Sentence (Quantum) Dangerous Drugs

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1 Sentence (Quantum) Dangerous Drugs Sentence (Quantum) Dangerous Drugs HKSAR v NG KWOK FAI COURT OF FIRST INSTANCE HCMA 726/2010 Mackintosh J Date of Judgment: 8 December 2010 Counsel for the Respondent: Hermina Ng PP Counsel for the Applicant: In person Criminal sentencing Trafficking in dangerous drugs Trafficking outside a methadone clinic is to be regarded as a very grave aggravation of the offence 刑 事 罪 判 刑 - 販 運 危 險 藥 物 - 在 美 沙 酮 診 所 外 販 運 危 險 藥 物 須 視 為 該 罪 行 的 一 項 十 分 嚴 重 的 加 刑 因 素 The Appellant was alleged to have sold and delivered a small packet of heroin to an undercover police officer for $150 outside a methadone clinic. Two days later, the operation went overt. A number of persons were arrested. The undercover police officer recognized the Appellant as the man who had sold him the package of drugs. He appealed against conviction only. After dismissing the appeal against conviction, the court added a postscript concerning sentence. The Appellant s conviction was for trafficking in dangerous drugs outside the methadone clinic where addicts go to try to free themselves of their addiction. To traffick in a place such as that is a very grave aggravation of the offence of trafficking. A starting point of not less than 2½ years imprisonment would have been appropriate. It is essential that drug dealers, be they small type or not, be sentenced to proper terms of imprisonment to discourage them, particularly, where they commit such offences outside a methadone clinic [32]. HKSAR v PEI YUK KAM ( 畢 玉 錦 ) COURT OF APPEAL CACC 213/2010 Hartmann JA, Lunn & Line JJ Date of Hearing: 24 February 2011 Date of Judgment (re: conviction): 24 February 2011 Date of handing down Reasons for Judgment (re: conviction) and Judgment (re: sentence): 9 March 2011 Counsel for the Respondent: Robert KY Lee SADPP Counsel for the Applicant: Wong Hay Yiu Criminal sentencing Drug manufacturing most serious of all drug-related offences Drug manufacturing and doing an act preparatory to manufacturing a dangerous drug are viewed with similar seriousness and should attract similar sentences 刑 事 罪 判 刑 在 所 有 危 險 藥 物 相 關 罪 行 中 以 製 造 危 險 藥 物 為 最 嚴 重 製 造 危 險 藥 物 與 作 出 準 備 製 造 危 險 藥 物 的 作 為 在 嚴 重 程 度 上 兩 者 視 為 相 若 並 應 判 處 相 若 刑 罰 The Applicant was convicted of doing an act preparatory to manufacturing a dangerous drug (together with another offence) and was sentenced to 4½ years imprisonment. He appeals against both conviction and sentence for this drug offence. 127

2 Sentence (Quantum) Dangerous Drugs The police raided an apartment and at that time, it was occupied by the Applicant and the co-accused ( Wu ). Wu was seen stepping out of the apartment carrying garbage bags and when apprehended, he shouted a warning to the Applicant who was inside the apartment. The Applicant was then seen running into the toilet carrying a glass containing brown liquid with the clear intention to dispose of the glass and its contents. The liquid was subsequently found to reveal traces of paracetamol. Inside the apartment, various powders, liquids and chemicals were found. Basically, less only a couple of ingredients, the raw materials were present for the manufacture of ice. In addition, other articles were found including electronic scales, scissors, pots and bowls containing quantities or traces of chemicals used in the manufacture of ice ; a hot plate as means for heating and a freezer for cooling were found. A small quantity of ice was discovered. There was also found a recipe for one method of manufacturing ice. The judge was satisfied that the evidence proved that prior to the police raid the Applicant had done acts preparatory to the manufacture of ice. Held, leave to appeal against sentence refused: (1) As observed in HKSAR v Kan Kong Fai [2009] 3 HKLRD 582 at 586, the offence of drug manufacturing is the most serious of all drug-related offences, graver than trafficking and in all but the most exceptional cases warranting a heavier sentence. Doing or offering to do an act preparatory to or for the purposes of manufacturing a dangerous drug must be viewed with similar seriousness and should attract similar sentences. The intention of the legislature in this regard is unmistakable. Both offences were created by s 6(1) of the Dangerous Drugs Ordinance (Cap 134) and the same sentence was provided [33]-[34]. (2) Even when the scale of operation is very limited, a minimum starting point for manufacturing should be six years imprisonment [35] & [37]. Doing or offering to do a preparatory act may or may not reflect a lesser degree of moral culpability than participating in the manufacturing process. Each case will depend on its own facts [36]. (3) The judge recognized that the intended manufacturing operation put in place in the apartment was small-scale and unsophisticated. The quantity of chemicals was limited and a number of necessary chemicals were still missing. Nevertheless, on the authorities, no matter how limited and no matter how crude the intended operation, he was obliged to take as his starting point a sentence similar to the starting point of six years that would have to be applied if the Applicant had been convicted of manufacturing. Having taken all mitigating factors into account, the judge was prepared to give a discount of 25%; hence the sentence of four years and six months. The judge did not condescend to state why he had chosen that discount. But, whatever the reason, it was a substantial discount and, in the circumstances, the sentence could not be considered in any way manifestly excessive [38]-[39]. SJ v CHAN CHUN FAI ( 陳 俊 輝 ) COURT OF APPEAL CAAR 11/2010 Cheung & Yeung JJA, Chu J Date of Hearing and Judgment: 28 April 2011 Counsel for the Applicant: Wesley Wong Ag DDPP & Samantha Chiu PP Counsel for the Respondent: Oliver Davies Criminal sentencing Trafficking in dangerous drugs gms of "Ice" Defendant exported drugs from Hong Kong to Macau Where defendant intended to use drugs for self-consumption, wrong to impose sentence on basis of possession for self-use and then enhance sentence by reason of defendant exporting drugs 128

3 Sentence (Quantum) Dangerous Drugs 刑 事 罪 判 刑 - 販 運 危 險 藥 物 克 冰 - 被 告 人 將 毒 品 從 香 港 出 口 往 澳 門 - 若 毒 品 是 被 告 人 擬 供 自 用, 則 以 管 有 毒 品 供 自 用 為 基 礎 定 出 刑 罰 後 再 以 被 告 人 出 口 毒 品 為 理 由 加 刑 是 錯 誤 的 The defendant was about to travel from Hong Kong to Macau by ferry. After he passed through the Hong Kong Immigration counter, he was stopped by Customs officers and drugs were found in his shoulder bag. The defendant claimed to Customs officers that the drugs were for his own consumption. The prosecution accepted that claim. The defendant pleaded guilty in the Court of First Instance to one count of trafficking in dangerous drugs contrary to s 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The drugs were grammes of methamphetamine hydrochloride ( Ice ). The Court sentenced him to a term of 18 months imprisonment. The Secretary for Justice applied for a review of the sentence on the ground that it was wrong in principle and manifestly inadequate. Held, application for review allowed and the sentence was increased to 3 years and 6 months imprisonment. (1) The sentencing judge approached the matter by first considering what the sentence would be for possession of the drugs, and then increasing that sentence for the aggravating element of exportation which created the offence of trafficking. This approach was incorrect as a matter principle. The defendant had committed and pleaded guilty to the offence of trafficking. It was not in any sense a technical offence. He was bringing the drugs from Hong Kong to Macau and this constituted exporting the drugs within the meaning of s 2 of Cap 134, namely, to take or cause to be taken out of Hong Kong or any other country, as the case may be, by land, air or water [4]-[5]. (2) The sentencing judge, in a situation such as this, must proceed on the basis that the defendant is charged with the more serious offence of trafficking and not simple possession. Self consumption of the drugs is only a matter that goes towards mitigation and does not by itself change the nature of the offence [7]. (3) Trafficking in grammes of Ice attracts a sentence of at least 7 years imprisonment under the guideline set out in Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, whereas a sentence of 18 months imprisonment is the customary sentence for possession of the drugs for self use. Since the defendant has committed the offence of trafficking, it is wrong to sentence him on the basis of possession for self use and then enhance the sentence by reason of the fact that he was exporting the drugs [9]-[10]. (4) In the present case, the correct and workable approach would be to adjust the starting point downwards by 25% for personal consumption. This being the case it is not necessary to address the issue of latent risk because, looking at the matter in the proper perspective, the defendant is sentenced on the basis of trafficking with the strong mitigating factor that the drugs were intended for his own consumption. Bearing in mind that the defendant pleaded guilty and that the drugs were wholly for his self consumption, the appropriate sentence should be 3 years and 6 months imprisonment [15]-[16]. HKSAR v MINNEY, JOHN EDWIN COURT OF APPEAL CACC 383/2010 Stock VP, Fok JA & Line J Date of Hearing and Judgment: 6 April 2011 Date of Handing Down Reasons for Judgment: 16 June 2011 Counsel for the Respondent: Kevin P Zervos SC DPP & Wong Sze-lai Lily SPP Counsel for the Applicant: Philip Dykes SC and Giles Surman Criminal sentencing Possession of dangerous drugs Whether the latent risk sentencing principle is unconstitutional 刑 事 罪 判 刑 - 管 有 危 險 藥 物 - 潛 在 風 險 判 刑 原 則 是 否 違 憲 129

