Court of Final Appeal Rules on Public Order Offences

To : All Counsel/Senior Law Clerks/Prosecutions
All Court Prosecutors/Magistracies

致：刑事檢控科各律師/高級律政書記
裁判法院各法庭檢控主任
A Publication of the Prosecutions Division

of the Department of Justice
律政司刑事檢控科出版的刊物
CRIMINAL APPEALS BULLETIN

刑事上訴案判例簡訊
November Edition/2013
2013 年 11 月號
General Editor
總編輯
William Y H Tam
譚耀豪
Editors
編輯
Wesley W C Wong, SC
黃惠沖資深大律師
David C Y Leung
梁卓然
Fanny K H Wong
黃錦卿
Edmond C M Lee
李俊文
Martin S T Hui
許紹鼎
Raymond H C Cheng
鄭凱聰
Irene Fan
范凱琳
Winnie T W Lam
林德穎
Mickey M K Fung
馮美琪
Frederick H W Chung
鍾洪偉
Franco B O Kuan
關百安
Samantha P Y Chiu
招秉茵
Andrew H C Li
李希哲
2
Rosa S Y Lo
羅心怡
Winnie W Y Mok
莫韻妍
Cliff W K Ip
葉瑋璣
Audrey Parwani
柏愛莉
3
INDEX
Page
A. Hong Kong Court of Final Appeal 4

香港終審法院
B. Application for Review of Sentence 9

申請刑罰覆核
C. Application for Costs 14

申請訟費
D. Criminal Appeals/Against Conviction 17

刑事上訴案件/針對定罪
E. Criminal Appeal/Against Sentence 30

刑事上訴案件/針對刑罰
F. Magistracy Appeal / Against Conviction 32

裁判法院上訴案件/針對定罪
G. Magistracy Appeals/Against Sentence 34

裁判法院上訴案件/針對刑罰
H. Practice and Procedure 41

常規與程序
[ ] – denotes paragraph number in the judgment.

4
A. Hong Kong Court of Final Appeal
香港終審法院
HKSAR v CHOW NOK HANG (周諾恆) AND ANOR
COURT OF FINAL APPEAL

FACC 12, 13 & 14/2012
Chan Ag CJ, Ribeiro & Tang PJJ, Litton & Millet NPJJ
Date of Hearing: 9 October 2013

Date of Judgment: 18 November 2013
Counsel for the Respondent: Gerard McCoy SC, Martin Hui SADPP & Derek Lau PP
Counsel for A1: H Y Wong
Counsel for A2: Martin Lee SC, Randy Shek & Carter Chim
Criminal Law – Disorder in public places – Sections 17B(1) & 17B(2) of Public Order
Ordinance (Cap 245) – Elements of offences – Meaning of “acts/behaves in a disorderly
manner” – Meaning of “for the purpose of preventing” under s 17B(1) – Substantial
impairment or interruption of the gathering required – Concept of “breach of the peace”
Human rights – Public order offences – Freedom of speech, assembly & demonstration – Must
be exercised within constitutional limits – When such demonstration crosses the line –
Situations involving demonstrations and counter-demonstrations
刑事法 – 公眾地方內擾亂秩序行為 – 香港法例第 2 45 章《公安條例》第 1 7 B ( 1 ) 及
1 7 B ( 2 ) 條 – 罪行元素 – 「作出擾亂秩序行為」的涵義 – 第 1 7 B ( 1) 條的「以阻止」
的涵義 – 須實質損害或中斷聚集 – 「破壞社會安寧」的概念
人權–公安罪行–言論、集會及示威的自由–須在憲法界限內行使–此等示威何時
逾越界線 – 涉及示威遇到反示威的情況
The two Appellants (D1 & D2) were protesters demonstrating against the MTR fare increase
at the 2011 MTR Race Walking prize presentation ceremony held in a public square in Central.
When the guest speaker was delivering a speech on the stage, D1 climbed over the barriers, rushed
onto stage and, standing some distance away from the speaker, scattered “hell money” in the air as
his form of protest. He then turned away and did not resist being marched off the stage by the
security staff. Meanwhile, D2 dashed at speed onto the stage, lunged towards the speaker and
snatched the microphone away from her to use it to shout his protest slogans. Fearing for the
speaker’s safety, some of the officiating guests seated on the stage spontaneously leapt to their feet
to try to intercept D2. D2 was then bundled off the stage by security staff. The ceremony was
interrupted for a minute or so as a result.
D1 and D2 were each charged with a count of “behaving in a disorderly manner in a public
place” under s 17B(2) of the Public Order Ordinance, Cap.245 (“POO”) and an alternative count of
“acting in a disorderly manner at a public gathering” under s 17B(1) of POO. They were both
convicted after trial by the magistrate of the s 17B(2) offences. On their intermediate appeal before
the Court of First Instance, the s 17B(2) convictions were quashed and substituted by convictions on
the alternative s 17B(1) offences. They appealed to the Court of Final Appeal against the substituted
s 17B(1) convictions. The government cross-appealed against the judge’s quashing of the s 17B(2)
convictions.
5
The certified question before the Court of Final Appeal was: “What are the elements of the
offences created respectively by s 17B(1) and s 17B(2) of the POO?”
Held, both D1’s and D2’s appeals allowed; government’s cross-appeals dismissed:
Right of peaceful assembly and freedom of demonstration
(per Ribeiro PJ)

(1) Demonstrators are free to assemble and to convey views which may be found to be
disagreeable, unpopular, distasteful or even offensive to others and which may be critical of persons
in authority. Tolerance of such views and their expression is a hallmark of a pluralistic society. At
the same time, it must be recognized that those freedoms are not absolute and demonstrators must
ensure that their conduct does not go beyond the constitutional limits of those rights [33]. A line has
to be drawn between peaceful demonstrations and conduct which disrupts or threatens to disrupt
public order, as well as conduct which infringes the rights and freedoms of others [38]. Once a
demonstrator becomes involved in violence or the threat of violence or unlawfully interferes with the
rights and freedoms of others, that demonstrator crosses the line separating constitutionally protected
peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints
[39].
(2) The law imposes bounds on the constitutionally protected activity of peaceful assembly. The
need for such limits is sometimes dramatically illustrated in situations involving demonstrations and
counter-demonstrations. It is not uncommon for one group, demonstrating in favour of a particular
cause, to find itself confronted by another group demonstrating against that cause. If both remain
within their lawful bounds, all will be well. But often, conflict and public disorder may result.
Sometimes, both sides will have broken the law. But in some cases, the disruption of public order is
caused only by one side. The task of the law enforcement agencies and the courts is then to identify
the source of such disruption by identifying the demonstrators who have crossed the line into
unlawful activity. They thereby avoid curtailing or punishing the constitutionally protected activities
of the innocent group [40].
(per Tang PJ)

(3) Freedom of expression, assembly or demonstration would be meaningless if they can only
take place in private or away from persons who may find the views, ideas or claims that an assembly
or demonstration or speech is promoting annoying or offensive. However, it is often the case that
one person’s freedom ends where another person’s rights begin and the rights of those who may be
affected by such conduct obviously remain important. To reconcile these competing rights, those
affected are expected to take a balanced, rights sensitive view, conscious of the requirement of the
Hong Kong Bill of Rights (“HKBOR”), and would not be unreasonably moved to wounded feelings
or real anger, resentment, disgust or outrage, particularly, when confronted by a protestor. On the
other hand, the exercise of such rights by protesters must not exceed the bounds of what is
reasonable in the circumstances, albeit such bounds must not be so narrowly defined as to devalue,
or unduly impair the ability to exercise, the constitutional right [138]-[139].
Constitutionality of s 17B
(per Ribeiro PJ)

(4) Article 17 of the HKBOR recognizes the maintenance of public order and protection of the
rights and freedoms of others as legitimate purposes capable of justifying a restriction on the right of
peaceful assembly [51]. Restricting the right of peaceful assembly by setting the boundaries
established by s 17B(1) & (2) (and, indeed, by other offences which prohibit violence or the threat of
violence) involves the rational and proportionate furthering of the aforesaid legitimate purposes.
They set a proper balance between the interests of demonstrators exercising their right of peaceful
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assembly on the one hand, and the interests of public order and the rights and freedoms of persons
affected by that exercise on the other. It should not ordinarily be necessary in future for a magistrate
or judge to dwell on the constitutionality of these two offences [54].
Meaning of “disorderly behaviour”
(per Chan Ag CJ)

(5) The term “acts/behaves in a disorderly manner” should be given an ordinary and everyday
meaning. Whether there is disorderly conduct for the purpose of s 17B is a question of fact for the
trial court having regard to the nature and manner of the conduct and the circumstances of the case:
Coleman v Power (2004) 220 CLR 1 [10].
(per Ribeiro PJ)

(6) Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may
be affected by the circumstances in which the relevant conduct occurs. Such concepts are best left to
the trial judge to be applied in their ordinary meaning to the time, place and circumstances of the
conduct in question [67]-[68].
s 17B(1) offence
(per Ribeiro PJ)

(7) Section 17B(1) makes it an offence to act in a disorderly manner “for the purpose of
preventing” the transaction of the business for which a public gathering was called together. It aims
at protecting the right of peaceful assembly exercised by others [52]. Both as a matter of language
and of the evident statutory purpose of s 17B(1), a person only has the prescribed purpose if his
purpose is to make it impossible in practical terms to hold or continue with the gathering; or, at least,
to interrupt the gathering for such a duration or by using such means as substantially to impair the
intended transaction of business [58].
(per Tang PJ)

(8) Properly construed, “preventing” requires an interruption to an extent beyond what could be
expected to be tolerated by other persons in a democratic society, such as breaking up or a
substantial interruption of a gathering [154].
s 17B(2) offence
(per Chan Ag CJ)

(9) The s 17B(2) offence is aimed at preventing an outbreak of public disorder. It is not
necessary to show that his conduct has actually provoked or caused others to commit a breach of the
peace. It is sufficient to show that there is a real or imminent risk that others would breach the peace
or resort to violence as a result of the accused’s disorderly conduct [12].
(10) The fact that the accused’s disorderly conduct is a breach of the peace is not sufficient to
establish the s 17B(2) offence. The section clearly contemplates a breach of the peace by a person or
persons other than the accused. The first limb requires proof of an intent to provoke a breach of the
peace and this clearly does not refer to the accused’s own breach of the peace, although one cannot
rule out the possibility that his breach of the peace was committed with the requisite intention to
provoke others to breach the peace. The second limb is equally clear: it refers to the likely effect of
the disorderly conduct on others: SJ v Chiu Hin Chung [2013] 1 HKLRD 227; Marsh v Arscott
(1982) 75 Cr App Rep 211 [13]. For the first limb, it is necessary to consider the subjective intent of
the accused and for the second limb, to assess objectively the likely effect of the disorderly conduct.
The court has to examine all the circumstances of the case, including the conduct of the accused, the
nature and manner of such conduct, the presence of other persons, such as persons holding opposing
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views, and the likely reaction of those present (Brutus v Cozens [1973] AC 854 at 865). The
accused’s knowledge of such circumstances is also relevant to the issue of his intention [14].
(11) The accused’s disorderly conduct may be aimed at another person or a group of persons or
simply those who are present within the sight and hearing of his conduct. There might be persons
who would not be affected but there might be others who would be easily provoked into violent
retaliation. The accused has to take his “audience” as he finds it (Jordan v Burgoyne [1963] 2 QB
744). Although it may generally be the case that trained police officers are unlikely to be provoked
to commit a breach of the peace (Marsh v Arscott, Coleman v Power (2004) 220 CLR 1, & R v Li
Wai Kuen (1973-1976) HKC 346) and hence if no other person is present or has been provoked no
offence under s 17B(2) has been committed, one should however not rule out the possibility that
even a trained officer might in some situations be provoked to react with violence to the disorderly
conduct [15].
(per Ribeiro PJ)

(12) Section 17B(2) has two principal elements. It involves proof (i) of noisy or disorderly
behaviour; or of the use of threatening, abusive or insulting words by the defendant; and (ii) that
such conduct was performed with intent to provoke a breach of the peace, or in circumstances where
such conduct was likely to cause a breach of the peace. It aims at maintaining public order or
preventing public disorder [54].
(13) Section 17B(2) is not designed to penalise persons who simply commit breaches of the peace.
A defendant would only be guilty of an offence under that section if his disorderly behaviour was
either intended or likely to cause a breach of the peace by someone else. The former requires proof of
the defendant’s intent to provoke a breach of the peace by another person or other persons as a
consequence of his disorderly conduct. The latter requires an assessment of the likely reaction to the
defendant’s disorderly conduct by persons who are affected by it. It is not enough to show that the
defendant is guilty of disorderly behaviour and that he alone commits a breach of the peace [83]-
[86].
(14) The purpose of section 17B(2) is to prevent a person instigating public disorder involving
others rather than simply punishing that person for his own misbehaviour. It therefore excludes from
its ambit many situations where the defendant’s disorderly behaviour or threatening, abusive or
insulting words, and so forth, are not likely to produce such violence. The likelihood of a breach of
the peace is assessed as a matter of fact, taking account of the nature of the disorderly behaviour and
the circumstances in which such behaviour occurred [92]-[94].
(per Tang PJ)

(15) Section 17B(2) is concerned with cause and effect, i.e. with conduct which is likely to bring
about a breach of the peace and not with conduct which is itself a breach of the peace and no more:
Marsh v Arscott [166].
(per Litton NPJ)

