內有七名妓女。上訴時,法庭認為裁判官以15 

個月作量刑起點是過重,因此將刑期減為12個月; 

(9) 基於上訴人的罪責 , 總裁判官以 12 個月作為量刑起點 ,絕對 

不能說是過份嚴苛。以上訴人的個人背境而言,並無恰當或足夠理 

據將監禁判以緩刑。 

結果結果‥上訴駁回。 

結果 

271



of MA 838 of 

2005, above] 

Barnes DJ 

(10.12.2005) 

*Rosaline 

Leung 

#Chan Siuming 

CHAN 

Shuk-kuen 

Managing a vice establishment/Operation Flamewood/Disparity in 

sentencing/Procedures on appeal 

管理賣淫場所管理賣淫場所 – 「火苗行動」– 火苗行動火苗行動火苗行動判刑上的差異 – 處理上訴時應 




The Appellant pleaded guilty to two charges of managing a vice 

establishment, contrary to s 139(1)(b) of the Crimes Ordinance, Cap 200. The 

Appellant was sentenced to 8 months’ imprisonment on each charge, to be 

served concurrently. 

On the first charge, the Appellant admitted that on 18 November 2003, 

she received a police constable disguised as a customer at the Noble Karaoke 

Night Club and explained to the police constable the various sex services and 

the related service charges. In the course of it she introduced PR hostesses to 

the police constable for the provision of sexual services and also gave him her 

own telephone number for future contact. 

On the second charge, the Appellant admitted that she was employed as a 

‘taipan’ at the Noble Karaoke Night Club from 4 March to 23 March 2004. Her 

duties were to brief customers on the various sex services and details of the 

charges, to introduce women for providing sex services and to tidy up the 

rooms. During the said period, as observed by an undercover police constable 

who was also employed as a ‘taipan’, the Appellant had directed the PR 

hostesses to prolong the time in providing sex services, had provided condoms 

for them, and had negotiated with customers on behalf of those PR hostesses on 

matters like charges and services. 

The Appellant was arrested on 26 July 2005. She admitted to the police 

that she had worked for the Noble Karaoke Night Club but had only been 

responsible for introducing the PR hostesses who provided sex services, 

delivering drinks and collecting the payments. 

The Appellant appealed against sentence on three grounds: 

(1) The present case was one of the ‘Operation Flamewood’ cases. 

Sentences of defendants in other Operation Flamewood cases included the 

imposition of suspended sentences, fines and community service orders. A 

sentencer had the obligation to ensure that no great disparity existed between the 

sentence imposed on one offender and those on other similar offenders so as to 

avoid causing any grave injustice. The magistrate had obviously failed to take 

this into consideration. 

(2) The Appellant was a first offender and a mother with an infant daughter. 

After this offence she endeavoured to rehabilitate herself by taking up a new job 

as a clerk and participating in voluntary work. The magistrate had, in passing 

the sentence, only taken into account the gravity of the offence but not the factor 

of rehabilitation. The sentence was manifestly excessive. 

(3) The establishment in the present case was not of a large scale and no 

underage girls were involved. The Appellant was just working as an employee 

and was a first offender, thus a starting point of 12 months’ imprisonment was 

manifestly excessive. 

Held : 

(1) From the information provided by the prosecution, it could be seen that 

most of the offenders convicted in the Operation Flamewood cases were given 

272


suspended sentences. Only a few of them had to serve immediate custodial 

sentences, whilst some were even given community service orders. There were 

four cases which involved the Noble Karaoke Night Club and the present case 

was one of them. All offenders convicted of the offence of managing a vice 

establishment involving the said premises, with the exception of the Appellant, 

were sentenced to suspended sentences of 4 to 6 months’ imprisonment in 

addition to the payment of fines. The Chief Magistrate, in passing the sentence, 

was aware of the sentences passed in two of those cases; 

(2) Despite the fact that other offenders committing the same offence at the 

same establishment were given lighter penalties, the approach of the court was 

to ignore the sentences passed on the other offenders and to consider merely 

whether the sentence actually passed on the appellant of the present case was 

appropriate: R v Stroud (1977) 65 Cr App R 150, HKSAR v Yu Pak-lun [2003] 2 

HKLRD 567; 