4 Sentence (Quantum) Dangerous Drugs The Applicant was convicted in the District Court upon his own pleas of 2 offences of possession of dangerous drugs. On the day in question, a party of police officers entered a bar at Lamma Island and demanded to search the Applicant therein. The Applicant took out 2 plastic bags containing a total of 0.85g of cocaine from his trousers pocket and threw them to the floor. Under caution, the Applicant said that they were for his own consumption (Charge 1). Thereafter, the Applicant was taken to his residence. Upon search, a total of 1.05g of cannabis resin and 5.63g of cocaine were seized. Under caution, the Applicant admitted that the cannabis resin and cocaine seized from his residence were for his own consumption (Charge 2). In sentencing, the Judge adopted a starting point of 6 months imprisonment for Charge 1 and 12 months for Charge 2. He then considered the latent risk factor and increased the starting points by 3 months to 9 months and 15 months imprisonment respectively. Taking into account mitigation and the pleas, the Judge imposed concurrent sentences of 6 months and 10 months respectively. On appeal, the Applicant accepted that, without the enhanced element, the prison sentences for the two offences would not be susceptible to challenge. However, he sought to appeal against the uplift of 3 months on each sentence referable to the latent risk sentencing principle. The basis of the Applicant s challenge was that the latent risk sentencing principle was unconstitutional since it imputed to a person convicted of a possession offence an unproven predilection or propensity to commit the more serious offence of trafficking. This contravened the presumption of innocence protected in Article 87 of the Basic Law and Article 11(1) of the Hong Kong Bill of Rights Ordinance, Cap 383. Held, application for leave dismissed: (1) There can be no objection to a sentencing court taking into account the relevant circumstances of the case in determining whether the possession of the drugs leading to the conviction are such as to give rise to a real risk that some of those drugs might end up being redistributed and finding their way into the hands of others apart from the offender s. That is not to say that the court then attributes to the defendant an intention to traffic in the drugs but that simply reflects the fact that the quantity and circumstances of their possession are such as to pose a risk to society [28]. (2) What the established risk will be is something that will vary from case to case and it is not possible to predict all circumstances. They will include leaving drugs in a place, for example a shared flat, where others have access to them; taking, as in the present case, a number of packets to a pub where friends may prevail upon the possessor to share what he has; and buying in such a quantity as to create a temptation to sell in order to fund the next purchase. It is the real risk of dissemination of drugs which the courts are looking to deter by this sentencing policy and there is nothing objectionable or contrary to policy or to the presumption of innocence in a sentencing policy that seeks to protect the public against a real risk to which the circumstances of an offence give rise. It is not a question of punishing a person for a crime he has not committed. It is not a question of punishing him for a crime he may commit. It is a question of punishing him for the crime which he has committed taking into account the circumstances of its commission and the dangers to society which those circumstances create [29]. (3) It is the risk to society of the drugs being redistributed and finding their way into other hands apart from the offender s. The risk will be determined from all the circumstances in any particular case, including of course the quantity of drugs possessed and the personal circumstances of the offender (HKSAR v Wan Sheungsum [2000] 1 HKLRD 405 applied) [30]. (4) If a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn counsel for the accused, to enable the accused to challenge the issue, if necessary by the giving of evidence; and a judge is not to sentence for unproved trafficking, namely an unproved actual intention to traffic [31]. (5) The degree of enhancement for the risk factor must bend to the circumstances of each case and the existence of the risk factor and the degree of risk is not a matter of mathematics upon which the court can provide a tariff [32]. 130

5 Sentence (Quantum) Dangerous Drugs (6) Consideration of the possession of a quantity of dangerous drugs will involve consideration of the risk of some of those drugs finding their way into circulation, although a greater quantity in one man s hands may reflect less risk than a smaller quantity in the hands of another. Consideration of the risk in question does not amount to a finding that the Applicant had the necessary intention to make him guilty of trafficking in the dangerous drugs. If it did, it would be impermissible [33]. (7) There is a distinction to be made between sentencing on the basis that trafficking was the intent or purpose of the defendant s possession of the drugs and sentencing on the basis that his possession in the circumstances produced a risk of those drugs finding their way into the hands of others. The former would not be permissible, but the latter is. Sentencing rightly enjoys the flexibility to meet the differing degrees of potential abuse to which the possession may give rise, whether it be for mitigation or aggravation [37]. (8) In the present case, the sentencing Judge did not assume a present intention on the part of the Applicant to traffic in the drugs in question; and the view that he reached that there was "a risk some of the cocaine may fall into the hands of others" was reasonable. No imputation or attribution of an intention to traffic on the part of the Applicant was involved in his reasoning [41]. Driving under Influence of Drugs SJ v CHAN HON HOI ( 陳 瀚 海 ) COURT OF APPEAL CAAR 8/2010 Yeung & Yuen JJA, Lunn J Date of Judgment: 22 December 2010 Counsel for the Applicant: Alex Lee SADPP & Jasmine Ching SPP Counsel for the Respondent: Victor Ho Criminal sentencing Driving motor vehicle under influence of drugs Inhaling dangerous drugs on two occasions Defendant taxi driver consumed ketamine before starting to drive Second occasion occurred whilst defendant on bail in respect of first occasion Defendant's conduct indicated deliberate and blatant disregard for public safety Drug-driving problem increasingly prevalent Whether total sentence of 18 months' imprisonment and two-year disqualification manifestly inadequate 刑 事 罪 判 刑 - 在 藥 物 影 響 下 駕 駛 汽 車 - 兩 次 吸 服 危 險 藥 物 - 被 告 人 是 的 士 司 機 - 在 開 始 駕 駛 前 服 用 氯 胺 酮 - 被 告 人 在 第 一 次 的 保 釋 期 間 犯 第 二 次 - 被 告 人 的 行 為 顯 示 蓄 意 並 公 然 罔 顧 公 眾 安 全 - 藥 物 駕 駛 的 問 題 愈 趨 普 遍 - 總 共 監 禁 1 8 個 月 及 取 消 駕 駛 資 格 2 年 是 否 明 顯 不 足 The Respondent, a 30-year-old taxi driver, was charged with two counts of driving a motor vehicle under the influence of drugs (ketamine) and two corresponding charges of inhaling a dangerous drug. The second incident happened while he was on bail for the first incident. The Respondent pleaded guilty to all four charges in the District Court. For the 1 st and 2 nd charges, the judge adopted starting points of 12 months and 15 months respectively, and for the 3 rd and 4 th charges, a starting point of 6 months. The judge reduced the starting points by one-third on account of the guilty pleas to 8 months, 10 months and 4 months respectively. After considering the principle of totality, the judge imposed an overall sentence of 18 months imprisonment and a disqualification period of 2 years. He was also ordered to take a driving improvement course. Held, application for review of sentence allowed; total sentence was increased to 30 months imprisonment and the disqualification period to 3 years. 131