(16) What behaviour amounts to disorderly conduct, or when a situation constitutes a breach of
the peace, or a threat thereof, depends on the circumstances of the time and place. The social
context in which the events occur forms an important part of the picture [193].
(17) For the offence under s 17B(2) to be established, the court looks not only to the acts of the
accused but also to the natural reaction of others to his acts. In considering whether acts are likely to
cause a breach of the peace, the following question is relevant: Are persons in the vicinity likely to
engage in an affray, to behave riotously, to act violently or to threaten violence as a result of the
behaviour of the accused [203]?
8
Breach of the peace
(per Ribeiro PJ)

(18) There is a breach of the peace whenever harm is actually done or is likely to be done to a
person or in his presence to his property or a person is in fear of being so harmed through an assault,
an affray, a riot, unlawful assembly or other disturbance: R v Howell [1982] QB 416. The essence of
the concept is to be found in violence or threatened violence: R (Laporte) v Chief Constable of
Gloucestershire [2007] 2 AC 105. However, a person may provoke a breach of the peace without
any violence or threat of violence on his part – it suffices that his conduct is such that the natural
consequence of it is violence from some third party. That third party need not be the person
provoked or a by-stander, it could, for instance, be a member of the provoker’s group. The actual or
feared harm must be unlawful and, where the harm is anticipated, there must be a real risk and not
the mere possibility of such harm. Moreover, the anticipated harm must be imminent [77]-[79].
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B. Application for Review of Sentence

申請刑罰覆核
HKSAR v NG WING YI (吳詠宜)
COURT OF APPEAL
CAAR 4/2013
Stock VP, Macrae JA & McWalters J
Date of Hearing and Judgment: 11 November 2013
Counsel for the Applicant: Anna Lai SADPP

Counsel for the Respondent: Duncan Percy
Criminal sentencing – Possession of 0.2 kg of ketamine – Drug dependent with clear record –
Substantial risk of dissemination of drug – Whether Drug Addiction Treatment Centre Order
manifestly inadequate and/or wrong in principle
刑事罪判刑 – 管有 0 . 2 公斤氯胺酮 – 有毒癮但無犯罪紀錄 – 散播毒品的實質風險 – 戒
毒所令是否明顯不足及 / 或原則上錯誤
The Respondent was charged with trafficking in 0.2 kg of ketamine. The Jury acquitted her of
trafficking but upon her own plea of guilty to possession of the drugs in question, returned a verdict of
guilty of possession of dangerous drugs [2]-[3]. She was sentenced to detention in a Drug Addiction
Treatment Centre [4].
At about 6:50 pm on 29 June 2012, the Respondent was intercepted by the police outside the
ground floor of the apartment block in which she lived in. In the handbag she was carrying was a
plastic bag containing 0.2 kg of ketamine. She told the Police that she had purchased the drugs for her
own consumption. Also in her handbag were four mobile phones and $670 in cash. Her bedroom was
searched and the police found therein 376 resealable plastic bags. The average retail price of the drug
was $27,600. The normal daily dosage for an addict was between 1 to 2 grammes of ketamine
although there have been reported cases of abusers taking as much as 6 grammes per day [5]-[7].
The Respondent did not testify at trial but her mother did. According to the mother, the
Respondent had been taking ketamine as well as other drugs for several years and she earnt between
$7,000 and $8,000 a month with occasional handouts of a few thousand dollars from her father. She
also explained that the plastics bags found in the Respondent’s bedroom were purchased by her to
enable the Respondent to place lighters, ornmaents, cosmetics and medicine therein [8].
The Secretary for Justice considered that the sentence imposed failed sufficiently to reflect the
gravity of the offence; failed to have proper or any regard to the need for deterrence; failed to
recognize the significant risk of onward dissemination of the drugs, a matter not mentioned by the
judge; and the sentence fell outside the range of sentences which the judge applying his mind to all
relevant factors could reasonable consider appropriate. Pursuant to s 81A of the Criminal Procedure
Ordinance, an application was made for review of sentence [12].
10
Held, application for review of sentence allowed:
(1) It is most difficult to envisage a case where a Drug Addiction Treatment Centre order could be
justified in the face of possession of as much a quantity of 200 grammes of ketamine, given most
particularly the high actual risk of dissemination that possession of such a quantity normally entails.
There was nothing in this case to detract from the conclusion which ought to have been drawn that the
risk was high, given that the Respondent was a hardened addict, earning a very modest monthly salary.
The risk in this case was of sale to fund further purchases and, quite separately, the risk of distribution
to friends and, further still, the possible temptation placed in the path of the Respondent’s younger
siblings living in the same premises [14].
(2) The guidelines in Secretary for Justice v Hii Siew Cheng [2009] 1 HKLRD 1 illustrate the
seriousness with which the drug is now treated; a recognition of the prevalence of the drug and of its
dangers to the consumer [18].
(3) It is going to be an unusual case that results in a conviction for simple possession of dangerous
drugs where the quantity of ketamine is as much as in this case. That said, the maximum sentence will
be reserved for the worst category of case, a categorization unlikely to be justified in the case of a first
offender and in any event a term of 7 years’ imprisonment for possession of 200 grammes of the drugs
is close to the term warranted after trial for trafficking in that amount, a result that is unlikely to be
justifiable [24].
(4) The quantity possessed by the Respondent was substantially more than the quantity a user
would normally have. According to her own comments to the Drug Addiction Treatment Centre
interviewer, she only took ketamine occasionally. The Respondent should be sentenced on the basis
that all the ketamine in question was possessed by her for her own consumption over a period of
months [25].
(5) A suitable starting point after trial for 0.2 kg of ketamine in the possession of this first offender,
aged 28 years at the time of the offence and with difficult emotional problems, was 2½ years’
imprisonment; but the dissemination risk factor was very substantial. The Respondent earned little
each month, was highly addicted, and the risk of sale to feed that addiction must be deemed to have
been considerable. Furthermore, the temptation to pass some of this hoard to friends should be taken
as real; and the presence of these drugs in a flat shared with two younger siblings placed them in
harm’s way; and the very nature of this drug rendered it notoriously liable to dissemination. The risk
factor required a substantial enhancement of that starting point to one of 4½ years’ imprisonment.
Since the Respondent offered to plead guilty to simple possession at the outset, the sentence which
ought to have been imposed was 3 years’ imprisonment [26].
(6) Given the nature and the unusual quantity of the drug involved, by imposing the Drug
Addiction Treatment Centre order, the sentencing judge accorded no weight to the question of general
deterrence and none to the very substantial and obvious risk in this case of dissemination of the drug
to others. He erred in principle and passed a sentence which fell outside the range of sentences which
applying his mind to all the relevant factors a judge could reasonably consider appropriate.
(7) Taking the following two factors into account, the Court substituted a sentence of 2½ years’
imprisonment:
(i) the principle that “Where a defendant has had no responsibility for the fact that he has been
given a sentence which is unduly lenient, ... it accords with justice that, when substituting a
weightier sentence, this Court should have some regard to the distress and anxiety experienced
by the defendant as a consequence of having his sentence reopened and increased”: Lord
Phillips in A-G’s Reference (Nos. 14 and 15 of 2006); and
(ii) the fact that the Respondent has served three months to date in a drug addiction treatment
centre [28]-[29].
11
律政司司長訴施森 (SZE SUM)
高等法院上訴法庭
CAAR 2/2013
上訴法庭副庭長楊振權、上訴法庭法官張澤祐及袁家寧
聆訊日期： 2013 年 10 月 29 日
判案日期： 2013 年 10 月 29 日
判案理由書日期：2013 年 11 月 6 日
申請人代表律師：副刑事檢控專員譚耀豪
答辯人代表律師：張鵬大律師
刑事法及訴訟程序 — 判刑 — 不小心駕駛 — 死者傷重死亡必然是判刑考慮因素 — 對於一

名考獲駕駛執照不久犯事的被告人，其良好駕駛紀錄並非有效求情理由
晚上約 11 時 30 分，答辯人沿東涌逸東街南行快線駕駛私家車。他駛至逸東二邨的車輛
入口處，在完全沒有慢車或亮起右轉指示燈的情況下，駛過分隔南行和北行快線的連續雙白
線，橫越迎面北行快線，右轉入該車輛入口，導致私家車與正在北行快線駕駛電單車的死者相
撞。死者被拋離電單車，送院後翌日傷重不治。事後，答辯人向警員表示他右轉時沒有留意對
面行車。
答辯人被控危險駕駛引致他人死亡。他否認控罪，但承認不小心駕駛。審訊後，答辯人
被裁定危險駕駛引致他人死亡罪罪名不成立，但不小心駕駛罪罪名成立。答辯人被判罰款
5,000 元，停牌 12 個月及要完成駕駛改進課程，才能繼續駕駛車輛。律政司司長認為判刑過
輕，申請判刑覆核。
裁決，批准司長的覆核申請，答辯人被加判入獄四個月，緩刑兩年：
(1) 犯交通意外罪的人，很多都沒有刑事犯罪紀錄，亦可能一生都沒有想過會被判刑。不
過，當一輛汽車由一名不負責任的駕駛者操控時，可以變成極具殺傷力的兇器，對受害者造成
嚴重的人生傷亡，具大的經濟損失，對受害者的家庭亦造成無盡的傷痛及苦惱。法庭有責任阻
嚇不負責任的駕駛者[19]-[20]。
(2) 事發時，天氣良好，路段交通流量不多，路面良好乾爽，街燈照明充足 [23]。死者駕駛

的電單車有亮燈，正常行駛，有權假設對面行車線的駕駛者不會突然在沒有足夠距離的情況下
橫越其去路[25]。相反，答辯人突然右轉，沒有採取任何合理措施，沒有慢車，沒有亮起右轉
指示燈，導致兩車相撞[21]。答辯人是事件中唯一犯錯一方，死者是無辜者，卻失去性命，他
的家人感受無盡痛苦[28]。
(3) 造成意外的原因只有兩個：答辯人右轉時完全沒有理會路面情況，或是他明明看見電單
車，仍然魯莽地不顧一切右轉。不論是那一個原因，答辯人絕非一時不留神，而是完全沒有關
注對面行車線駕駛者的安危。他的罪責和可惡性均極高[22]、[24]、[27]。
(4) 死者傷重死亡必然是法庭判刑時的考慮因素。法庭不能不顧及死者家人的困苦和心中的
委屈和抱怨[26]。
12
(5) 答辯人意外時考獲駕駛執照不足一年，他的駕駛紀錄良好不值一提[29]。
(6) 考慮案件的背景和犯案經過，即使答辯人承認不小心駕駛，適當的刑罰應為四個月監
禁。考慮事件已困擾答辯人一段時間和本案是判刑覆核，有關刑期獲緩刑兩年[31]。
[CAAR 2/2013 – English Translation]
SJ v SZE SUM
COURT OF APPEAL
CAAR 2/2013
Yeung VP, Cheung & Yuen JJA

Date of Judgment: 29 October 2013
Date of Reasons for Judgment: 6 November 2013
Counsel for the Applicant: William Tam DDPP

Counsel for the Respondent: Geoffrey Chang
Criminal law and procedure–Sentencing–Careless driving–Serious injuries resulting in death

definitely a sentencing consideration–Good driving record of defendant who offended shortly
after obtaining driving licence not a valid mitigation factor
At about 11:30 p.m., the Respondent was driving a private car in the outer lane of southbound
Yat Tung Street, Tung Chung. When reaching the vehicle entrance of Yat Tung (2) Estate, without
reducing any speed or switching on the right indicator, he crossed the continuous double white lines
separating the southbound and northbound outer lanes, cut across the opposite northbound outer lane
and made a right turn into the entrance, causing a collision with the deceased who was driving a
motorcyle in the northbound outer lane. Thrown off the motorcycle, the deceased was rushed to
hospital and died from serious injuries the next day. After the accident, the Respondent told the police
that he had not paid any attention to the oncoming traffic when making the right turn.
The Respondent was charged with the offence of causing death by dangerous driving. He
denied the charge but pleaded guilty to careless driving. After trial, he was acquitted of the offence of
causing death by dangerous driving, but convicted of careless driving. He was sentenced to a fine of
$5,000, disqualified from driving for 12 months and ordered to attend a driving improvement course
before he could drive again. SJ considered the sentence inadequate and applied for a review of
sentence.
Held, SJ’s application for review granted, an additional sentence of 4 months’ imprisonment imposed
on the Respondent to be suspended for 2 years:
(1) Most of the traffic offenders involving accidents did not have criminal records and it had
probably never occurred to them that they would face sanctions in courts. However, a vehicle in the
hands of an irresponsible driver could become an extremely lethal weapon, causing serious injuries or
deaths to the victim, resulting in huge financial losses, and bringing untold misery and anguish to the
victim’s family. The courts had a duty to deter the irresponsible driver [19]-[20].
13
(2) At the material time, the weather was fine; the road surface was good and dry; the traffic flow
was light; and the scene was sufficiently lit [23]. The deceased was driving the motorcycle in a normal
manner with its lights turned on. He was entitled to presume that traffic on the opposite carriageway
would not abruptly cut across his path at insufficient distance [25]. Contrary to the deceased’s
presumption, the Respondent made an abrupt right turn without taking any reasonable measures such
as slowing down or turning on the right indicator, ending up in a collision of the two vehicles [21]. In
the incident, the Respondent was solely to blame whereas the deceased was an innocent party who lost
his life, leaving untold suffering to his family [28].
(3) There were only two possible causes for the accident: either the Respondent did not pay
attention to the road conditions when making the right turn or he did see the motorcyle but still
proceeded with the right turn recklessly. Either way, it was never a momentary lapse of attention on
the part of the Respondent, but a total disregard for the safety of drivers on the opposite carriageway.
He was highly culpable and condemnable [22], [24], [27].
(4) Serious injuries resulting in death was definitely a sentencing factor the court would take into
account when sentencing. The hardship caused to the deceased’s family and the grievances and
complaints they suffered would not be disregarded [26].
(5) As the Respondent had obtained his driving licence for less than a year at the time of the
accident, his good driving record was insignificant [29].
(6) Having considered the background of the case and the course of events, we found that a guilty
plea to careless driving would still properly attract a sentence of 4 months’ imprisonment. As the
matter had troubled the Respondent for some time and it was a review, the sentence was suspended for
2 years [31].
14
C. Application for Costs