(3) As a general rule it was undesirable that a first sentence of immediate 

imprisonment should be very long, disproportionate to the gravity of the offence 

and imposed for reasons of general deterrence. The length of a first sentence 

was more reasonably determined by considerations of individual deterrence : R v 

Curran (1973) 57 Cr App R 945; 

(4) However, a judge in considering sentence should take into account the 

culpability of the offender and the particular circumstances of each ease. Should 

the offence be grave or prevalent, the court could, in the interests of the public, 

depart from the usual sentencing principle to achieve a deterrent effect; 

(5) The establishment in this case occupied the whole third floor of a 

building in Shanghai Street. There were six staff members of which five were 

‘taipans’ while the number of PR hostesses involved was six. It could not be 

said that the establishment was not a sophisticated one or not of a considerable 

scale; 

(6) In another Operation Flamewood case, HKSAR v Lam Sze-kei & Another 

MA 1249/2004, where another establishment was involved, the culpability of 

the offenders was similar to that in the present case and the court opined that a 

starting point of 12 months’ imprisonment was not inappropriate; 

(7) In HKSAR v Lee Tang-yau MA 602/2001, the appellant pleaded guilty to 

managing a vice establishment. In that case, there were 7 cubicles in the vice 

establishment offering the service of 8 prostitutes, all of them being illegal 

immigrants. The court opined that a starting point of 12 months’ imprisonment 

was not inappropriate; 

(8) In HKSAR v Cheung Chiu-choi MA 531/2003, two appellants were 

charged with managing a vice establishment. The vice establishment was a hut 

built of tin plate and located at the rural area of Yuen Long with 7 prostitutes 

inside. On appeal, the court opined that a starting point of 15 months’ 

imprisonment imposed by the magistrate was excessive, and the sentence was 

reduced to 12 months; 

(9) In view of the Appellant’s culpability, a starting point of 12 months taken 

by the Chief Magistrate could not be regarded as manifestly excessive at all. 

Taking the personal background of the Appellant into account, there would not 

be any appropriate or sufficient justification to replace the sentence of 

immediate custody with a suspended sentence. 


273



Stuart-Moore 

VP 

Yeung JA 

Beeson J 


*Gavin Shiu 

#Jeff Ho (1, 2 & 

3) 

Andrew Kan 

(4) 

(1) LUI 

Kwan-ki 

(2) SO 

Kwok-keung 

(3) WONG 

Kai-ho 

(4) CHAN Chipak 

Gambling Ordinance/Conspiracy to operate a gambling 

establishment/Brazen defiance of police over long period/ Levels of 

sentencing for persons assisting in operating the gambling establishment 

《賭博條例賭博條例》賭博條例 – 串謀串謀營辦賭場營辦賭場 – 長期公然地挑戰警方的權力長期公然地挑戰警方的權力 – 協 

助營辦賭場者的量刑級別 

助營辦賭場者的量刑級別 

The Applicants and six other men were charged jointly with one charge 

of conspiracy to operate a gambling establishment, contrary to s 5(a) of the 

Gambling Ordinance, Cap 148, and ss 159A and 159C of the Crimes Ordinance, 

Cap 200. 

A1, A2 and A3 pleaded guilty, while A4 was convicted after trial. A1 

was sentenced to 10 months’ imprisonment, A2 and A3 to 8 months’ 

imprisonment and A4 to 15 months’ imprisonment. 

The conspiracy related to a gambling establishment at Ap Lei Chau West 

Estate, which operated almost every day for a substantial portion of the day. It 

was an admitted fact that there were 20 incidents of gambling. Participants were 

mainly local residents. The game played was ‘Sap Sam Cheung ’. The play was 

for winning money and the operation was by way of trade or business. Bets of at 

least $100 would be called out and confirmed, and the operators took 

commission of 3% from the winning player’s winnings, which would be settled 

after each hand was played. Commission was placed in a bag which was 

emptied periodically and the next round of cards would commence immediately. 

A grocery store nearby was used to store gambling and other paraphernalia. 

Personnel from the syndicate took various roles. For every hand played 

there would be one person who shuffled and dealt cards; one who placed 

Chinese chess pieces to indicate different sizes of bets and another who was 

responsible for the commission bag and collection of the commission. Lookouts 

were posted to warn of any police approach. Other persons set out and packed 

up the furniture and gambling paraphernalia. 