6 Sentence (Quantum) Driving under Influence of Drugs (5) Vehicles, in the hands of irresponsible drivers, can be lethal weapons as demonstrated by the catastrophic consequences of serious traffic accidents. Driving is a very complex skill determined by changes in physical, emotional and mental conditions all of which can be impaired by the use of drugs. In many ways, driving under the influence of drugs can be more serious than dangerous driving. When someone sets out to drive whilst under the influence of drugs, he must be aware, at the outset, of the risk associated with his driving. It can be a deliberate anti-social and dangerous act, and not just a spontaneous irrational one. Drivers who knowingly drive a car whilst under the influence of drugs must expect a heavy sentence [23]-[27], (6) This is a very bad case of the type. It was not a case of unwittingly consuming drugs. The respondent was not under the influence of prescription or non-prescription over-the-counter medications, or herbal drugs that the effect of which might not be fully and readily appreciated. The respondent took ketamine before he started driving. As revealed from his criminal record, the respondent was a drug abuser and he must be aware of the effect of ketamine, yet he decided to drive a taxi after consuming it and when he was still under its influence, not once, but twice, and on the second occasion whilst he was on bail in respect of the first one [28]-[29], (7) From the nature of the accidents and the respondent s post-accident behaviours on both occasions, the respondent must have been so overwhelmed by the effect of the ketamine he took that he could not properly drive a taxi on a busy road in Hong Kong. Driving under the influence of drugs is an issue of growing concern world-wide [30]-[33]. (8) Bearing in mind that this is a sentence review and there has not been previous warning that the court will take a serious view of the offence of driving under the influence of drugs, the appropriate starting points for the 1 st and 2 nd charges of driving under the influence of drugs are 2 years and 2½ years respectively. On account of the pleas of guilty, the court ordered a total sentence of 30 months imprisonment. The main purpose of disqualification is forward looking and preventive. The court ordered a concurrent disqualification period of 3 years on the 1 st and 2 nd charges, and further ordered that he shall not drive after the disqualification period until he passes a test of competence to drive. In view of the re-test requirement, the order requiring him to take a driving improvement course was set aside [35]-[40]. Failure to Provide Breath Specimen SJ v AMINA MARIAM BOKHARY COURT OF APPEAL CAAR 10/2010 Tang ACJHC, Stock VP, Yeung JA Date of Hearing and Judgment: 11 January 2011 Date of handing down Reasons for Judgment: 11 March 2011 Counsel for the Applicant: Kevin Zervos SC DDPP & Hermina Ng PP Counsel for the Respondent: Peter Duncan SC Criminal sentencing Failure to provide a specimen of breath (s 39B(2) and (6), Road Traffic Ordinance (Cap 374)) Whether the sentences of a fine of $5,000, a disqualification order for 12 months and the attendance of a driving improvement course manifestly inadequate and/or wrong in principle Noncustodial sentence normally imposed on a first time offender where no one injured and no evidence of serious impairment due to intoxication Custodial sentence falls within permissible range where there is evidence of serious impairment resulting from intoxication Criminal sentencing No one is accorded favour because of wealth or connections No extra punishment to defendant from privileged background simply to make sure it cannot possibly be said that such a person is being favoured 132

7 Sentence (Quantum) Failure to Provide Breath Specimen 刑 事 罪 判 刑 沒 有 提 供 呼 氣 樣 本 ( 香 港 法 例 第 章 道 路 交 通 條 例 第 3 9 B ( 2 ) 及 ( 6 ) 條 ) 罰 款 5, 元 取 消 駕 駛 資 格 1 2 個 月 及 修 習 駕 駛 改 進 課 程 的 判 刑 是 否 明 顯 不 足 及 / 或 原 則 上 錯 誤 如 無 人 受 傷 亦 無 證 據 顯 示 因 神 智 不 清 而 嚴 重 損 害 能 力, 則 初 犯 者 通 常 被 判 處 非 監 禁 刑 罰 如 有 證 據 顯 示 神 智 不 清 引 致 嚴 重 能 力 受 損, 則 監 禁 刑 罰 屬 可 容 許 的 範 疇 之 內 刑 事 罪 判 刑 無 人 因 財 富 或 關 係 可 獲 得 優 待 不 會 純 粹 為 確 保 免 被 指 責 優 待 來 自 有 特 權 背 景 的 被 告 人 而 對 該 人 施 加 額 外 懲 罰 The Respondent s car swerved onto the opposite lane and collided head-on with a coach travelling in the opposite direction. When police officers later arrived at the scene, the Respondent was requested to undergo a Screening Breath Test ( SBT ) for she smelt of alcohol. She became emotional and attempted to leave the scene. When she was stopped from doing so by a police officer, she slapped him once on his left cheek with her right hand. The Respondent was arrested and taken back to the police station. Despite repeated explanations and warnings, she refused to take a SBT. The Respondent was charged with and pleaded guilty to 3 offences, namely careless driving, assaulting a police officer acting in due execution of his duty and failure to provide a specimen of breath. For the last charge, she was fined $5,000, disqualified from driving for 12 months and ordered to attend a driving improvement course. The Secretary for Justice applied to review this particular sentence. Held, application for review allowed to the extent that the disqualification period is extended: (1) Offences under ss 39, 39A and 39B(6) of Road Traffic Ordinance are serious offences for which a person could be prosecuted on indictment or summarily. In deciding which way to proceed, the prosecution would take into account, inter alia, the degree of intoxication and the consequence of the offence [15]. (2) The sentence for failing to provide a specimen of breath can and should, in most cases, be more severe than drink driving in order to discourage drivers, who had been drinking heavily, from refusing to supply specimens for testing. The circumstance of each individual case must be examined to determine the proper penalty [52]. (3) It was however possible that the Respondent had swerved not because she was unable to control her car, but because she improperly had tried to take a short cut. One could not infer from the fact that the accident occurred on the wrong side of the road that the Respondent was unable to control her car due to intoxication [29]. (4) The Magistrates Court Sentencing Guidelines published by the Sentencing Guidelines Council in England have no application in Hong Kong and the English legislative provisions are different [16]-[17]. But the said guidelines in terms of the particular sentences suggested are useful in highlighting the different levels of criminality [41]. (5) In the absence of previous decisions or statistics to that effect, it cannot be said that the norm for failure to provide a specimen of breath was an immediate custodial sentence [27], [41] & [52]. It is indeed the case that a non-custodial sentence would normally be imposed on a first time offender where no one was injured and where there is no evidence of serious impairment due to intoxication [27]. Where there is evidence of serious impairment as a result of intoxication a custodial sentence on a first time offender would fall within a permissible range of sentences. If that person has been involved in an accident resulting in serious injuries, there is no reason why if he/she is prosecuted on indictment, a substantial custodial sentence should not be imposed [17]. If the deliberate refusal or failure to provide a specimen of breath was prompted by a desire to avoid the consequence of a serious traffic accident due to the effect of heavy drinking, the proper sentence could well be an immediate imprisonment even for a first offender [53]. (6) In the present case, however, (1) the offender had not previously committed any traffic offences; (2) though there can be no question but that she had been drinking, the uncontradicted evidence was that the offender suffered at the time of the offence from a significant mental ailment and the evidence did not in this special context establish that there was, as a result of drink, serious impairment; (3) the offender was, at the date of the hearing of the review before the magistrate, serving a term of imprisonment for allied conduct on the same 133

8 Sentence (Quantum) Failure to Provide Breath Specimen occasion [43] and (4) there being no injury to anyone except to the Respondent herself [53]. Absent any statistics suggesting that a custodial sentence was a norm for a first offence with such factors at play, it could hardly be said that the failure to impose a term of imprisonment was outside the range of sentence permissible to a sentencing court [44]. (7) The disqualification for a period of 12 months is unduly lenient. For the sake of the community (the protection of members of the public) and the Respondent s own sake (given her drinking problem aggravated by bipolar depression), the Respondent should be disqualified for a much more substantial period, namely 3 years [35], [36], [39] & [56]. (8) The Road Traffic Amendment Ordinance 2010 is not applicable to the present case (as they came into effect after the offence), but no doubt the amendments show the Legislature s increasingly strong view against drink driving and connected offences [12]-[14]. (9) The fact that the Respondent had assaulted a police officer in the course of his duties is of course a very serious matter. Police officers, in the proper execution of their duties, are symbols of law and order and must be respected and protected from abuse. If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised. However, the Respondent had already been separately dealt with in this regard by way of a separate charge [54]-[55]. It would not be right to punish her again [31]. (10) All judicial officers have taken an oath to administer the law without fear, favour, affection or ill will [50]. The Respondent comes from a highly respected and affluent family and she is also well-educated. These are certainly not reasons to treat her leniently. The doctrine of equality before the law mandates the court to treat all persons, regardless of wealth, social status, or the political power wielded by them or their families, the same. No individual or group is entitled to special legal privileges [50]-[51]. It is a central tenet of our system of justice that no one is accorded favour because of wealth or connections. A good background is not dictated by wealth or connection and the vast majority of young people in Hong Kong come from caring families. By reason of the same principles of levelheadedness and fairness which must drive judicial decision-making, the courts do not visit extra punishment upon, or brush aside true mitigating factors in respect of, a defendant who happens to be from a privileged background simply to make sure that it cannot possibly be said that such a person is being favoured [46]-[47]. False Imprisonment SJ v YIU MAN CHUN ( 姚 文 俊 ) COURT OF APPEAL CAAR 14/2010 Stock VP, Fok JA, McMahon J Date of Hearing and Judgment: 4 April 2011 Counsel for the Applicant: Martin Hui SPP Counsel for the Respondent: Walter Lau Criminal sentencing False imprisonment Wounding Entrapping former girlfriend in apartment for 9 hours and wounding her neck and chin with a cutter Aggravating features Repeated offender Adverse psychological impact on victim Appropriate sentence before mitigation should be 4½ years Sentencing Artificiality in separating the two offences in this case Agreed facts in respect of previous convictions for offences of wounding the same victim should have been placed before sentencing judge in this case 134