申請訟費
香港特別行政區訴陳卓男
高等法院原訟法庭
HCMA 504/2013
原訟法庭法官馮驊
聆訊日期： 2013 年 11 月 5 日
頒佈判案書日期： 2013 年 11 月 19 日
答辯人代表律師：檢控官葉瑋璣
上訴人代表律師：關唐利大律師
訟費 – 裁判官拒絕給訟費予無罪釋放的上訴人 – 上訴人向控方發出「不損害原則」
（Without Prejudice）的信件 – 此信能否作為考慮訟費時的呈堂證供 – 什麼情況下處理上
訴的法院能夠接納有關訟費的新證供
上訴人在裁判法院審訊後被判偷竊罪無罪。裁判官拒絕給訟費予上訴人。其中一個原因
是上訴人曾向控方發出「不損害原則」的信件，內容指上訴人願意以簽保守行為方式代替審訊
以了結案件。裁判官認為有關信件自招嫌疑。上訴人就有關的訟費決定上訴。
另外，上訴人寫給控方另一封信件，信件附上一份上訴人的精神評估報告。上訴人的精
神評估報告指上訴人對精神科醫生指出他拿了櫃員機 500 元後，因酒醉而忘記交往警署。上訴
人曾要求控方同意以《刑事訴訟程式條例》（第 221 章）第 65B 條的書面陳述提出證明程式
處理。該信件沒有冠以「不損害原則」的標簽。最後，這封信件或這個精神評估報告沒有在原
審時呈堂。
裁決，上訴駁回：
(1) 就上訴人的抬頭註明「不損害原則」（Without Prejudice）的信件
高等法院原訟法庭指出，「不損害原則」的法律特權是一項規管證據可接納性的規定，用以豁
免所有旨在真正達成和解的協商被呈堂為證據。有關的法律特權不適用於開放的通訊，但若信
件註明「不損害原則」，便會構成一個可被推翻的規定。不損害原則的特權屬於與訟雙方，在
沒有雙方同意下不能向法庭出示，但有「除卻訟費以外」的字眼除外。原訟法庭裁定本案
「不損害原則」的信件，旨在真正地以毋須審訊方式處理案件，裁判官在裁斷訟費時，不應考
慮其內容。
(2) 至於沒有冠以「不損害原則」標簽的信件和精神評估報告，雖然它們沒有在原審時呈
堂，但原訟法庭認為，就訟費上訴而言，是否接納附加證據應以較彈性處理，可應用民事案例
Ladd v Marshall [1954] 1 WLR 1489 的原則（見下）。
15
原訟法庭裁定這封沒有冠以「不損害原則」標簽的信件是開放式信件。信件及精神評估報告不
涉及簽保守行為的商議，不屬於不損害原則特權的範疇。況且，辯方以開放方形式向控方披露
並表示會使用該信，即使原本應有的任何特權，包括不損害原則特權及/或法律專業特權，應
視為已被放棄。再者，原審時控方並未被邀請，而非故意不提出證據屬合理解釋。至於可信與
否，上訴人的精神評估報告是混合性質陳述。一般而言，對自己不利的承認會較為可信。因
此，原訟法庭批准答辯人呈遞新證據的申請。上訴人的精神科報告指出，上訴人是有取去有關
提款的，只是種種原因未能及時交回警署，上訴人實在自招嫌疑。而辯方指他們有意在審訊時
使用該報告，亦是令控方信納其案情會更強。
[HCMA 504/2013 – English Translation]
HKSAR v CHAN CHEUK NAM
COURT OF FIRST INSTANCE

HCMA 504/2013
Fung J
Date of Hearing: 5 November 2013

Date of Handing Down Judgment: 19 November 2013
Counsel for the Respondent: Cliff Ip PP

Counsel for the Appellant: Kwan Tong Lee
Costs – Refusal of costs by magistrate to acquitted appellant – “Without prejudice” letter issued
by Appellant to prosecution – Whether letter admissible in evidence when considering costs –
Under what circumstances could fresh evidence relating to costs be admitted by appellate court
The Appellant was acquitted after trial in the Magistrates’ Courts of a theft charge. The
magistrate refused to award costs to him on the ground, among others, that he had sent to the
prosecution a “without prejudice” letter to the effect that he agreed to dispose of the matter by way of
binding over to be of good behaviour. The magistrate found that the Appellant had brought suspicion
upon himself by the letter. He appealed against the decision on costs.
The Appellant had also sent to the prosecution another letter enclosing his psychiatric
assessment report. In the report, the Appellant told the psychiatrist he took the $500 from the ATM
machine but was so drunk that he forgot to take the money to the police station. The Appellant had
asked to tender proof in the form of a written statement under s 65B of the Criminal Procedure
Ordinance (Cap 221). The letter was not labelled “without prejudice”. Eventually neither the letter
nor the psychiatric assessment report was produced at trial.
Held, appeal dismissed:
(1) Regarding the letter under the heading of “Without prejudice”
The Court of First Instance pointed out that the “without prejudice” privilege was a rule
governing the admissibility of evidence, which applied to exclude all negotiations genuinely aimed at
settlement from being given in evidence. The privilege would not apply to open communications.
But if a letter was marked “without prejudice”, it would constitute the rule which was rebuttable. The
“without prejudice” privilege belonged to both parties. The letter could not be shown to the court
without the consent of both parties except when it contained the words “without prejudice save as to
16
costs”. The Court of First Instance held that the “without prejudice” letter in the present case
genuinely aimed at dealing with the case without a trial. The magistrate should not consider its
contents when making a finding on costs.
(2) As for the letter without the “without prejudice” label and the psychiatric assessment report
which were not produced at trial, the Court of First Instance was of the view that for the purpose of
costs appeal, more flexibility should be allowed to admit additional evidence in accordance with the
principles in the civil case Ladd v Marshall [1954] 1 WLR 1489 (see below).
The Court of First Instance held that the letter without the “without prejudice” label was an
open letter. The letter and the psychiatric assessment report were not involved in the negotiations for
binding over and therefore not covered by the without prejudice privilege. Moreover, the defence had
openly disclosed to the prosecution the letter and indicated the use of it, any privilege attached to it
including the without prejudice privilege and/or the legal professional privilege would be regarded as
having been waived. In addition, the prosecution had reasonably explained that it was not a deliberate
failure to adduce such evidence at trial but rather no such request had been made. As for credibility,
the Appellant’s psychiatric assessment report was a mixed statement. The unfavourable parts
admitted by him were generally more believable. Therefore the Court of First Instance allowed the
Respondent’s application to adduce fresh evidence. The psychiatric assessment report indicated that
the Appellant did take the money but for various reasons failed to bring it to the police station. He did
bring suspicion upon himself. The intention as shown by the defence to use the report had also led the
prosecution into thinking that the case against him was stronger than it really was.
17
D. Criminal Appeals/Against Conviction

刑事上訴案件/針對定罪
HKSAR v MUI KWOK KEUNG (梅國強)
COURT OF APPEAL
CACC 133/2013
Stock VP, Macrae & Line JJ
Date of Hearing and Judgment: 8 October 2013

Counsel for the Respondent: Wesley Wong SC DDPP & Jasmine Ching SPP
Counsel for the Applicant: Bernard Yuen
Champerty – Scope of the common law offence – Champertous agreement between a legal
representative and the lay client – Where public policy lies – Whether exceptions operate to
remove such conduct from criminal sanction – Whether genuine risk to the integrity of judicial
process
Champerty – Sentence – Whether to order loss of time
分享訴訟成果–普通法罪行的涵蓋範圍–法律代表與非法律專業的當事人達成分享訴
訟成果的協議–公共政策的立場–可否視作例外情況而令有關行為免受刑事制裁–是
否有真正風險會損害司法程序的完整
分享訴訟成果 – 刑罰 – 在上訴裁決前所服刑期是否頒令作廢
The Applicant, a practising barrister, was convicted of 5 charges of champerty for having
entered into a champertous agreement with his lay clients who were each a plaintiff in their own civil
claims [5]-[8]. The claims underlying charges 2 to 5 were resolved by way of settlement with costs
separately provided for and paid in favour of the plaintiff’s legal team [16]-[36]. The underlying
claim for charge 1 failed with adverse costs order entered against the plaintiff [9]-[15].
The Applicant was sentenced to a total of 3½ years’ imprisonment [3] and ordered to pay a total
amount of HKD 1,509,750 to the victims of charges 2 to 5 [74]. The overall sentence was achieved by
passing 2 years’ imprisonment on charges 1 to 4 and 2 years and 10 months’ imprisonment on charge
5; and then making all sentences concurrent save for two months from each of the sentences on
charges 1 to 4, which were ordered to run consecutively to the sentence on charge 5 [74].
Held, application for leave to appeal against conviction dismissed:
(1) There is no longer any issue as to whether or not champerty is a criminal offence per se in Hong
Kong – see Unruh v Seeberger (2007) 10 HKCFAR 31, re-affirmed in Winnie Lo v HKSAR (2012) 15
HKCFAR 16 [3]. What is in issue is its scope: whether an agreement between a legal representative
and his lay client to give the former a share of the proceeds of litigation, if successful, can amount to
this common law offence [4].
18
(2) The Applicant’s main grounds of appeal were (a) that public policy dictated that the type of
agreement entered into should not be regarded as criminal, (b) that there were exceptions (in particular
their common interest in the outcome of the proceedings, litigants’ right to access to justice and
lawyers of their choice) which operated to remove his conduct from criminal sanction, and (c) his
conduct did not pose a genuine risk to the integrity of the judicial process [40].
(3) It is not simply public policy which proscribes contingency fee arrangements but section 64(1)(a)
and (b) of the Legal Practitioners Ordinance (Cap 159) which gives statutory force to prohibition [44]-
[47]. The underlying rationale against maintenance and champerty has particular application to legal
practitioners conducting litigation as the ends of justices may be undermined [48]-[52].
(4) The suggestion that a barrister, by taking up the case in question, arrogates to himself a common
interest in the outcome involves a circularity in argument [62].
(5) Not only did the plaintiffs pay far more under these champertous arrangements than they would
otherwise have paid under a properly regulated system of representation, the defendants sued were
clearly at risk of paying more than they might otherwise have agreed to pay but for the champertous
agreements they knew nothing about. The defendants, to the extent that they were required to pay the
plaintiff’s legal costs, were deceived as they were not informed that the Applicant was in fact
receiving a portion of the settlement sum [68].
(6) In reality champertous agreements operate to the disadvantage of both sides to litigation [70] and
those entered into in this case undoubtedly presented an obvious and genuine risk to the integrity of
the court’s process [72].
(7) Despite the observations by the Court of Final Appeal in HKSAR v Winnie Lo on the question of
law reform [82], the Court remarked that “[i-]n the light of the facts which have emerged in this case,
it might be argued that there are very good reasons for preserving the common law offence of
champerty where legal practitioners are involved in these sort of champertous arrangements with their
clients. This was an egregious example of the offence and we wonder if, without the benefit of the
common law offence, there would be other sufficient criminal sanctions and safeguards to deal with
such conduct.” [83].
HKSAR v HUNG WAI YIP (洪偉業) & ANOR
COURT OF APPEAL
CACC 51/2011
Stock VP, Lunn JA & McWalters J