The main witness was an undercover police officer (PW1), who posed as 

an ordinary resident of the estate. He gave evidence against A4, who took part 

in the 14 of the 20 activities, by placing chess pieces for punters, shuffling and 

dealing cards, handling the commission bag and money, indicating when betting 

was over, acting as lookout, and clearing up and making furniture back to the 

store. 

A1, A2 and A3 admitted their roles as noted by the undercover officer. 

A1 had taken part in the operation on 12 of the 20 occasions, and he admitted he 

had dealt cards, placed bets for punters and kept custody of the commission bag. 

As for A2, the undercover officer watched him assist the operation on at least 13 

of the 20 occasions. Under caution, A2 admitted that he had helped in the 

operation and received monetary compensation for doing so. The undercover 

officer noted that A3 had helped on 14 of the 20 occasions. 

The judge assessed the gravity of the offence by the size, complexity and 

duration of the operation. For size, he took into account the number of persons 

involved in operating, the number of gamblers on a daily basis, the different 

locations and the equipment provided. The judge found a high degree of 

planning and organization existed. He referred to the ‘culture of gambling ’ that 

existed in the Ap Lei Chau Estate. 

Although the judge considered and rejected an application under the 

Organized and Serious Crimes Ordinance, Cap 455, for enhanced sentences for 

274


two of the Applicants’ co-accused, he found nonetheless that the evidence of 

prevalence was inescapable and that illegal gambling was ‘a serious, significant 

and persistent problem in this estate’. In setting a starting point, the judge took 

account of the different culpability of each Applicant. Those who exercised 

more, or greater, management and control were sentenced more heavily. 

Accordingly, those two co-accused, who had major roles, were each sentenced 

to 18 months’ imprisonment. 

A1 had previous convictions, including 7 for unlawful gambling, and one 

for operating a gambling establishment. The judge took a starting point of 15 

months’ imprisonment, and reduced it to 10 months. 

A2’s role was similar to that of A1, but he only had 5 previous 

convictions for unlawful gambling. A starting point of 12 months’ 

imprisonment was adopted, and reduced to 8 months. 

A3 had 3 recent convictions for unlawful gambling. He was sentenced as 

an assistant, and the judge took a starting point of 12 months’ imprisonment and 

reduced it to 8 months for his guilty plea. 

A4 was convicted after trial, and he had three previous conviction for 

unlawful gambling. The judge imposed 15 months’ imprisonment. 

Held : 

On appeal 

(1) Although the judge in his Reasons for Sentence had said that HKSAR v 

Lai Pui-sang Cr App 122/2003, ‘offered substantial guidance ’ but did not lay 

down guidelines for sentencing for the offence of conspiracy to operate a 

gambling establishment, it was not clear from that judgment if there was the 

same level of organization and planning, or the same persistence as in this case, 

but the judge did agree the circumstances were similar in some respects; 

(2) It seemed that Lai Pui-sang was less serious than the present case. The 

establishment in the instant case operated very much more publicly, at any one 

of three different locations. The pavilion, which was provided for the enjoyment 

of all the inhabitants of the estate, was monopolised by the gamblers. It was 

overlooked by some of the estate flats. All three gambling areas were visible 

and accessible to passers-by. The average number of players appeared to have 

been larger; the hours longer and the staff more numerous. An exacerbating 

factor was the persistence of the operation which continued blatantly despite 

regular police raids; 

(3) This was a long-running gambling establishment; whether operated by 

one syndicate or more than one was not really material. The usual police 

attempts to stop the activities were laughed at. The operators were brazen, 

commandeering the pavilion and, when necessary, two other sites on the estate. 

The local store was used for storage. Lighting was provided so gambling could 

continue when visibility was poor, or in the evening; 

(4) The residents’ daily use and enjoyment of the estate facilities were 

disturbed. Any inconvenience to residents was ignored by the operators who, 

presumably, could frighten them into silence if any complaint was contemplated. 

Result - Applications dismissed. 

275

Classified Criminal Appeals Bulletin 2006 Part 2 - Department of ...

Create successful ePaper yourself

Delete template?

Save as template?