9 Sentence (Quantum) False Imprisonment 刑 事 罪 判 刑 - 非 法 禁 錮 - 傷 人 - 在 寓 所 禁 錮 前 女 友 9 小 時 並 以 刀 傷 其 頸 部 及 下 巴 - 加 重 刑 罰 因 素 - 屢 犯 者 - 對 受 害 人 有 不 良 心 理 影 響 - 求 情 前 的 恰 當 刑 罰 應 是 4½ 年 監 禁 判 刑 - 矯 作 地 分 開 案 中 兩 項 罪 行 - 應 將 與 以 往 同 一 受 害 人 的 傷 人 案 定 罪 有 關 的 同 意 事 實 呈 交 本 案 判 刑 法 官 考 慮 The Respondent (D) was convicted in the District Court upon his own pleas of false imprisonment and wounding. He was sentenced to 12 months imprisonment in respect of each offence, and 6 months of the second sentence were ordered to be served consecutively, making a total of 18 months imprisonment. D and the victim were former lovers. On the night in question, D visited the victim s flat and, whilst being there, he had an argument over the phone with his sister. The victim became frightened and wanted to leave. D prevented her from doing so and, in shutting the gate, he injured her hand. The victim later made a report to the police by telephone. Upon the police s arrival, D refused to let them in and blocked the entrance to the flat with a wooden table. He took out a hammer to hit the table and his own hand. He then took a cutter, grabbed the victim s neck and pressed the cutter against her neck and chin, causing her superficial cut wounds on those areas. After the victim had promised not to inform the police about her injuries and upon negotiation, D surrendered the hammer and the cutter and allowed the police to enter the apartment. The victim had by then been detained against her will for some 9 hours. She suffered from tenderness and cut wounds on the neck with no likely permanent scarring and bruising on her right hand. About 11 months prior to the present offences, D had treated the victim with violence on another occasion for which he was subsequently sentenced, on two charges of wounding, to a total of 12 months imprisonment. He was released from prison 3 months before the present offences. Before sentencing D, the judge called for a victim impact report which showed that the victim was suffering from post-traumatic stress disorder and fairly severe adverse psychological impact. The judge also called for a psychological report on D which described him as someone who demonstrated limited remorse and victim empathy and tended to minimise his wrongdoings. D s risk of violent recidivism was estimated to be relatively high and there was a need for psychological intervention. The Secretary for Justice applied for a review of sentence pursuant to s 81A of the Criminal Procedure Ordinance. It was contended that the judge had failed sufficiently to reflect a number of aggravating features in this case and the sentences imposed were, in the overall impact, manifestly inadequate. Held, application for review granted, sentence imposed for the false imprisonment charge set aside and a sentence of 2 years and 9 months imprisonment substituted, to run concurrently with the 12-month sentence for the wounding charge which remained undisturbed: (1) There is some artificiality in this case in sentencing D for two offences trying, somehow, to divorce the false imprisonment from the wounding and treating them as distinct. Had there been a charge of false imprisonment alone, it would have been perfectly permissible for the sentencing judge to take into account all the facts embraced by the act of false imprisonment, including the act of holding a cutter to the victim s face and the fact that a wound was occasioned. In this case, it is artificial to split the two criminal acts as if one had nothing to do with the other. They were closely interwoven [31]. (2) The appropriate sentence for an act of keeping someone for several hours in his or her own flat as a result of a domestic dispute will vary enormously according to the history and all the surrounding circumstances. The wielding of weapons, namely the hammer and cutter, is a serious aggravating feature. To hold a cutter to someone s throat is particularly aggravating because it is both terrifying to the victim and a highly dangerous act in itself. The appropriate starting point for the offence of false imprisonment with all its surrounding circumstances, before the aggravating feature of the prior incident, is a sentence of 3½ years imprisonment [33]- [34]. (3) The previous offences of wounding in 2009 and the fact that the current offences occurred within months of D s discharge from prison show an entire lack of remorse and constitute particularly serious aggravating features. The fact that this was a replay of the 2009 offences illustrates that the sentence imposed on 135

10 Sentence (Quantum) False Imprisonment the previous occasion failed to deter D and that a sentence needs to be imposed that would have a greater chance of deterrence and which, at the same time, is designed to protect potential victims from D s proclivity to violence [35]-[36]. (4) Furthermore, the fact that this was the second occasion upon which the victim had been subjected to serious violence at D s hands significantly aggravated the trauma visited upon her. Taking into account this serious aggravating feature, an appropriate sentence before mitigation would have been 4½ years imprisonment. By virtue of the guilty plea, the appropriate sentence for the offence of false imprisonment would be one of 3 years imprisonment [37]-[38]. As it was a review, the Court of Appeal substituted a sentence of 2 years and 9 months imprisonment in relation to the false imprisonment offence. (5) The facts agreed in 2009 in respect of the previous offences of wounding should have been placed before the sentencing judge by the prosecutor. It is extraordinary that it was not done [35]. Immigration HKSAR v ZHONG MING JING ( 鍾 明 青 ) COURT OF APPEAL CACC 180/2010 Stock VP, Lunn J Date of Judgment: 5 November 2010 Counsel for the Respondent: Noelle Chit PP Counsel for the Applicant: Robert Andrews Criminal sentencing Assisting passage to Hong Kong of unauthorized entrants Endangering safety of others at sea Being person in charge of sampan, failing to stop as required by light signal displayed by police vessel Applicant coxswain of motorized sampan which carried 8 unauthorized entrants Sampan not equipped with fire-fighting or life-saving equipment Whilst being pursued by police vessel, Applicant manoeuvred sampan into path of police vessel 刑 事 罪 判 刑 - 協 助 未 獲 授 權 進 境 者 前 來 香 港 的 旅 程 - 在 海 上 危 及 他 人 的 安 全 - 身 為 掌 管 在 航 舢 舨 的 人, 沒 有 按 水 警 小 艇 展 示 燈 號 的 要 求 停 船 - 申 請 人 是 載 有 8 名 未 獲 授 權 進 境 者 的 機 動 舢 舨 的 船 長 - 舢 舨 沒 有 裝 設 滅 火 器 具 或 救 生 裝 置 - 被 水 警 小 艇 追 逐 時, 申 請 人 將 舢 舨 駛 入 水 警 小 艇 的 航 道 The Applicant pleaded guilty to 3 charges, namely, assisting the passage to Hong Kong of unauthorized entrants (charge 1), endangering the safety of others at sea (charge 2) and being the person in charge of the sampan, failing to stop as required by light signal displayed by police vessel (charge 3). The sentencing judge imposed a total sentence of 5 years imprisonment. The Applicant applied for leave to appeal against sentence. In relation to charge 1, the Applicant was the person in charge of the sampan. It was carrying 8 unauthorized entrants with no safety equipment, such as life-saving devices, and no fire-fighting equipment. Charge 2 alleged that the Applicant steered the sampan in a dangerous manner when being pursued by the police vessel. In particular, on many occasions, the Applicant deliberately altered the course of the sampan to put it directly in the path of the police vessel thereby causing the police vessel to alter course and decelerate sharply. The pursuit lasted only 4 minutes due to the failure of the engine of the sampan and not to any conduct of the Applicant. At that time, the sea state was slight and the wind was light. Held, leave granted and appeal allowed: 136