Date of Judgment: 3 October 2013 (for A1) and 8 November 2013 (for A2)
Date of handing down Reasons for Judgment: 8 November 2013
Counsel for the Respondent: William Tam DDPP & Noelle Chit PP
Counsel for A1: James McGowan
Counsel for A2: Phillip Ross
Criminal law and evidence – Whether permissible by the defence to adduce the out-of-court
statements of an accomplice who has pleaded guilty without calling him as a witness – In a voir
dire where the defendant alleges an assault by police officers, whether evidence of alleged assault
on another person 7 weeks before by the same team of police officers admissible – Whether the
proposed evidence falls within the exceptions to the “finality rule” as to collateral matters
including credit
19
刑事法及證據–認罪的從犯在庭外作出陳述，辯方可否援引庭外陳述而不傳召從犯作
證人 – 被告人在案中案程序中指稱被警務人員襲擊，又指稱同一隊警務人員於 7 星期
前襲擊另一人，指稱襲擊另一人的證據可否獲法庭接納–擬提出的證據是否因有關附
帶事宜包括可信性問題而屬於「終結規則」的例外情況
A1 and A2 were convicted after trial in the Court of First Instance of two counts of unlawfully
trafficking in a dangerous drug. It was the prosecution case that the two Applicants and Yuen Kin San
(“YUEN”) were seen by police officers emerging from a flat. A1 was found to be carrying a carrier
bag in which packets of cocaine were found. With a key found from A2, police officers gained entry to
the flat and found more cocaine inside together with paraphernalia and equipment for manufacturing
dangerous drugs. The prosecution produced at trial their cautioned statements and interviews. Under
caution at the scene, A1 said, “Ah Sir, I have nothing to do with it. I know nothing at all.” A2 said, “I
only received $1,000 from someone for delivering the coke for him. I know nothing else ….” In their
subsequent video recorded interviews, both A1 and A2 explained that it was the first time that they
had come to the premises and that they had been there only a short time prior to encountering the
police. A voir dire which was held, A2 objected to the admission of his cautioned statements into
evidence on the ground that he had been subjected to violence by police officers at the scene but the
Judge ruled against him. Yuen had previously pleaded guilty to the charges whereas the two
Applicants pleaded not guilty and were convicted after trial. They applied for leave to appeal against
conviction and a number of appeal grounds were relied upon in their applications.
One of A1’s appeal grounds alleged that counsel representing him at trial had been flagrantly
incompetent in the conduct of his defence in failing to adduce into evidence before the jury of the fact
that Yuen had made out-of-court statements to the police which exonerated A1 of any knowledge of
the presence of dangerous drugs in the premises let alone participation in unlawfully trafficking in
those dangerous drugs. Further, Yuen gave an explanation as to how it came about that A1 was in
possession of the carrier bag in which was found the dangerous drugs, namely that he had asked him
to hold the bag whilst he took out his keys to the premises to give to A2. It was argued on behalf of A1
that cross-examination of the police officers to elicit evidence of the statements made by Yuen in his
record of interview was permissible in that the evidence was admissible. A1 thus complained about his
counsel’s failure to cross-examine the police witnesses to adduce into evidence the out-of-court
statements made by Yuen [35].
One of A2’s appeal grounds alleged that during the voir dire, the Judge erred in ruling
inadmissible the evidence of a prospective witness to be called by A2 (“Wong”). It was asserted that
Wong would have testified that he had also been subjected to similar acts of violence by two of the
same team of police officers (called by the prosecution in the voir dire) on the occasion of another raid
in another case entirely, conducted some seven weeks later, on other premises in the course of their
enquiries into other unlawful drug trafficking. It was contended that evidence from Wong would have
shown that those officers had a propensity for violence when conducting such raids [40].
20
Held, applications for leave to appeal against conviction dismissed:
Re: Failure to cross-examine on the out-of-court statements made by Yuen

(1) Albeit that the Applicants were jointly charged in the offences with Yuen, having pleaded guilty
on arraignment to the charges, Yuen was a competent and compellable witness at the behest of A1.
The case of R v Myers [1998] AC 124 (which permitted cross-examination on the out-of-court
statements made by a co-defendant being jointly tried) could thus be distinguished. It was a matter for
A1 to determine whether or not to call Wong to give evidence. He considered that matter with his
lawyers and decided not to do so. It was not permissible to seek to avoid the risks of cross-
examination of Yuen by seeking to elicit his exculpatory out-of-court statements by cross-examination
of the police officer. That evidence was hearsay and was not the subject of any exception to that rule.
The only purpose of cross-examining the police officer in respect of Yuen’s out-of-court statement
was to adduce it as evidence of the truth. It was inadmissible for that purpose. The view taken at trial
of the issue by defence trial counsel was correct: HKSAR v Au Yuen Mei (No 2) [2004] 4 HKC 130
distinguished and HKSAR v Mohamedajoeb [2010] 5 HKLRD 204 applied [64]-[71].
Re: The Judge’s refusal to admit the evidence of Wong during the voir dire
(2) In A2’s case, the evidential link between his testimony and that of the prospective witness,
Wong, as described to the judge, was weak and tenuous. Each of them had allegedly received a
punch (s) and had their heads covered, one with a hood but the other with a blanket. There was no
other supporting relevant evidence. It was not suggested that the police officers had tried to force
admissions from Wong. The two events were wholly unconnected investigations, separated in time by
7 weeks. Clearly, the nature of the cross-examination of the police officers did not go to an issue in
the case. Rather, it was relevant to credibility only. Its relevance was tenuous at best and not of
substantial probative value. The Court was satisfied that the prospective evidence was not such that
fell within the exceptions to the ‘finality rule’ in respect of questions as to collateral matters, including
credit. Accordingly, the judge was correct to decline to receive that evidence: applying HKSAR v
Wong Sau Ming (2003) 6 HKCFAR 135 and not following the English cases of R v Busby (1981) 75
Cr App R 79 and R v Edwards [1991] 1 WLR 207 [93]-[102].
香港特別行政區訴 GONGSAEN JEERAWUN
高等法院上訴法庭
CACC 420/2012
上訴法庭副庭長楊振權、原訟法庭法官張慧玲及原訟法庭法官陳慶偉
聆訊及判案日期：2013 年 10 月 23 日
判案理由書日期：2013 年 11 月 1 日
申請人代表律師：梁鴻谷大律師
答辯人代表律師：高級助理刑事檢控專員李俊文
刑事法及訴訟程序 - Lee Fuk Hing 一案中所訂下的法律原則 - 被告人在刑事審訊期間才首次

提出抗辯理由或與其會面記錄所述不吻合 - 是否選擇行使緘默權 - 法官或控方可否作出評論
21
申請人經原訟法庭審訊後，被陪審團裁定一項販運危險藥物的控罪罪名成立，判處監禁
26 年。申請人不服，就定罪及刑罰均提出逾期上訴許可申請。
申請人的主要上訴理據是指原審法官在引導陪審團時，向陪審團講及當申請人在其會面
記錄所述與其在法庭上證詞之間不吻合時，錯誤地要求陪審團推測申請人是否行使緘默權。
裁決，上訴得直，定罪撤銷，案件發還重新審理:
(1) 上訴庭重申終審法院在李福興 (Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349) 一案中訂
下了究竟一名被告人在刑事審訊期間才首次提出抗辯理由，在評估該抗辯理由的強弱時，法庭
是否可考慮被告人未有於較早時間披露該理由一事的法律原則 [8]。
(2) 在香港特別行政區訴李少興，CACC 119/2006 一案中，上訴庭重申有關的法律原則：

「當一名被告人一直行使緘默權利時，控方是不可以就他沒有在較早前披露他的答辯理由而向
他作出盤問，而法官亦不可以就這議題給予評論」；並就例外的情況作出闡述：「假如被告人
在 (被警誡下或未被警誡下) 向警方作出一份供詞，而這份供詞的內容和其抗辯理由不一
致，並且，該不一致的情況是可以根據其他理由予以批評的，那麼控方可以選擇就該份供詞及
該份供詞與抗辯理由之間的聯性進行盤問及批評。法官亦可以邀請陪審團作出有關的並且公平
的推斷，儘管這些推斷是對被告不利的」。終審法院其後在處理李少興 (Li Siu Hing v HKSAR,
FAMC 32/2007) 的上訴許可申請時更進一步確認有關的法律原則 [10]-[11]。
(3) 在本案中，假若原審法官在引導陪審團時，祇是向陪審團指出及分析申請人在會面記錄
中所述與其在庭上所述事情上的分歧的話，這是法律所容許，亦是無可厚非的。但是，當原
審法官繼續講及申請人在錄影會面中沒有提及的事情是否因她選擇行使緘默權而沒有在被接見
時披露，及為何申請人在某幾項事情上選擇保持緘默，這些問題的目的似乎都是引導陪審團考
慮若申請人是行使緘默權，她所作證供的可信性，這違反了終審法院在 Lee Fuk Hing 一案中所
訂下的法律原則 [9]。
[CACC 420/2012 – English Translation]
HKSAR v GONGSAEN JEERAWUN
COURT OF APPEAL
CACC 420/2012
Yeung VP, Barnes & Chan JJ

Counsel for the Applicant: Michael Leung

Counsel for the Respondent: Edmond Lee SADPP
Criminal law and procedure – Legal principles laid down in Lee Fuk Hing – Defence put
forward by defendant for first time at trial being inconsistent with interview record – Whether it
was defendant’s choice to exercise the right of silence – Whether it was open to judge or
prosecutor to comment
22
After trial in the Court of First Instance, the Applicant was found guilty by a jury of an offence
of trafficking in a dangerous drug and sentenced to 26 years’ imprisonment. The Applicant applied
for leave to appeal against conviction and sentence out of time.
The Applicant’s main ground of appeal was that in giving directions on the inconsistencies
between her interview record and her evidence in court, the trial judge wrongly requested the jury to
speculate whether she had exercised her right to silence.
Held, appeal allowed, conviction quashed and case remitted for retrial:
(1) The Court of Appeal reiterated the legal principles laid down by the Court of Final Appeal in
Lee Fuk Hing v HKSAR [2005] 1 HKLRD 349 as to whether failure to disclose the defence earlier
could be considered in assessing its weight when the defence was put forward for the first time at trial
[8].
(2) In HKSAR v Li Siu Hing (CACC 119/2006), the Court of Appeal reiterated the legal principles
that as long as a defendant was exercising his right of silence, the prosecution could not cross-examine
him in respect of his failure to disclose his defence earlier nor could the judge comment upon this
matter, and explained the exceptional circumstances: “if an accused person makes a statement to the
police (under caution or otherwise) which is inconsistent with his defence which can be fairly
criticized on other grounds it is open to the prosecution to cross examine and comment that statement
and its relevance to the defence. The judge may also invite the jury to draw relevant and fair
inferences even if they are adverse to the accused.” Such legal principles were further affirmed by the
Court of Final Appeal in Li Siu Hing v HKSAR, FAMC 32/2007 at the hearing of an application for
leave to appeal [10]-[11].
(3) Had the trial judge merely drawn the jury’s attention to the discrepancies between the
Applicant’s interview record and her testimony in court and made an analysis to the jurors, such
approach would have been permissible by law and the trial judge would have been entitled to do so.
However, the trial judge went on to comment: did the Applicant exercise her right to silence so that
the matters which had not been mentioned in the video interview were not disclosed in the meeting
and why did she choose to remain silent on certain matters? The purpose of these questions seemed to
direct the jury to consider the credibility of the Applicant’s evidence if she had exercised her right to
silence. This was contrary to the legal principles laid down by the Court of Final Appeal in Lee Fuk
Hing [9].
HKSAR v LAM SIU FUNG (林兆峰) & ANOR
COURT OF APPEAL
CACC 326/2012
Lunn JA, Macrae JA and McWalters J

Counsel for the Respondent: Simon Tam, SC, SADPP

Counsel for the Applicant: Gerard McCoy, SC and John Marray for A1
Gerara McCoy, SC for A2
Criminal Procedure - Murder - Whether the directions on the issue of withdrawal from a joint
enterprise were correct and apposite to the circumstances of the case - Whether a Kevin Brown
direction had to be given
23
刑事訴訟程序–謀殺–有關退出共同犯罪計劃這爭論點的指引是否正確及貼合案件情
況 – 是否必須作出 Kevi n Brown 指引
Shortly before 04:00 in the morning of 2 October 2008 the deceased was attacked by a number
of young men in the McDonald’s Restaurant in the Tin Shui Wai Estate Shopping Centre. Both
applicants were amongst the group of young men. Those events were captured on CCTV and lasted
about 30 seconds. Although the young men were unarmed on their entry to the restaurant, a rubbish
compacting rod and a metal umbrella stand were used by some of them to attack the deceased, causing
him very serious injuries to his head from which he died shortly before midnight on 5 October 2008
[7].
The prosecution case was that the applicants had entered the restaurant, together with the other
young men, with a shared intention to confront and, if necessary, to attack the deceased. It was their
case that A1 had struck the deceased a number of violent blows with the metal rod during the assault,
thereby demonstrating his intention to cause the deceased really serious injury. For his part, A2 had
struck the deceased twice with the metal umbrella stand. In support of the latter allegation the
prosecution relied upon the evidence of Cheung Kwok Ho, an accomplice who pleaded guilty to
manslaughter. Also, the prosecution relied upon CCTV film of the attack [8].
A1’s case was that he had been provoked by the deceased when he attacked the deceased but
he had had no intention to cause the deceased any serious injury [16].
A2’s case was that he had not been aware of any earlier quarrel with any other people. He had
gone to McDonald’s Restaurant with others in order to eat. He did not expect there to be any violence.
The deceased kicked him, so A2 returned kicks a number of times. When he saw A1 hit the deceased’s
arm with a rod and others hitting him with bread trays. He was scared and wanted to go. He retreated
slowly. He did not want to take part in what was happening, so he left [17].
A1 was convicted by the unanimous verdict of the jury, whereas A2 was convicted by a
majority of 5 to 2.
On appeal, it was submitted on behalf of A1 and A2 that no lawful verdict of murder was
returned by the jury, given the conflated formal question posed by the judge’s clerk of the foreman of
the jury in the process of obtaining the verdict of the jury. It was submitted that the question,
“wrongly blended murder and manslaughter into one formal question, such that the single verdict of
“Guilty” was not an unequivocal verdict of guilty of murder.” It was contended that a verdict ought to
have been returned in respect of the count of murder before there was any mention of manslaughter
[20]-[21].
Next, it was submitted that there was insufficient evidence upon which the jury could convict
the applicants of murder on a primary or secondary basis, given that in the case of each applicant the
attack was “a rapid and planned escalation beyond his possible expectations.” Then, it was contended
that there was insufficient evidence for the jury to conclude safety that there was a pre-existing
intention amongst the members of the attacking group to cause serious bodily harm to the deceased
[22].
Also, it was submitted that the respective applicants had withdrawn from the assault conducted
by the others and had indicated that withdrawal to them. Further, the direction by the jury as to the
issue of the withdrawal of the respective applicants from the attack was erroneous. It was contended
that, whilst the direction was appropriate in circumstances of “pre-planned violence” it was not
appropriate in a case which involved spontaneous violence which occurred over a short duration of 30
seconds [23].
24
It was further submitted that the judge erred in failing to direct the jury in accordance with the
requirements set out in the judgment of the Court of Appeal of England and Wales in R v Brown
(Kevin), namely that the jury must be directed that they must agree not only as to the respective
accused being guilty but also as to the basis of that verdict of guilty [24].
Held, leave to appeal against conviction refused for A1; leave granted to A2 but the appeal was
dismissed:
(1) The format of the pro forma presented to the jury by the judge in respect of the applicants was
different from the draft pro forma in the Specimen Direction 55.4. The draft pro forma contained in
Specimen Direction 55.4 of the Specimen Directions requires a verdict to be delivered first in respect
of murder, Guilty or Not Guilty. Only in the event of a verdict of not guilty of murder, is the question
posed of the jury of an alternative verdict of manslaughter [43].
(2) Nevertheless, it is abundantly clear from the sequence of the questions posed in respect of the
count of murder against the A1 that the response “Guilty” was a verdict of “Guilty of murder” and
nothing else. That was the first substantive matter which the jury, through the foreman, was required
to address. Obviously, as was stated in the pro forma and as the judge directed the jury in his
summing up, available to the jury on the count of murder were the verdicts of Guilty or Not Guilty.
Plainly, that was in respect of the offence of murder. The verdict of the jury in respect of A1 was an
unambiguous verdict of guilty of murder [44].
(3) A consideration relevant to whether or not there was any ambiguity in the jury’s verdict being
one of guilty to murder in respect of each of the applicants is the fact that the jury was present when
the judge sentenced each of the applicants immediately after the verdicts had been delivered,
informing them that since they had been convicted by the jury of the offence of murder the penalty,
namely life imprisonment, was mandatory. There is no dispute that none of the jurors took issue with
the judge’s interpretation of the verdicts. In the circumstances of this case, the lack of any reaction
whatsoever from the jury as very powerful confirmation that the jury had returned an unambiguous
verdict of guilty of murder in respect of A1 [46].
(4) In Chu Yiu Keung this Court considered the issue of withdrawal from a criminal joint
enterprise, including that in which a violent incident arose spontaneously. On the facts of that case,
the latter consideration did not arise since the violence arose from a “planned revenge attack”. The
court cited with approval the statement made by Mantell LJ in the judgment of the Court of Appeal of
England and Wales in R v O’Flaherty of the consequences of unequivocal withdrawal by a party to
joint enterprise, namely that: “A person who unequivocally withdraws from a joint enterprise before
the moment of the actual commission of the crime by the principal, here murder, should not be liable
for that crime although his acts before withdrawing may render him liable for other offences.” [55].
(5) The court noted that the statements made by Sloan JA in the judgment of the Court of Appeal
of British Columbia in R v Whitehouse had been cited with approval on several occasions by the Court
of Appeal of England and Wales. Sloan JA said that, whilst the issue of whether or not a party to a
joint enterprise, by steps taken to withdraw from the joint enterprise, had broken the chain of causation
and responsibility would depend on the circumstances of each case, but that an essential element was
that, “Where practicable and reasonable there must be timely communication of the intention to
abandon the common enterprise from those who wish to disassociate themselves from the
contemplated crime to those who desire to continue in it” [56].
(6) In R v O’Flaherty, the court cited with approval the statement of Otton LJ in the judgment of
the Court of Appeal of England and Wales in R v Mitchell and King in which a distinction was drawn
between pre-planned and spontaneous violence: “Communication of withdrawal is a necessary
25
condition for disassociation from pre-planned violence. It is not necessary when the violence is
spontaneous. Although absent any communication, it may, as a matter of evidence, be easier to
persuade a jury that a defendant, who had previously participated, had not in fact withdrawn. Such
considerations are clearly relevant in such cases, but less so when the violence has erupted
spontaneously.” [57].
(7) Illustrating the difference, Mantell LJ said that: “ … in a case of spontaneous violence in
principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking
away.” [58].
(8) In the result, the Court of Appeal was satisfied that the judge gave the jury directions of law in
respect of the issue of withdrawal from a joint enterprise that were correct and entirely apposite to the
circumstances of each of the applicants in this case. Further, he reminded the jury appropriately of all
the evidence relevant to the jury’s consideration of that issue. There is no merit in this ground of
appeal [66].
(9) A2 contended that the judge should have given the jury a Kevin Brown direction. The
prosecution case was that A2 was a male F, who was seen on the CCTV recordings to have used an
umbrella stand to attack the deceased. The defence contends that A2 was a male E, who played a far
lesser role in the assault. Having regard to those matters in the context of the instant case the judge,
when ruled that a Kevin Brown direction was not required, said, “ ...whether the 2nd defendant used
the umbrella stand or simply kicked the deceased is not an ingredient of the offence. It is a simple
dispute on the evidence as to what actions the 2nd defendant did during the assault on the deceased,
the relevance of his actions going to the inference the jury may draw as to his state of mind. In other
words, his actions are not an ingredient of the offence. They are a means to proof of an ingredient,
and that ingredient, unlike in Brown and Mitchell, is not one of a number of alternative ingredients.”
(10) The Court of Appeal was satisfied that the judge’s reasoned analysis and the decision that he
reached in his ruling was correct. There was no need to give a Kevin Brown direction in respect of A2
[67], [71]-[86].
HKSAR v NG Chun-to Raymond （吳鎮濤）& ANOR
COURT OF APPEAL
CACC 178/2010
Stock VP, Barma JA and Macrae JA

Date of Handing Down Reasons for Judgment: 19 November 2013
Counsel for the Respondent: Isaac Tam Ag SADPP and Kasmine Hui PP
Counsel for the Applicants (D1 & D4): Clare Montgomery, QC, Clive Grossman, SC and
Jonathan Ah-weng
Criminal law & procedure – Retrial – Relevant considerations for ordering a retrial
刑事法及訴訟程序 – 重審 –命令重審的相關考慮因素
26
The Applicants (D1 and D4) were convicted after trial of the following offences: D1 – 4
charges of conspiracy to defraud and one charge (Charge 6) of doing an act tending and with intent
to pervert the course of justice and D2 – 17 charges of dealing with property known or believed to
represent the proceeds of an indictable offence. The sole issue in the case against D1 was whether
he was the person named Raymond who was the orchestrator of the warrant pushing scheme. D4
was the wife of D1. On appeals, appeals against convicted were allowed, convictions were quashed
and sentences were set aside. D1 had served 17 months of the term originally imposed while D2 had
served two years in prison which accounts for the full term she was required to serve with remission
for good behaviour. The issue was a re-trial should be ordered for both Applicants.
Held, D1 was ordered to be retried upon a fresh indictment of Charges 1-4 and no order for re-trial
against D4:
(1) The power to order a retrial where an appeal is allowed is conferred by s 83E (1) of the
Criminal Procedure Ordinance Cap. 221 [7].
(2) The cases of Au Pui-kuen v AG (1979) HKLR 16, Ting James Henry v HKSAR [2008] 4
HKLRD 850, Dennis Reid v The Queen [1980] AC 343 and R v Maxwell [2011] 1 WLR 1837 were
considered and applied.
(3) The power to order a re-trial must always be exercised judicially. To exercise the discretion
judicially may involve a court in considering and balancing a number of factors some of which may
weigh in favour of a new trial and some may weigh against it. The interests of justice include the
interests of the prosecutor and the accused, and also the interests of the public in Hong Kong that
those persons who are guilty of serious crimes should be brought to justice and should not escape it
merely because of a technical blunder by the judge in the conduct of the trial or his summing up to
the jury [8(1)].
(4) Relevant and major considerations for ordering a retrial [8] :
(a) The strength of the evidence adduced against the accused in the previous trial. It is not
necessarily a condition precedent to the ordering of a new trial that the Court of Appeal
should be satisfied of the probability that it will result in a conviction.
(b) Seriousness of the offence.
(c) Prevalence of the offence.
(d) Where the previous trial was prolonged and complex, the expense and the length of
time for which the court and jury would be involved in a fresh hearing.
(e) Any criminal trial is to some extent an ordeal for the defendant, which the defendant
ought not to be condemned to undergo for a second time through no fault of his own
unless the interests of justice require that he should do so.
(f) The length of time that would have elapsed between the offence and the new trial if one
be ordered.
(g) Whether there is any evidence which tended to support the defence at the first trial
would not be available at the new trial.
(h) Whether the interests of justice would require a retrial in circumstances where the
prosecution evidence at the new trial would be incontestably free of taint.
27
(5) These considerations are not exhaustive, for the test can only properly be applied in the
context of considerations which are case specific [9].
(6) In deciding whether or not the interests of justice require a retrial, it is surely clear that the
Court of Appeal would be entitled to disregard the earlier prosecutorial misconduct since it would
have no effect on the retrial [8(4)].
HKSAR v SZE LOK HANG （施諾衡）
COURT OF APPEAL
CACC 203/2013
Stock VP, Line and McWalters JJ

Counsel for the Respondent: Eddie Sean SADPP

Counsel for the Applicant: Ian Polson
Sentencing - Theft by a nurse of four barcode labels and one medical report belonging to
patients - Various forms of breach of trust involved - Public interest in preserving the
community's confidence in the security of computer systems - Sentencing considerations
判刑–護士盜竊屬於病人的 4 個條碼標籤及一份醫學報告–涉及不同形式的違反誠
信 – 為公眾利益而須維持社會人士對電腦系統安全性的信心 – 判刑的考慮因素
The Applicant was a registered nurse who was working at the Accident and Emergency
Department (“the A&E”) of the Prince of Wales Hospital at the time of the offences. He received
training on the protection of personal data privacy and security. He was charged with 5 charges which
involved allegations of common assault and indecent assault against 5 different complainants, and
Charge 6 was a charge of theft. The stolen properties under Charge 6 were all hospital properties,
namely 4 barcode labels and one medical report, found from the Applicant’s locker at the time of his
arrest.
The medical report and one of the barcode labels concerned the complainant of Charge 1 who
was known at trial as Madam A. The Applicant was involved in Madam A’s case when she was
receiving treatment at the A&E. The Applicant asked Madam A for her phone number in case there
would be any problem in the following days. Madam A did so. The Applicant sent Madam A
messages using WhatsApp. In the course of this text conversation Madam A informed the Applicant
that she thought she had lost her sick leave certificate. Later the two met for dinner and the Applicant
gave her the replacement certificate and since then the two had not met again or engaged in social chat.
Other barcode labels belonged to patients who were referred to as X, Y and Z.

28
Madam X went to the A&E for a consultation. She did not know why a label relating to her was
in the Applicant’s locker; or why her phone number was written above that barcode label. It was not
her handwriting. She had not given her phone number to anyone in the hospital other than the
registration staff.
Madam Y was not available to give evidence.
Madam Z was a part time nurse in the A&E and was the Applicant’s colleague. She felt unwell
and registered herself as a patient one day. She had not given any barcode label to the Applicant and
did not know why her barcode label was in his locker. She encountered the Applicant at some stage
that day and told him she was going to see the doctor.
The Applicant was convicted with the theft charge only, and was sentenced to 9 months’
imprisonment. He applied for leave to appeal against, inter alia, sentence.
Held, application for leave to appeal against sentence dismissed:
(1) True it is that the courts would normally try and keep out of gaol a first offender convicted of a
minor offence or an offence that does not call for a deterrent sentence. This is not such an offence
[57].
(2) The computer provides benefits to us through its ability to store vast amounts of data and its
ability quickly to retrieve and process that data so that it can be used by those having a need of it. It
has become an integral part of our daily life [57].
(3) The existence of computer data banks carries with it the risk that access to them will be abused
and the information within them exploited for improper purposes. The realization of this risk has led
to the emergence within the community of a growing awareness of the value of privacy and the need
to protect it. The Hong Kong Government has responded to this concern with the enactment of the
Personal Data (Privacy) Ordinance (Cap 486) [58].
(4) There is a great public interest in preserving the community’s confidence in the security of
computer systems and the integrity of those granted access to them. Nothing will be more personal
and more private than information collected by a doctor on a patient. The obligation of confidentiality
is so important in the patient/doctor relationship that it is made a cardinal ethical requirement of the
medical profession [59].
(5) The importance of this public interest requires that a sentence containing a strong element of
general deterrence is imposed for an offence of this nature [60].
(6) The court identified 3 different forms that the breach of trust may take: a breach of trust between
the patient and the hospital [61]; the breach of trust between the employer and the Applicant when the
employer entrusts to its healthcare staff the opportunity to access and obtain medical information on
patients [62]; and the breach of trust by the employee in the access granted to him by the employer to
the employer’s computer data base [63].
(7) Here, the Applicant was guilty of the first two forms of breach of trust which were serious
breaches of trust. Once they become known the damage they do extends well beyond the immediate
complainants for they undermine the public confidence in the security of the hospital’s computer data
base and the integrity of the patient/healthcare worker relationship [64].
29
(8) The culpability in the present case lies in the Applicant’s improper acquisition of this
confidential information and not with the use he made of it. That he ultimately made no improper use
of the information does not, however, lessen the seriousness of his dishonest appropriation of the
barcode labels; rather it constitutes no more than the absence of an aggravating factor. Theft of the
labels is serious misconduct in its own right. It does not require a subsequent misuse of the stolen
labels to elevate it to the level of a serious offence [65].
(9) The Applicant’s conduct cannot be seen as simply a momentary lapse in professional ethics, a
mere simple failure to comply with hospital Guidelines and established practices and procedures or a
technical theft of a minor nature. It involves a significant level of dishonesty and serious breaches of
trust. The widespread use of computer systems and the increasing reliance on stored confidential data
creates the potential for substantial harm to flow from the kinds of dishonesty and breaches of trust
committed by persons with access to such information. Deterrent sentences are called for and this
must usually mean, even for first offenders, a period of immediate imprisonment [66].
(10) Beyond noting that a severe response is called for from the courts in punishing for this type of
misconduct it is not possible or desirable to lay down more detailed guidelines. The range of
misconduct will be great and the motivations for it equally wide-ranging. Here, the sentence was not
wrong in principle and nor was it, in the circumstances of this case, manifestly excessive [67].
30
E. Criminal Appeal/Against Sentence