11 Sentence (Quantum) Immigration (1) In relation to charge 1, previous authorities indicated that a starting point of 5 years imprisonment would be appropriate in the circumstances of the present case where the Applicant was the person in charge of the sampan, that it was carrying no less than 8 unauthorized entrants and it carried no appropriate safety equipment [15]. Accordingly, the starting point of 6 years adopted by the sentencing judge was reduced to 5 years. (2) Henceforth, the courts should regard the absence of life-saving equipment and fire-fighting equipment as aggravating factors [20]. (3) For charge 2, the most important aggravating feature in the commission of the offence was the manner in which the sampan was steered by the Applicant during its flight from the pursuing police vessel. 18 months imprisonment was an appropriate starting point for this offence [24] & [26]. (4) The sentence of four years imprisonment imposed in respect of charge 1 was quashed and substituted by a sentence of 3 years and 4 months imprisonment. The 12 months sentence for charge 2 to be served concurrently with the 2 months sentence for charge 3 was ordered to run consecutively with the sentence for charge 1, making a total reduced sentence of 4 years and 4 months [32]. 香 港 特 別 行 政 區 訴 阮 成 坤 高 等 法 院 原 訟 法 庭 HCMA 959/2010 原 訟 法 庭 法 官 潘 敏 琦 聆 訊 及 判 案 日 期 : 2011 年 4 月 14 日 答 辯 人 代 表 律 師 : 署 理 高 級 檢 控 官 吳 穎 軒 上 訴 人 代 表 律 師 : 何 子 青 刑 事 罪 判 刑 - 刑 期 同 期 / 分 期 執 行 - 在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港 罪 ( 入 境 條 例 第 38(1)(b) 條 ) 及 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪 ( 入 境 條 例 第 42(2)(c)(ii) 及 42(4) 條 ) 上 訴 人 承 認 控 罪 (1) 在 非 法 入 境 後 未 得 處 長 授 權 而 留 在 香 港 罪, 違 反 入 境 條 例 第 38(1)(b) 條, 及 控 罪 (2) 管 有 意 圖 為 入 境 條 例 的 目 的 而 使 用 的 虛 假 的 文 件 罪, 違 反 入 境 條 例 第 42(2)(c)(ii) 及 42(4) 條, 分 別 被 判 監 禁 18 個 月 及 10 個 月, 弟 二 項 判 刑 當 中 8 個 月 分 期 執 行, 即 總 刑 期 為 26 個 月 監 禁 上 訴 人 就 判 刑 提 出 上 訴 案 情 指 上 訴 人 被 警 員 截 查 期 間, 向 警 員 聲 稱 他 是 一 名 中 國 內 地 的 船 員 及 出 示 一 本 中 華 人 民 共 和 國 海 員 護 照 給 警 員 查 閱, 調 查 發 現 該 海 員 護 照 内 所 附 貼 的 抵 港 船 隻 船 員 名 單 是 虛 假 的 上 訴 人 承 認 偷 渡 來 港, 他 聲 稱 來 港 的 目 的 是 為 找 尋 工 作 裁 決, 上 訴 得 直, 總 刑 期 減 為 21 個 月 : (1) 上 訴 人 向 警 員 展 示 虛 假 的 船 員 名 單 之 作 為 屬 他 在 非 法 入 境 後 所 干 犯 的 另 一 控 罪 有 關 的 虛 假 船 員 名 單, 縱 使 最 終 無 助 上 訴 人 在 港 找 尋 工 作, 最 低 限 度 亦 有 助 他 在 非 法 進 入 香 港 之 後 繼 續 留 在 香 港 [11] 部 份 刑 期 分 期 執 行 的 量 刑 原 則 乃 香 港 特 別 行 政 區 訴 李 長 利 一 案 HCMA 935/2004 後 的 大 勢 所 趨, 亦 比 較 合 理 [13] (2) 不 過, 上 訴 人 向 警 員 出 示 的 是 虛 假 的 抵 港 船 隻 船 員 名 單, 他 被 控 的 控 罪 是 管 有 此 虛 假 文 件, 本 案 並 沒 有 證 供 顯 示, 他 出 示 給 警 員 查 閱 的 中 華 人 民 共 和 國 海 員 護 照 是 虚 假 或 偽 造 的 雖 然 上 訴 人 承 認 來 港 是 找 尋 工 作, 事 實 上, 他 向 警 員 出 示 的 虛 假 名 單, 根 本 無 助 於 他 找 尋 工 作, 不 能 與 虚 假 或 偽 造 身 份 證 相 提 並 論 [14] 137

12 Sentence (Quantum) Immigration (3) 法 庭 不 會 干 預 兩 項 控 罪 的 個 别 刑 期, 但 認 為 控 罪 (2) 刑 期 中 的 3 個 月 刑 期 分 期 執 行 較 適 合 反 映 本 案 案 情 的 嚴 重 性, 因 此 如 述 改 判 總 刑 期 減 為 21 個 月 [15] [English Translation of HCMA 959/2010] HKSAR v RUAN CHENG KUN COURT OF FIRST INSTANCE HCMA 959/2010 M. POON J Date of Hearing and Judgment: 14 April 2011 Counsel for the Respondent: Hermina Ng Ag SPP Counsel for the Appellant: Jane Ho Criminal Sentencing Concurrent/consecutive sentences Remaining in Hong Kong without the authority of the Director after having landed unlawfully (s 38(1)(b) of Immigration Ordinance) and possession of false document intended for use for the purposes of Immigration Ordinance (ss 42(2)(c)(ii) and 42(4) of Immigration Ordinance) The Appellant pleaded guilty to charge (1) of remaining in Hong Kong without the authority of the Director after having landed unlawfully, contrary to s 38(1)(b) of the Immigration Ordinance and charge (2) of possession of a false document intended for use for the purposes of the Immigration Ordinance, contrary to ss 42(2)(c)(ii) and 42(4) of the same Ordinance. He was sentenced to 18 months imprisonment and 10 months imprisonment respectively and 8 months of the second sentence were ordered to run consecutively, making a total of 26 months imprisonment. The Appellant appealed against sentence. The facts were that when the Appellant was intercepted by a police officer, he claimed to be a sailor from the Mainland China and produced a PRC Seafarer s Passport for inspection. Investigation revealed that the Particulars of Members of the Crew of a Ship Arriving HKSAR ( Particulars of Crew Members ) attached to the said Seafarer s Passport was false. The Appellant admitted that he had sneaked into Hong Kong and claimed that his purpose of coming to Hong Kong was to seek employment. Held, appeal allowed, the total sentence reduced to 21 months: (1) The Appellant s act of producing to a police officer a false Particulars of Crew Member was a separate offence committed by him after his unlawful entry. Even though the false Particulars of Crew Members could not eventually help the Appellant in finding a job in Hong Kong, at least it helped him to remain in Hong Kong after he had unlawfully entered Hong Kong [11]. The sentencing trend after HKSAR v Li Chang Li HCMA 935/2004 is that part of the sentences should run consecutively and this is also more reasonable [13]. (2) However, what the Appellant produced to the police officer was a false Particulars of Crew Members, and he was charged with possession of this false document. In the present case, there was no evidence to show that the PRC Seafarer s Passport produced by the Appellant to the police officer was false or forged. Although the Appellant admitted that he came to Hong Kong to seek employment, in fact, the false Particulars of Crew Members would not take him any further in finding employment. It could not be compared with a false or forged identity card [14]. (3) The court would not interfere with the individual sentence imposed for each of the two offences. However, it would be more appropriate for 3 months of charge (2) to run consecutively to reflect the seriousness of this case. Therefore, the sentence was so varied and the total sentence was thus reduced to 21 months [15]. 138

13 Sentence (Quantum) Indecent Assault Indecent Assault HKSAR v LI KA MAN ( 李 家 文 ) COURT OF FIRST INSTANCE HCMA 824/2010 Bokhary J Date of Judgment: 2 February 2011 Counsel for the Respondent: Winston Chan SPP Counsel for the Appellant: Gerard McCoy SC & Nisha Mohamed Criminal sentencing Indecent assault Touching the complainant s buttocks Being playful not necessarily renders the touch less than highly offensive 刑 事 罪 判 刑 - 猥 褻 侵 犯 - 觸 摸 投 訴 人 的 臀 部 - 即 使 是 嬉 戲 式 觸 摸 未 必 絶 不 令 人 高 度 反 感 On the night of 8 October 2009 at the nightclub of the Club House at the Lai Chi Kok Reception Centre, the Appellant, a Correctional Services Officer, indecently assaulted the complainant, who was working there as a waitress, by intentionally touching her buttocks. The Appellant was charged and later convicted in the Magistrates Courts on a charge of indecent assault and sentenced to two weeks imprisonment. Held, appeal against sentence dismissed: (1) The touch may have been as fleeting and playful as contended on the Appellant s behalf. But the whole incident lasted quite a long time. A touching being playful does not necessarily render it less than highly offensive. As to the contention that the touch was to a non-intimate area of the body, it is not anything less than highly offensive to touch a woman on her buttocks even though there are parts of her anatomy where touching her would be even more offensive [15]. Money Laundering 律 政 司 司 長 訴 雲 國 強 上 訴 法 庭 CAAR 13/2010 上 訴 法 庭 法 官 張 澤 祐 楊 振 權 及 袁 家 寧 聆 訊 日 期 : 2011 年 5 月 13 日 判 決 日 期 : 2011 年 5 月 13 日 申 請 人 代 表 律 師 : 署 理 副 刑 事 檢 控 專 員 黃 惠 沖 及 署 理 高 級 檢 控 官 吳 穎 軒 答 辯 人 代 表 律 師 : 范 信 恩 刑 期 覆 核 洗 黑 錢 罪 加 重 罪 責 因 素 答 辯 人 在 區 域 法 院 承 認 一 項 洗 黑 錢 罪 及 一 項 收 受 賭 注 罪 原 審 法 官 分 別 以 21 個 月 及 3 個 月 為 量 刑 基 準, 並 以 答 辯 人 認 罪 而 將 刑 期 扣 減 三 份 一 兩 項 控 罪 的 刑 期 同 期 執 行, 故 答 辯 人 需 服 的 總 刑 期 為 14 個 月 [8] 139