刑事上訴案件/針對刑罰
HKSAR v MUI KWOK KEUNG (梅國強)
COURT OF APPEAL
CACC 133/2013
Stock VP, Macrae & Line JJ

Counsel for the Respondent: Wesley Wong SC DDPP and Jasmine Ching SPP
Counsel for the Applicant: Bernard Yuen
Champerty – Scope of the common law offence – Champertous agreement between a legal
representative and the lay client – Where public policy lies – Whether exceptions operate to
remove such conduct from criminal sanction – Whether genuine risk to the integrity of judicial
process
Champerty – Sentence – Whether to order loss of time
分享訴訟成果–普通法罪行的涵蓋範圍–法律代表與非法律專業的當事人達成分享
訴訟成果的協議–公共政策的立場–可否視作例外情況而令有關行為免受刑事制
裁 – 是否有真正風險會損害司法程序的完整
分享訴訟成果 – 刑罰 – 在上訴裁決前所服刑期是否頒令作廢
The Applicant, a practising barrister, was convicted of 5 charges of champerty for having
entered into a champertous agreement with his lay clients who were each a plaintiff in their own civil
claims [5]-[8]. The claims underlying charges 2 to 5 were resolved by way of settlement with costs
separately provided for and paid in favour of the plaintiff’s legal team [16]-[36]. The underlying
claim for charge 1 failed with adverse costs order entered against the plaintiff [9]-[15].
The Applicant was sentenced to a total of 3½ years’ imprisonment [3] and ordered to pay a
total amount of HKD 1,509,750 to the victims of charges 2 to 5 [74]. The overall sentence was
achieved by passing 2 years’ imprisonment on charges 1 to 4 and 2 years and 10 months’
imprisonment on charge 5; and then making all sentences concurrent save for two months from each
of the sentences on charges 1 to 4, which were ordered to run consecutively to the sentence on
charge 5 [74].
Held, application for leave to appeal against sentence dismissed:
(1) The element of exploitation was an aggravating feature: all five victims had been manipulated
by the Applicant who preyed on their trust, their ignorance of the legal system and, to varying
degrees, their vulnerabilities, whether in terms of youth, financial difficulties or mental disability
[76]. It was difficult to imagine a worse scenario than this where, quite apart from the blatant
disregard of the Applicant’s professional responsibilities, these were 5 unconnected cases involving
considerable sums of money which the victims could ill afford to forgo [77].
31
(2) The sentences were not disturbed by way of either invoking s 83I(3) (to increase the sentence)
or s 83W(2) (to order loss of time) under the Criminal Procedure Ordinance (Cap 221) because [80]:
(a) there were matters of law in relation to conviction which might be said to be at least
arguable, if only because of the wholly unusual nature of the offence;
(b) of the absence of sentencing precedent; and
(c) of the inevitable extra-curial consequences for the Applicant and his conduct.
(3) However, any member of either branches of the legal profession who enters into this kind of
arrangements must realise that he or she will, if convicted of a similar offence, inevitably go to
prison for a substantial period of time, with the inevitable consequences on their professional careers
[81].
(4) In respect of the compensation order, the prudent course adopted by the judge (who stood the
case down until after a luncheon adjournment so that defence counsel could take full instructions)
could not be criticised for not making an enquiry into the Applicant’s means when the stance taken
at the court below was one that the Applicant did not wish to make any submission [78]. The Court
was “unimpressed” by the submission on appeal that the victims were themselves parties to an illegal
contract and thereby not entitled to any compensation [79].
32
F. Magistracy Appeal / Against Conviction

裁判法院上訴案件/針對定罪
香港特別行政區訴楊古滿
HCM A 47 9/ 2013
高等法院原訟法庭暫委法官邱智立
聆訊日期：2013 年 10 月 3 日
判案書日期：2013 年 11 月 15 日
答辯人代表律師：署理高級檢控官李希哲
上訴人代表律師：莊君如大律師
刑事法及訴訟程序–管有虛假文書–什麼構成虛假文書–由有關機構發出但載有虛假
姓名及出生日期的中華人民共和國身分證是否虛假文書
上訴人承認多項控罪，被判罪名成立。其中一項是管有虛假文書，控罪的標的物
是一張由中華人民共和國有關機構發出的身分證。上訴人承認在 2005 年移居深圳時
冒用虛假身分，取得載有虛假姓名及出生日期的身分證。
上訴人提出上訴，指承認的案情並不支持控罪，並辯稱涉案身份證本身並非虛
假，因此不是香港法例第 200 章《刑事罪行條例》第 69 條所指的虛假文書。
裁決，定罪上訴駁回：
( 1 ) 上訴法庭在 HKSAR v Huynh Bat M uoi [2001] 4 HKC 643 的裁決是基於該案的

特殊案情作出，對上訴人沒有幫助。[2 3 - 2 4 ]
( 2 ) 在律政司司長訴楊漢強 [200 7] 4 HKC 397 ，上訴法庭審視第 200 章第 69( a ) ( vi i )

條的 “ 虛假 ” 涵義。經分析涉及相同法定條文的英國案例後 ( 特別是 At t or n e y
Ge ne r al ’ s Ref erence (No 1 of 2000) [2 001] 1 Cr App R 218) ，上訴法庭的結論是：
隨着第 2 0 0 章第 69( a) ( vi i) 條刻意加入“該文書……事實上並非……在該等情況下製
造 ” 的詞句，關乎偽造的法律，涵蓋範圍已經擴大 [2 1 ] 。
(3) 法庭裁定，發出中華人民共和國身份證的大前提是向有關機構提供的個人詳情必
須正確無誤。由於申請人明知而提供虛假姓名及出生日期，因此涉案身分證看來是在
某些情況下製造但事實上並非在該等情況下製造，屬第 200 章第 69(a)(vii ) 條所指
的虛假文書 [2 5 ] - [2 6 ] 。
33
HKSAR v YANG GUMAN

HCMA 479/2013
Deputy High Court Judge Joseph Yau

Counsel for the Respondent: Andrew Li Ag SPP

Counsel for the Appellant: Sezen Chong
Criminal Law and Procedure – Possession of a false instrument – What amounts to false
instrument – Whether a PRC identity card issued by the relevant authority but bearing a false
name and date of birth a false instrument
The Appellant was convicted upon her own plea of, among other charges, possession of a false
instrument. The subject matter of the charge was an identity card issued by the relevant authority of
the People’s Republic of China. The Appellant admitted that when she moved to Shenzhen in 2005,
she assumed a false identity and obtained an identity card bearing her false name and date of birth.
On appeal, the Appellant contended that the facts as admitted by her did not support the charge.
She argued that the identity card did not tell a lie about itself and therefore, it was not a false
instrument under section 69 of the Crimes Ordinance, Cap.200.
Held, appeal against conviction dismissed:
(1) The decision of the Court of Appeal in HKSAR v Huyng Bat Muoi [2001] 4 HKC 643 did not
assist the Appellant because it was confined to its own peculiar facts [23]-[24].
(2) In Secretary for Justice v Yeung Hon Keung, Larry [2007] 4 HKC 397, the Court of Appeal
examined the meaning of “false” under section 69(a)(vii) of Cap.200. After analysing the English
authorities on the identical statutory provision, in particular Attorney General’s Reference (No 1 of
2000) [2001] 1 Cr App R 218, the Court of Appeal concluded that the law relating to forgery had been
widened in its scope since the deliberate addition of the words “in circumstances in which it (the
instrument) was not in fact made” to section 69(a)(vii) of Cap.200 [21].
(3) The Court held that the issuance of the PRC identity card presupposed the personal particulars
supplied to the authority were correct. Since the Applicant knowingly supplied a false name and date
of birth, the identity card purported to have been made in circumstances in which it was not in fact
made. As such, it was a false instrument under section 69(a)(vii) of Cap.200 [25]-[26].
34
G. Magistracy Appeals/Against Sentence

裁判法院上訴案件/針對刑罰
香港特別行政區訴葉寶琳及其他
HCMA 733/2012
高等法院原訟法庭法官張慧玲
聆訊日期： 2013 年 10 月 8 日及 9 日
判案書日期： 2013 年 11 月 4 日
上訴人代表律師：沈士文大律師及黃瑞紅大律師代表第一、第三、第五及第六上訴人
第二、第四、第七及第八上訴人，無律師代表，親身應訊
答辯人代表律師：高級助理刑事檢控專員許紹鼎及檢控官柏愛莉
刑事法及訴訟程序 - 非法集結 - 公眾遊行 - 《公安條例》第13A 條制定的書面通知規定是

否合憲 - 警方作出拘捕前圍堵遊行人士，但無即時告知他們為何不能離開，是否構成非法禁
錮
2011 年 6 月 4 日，第一至第八上訴人(下稱 D1 至 D8)與一批人士從維園向北角警署方向

遊行，而該遊行警方並無事先接獲《公安條例》第 13A 條提出的公眾遊行意向書，在遊行期間
發生了衝擊警線情況，D1 至 D8 被控共 9 項罪行，包括「非法集結」、協助或牽涉於舉行、召
集、組織、組成或集合一個未經批准的公眾遊行及「明知而參與或繼續參與一個未經批准集
結」。所有上訴人經審訊後，被裁定罪名成立，他們不服定罪，提出上訴。D1 及 D4 就「非法
集結」罪被判處 4 個星期監禁，緩刑 12 個月，提出上訴。
控方案情指 2011 年的六四燭光晚會後，D1 和 D2 於維園出口召集巿民參與一個未經批准

的集結，從維園向北角警署方向遊行。就是次遊行，警方事前從沒接獲通知，故須即時處理。
警員勸喻 D1 使用電氣道以免阻塞繁忙的英皇道交通，但不果。由於 D1 堅持使用英皇道，警方
作出讓步，但清楚表明遊行人士不可使用馬路，D1 對此不置可否。晚上約 2230 時，遊行正
式開始。遊行初時，隊列人數超過 150 人，警方嘗試協助遊行有序進行，但最終遊行人士不理
會警方指示，拉起黃帶走入英皇道，佔用了英皇道東行線的一條行車道，造成交通嚴重阻塞，
有警員被擠向電車路。期間警方向遊行人士作出警告，指遊行屬未經批准的集結，亦屢勸他們
返回行人路。雖然如此，警方仍容許示威人士繼續前行。當到達英皇道電廠街交界時，警方把
遊行隊伍截停，好讓電車駛過。警方此時再一次向遊行人士發出警告，呼籲他們返回行人路，
但不獲理會。其後遊行人士兩次衝擊警線。第一次衝擊發生於約 2305 時，由 D1 和 D4 提議
及發號司令，雙方發生激烈擠壓。警方高舉紅色警告標語，指令遊行人士停止衝擊，否則警方
便會使用武力。第二次衝擊發生於約 2345 時，部分遊行人士成功衝破警線，跑到英皇道西行
線坐下或躺臥地上，癱瘓兩線交通。警方再次高舉停止衝擊的警告標語，成功阻止遊行人士突
圍。警方在 0020 時左右點算馬路上的遊行人士，發現人數已減至 80 人。警方作出拘捕行動，
把 53 名示威人士帶走，現場秩序和交通逐步恢復正常。
35
上訴人依賴以下上訴理由：
(i) 《公安條例》第 13A 條制定的書面通知規定違憲，口頭通知已足夠;

(ii) 因警方於 2305 時把遊行人士截停，從那刻起，是次遊行的性質便遭改變。再不是一個
為著到北角警署抗議此「共同目的」所組成的公眾遊行。人群隨後在案發現場聚集是非
自願；及
(iii) 警方並無在拘留遊行人士時告知他們被拘留的原因，因此警方拘留遊行人士屬非法拘
留。
裁決，各上訴人就定罪的上訴被駁回，第一及第四上訴人(D1 及 D4)的判刑上訴駁回：
(1) 就上訴理由一，在梁國雄一案，終審法院就整個《公安條例》有關公眾遊行的法定知

會機制及相關條文作出非常仔細的審視，法定知會機制是否合憲是辯論其中部分[25]-[26]。
法定知會機制合憲，以書面形式準備把範圍有限的相關資料，於合理的時間和情況下提供給警
方，是構成「合理通知」不可或缺的元素，這安排有利警方協助集會遊行和平有序地進行，是
必需和相稱的 [28] 。口頭通知不可能是一個可行方法[31] 。
(2) 就上訴理由二及三，在 2252 時，警方已清楚向在場人士指出他們當時的遊行是一個未

經批准的集結，而且從錄影片段，可見警方將有警告字眼的橫額向遊行人士展示[50]。從本案
的證據看來，警員不斷呼籲遊行人士上行人路，雖有個別遊行人士上了行人路，但本案的各上
訴人並無如此做，部分人士更明確表示不同意警方的要求。他們根本從未被拘留，而是他們自
願繼續留在馬路上，進行該未經批准的遊行[53]。
(3) D1 至 D8 正式被拘留的時間是於 0035 時之後，直至警方宣布拘捕他們，為時不超過半小

時[57]。本案涉及大規模拘捕行動，與一般執法行動不可相提並論[63]。警方在有足夠人手將
拒絕離開馬路的遊行人士圍起，等候警車及其他警員的調配才正式作出拘捕。以當時的所有環
境情況而言，並不構成非法拘留[65]。
(4) D1 及 D4 就「非法集結」罪被判 4 個星期監禁，緩刑 12 個月。D1 及 D4 向感化官表示公

安法不合理、不合時，指他們毋須事先知會警方。他們並不認同他們干犯法律。在此情況下，
雖然報告有正面評價，判以感化令或社會服務令是不切實際[80]-[81]。
[ H C M A 7 3 3 / 2 0 1 2 – E n g l i s h Tr a n s l a t i o n ]
HKSAR v YIP PO LAM & ORS

HCMA 733/2012
Barnes J
Date of Hearing: 8 & 9 October 2013

Counsel for the Appellants: Erik Shum & Linda Wong for A1, A3, A5 & A6
A2, A4, A7 & A8 in person
Counsel for the Respondent: Martin Hui SADPP & Audrey Parwani PP
36
Criminal law and procedure – Unlawful assembly – Public procession – Constitutionality of the
written notice requirement under s 13A of the Public Order Ordinance – Whether the enclosure
of demonstrators in procession before arrests made without giving instantly the reason for not
allowing them to leave amounted to unlawful detention
On 4 June 2011, A1 to A8 (hereinafter referred to as D1 to D8) and a group of people marched

in procession from Victoria Park towards North Point Police Station. No notice of intention to hold a
procession under s 13A of the Public Order Ordinance was received by the police prior to it. During
the procession, the police line was charged. D1 to D8 were prosecuted for 9 offences including
“unlawful assembly”, “assisting or being concerned in holding, convening, organizing, forming or
collecting an unauthorized public procession” and “knowingly taking part or continuing to take part in
an unauthorized assembly”. After trial, all the Appellants were found guilty. They appealed against
conviction. D1 and D4 appealed against the sentence of 4 weeks’ imprisonment suspended for 12
months on the charge of “unlawful assembly”.
Prosecution case was that after the 4 June candlelight vigil, D1 and D2 at the exit of Victoria
Park called on the people to take part in an unauthorized assembly and marched from Victoria Park
towards North Point Police Station. In respect of such procession, no prior notice was received by
police and immediate disposal was required. The police advised D1 to use Electric Road to avoid
causing obstruction to King’s Road where the traffic was very busy but in vain. As D1 insisted on
using the King’s Road, the police made concession but made it clear that the demonstrators must not
use the roadway. D1 made no response to it. At about 2230 hours, the procession formally
commenced. Initially, the demonstrators in the procession numbered more than 150 persons. The
police attempted to assist the procession to proceed in an orderly manner but eventually the
demonstrators in defiance of the police instructions removed the yellow cordon line and walked onto
King’s Road. They occupied a lane of eastbound carriageway of King’s Road, resulting in serious
traffic congestion. Some police officers were shoved to the tram lanes. Meanwhile, the police issued
warnings to the demonstrators, declaring that the procession was an unauthorized assembly and
repeatedly urging them to return to the pavement. Notwithstanding that, the demonstrators were
allowed to go ahead. On reaching the junction of King’s Road and Tin Chong Street, the procession
was stopped by the police to allow the passage of trams. At this juncture, the police warned the
demonstrators once again, asking them to return to the pavement but that was ignored. Subsequently,
the demonstrators rushed the police line twice. The first rush occurred at about 2305 hours, proposed
and directed by D1 and D4. There were violent pushes and shoves between the two parties. The
police held up a red warning sign and directed the demonstrators to cease the storming or the police
would resort to the use of force. The second rush took place at about 2345 hours. Some demonstrators
successfully broke through the police line and went to the westbound carriageway of King’s Road
where they sat down or lay on the ground. The traffic on both directions was paralysed. The police
again held up the stop charging warning sign and managed to prevent the demonstrators from
spreading further by cordoning them around. At about 0020 hours, the police counted the number of
the demonstrators who stayed on the roadway and found that the number had decreased to 80. Arrests
were made and 53 demonstrators removed. The order and the traffic at the scene gradually resumed
normal.
On appeal, the Appellants relied on the following grounds:
(i) The written notice requirement under s 13A of the Public Order Ordinance was unconstitutional
and verbal notice was sufficient;
(ii) The demonstrators were stopped by the police at 2305 hours. Since then, the nature of the
procession was changed and it was no longer a public procession organized for the “common
purpose” to protest at North Point Police Station. The subsequent presence of the crowd
gathering at the scene was no longer voluntary; and
37
(iii) As the police detained the demonstrators without giving the reason for detention, it amounted to
an unlawful detention.
Held, appeals of the Appellants against conviction dismissed and appeals of A1 and A4 (D1 and D4)
against sentence dismissed:
(1) For appeal ground 1 : In the case of Leung Kwok Hung, the Court of Final Appeal made a close
scrutiny of the entire statutory notification scheme and the provisions relevant to public procession
under the Public Order Ordinance. The constitutionality of statutory notification scheme was one of
the issues [25]-[26]. Statutory notification scheme was constitutional. A notification in writing with
limited relevant information given to police within a reasonable time in the circumstances of the case
was an indispensable element for a “reasonable notice”. Such arrangement was necessary and
proportionate as it would greatly facilitate the police assistance in ensuring assemblies and processions
to take place in a peaceful and orderly manner [28]. Verbal notice was impossibly a feasible option
[31].
(2) For appeal grounds 2 and 3: At 2252 hours, the police pointed out clearly to the people present
at the scene that the procession was an unauthorized assembly. Further, as can be seen from the video
footage, the police had displayed the warning sign to the demonstrators [50]. On the evidence, the
police incessantly urged the demonstrators to return to the pavement. Although some demonstrators
went back to the pavement, the Appellants did not. Others even expressed clearly their disapproval of
the police request. They had in fact never been detained but voluntarily remained on the road to
continue with the unauthorized procession [53].
(3) The time when D1 to D8 were formally detained was after 0035 hours. It was less than half an
hour before the arrests were declared on them [57]. The present case involved a massive arrest action
to which no normal enforcement action could be compared [63]. Only when the police had sufficient
manpower did they enclose the demonstrators who refused to leave the roadway, await the deployment
of police vehicles and other police officers and make the formal arrests. In view of all the
circumstances of the case, no unlawful detention was constituted [65].
(4) For the charge of “unlawful assembly”, D1 and D4 were sentenced to 4 weeks’ imprisonment to
be suspended for 12 months. D1 and D4 indicated to the probation officer that as the Public Order
Ordinance was unreasonable and outmoded, they were not required to give prior notice to the police.
They did not think that they had breached the law. Despite the positive comments, probation order or
community service order in the circumstances was unrealistic [80]-[81].
香港特別行政區訴舒靈珍
HCMA 461/2013
原訟法庭法官彭偉昌
聆訊及裁決日期： 2013 年 11 月 26 日
答辯人代表律師：高級檢控官林德穎
上訴人代表律師：梁照林大律師
38
判刑 - 向入境事務主任作虛假陳述 - 雙非孕婦來港產子 - 為著一己家庭的利益破壞香港社

會、經濟、教育、醫療等有關制度 - 加重刑罰的因素 - 18個月的量刑起點並非明顯過重 -
孕婦若成功隱瞞過關刑罰更重
上訴人經認罪後被裁定一項向入境事務主任作虛假陳述罪罪名成立，被判入獄 12 個
月。上訴人與丈夫均為內地居民，持中國通行證以訪客身分來港，當時上訴人懷有 37 週身
孕(雙非孕婦)。她以衣物遮蓋腹部，向入境處櫃檯督度人員作出虛假陳述指自己沒有懷
孕，但上訴人其實已處於懷孕後期，預產期是 14 天後，她沒有產前檢查記錄，也沒有在任
何香港醫院預約分娩服務, 同日被拒入境。等候遣返案排時，上訴人感到不適送往醫院，
同日誕下一名男嬰。
裁判官參考了控方提供有關內地孕婦沒有分娩預約證明入境香港的數據，認為情況不容
忽視。此外裁判官引述陶華美一案，認為上訴人的做法不但濫用香港醫療資源，亦影響香港
居民應得的醫療服務。上訴人以非法途徑為兒子獲取香港居留權，亦影響到國內循合法途徑來
港定居人士的輪候時間。因此採納 18 個月為量刑起點，以反映案件的嚴重性和收阻嚇作用。
上訴人指量刑明顯過高，因她沒有同時行使假旅遊證件，而且她不是偷渡來港產子，刑
罰應該比裁判官所引述的案例非法來港產子的被告為輕。
裁決，上訴被駁回，
(1) 內地婦女，懷孕的將不會獲准進入本港。這是一個重要的政策，背後有著社會、經濟、
教育、醫療等沉重考慮，影響深遠。上訴人為著一己家庭的利益，試圖繞過（亦即破壞）有關
的制度，那就是她的罪行的嚴重性。這與她是否非法入境，向入境處作虛假陳述時又是否有行
使假旅遊證件等技術問題，不能混為一談。裁判官援引不同類別的案例，目的也只在指出，非
法來港分娩是各種不同控罪下所要加重刑罰的因素，科刑時不能單被控罪的罪名限制
[6],[14]。
(2) 歸根究底，加重罪行嚴重性的因素，不可能只在其手段（例如是行使假旅遊證件），也
可出於作案的目的（尤其這目的將嚴重抵觸某項重要的公共政策）[18]。
(3) 本案的刑期不會在比例上超出控罪的最高刑罰。12 個月的原有量刑基準，是審訊後的

18 個月，與最高刑期（2 年）還有 25%的距離。就算把這類案件的刑期再加至認罪後的 15 個
月，即審訊後的 22.5 個月，那還是要比最高刑期低 6.25%。這無疑是可以接受的。法庭很難
想像還有別的虛假陳述比內地孕婦訛稱自己沒有懷孕而入境分娩對香港的衝擊嚴重 [19]。
(4) 本案的刑期，絕不過重。若然上訴人成功瞞過入境處，在進港後生產，那麼她的刑期，
還肯定要比現在長。這明顯是陶華美案所顯示的司法意向。考慮到上訴人一早被入境處識破，
在香港生產的結果又帶有某程度的偶然性，以致入境處改變初衷把她起訴，法庭才不認為有須
要把她的刑期上調 [20] 。
39
HKSAR v SHU LINGZHEN

HCMA 461/2013
Pang J
Date of Hearing and Judgment: 26 November 2013
Counsel for the Respondent: Winnie Lam SPP

Counsel for the Appellant: Paul Leung
Sentencing – Making false representation to Immigration Officer – Doubly non-permanent

pregnant woman came to Hong Kong to give birth – Damaging Hong Kong’s social, economic,
education and medical system for the sake her own family interest – Aggravating factor –
Starting point of 18 months not manifestly excessive – Heavier sentence if pregnant women
succeeded in concealing pregnancy while crossing border
The Appellant was convicted on her own plea of a charge of making false representation to an
Immigration Officer and sentenced to 12 months’ imprisonment. Both the Appellant and her husband
were Mainland residents who came to Hong Kong as visitors on Chinese travel permits. At the
material time, the Appellant was 37 weeks pregnant (doubly non-permanent pregnant woman). Using
clothes to conceal her belly, she falsely represented to an officer at the immigration counter that she
was not pregnant. However, the Appellant was in fact at an advanced stage of pregnancy and her
expected delivery date would be 14 days later. She did not have antenatal examination record, nor did
she have delivery booking at any hospital in Hong Kong. She was refused entry on the same day.
While waiting for deportation, she felt sick and was admitted to hospital. On the same day, she gave
birth to a boy.
Having considered the statistics provided by the prosecution on Mainland pregnant women
entering Hong Kong without confirmation certification on delivery booking, the magistrate found that
this situation should not be overlooked. Citing the case of Tao Huamei, she was of the view that the
Appellant not only abused local medical resources but also adversely affected the medical services
rightfully enjoyed by Hong Kong residents. The Appellant obtained the right of abode in Hong Kong
for her son by illegal means. This also affected the waiting time of other Mainlanders applying for
settlement in Hong Kong via legal channels. A starting point of 18 therefore was adopted to reflect
the gravity of the offence and achieve deterrence.
The Appellant claimed that the sentence was manifestly excessive because she neither used false
travel document nor entered Hong Kong illegally to give birth. Her sentence should be lighter than
those cases of entering Hong Kong illegally to give birth, as cited by the magistrate.