14 Sentence (Quantum) Money Laundering 申 請 人 基 於 以 下 加 重 罪 責 因 素, 提 出 覆 核 刑 期 申 請 :( 一 ) 洗 黑 錢 的 行 為 維 持 長 達 7 年 ;( 二 ) 洗 黑 錢 的 金 額 達 1,400 多 萬 元 ; 及 ( 三 ) 答 辯 人 有 直 接 參 與 和 黑 錢 有 關 的 罪 行 [11] 裁 決, 批 准 覆 核 刑 期 申 請 : (1) 洗 黑 錢 是 嚴 重 罪 行, 原 因 是 洗 黑 錢 不 但 間 接 地 鼓 勵 犯 罪 活 動, 更 試 圖 把 犯 罪 得 益 合 法 化 為 了 打 擊 嚴 重 罪 行, 避 免 犯 案 者 獲 得 經 濟 利 益, 阻 嚇 洗 黑 錢 罪 行 是 必 需 的 ( 見 香 港 特 別 行 政 區 訴 Javid Kamran CACC 400/2004 (unreported) 香 港 特 別 行 政 區 訴 Xu Xia Li 及 另 一 人 [2004] 4 HKC 16 等 案 )[12] (2) 一 般 而 言 洗 黑 錢 罪 行 的 判 刑 應 主 要 反 映 清 洗 黑 錢 的 數 額, 而 非 被 告 人 或 其 他 人 的 得 益 原 因 是 要 證 明 有 關 得 益, 非 常 困 難 而 在 大 多 數 洗 黑 錢 案 件 亦 可 能 沒 有 證 據 顯 示 黑 錢 究 竟 是 從 甚 麼 公 訴 罪 行 所 生 的 當 然 如 有 資 料 證 明 黑 錢 源 自 嚴 重 罪 行, 包 括 販 毒 擄 人 勒 索 非 法 販 賣 人 口 和 其 他 有 組 織 罪 行 等 或 被 告 人 的 得 益 極 大, 則 判 刑 理 應 上 調 [13] (3) 上 訴 庭 在 其 他 多 宗 同 類 案 件 亦 列 出 其 他 和 判 刑 有 關 的 因 素, 包 括 犯 案 的 次 數 及 犯 案 時 間 的 長 短 被 告 人 參 與 和 黑 錢 有 關 罪 行 的 程 度 罪 行 是 否 有 組 織 及 是 否 精 密 等 等 [14] (4) 本 案 的 黑 錢 源 自 非 法 收 受 足 球 博 彩 賭 注, 而 非 特 別 嚴 重 的 罪 行 答 辯 人 的 罪 行, 包 括 其 收 受 賭 注 罪 行 的 組 織 亦 非 嚴 密 根 據 答 辯 人 的 招 認, 他 從 罪 行 取 得 的 金 額 亦 非 巨 大, 不 超 過 15 萬 元 以 洗 黑 錢 罪 行 而 言, 本 案 並 非 是 十 分 嚴 重 的 一 宗 [16] 但 法 庭 不 能 忽 視 答 辯 人 在 長 達 7 年 期 間 洗 黑 錢, 次 數 以 千 計, 而 總 額 更 達 1,400 萬 元, 本 庭 亦 不 能 忽 視 答 辯 人 清 洗 的 黑 錢 源 自 他 有 份 參 與 的 收 受 賭 注 罪 行 [17] (5) 即 使 以 對 答 辯 人 最 有 利 的 方 法 處 理, 適 用 的 量 刑 基 準 都 不 應 低 過 4 年 [19] 考 慮 到 答 辯 人 承 認 控 罪, 而 判 刑 亦 是 在 覆 核 申 請 作 出, 上 訴 庭 認 為 針 對 答 辯 人 的 第 一 項 洗 黑 錢 判 刑 應 為 2 年 6 個 月 該 判 刑 和 第 二 項 收 受 賭 注 的 2 個 月 判 刑 同 期 執 行 答 辯 人 的 總 刑 期 應 為 2 年 6 個 月 [20] [English Translation of CACC 13/2010 above] SJ v WAN KWOK KEUNG COURT OF APPEAL CAAR 13/2010 Cheung, Yeung & Yuen JJA Date of Hearing: 13 May 2011 Date of Judgment: 13 May 2011 Counsel for the Applicant: Wesley Wong Ag DDPP & Hermina Ng Ag SPP Counsel for the Respondent: Edward Fan Review of sentence Money Laundering Aggravating features The Respondent pleaded guilty in the District Court to one count of money laundering and one count of bookmaking. The sentencing judge took 21 months imprisonment and 3 months imprisonment respectively as the starting point for each offence. He gave a one-third discount for the guilty pleas and ordered that the sentences be served concurrently, resulting in a total sentence of 14 months imprisonment [8]. The Applicant applied for a review of sentence based on the following aggravating features: (1) the act of money laundering lasted for 7 years; (2) the amount laundered amounted to $14 million; and (3) the Respondent directly participated in the offence relating to the proceeds of crime [11]. Held, application for review granted: 140

15 Sentence (Quantum) Money Laundering (1) Money laundering is a serious offence because not only does it indirectly encourage the commission of criminal activities, it also attempts to legitimize the proceeds of such activities. It is necessary to deter the commission of money laundering offences in order to combat serious crimes and to prevent the retention of illgotten gains (see HKSAR v Javid Kamran CACC 400/2004 (unreported); HKSAR v Xu Xia Li and Anor [2004] 4 HKC 16) [12]. (2) Generally speaking, the sentence for money laundering should reflect the amount laundered and not the gain the defendant or others obtained. This is because it is very difficult to prove the gain obtained and in the majority of cases there may not be evidence to show what the indictable offence was. Of course, if there is evidence to prove that the offence from which the amount laundered had been sourced was serious (including such offences as drug trafficking, kidnapping for ransom, human trafficking and other syndicated crimes) or that the defendant s gain was extremely large, the sentence should be adjusted upwards [13]. (3) The Court of Appeal in a number of similar cases has also listed other factors relevant to sentence, including the number of occasions involved and the overall period in which the offence was committed, the degree of the defendant s participation in the related offence and whether the offence was organized and its sophistication [14]. (4) In the present case, the source of the money laundered was derived from bookmaking in soccer gambling rather than some very serious crimes. The manner in which the Respondent committed the offence (as well as the underlying bookmaking offence) was not sophisticated. According to the Respondent s admissions, the financial gain did not exceed $150,000 and was not particularly huge. For the offence of money laundering, this was not a very serious case of its type [16]. But the Court could not ignore the fact that the offence lasted for 7 years, involved thousands of transactions (totalling $14 million) and that the Respondent participated in the bookmaking activities from which the money laundered had been sourced [17]. (5) The appropriate starting point should at least be 4 years imprisonment even taking a view most favourable to the Respondent [19]. Taking into account the Respondent s pleas and that this was a review of sentence, the Court of Appeal ordered that the sentence for the money laundering count should be 2 years and 6 months imprisonment and that for bookmaking 2 months imprisonment, to be served concurrently, resulting in a total sentence of 2 years and 6 months imprisonment [20]. HKSAR v LUNG YUN NGAN & ANOR COURT OF APPEAL CACC 482/2010 Hartmann & Kwan JJA, A Cheung J Date of Hearing and Judgment: 12 May 2011 Date of handing down Reason for Judgment: 24 May 2011 Counsel for the Respondent: Maggie Yang SPP Counsel for the Applicant: Kevin Egan Criminal sentencing Money laundering of $3 million proceeds of letter of credit frauds over 2 years Aged defendants Limited level of participation 12 months imprisonment after trial not excessive 刑 事 罪 判 刑 在 兩 年 間 清 洗 300 萬 元 的 信 用 證 欺 詐 罪 行 得 益 年 老 的 被 告 人 參 與 程 度 有 限 審 訊 後 被 判 監 禁 12 個 月 並 非 過 重 The two Applicants were a married couple aged 61 (the wife, A1 ) and 72 (the husband, A2 ) respectively. They were convicted after trial in the District Court of one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to s 25 of the Organized and Serious Crimes Ordinance (Cap 455) and were each sentenced to 12 months imprisonment. At the material time, A1 s elder brother was a shareholder cum director of a company ( Wah Hing ). 141