(1) Mainland pregnant women were refused entry to Hong Kong. This was an important policy
justified by significant social, economic, education and medical considerations with long-term and far-
reaching impact. For the sake of her own family interest, the Appellant tried to bypass (namely
destroy) the system. This was where the gravity of the offence lay. It should not be mixed up with the
technical questions like illegal entry or the use of false travel document when making false
representation to the Immigration Department (“the Department”). By citing various cases, the
magistrate only wanted to point out that illegal entry to Hong Kong to give birth was an additional
aggravating factor under different charges and the determination of sentence would not be bound by
the mere names of charges [6], [14].
40
(2) All in all, aggravating factors included not only the means (such as the use of false travel
document) but also the purpose (especially if such purpose was seriously inconsistent with an
important public policy) [18].
(3) The sentence in this case did not proportionally exceed the maximum penalty for the offence.
The original sentence of 12 months’ imprisonment was based on a starting point of 18 months after
trial. This starting point was still 25% less than the maximum penalty of 2 years. Even if the sentence
for this type of offence were increased to 15 months after guilty plea, the starting point of 22.5 months
after trial would still be 6.25% less than the maximum penalty. The sentence was undoubtedly
acceptable. The Court found it difficult to imagine there would be any other misrepresentation which
could have more serious impact on Hong Kong than the false declaration of no pregnancy by
Mainland pregnant women who came to Hong Kong to give birth [19].
(4) The sentence in the present case was by no means manifestly excessive. Suppose the Appellant
succeeded in deceiving the Department and entered Hong Kong to give birth, her term of
imprisonment definitely would have been longer. This was clearly the tendency of the courts, as
shown in Tao Huamei. Only for the facts that the Department saw through the plan of the Appellant at
an early stage, and her somewhat unexpected delivery in Hong Kong caused the Department a change
of mind to prosecute did the Court find it unnecessary to increase her sentence [20].
41
H. Practice and Procedure

常規與程序
HKSAR v CHAN HOK PAN & OTHERS

HCMA 82-97 & 141-143/2013
Barnes J

Counsel for the Respondents: Douglas Kwok, Stephen Tang & Chater Chim for some of the
Respondents. Other Respondents acted in person
Counsel for the Appellant: David Leung Ag DDPP & Raymond Cheng SPP
Criminal Law and Procedure – Costs – Prosecution withdrawing information/charges – Costs

normally awarded in favour of the defendant charged unless he had brought suspicion upon
himself or had led the prosecution to believe that the case against him was stronger than in fact
it was
Criminal Law and Procedure – Costs – A defendant could not have brought suspicion upon
himself if what he had done could arguably or potentially be in the exercise of their
constitutional rights of freedom of speech and expression
Criminal Law and Procedure – Costs – Prosecution withdrawing information/charges –

Prosecution should be prepared to resists application for costs with summary of facts indicating
what independent evidence might be available in support of the allegation
刑事法及訴訟程序–訟費–控方撤回告發/控罪–除非被告人自招嫌疑或誤導控方以
為針對他的案情比事實更爲有力，否則被告人通常獲判給訟費
刑事法及訴訟程序–訟費–被告人的行為若有商榷餘地或潛在可能是行使言論和發表
自由的憲法權利，則不是自招嫌疑
刑事法及訴訟程序–訟費–控方撤回告發/控罪–控方應為反對訟費申請作好準備，
提供案情撮要顯示有什麼獨立證據支持指控
Pursuant to s 19 of the Costs in Criminal Cases Ordinance, Cap 492, the Appellant (HKSAR)
appealed against the costs orders made in favour of the 19 Respondents when the prosecution
withdrew the information laid against them in the magistrates’ court [1].
Information was laid against the 19 Respondents by way of 36 summonses all alleging that they
had participated in the forums or radio programs hosted by the Citizen’s Radio and had delivered
messages for transmissions by unlicensed means of telecommunications contrary to section 23 of the
Telecommunications Ordinance, Cap 106 by speaking in the forums and radio programs which were
broadcast live by the Citizen’s Radio [2].
42
As a result of the case of HKSAR v Wong Yuk Man and Others (2012) 15 HKCFAR 712 in which
the Court of Final Appeal (CFA) held that a defendant could not be found guilty of the offence of
delivering messages for transmissions by unlicensed means of telecommunications by speaking into a
microphone in a forum hosted by the Citizen’s Radio, the prosecution therefore could not proceed
against the Respondents on the original basis. The prosecution would have to either amend the
information to allege transmitting messages by unlicensed means of telecommunications contrary to
section 23 of the Telecommunications Ordinance, Cap 106, instead of delivering messages for
transmission by such means, or, to withdraw the information. However, for two months after the CFA
judgment was delivered, the prosecution did not inform the Respondents what it intended to do until
the matter was again brought before the magistrates’ court [5]-[7].
On the first occasion, only 16 of the 19 Respondents were present at the hearing and the
prosecution applied to withdraw the information laid against them. The prosecution explained that the
information was withdrawn, not because there was a lack of cogent evidence, but because of the lapse
of time from the date of the offences; the respective roles of the Respondents; and the likely
penalty. The application was granted [8].
On the 16 Respondents’ application for costs, the prosecution resisted the application, saying
that the Respondents had brought suspicion on themselves by participating in the illegal broadcasts of
the Citizens’ Radio. No summary of facts in relation to each of the information was provided to the
presiding magistrate. Upon being asked by the magistrate if there was evidence of such participation,
the prosecution suggested calling evidence but the suggestion was not acted upon and no evidence was
in fact adduced. The magistrate then granted costs to the 16 Respondents [9]-[10].
About a month later, the remaining 3 Respondents were brought before the same magistrate.
The same application to withdraw the information laid against them was granted. On the 3
Respondent’s application for costs, the prosecution again resisted the application, saying that the
Respondents had brought suspicion on themselves by participating in the illegal broadcasts of the
Citizens’ Radio.
Unlike the last occasion, the prosecution presented a set of summary of facts against each of the
Respondents, emphasizing that each Respondent had spoken in a public forum organized by the
Citizen’s Radio and their speeches were recorded, meaning that there was independent evidence of
their participation. However, none of the Respondents was prepared to accept what was stated in the
summary of facts. The magistrate granted costs to the 3 Respondents and remarked that since the
other 16 Respondents had previously been granted costs, it would be unfair to the remaining 3
Respondents should a different order be made [11]-[13].
The Appellant (HKSAR) appealed against the costs orders made in favour of all the 19
Respondents on the grounds that:
(1) The magistrate had erred in exercising her discretion to award costs to the Respondents, in that
she had wrongly taken the view that there was no evidence upon which she could find the
Respondents’ conduct had brought suspicion on themselves when the information was withdrawn,
contrary to the decision of the Court of Appeal in HKSAR v Lam Chiu Fong [2009] 2 HKLRD 484.
(2) The magistrate did not set out the relevant facts and reasons how and why she exercised her
discretion in awarding costs, contrary to the procedure set out in Hui Yui Sang v HKSAR (2006) 9
HKCFAR 308.
(3) In the case of the 3 Respondents who did not appear on the first occasion, the magistrate had
erred in taking into consideration the fact that she had awarded costs to the other 16 Respondents on
the earlier occasion [17]-[19].
43
(1) Section 3(1)(a) of the Costs in Criminal Cases Ordinance, Cap 492, provides that where an
information or charges laid before a magistrate is not proceeded with, the magistrate may order that
costs be awarded to the defendant [22].
(2) It was held in Lam Chiu Fong that where charges are withdrawn, the starting consideration is the
same as where there has been an acquittal. There should be an award of costs in favour of the person
charged unless there is positive reason for making a different order. The defendant having brought
suspicion on himself or having led the prosecution to believe that the case against him was stronger
than in fact it was amounts to such a positive reason [25].
(3) The proper procedure to follow in a case where the prosecution withdraws the information or
charges is that:
(a) In an appropriate case, a court may come to a decision on costs on the basis of what was
told by the prosecutor;
(b) A court will be looking for some indication from the prosecutor that there was independent
evidence to support the complaint;
(c) For the purpose of costs, it is not that evidence is not relevant or required. It will depend
on the individual case. However, it is not desirable that court lists be clogged
unnecessarily with evidential inquiries springing from costs applications. The matter must
be approached with common sense;
(d) The discretion on costs is not exercised so as to undermine the presumption of innocence
[27].
(4) Unlike an acquittal (which might not have been in the contemplation of the prosecution), in a
case where the charge is withdrawn, the prosecution should have anticipated the likelihood of a costs
application and should be in a position to advance arguments if such an application is to be resisted.
The need to adjourn the hearing should be rare [28].
(5) On the first occasion, the prosecution clearly had not properly prepared for the costs application,
resulting in a failure to equip the magistrate with the summary of facts and the authorities relevant to
the issue of costs. As a result, the magistrate was not made aware of the extent of the allegation
against the Respondents and what independent evidence existed to properly consider the prosecution’s
suggestion to adduce evidence. In the circumstances, the magistrate could not have been faulted for
exercising her discretion in awarding costs to those Respondents who made no admission as to their
alleged participation when the prosecution had not even provided her with the summary of facts [32],
[35], [36].
(6) On the second occasion, the prosecution was prepared and the magistrate was provided with the
summary of facts and authorities. Whilst it was understandable that the magistrate was concerned that
the other Respondents were awarded costs earlier so there should not be a disparity among the
Respondents who were effectively facing the same charge, the magistrate had erred in failing to
properly consider the matter before her and give reasons why and how she exercised her discretion in
awarding costs to the 3 Respondents on this occasion. It falls upon the court on appeal to consider
whether the 3 Respondents should be deprived of their costs for the reason that they had brought
suspicion on themselves [39]-[40].
44
(7) Although the reasons for withdrawing the information were perfectly valid, had the prosecution
chosen to amend the information instead (assuming that leave to amend is granted), the costs already
incurred by the 3 Respondents for attending the previous court hearings would have been wasted and
the prosecution would have to bear the costs incurred or occasioned by the amendment. There is no
valid reason to hold a different view when the information is withdrawn instead of being amended [41],
[42].
(8) The next question is whether the 3 Respondents had brought suspicion upon
themselves. Although the CFA held that the speaker in a forum hosted by the Citizen’s Radio “will be
caught” under the offence of transmitting messages by unlicensed means of telecommunications by
speaking into the microphone, whether such a speaker will be found guilty is arguable as the
constitutionality of the offence provision has not been determined [45].
(9) In the circumstances, if the 3 Respondents were participating in something which could arguably
or potentially be in the exercise of their constitutional rights of freedom of speech and expression,
such conduct could not be construed as bringing suspicion on themselves. There was therefore no
positive reason to deprive them of the costs.

Court of Final Appeal Rules on Public Order Offences

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To : All Counsel/Senior Law Clerks/Prosecutions

All Court Prosecutors/Magistracies

A Publication of the Prosecutions Division

CRIMINAL APPEALS BULLETIN

A. Hong Kong Court of Final Appeal 4

B. Application for Review of Sentence 9

C. Application for Costs 14

D. Criminal Appeals/Against Conviction 17

E. Criminal Appeal/Against Sentence 30

F. Magistracy Appeal / Against Conviction 32

G. Magistracy Appeals/Against Sentence 34

H. Practice and Procedure 41

[ ] – denotes paragraph number in the judgment.

HKSAR v CHOW NOK HANG (周諾恆) AND ANOR

COURT OF FINAL APPEAL

Date of Hearing: 9 October 2013

Right of peaceful assembly and freedom of demonstration

(per Ribeiro PJ)

(per Tang PJ)

(per Ribeiro PJ)

Meaning of “disorderly behaviour”

(per Chan Ag CJ)

(per Ribeiro PJ)

(per Ribeiro PJ)

(per Tang PJ)

(per Chan Ag CJ)

(per Ribeiro PJ)

(per Tang PJ)

(per Litton NPJ)

Breach of the peace

(per Ribeiro PJ)

B. Application for Review of Sentence

HKSAR v NG WING YI (吳詠宜)

Date of Hearing and Judgment: 11 November 2013

Counsel for the Applicant: Anna Lai SADPP

刑事法及訴訟程序 — 判刑 — 不小心駕駛 — 死者傷重死亡必然是判刑考慮因素 — 對於一

(2) 事發時，天氣良好，路段交通流量不多，路面良好乾爽，街燈照明充足 [23]。死者駕駛

[CAAR 2/2013 – English Translation]

Date of Hearing: 29 October 2013

Counsel for the Applicant: William Tam DDPP

Criminal law and procedure–Sentencing–Careless driving–Serious injuries resulting in death

C. Application for Costs

(1) 就上訴人的抬頭註明「不損害原則」（Without Prejudice）的信件

[HCMA 504/2013 – English Translation]

HKSAR v CHAN CHEUK NAM

COURT OF FIRST INSTANCE

Date of Hearing: 5 November 2013

Counsel for the Respondent: Cliff Ip PP

Held, appeal dismissed:

(1) Regarding the letter under the heading of “Without prejudice”

D. Criminal Appeals/Against Conviction

HKSAR v MUI KWOK KEUNG (梅國強)

Date of Hearing and Judgment: 8 October 2013

Champerty – Sentence – Whether to order loss of time

Held, application for leave to appeal against conviction dismissed:

HKSAR v HUNG WAI YIP (洪偉業) & ANOR

Date of Hearing: 3 October 2013

Held, applications for leave to appeal against conviction dismissed:

Re: Failure to cross-examine on the out-of-court statements made by Yuen

香港特別行政區 訴 GONGSAEN JEERAWUN

刑事法及訴訟程序 - Lee Fuk Hing 一案中所訂下的法律原則 - 被告人在刑事審訊期間才首次

(2) 在 香港特別行政區 訴 李少興，CACC 119/2006 一案中，上訴庭重申有關的法律原則：

[CACC 420/2012 – English Translation]

香港特別行政區訴 GONGSAEN JEERAWUN

(2) 在香港特別行政區訴李少興，CACC 119/2006 一案中，上訴庭重申有關的法律原則：

( 1 ) 上訴法庭在 HKSAR v Huynh Bat M uoi [2001] 4 HKC 643 的裁決是基於該案的

( 2 ) 在律政司司長訴楊漢強 [200 7] 4 HKC 397 ，上訴法庭審視第 200 章第 69( a ) ( vi i )

(1) 就上訴理由一，在梁國雄一案，終審法院就整個《公安條例》有關公眾遊行的法定知