16 Sentence (Quantum) Money Laundering Between January 2004 and September 2007, when Wah Hing found itself in financial difficulties, A1 s elder brother and his co-directors conspired together to raise funds by defrauding various banks of loans amounting to $32 million, by way of bogus letter of credit (L/C) applications. The L/Cs were made payable to a dormant company ( Soon Sales ) which was controlled by a relative of one of Wah Hing s directors. Upon receipt of the L/C monies, Soon Sales would remit them back to Wah Hing either directly or via various intermediary shell companies. Both Applicants, together with A1 s elder brother and his wife, were the shareholders and directors of one such intermediary company ( Perfect Keen ). A1 was paid a monthly salary of $5,000. It was the prosecution case that from July 2004 to June 2006 the Applicants dealt with a total of $3 million odd having reasonable grounds to believe that they represented the proceeds of an indictable offence. There was no dispute at trial that during that period Soon Sales had issued four cheques for the said total sum to Perfect Keen which in turn passed on the monies to Wah Hing by way of six cheques, all of which were signed by the Applicants. Both Applicants testified at trial to the effect that they had only become shareholders and directors of Perfect Keen upon the invitation by A1 s elder brother. They were not required to participate in the daily management of the company but were given a limited role of being the custodians of the company chequebook and a company chop which they kept at their home. They were also to receive all bank statements of Perfect Keen. They signed and chopped the company cheques when so requested by a lady assistant of A1 s elder brother. The lady assistant testified as an accomplice witness against the Applicants at trial. The trial judge rejected the exculpatory evidence of both Applicants. Based on the prosecution evidence, he drew an irresistible inference that both Applicants knew of sufficient grounds that would lead a common sense right-thinking member of the community to believe that the property in whole or in part represented any person s proceeds of an indictable offence. On this basis, he convicted both Applicants. The Applicants applied for leave to appeal against their convictions and sentences. In respect of the sentence appeal, it was argued that in all the circumstances of the case, the sentence of 12 months imprisonment imposed on each of the Applicants after trial was manifestly excessive. Held, both applications for leave to appeal against conviction and sentence dismissed: (1) Money laundering is the processing of criminal proceeds in order to disguise their illegal origins. As such, it is just one step along from the original offence itself, be it drug trafficking, prostitution, bribery or fraud. Money laundering is therefore inextricably linked to the underlying criminal activity that has generated it. It enables such criminal activity to continue. Money laundering flourishes when persons are prepared to turn a blind eye to the true nature of the funds with which they are dealing. It not only corrupts individuals, it threatens the integrity of our banking and financial services. It is unsurprising that our legislature has viewed it to be criminal activity of the most serious kind [91]. (2) There are no sentencing guidelines for the offence of money laundering because the facts vary so much from case to case. The amount of money involved in the laundering exercise itself is a major consideration as is the length of time over which the exercise took place. While each case must depend very much on its own facts, the imposition of a substantial period of imprisonment for a money laundering offence involving $1 million or more is not remarkable. HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, HKSAR v Chow Ying Ki [2005] HKEC 983 and HKSAR v Abayomi Bamidele Fayomi [2005] HKEC 2167 considered [92] &[94]. (3) In the present case even taking into account the ages of the Applicants, the fact that they had no previous convictions, their relationship to A1 s elder brother who recruited their participation and the relatively limited level of their participation an immediate custodial sentence was inevitable. Their participation in the scheme extended over a period of two years and involved a sum in excess of $3 million. In those circumstances, the sentence of 12 months imprisonment cannot be said to be manifestly excessive and indeed, it may be said to contain an element of mercy [95]. 142

17 Sentence (Quantum) Murder Murder HKSAR v CHU YIU KEUNG & ORS ( 朱 耀 强 及 其 他 人 ) COURT OF APPEAL CACC 27/2009 Hartmann JA, Lunn & Barnes JJ Dates of Hearing: July, 6 September & 17 December 2010 Date of handing down Judgment: 20 January 2011 Counsel for the Respondent: Wesley Wong SADPP & Hermina Ng PP Counsel for A1: John Hemmings (re: conviction) & In person (re: sentence) Counsel for A2: Paul Loughran (re: conviction & sentence) Counsel for A3: William NC Stirling (re: conviction) Counsel for A4: William NC Stirling (re: conviction & sentence) Counsel for A5: John Haynes (re: conviction & sentence) Criminal sentencing Murder Defendants killed victim in course of gang fight Defendants aged between 15 and 18 Whether sentences imposed manifestly excessive 刑 事 罪 判 刑 - 謀 殺 - 被 告 人 在 集 體 打 鬥 中 殺 死 受 害 人 - 被 告 人 1 5 至 1 8 歲 - 判 刑 是 否 明 顯 過 重 At all material times, the 5 Applicants (A1-A5) were associated in a group of young men identified as Billy s group in the course of trial. The apparent leader of this group was Lai King Pong known as Billy or Ah Pong. Late on the night of 25 August 2007, within the precincts of a housing estate, Billy s group (a number of whom armed with metal water pipes) ambushed a second group of youths seemingly led by Lo Shu Fat. As a result of the ambush, a 17-year-old young man Wu Yu Hei of Lo Shu Fat s group tripped and fell. He was then set upon by Billy s group, receiving multiple blows to his head from the metal pipes carried by his attackers. Wu subsequently died of his injuries. Following a jury trial, A1, A2, A4 & A5 were convicted of the murder of Wu while A3 was acquitted of murder but convicted of manslaughter. A1, aged 18 at the time of the murder, received life imprisonment. However, as A2, A4 & A5 were under 18, the judge sentenced A2 to 20 years imprisonment, A4 to 16 years imprisonment and A5 to 18 years imprisonment. A3, who was convicted of manslaughter, was sentenced to 5 years imprisonment. Each of the Applicants sought leave to appeal his conviction. With the exception of A3, each also sought leave to appeal the sentence imposed upon him. Held, A3 s application for leave to appeal his conviction having been granted, his conviction was quashed and the sentence of 5 years imprisonment set aside whereas all the other Applicants failed in their applications for leave to appeal against conviction; each of their applications for leave to appeal against sentence was refused: (1) As A1 was 18 at the time of the offence, the only and mandatory sentence the court could impose is one of life imprisonment. There being no merit in his application for leave to appeal against sentence, the Court of Appeal refused leave for such application [186]. (2) When considering the appropriate sentences in relation to A2, A4 & A5, even though their young age is of grave concern to the court, it must not be forgotten that the courts have a duty to impose a sentence which has both the punitive and the deterrent elements. Here, a group of persons many armed with metal water pipes ambushed and set upon an unarmed rival group, brutally attacked and killed one of the youths who tripped and fell while being chased. The attack was well-planned and took place within the precincts of a housing estate, turning the place into a battle field. While the attack took place late at night, there might well have been passers- 143

18 Sentence (Quantum) Murder by going about their lawful business who were affected by this shocking incident. In view of the circumstances of this case, a sentence severe enough to be both punitive and deterrent is warranted [197]. (3) The participation of A2, A4 & A5 was not identical. In a nutshell, A2 armed himself with a metal pipe and physically attacked the deceased, though not delivering any fatal blow; A4 did the reconnaissance and did not take part in the actual attack; A5 chased the rival group while armed with a metal pipe, though there was no evidence that he physically attacked the deceased [198]. Taking into account the different roles played by A2, A4 & A5, the trial judge was of the view that the role played by A5 was less serious than that of A2, and that the role played by A4 was less serious than that of A5. The different sentences imposed on A2, A4 & A5 properly reflect their culpability [200]. Theft of Incense Tree HKSAR v XIE JINBIN ( 謝 錦 彬 ) COURT OF FIRST INSTANCE CACC 195/2010 Yuen JA, To J Date of Hearing and Judgment: 19 January 2011 Date of handing down Reasons for Judgement: 28 January 2011 Counsel for the Respondent: Andrew Cheng PP Counsel for the Applicant: Andrew Allman-Brown Criminal sentencing Applicant and three other mainlanders cutting tree Theft of wood blocks of incense tree of the endangered species Aquilaria sinensis Value, quantity or weight not the only considerations Different considerations where stolen property involved protected endangered species Injury to the protected flora Starting point of three years for theft of incense tree by mainlanders cannot be faulted 刑 事 罪 判 刑 - 申 請 人 與 其 他 3 名 內 地 人 砍 伐 樹 木 - 偷 取 瀕 危 物 種 A q u i l a r i a s i n e n s i s 牙 香 樹 樹 木 - 價 植 數 量 或 重 量 並 非 唯 一 考 慮 因 素 - 贓 物 如 涉 及 受 保 護 瀕 危 物 種 有 不 同 的 考 慮 因 素 - 損 害 受 保 護 植 物 - 以 3 年 為 量 刑 起 點 判 處 偷 取 牙 香 樹 的 內 地 人 並 無 犯 錯 The Applicant and three other males were seen cutting a tree using tools at the hillside on Lamma Island. They fled when police officers arrived to intercept them. The Applicant and two of the other males were later found and arrested. The Applicant was carrying a saw and a wood block of about 8 inches in length in his rucksack. There were also found in the rucksacks carried by the other two males an iron hoe, a knife and six wood blocks of about 4 to 7 inches in length. The wood block found in the Applicant s possession weighed kilogram and the total weight of all the wood blocks was kilograms. They were found to be of the species Aquilaria sinensis, commonly known as incense tree. The Applicant and the other two males were mainland residents who had come to Hong Kong on two way permits. The Applicant and the other two males pleaded guilty to theft in the District Court. There was expert evidence before the judge that incense tree was a vulnerable species and in danger. The sentencing judge adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea. She then enhanced the sentence by 25% pursuant to s 27(2) of the Organized and Serious Crimes Ordinance (Cap 455), making a total term of imprisonment of two years and six months. The Applicant appealed against that sentence. Held, appeal against sentence dismissed: 144

19 Sentence (Quantum) Theft of Incense Tree (1) While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor. In the ordinary cases of theft from supermarket, or theft of ordinary goods, even of trees which do not fall within the category of protected endangered species, value or quantity or weight may be the only considerations. But where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of the endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora. The focus, therefore, should be on protection of the plant rather than the value of the plant or part stolen. The factors to be taken into consideration are the injury done to the tree, profitmotive, the manner of commission and the gravity of the offence [16]. (2) A clear and firm message is needed to deter mainlanders from coming to Hong Kong, legally or illegally, specifically for the purpose of exploiting protected and endangered flora for profit. A starting point of three years for extraction of wood from an incense tree by mainlanders could not be faulted [17]. (3) Though only kilograms of incense tree was recovered from the Applicant and the codefendants, the quantity does not reflect the actual injury caused to the tree and the seriousness of the offence. The Applicant is not to be punished only according to the weight of the wood block he has stolen, but according to the enterprise he and the other three offenders had collectively participated in and the seriousness of the offence. The Applicant and three others came to Hong Kong in a joint enterprise with the intention to exploit the endangered flora for profit. The offence is one which calls for deterrence. Weight is therefore not the determining factor for sentencing nor is it a reliable indicator of the seriousness of the offence and the injury caused to the tree [23]. Town Planning 香 港 特 別 行 政 區 訴 鄧 金 大 及 其 他 人 高 等 法 院 原 訟 法 庭 HCMA 572/2010 原 訟 法 庭 暫 委 法 官 陳 慶 偉 聆 訊 日 期 : 2010 年 11 月 18 日 裁 決 日 期 : 2010 年 12 月 31 日 答 辯 人 代 表 律 師 : 檢 控 官 吳 穎 軒 上 訴 人 代 表 律 師 : 陳 永 豪 刑 罰 沒 有 遵 從 規 劃 署 強 制 執 行 通 知 書 香 港 法 例 第 131 章 城 市 規 劃 條 例 第 23(6) 條 罰 款 金 額 ($30,000 至 $100,000 不 等 ) 是 否 明 顯 過 重 或 違 反 原 則 各 上 訴 人 在 裁 判 法 院 承 認 一 項 沒 有 遵 從 規 劃 署 強 制 執 行 通 知 書 罪, 即 未 有 按 規 定 終 止 將 一 幅 土 地 作 儲 存 及 修 理 貨 櫃 的 用 途, 違 反 城 市 規 劃 條 例 第 23(6) 條 ; 當 中 八 名 上 訴 人 各 被 判 罰 款 $30,000; 一 名 上 訴 人 被 判 罰 款 $60,000, 另 外 三 名 上 訴 人 則 各 被 判 罰 款 $100,000 各 上 訴 人 就 刑 罰 提 出 上 訴 裁 決, 上 訴 駁 回 ; (1) 裁 判 官 在 處 理 各 上 訴 人 的 罰 款 金 額 時, 只 以 各 上 訴 人 有 一 次 相 同 紀 錄 作 考 慮 ( 而 事 實 上 部 分 的 上 訴 人 有 多 次 相 同 的 紀 錄 ); 罰 款 的 金 額 僅 是 最 高 罰 款 額 的 3% 至 10%; 裁 判 官 亦 沒 有 就 每 日 的 違 反 處 以 罰 款, 實 屬 非 常 寬 大 的 處 理 [7] 145

20 Sentence (Quantum) Town Planning (2) 此 等 案 件 純 是 經 濟 上 的 犯 罪 ; 要 阻 止 土 地 擁 有 人 將 土 地 違 規 改 作 其 他 用 途 的 最 有 效 方 法, 便 是 剝 奪 他 們 從 更 改 土 地 用 途 中 取 得 的 得 益 就 此, 控 方 有 責 任 協 助 裁 判 官 作 出 適 當 的 量 刑 當 日 後 處 理 此 等 案 件 時, 控 方 應 向 裁 判 官 提 供 資 料, 顯 示 原 有 土 地 用 途 與 違 規 土 地 用 途 每 月 每 呎 租 金 上 的 差 額 若 控 方 能 在 調 查 過 程 中 取 得 租 客 繳 付 的 租 金 資 料, 這 當 然 最 好 不 過 若 未 能 取 得 的 話, 此 等 租 金 上 的 分 別 理 應 可 從 差 餉 物 業 估 價 署 取 得 若 規 劃 署 曾 批 出 許 可 予 更 改 土 地 用 途 的 人 士, 控 方 亦 可 一 併 提 供 政 府 收 取 此 等 費 用 的 數 據 予 裁 判 官 考 慮 此 等 案 件 判 刑 的 首 要 考 慮 是 要 剝 奪 非 法 更 改 土 地 用 途 的 得 益, 另 外 亦 需 加 上 一 定 懲 罰, 以 阻 嚇 以 身 試 法 的 人 士 [8] (3) 除 了 上 述 釐 訂 基 本 罰 款 金 額 的 基 礎 外, 裁 判 官 亦 應 考 慮 其 他 加 重 / 減 低 刑 罰 的 因 素, 這 包 括 : - 對 環 境 的 影 響 : 包 括 對 附 近 居 民 生 活 的 影 響 ; 景 觀 上 的 障 礙 ; 噪 音 的 增 加 ; 空 氣 質 素 的 下 降 ; 道 路 交 通 流 量 的 上 升 ; 水 源 泥 土 的 污 染 ; 動 植 物 生 態 環 境 的 負 面 影 響 ; - 過 往 相 同 的 紀 錄 ; - 過 往 同 一 幅 土 地 的 相 同 紀 錄 ; - 若 裁 判 官 不 打 算 就 每 日 的 違 反 作 出 罰 款, 則 需 考 慮 違 規 時 間 的 長 短 ; - 事 後 有 否 補 救 措 施 ; - 事 後 有 否 獲 批 更 改 土 地 用 途 的 臨 時 許 可 / 許 可 等 日 後 罰 款 金 額 的 釐 訂 理 應 更 具 理 性 (rational) 及 邏 輯 性 (logical)[9] (4) 各 上 訴 人 被 控 是 次 違 規 的 情 況 長 達 年 半 (563 天 ), 實 際 的 日 子 可 能 更 遠 超 此 數 土 地 被 改 作 貨 櫃 修 理 / 儲 存 工 場, 其 內 更 儲 存 風 煤 樽 等 危 險 物 品, 各 上 訴 人 理 必 全 然 知 悉 [10] 現 今 的 香 港, 社 會 大 眾 對 城 市 規 劃 環 境 保 育 的 意 識 日 益 加 強, 法 庭 亦 有 責 任 對 純 因 一 已 私 利 公 然 違 反 法 律 的 人 士 頒 布 更 具 阻 嚇 力 的 刑 罰 就 本 案 情 況 而 言, 裁 判 官 就 各 上 訴 人 所 判 處 的 刑 罰 原 則 上 無 犯 錯, 罰 款 金 額 亦 絕 非 過 高 [11] [English Digest of HCMA 572/2010 above] HKSAR v TANG KAM TAI & ORS COURT OF FIRST INSTANCE HCMA 572/2010 Deputy Judge Andrew Chan Date of Hearing: 18 November 2010 Date of Judgment: 31 December 2010 Counsel for the Respondent: Hermina Ng PP Counsel for the Appellant: Charles Chan Sentence Failure to comply with Enforcement Notice of the Planning Department Section 23(6) of the Town Planning Ordinance (Cap 131) Whether fines (ranging from $30,000 to $100,000) manifestly excessive or contrary to principle Each of the Appellants pleaded guilty at the Magistracy to one charge of failure to comply with an enforcement notice issued by the Planning Department, namely, failing to discontinue the use of a piece of land for the storage and repair of containers as required by the notice, contrary to s 23(6) of the Town Planning Ordinance. Eight of the Appellants were each fined $30,000. One was fined $60,000 while the other three were each fined $100,000. They appealed against sentence. Held, appeal dismissed: (1) In determining the amount of the fines, the magistrate merely took into consideration that all the Appellants had one similar conviction record (when in fact some of the Appellants had a number of similar 146

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