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

September Edition/2005

2005年9月號 General Editor 總編輯

I Grenville Cross, SC 江樂士 資深大律師

Associate Editors 副編輯

D G Saw, SC 邵德煒 資深大律師

Patrick W S Cheung 張維新

Assistant Editors 助理編輯

Denise F S Chan 陳鳳珊

Lily S L Wong 王詩麗

Vinci W S Lam 林穎茜

This Bulletin summarises recent judgments which the editors consider of significance. 本簡訊輯錄近期上訴案件中各編輯認為重要判詞的摘要。 ( * Denotes Government Counsel ( *代表政府律師 # Denotes Appellant’s/Applicant’s/Respondent’s Counsel) #代表上訴人/申請人/答辯人的律師)

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c.c. SJ 副本送： 律政司司長 DDPPs 各副刑事檢控專員 e mail LOs 電郵送： 各律政專員 D of AD 律政司政務專員 DSG 副法律政策專員 Secretary, Law Reform Commission 法律改革委員會秘書 Editor/Hong Kong Law Reports & Digest 《香港法律匯報與摘錄》編輯 DLA 法律援助署署長 Bar Association (Attn : Administrative Secretary) 香港大律師公會行政秘書 Law Society (Attn : Secretary General) 香港律師會秘書長 Editor/Hong Kong Cases Hong Kong Cases 編輯 Faculty of Law, HKU (Attn : Dean of Faculty) 香港大學法律學院院長 Librarian (Law), City University 香港城市大學高級助理圖書館館長(法律組) PHQ/HKPF (Attn : ACP/Crime) 香港警務處警察總部警務處助理處長(刑事) ICAC (Attn : Head/Ops) 廉政公署執行處首長 PTS/HKPF (Attn : FTO(Exam)) 香港警務處警察訓練學校警察訓練主任(考試) Administrator/Duty Lawyer Service 當值律師服務總幹事 C & E Training Development Group (Attn : Staff Officer) 香港海關訓練發展課參事 C & E Prosecution Group (Attn : Superintendent) 香港海關檢控課監督 LegCo Secretariat (Legal Service Division) 立法會秘書處法律事務部 D of Imm (Attn : AD(EL)) 入境事務處助理處長(執法及聯絡) Judiciary (PM/JISS Project) 司法機構資訊系統策略計劃策略經理 Librarian/D of J 律政司圖書館館長 Director of Advanced Legal Education 法律專業進修總監 Hung On-to Memorial Library (HK Collection)/HKU 香港大學孔安道紀念圖書館（特藏部） Departmental Prosecution Sections 各部門的檢控組

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INDEX 目錄

A. p. 4 - p. 6

第4至6頁

Criminal Appeals/Against Conviction 刑事上訴案件 /針對定罪

B. p. 7 - p. 10 第7至10頁

Criminal Appeals/Against Sentence 刑事上訴案件 /針對刑罰

C. p. 11 - p. 13 第11至13頁

Magistracy Appeals/Against Conviction 裁判法院上訴案件 /針對定罪

D. p. 14 - p. 16 第14至16頁

Magistracy Appeals/Against Sentence 裁判法院上訴案件 /針對刑罰

E. p. 17 - p. 21 第17至21頁

Judicial Review 司法覆核

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Appeal No.

(Date of Case Significance Judgment) Title A. CRIMINAL APPEALS/

AGAINST CONVICTION 刑事上訴案件 /針對定罪 CA 132/2005 Woo VP Yuen & Tang JJA (14.9.2005) *Kevin Zervos SC #Phillip Ross

TANG Yuk-wah

Arson/Caldwell created a single test for recklessness/Necessary for court to determine accused’s state of mind/Prospective overruling 縱火罪 – Caldwel l一案就罔顧後果設定單一的驗證標準 – 法庭必須就被告的心態作出裁定 – 裁定適用於此後裁決的案件 The Applicant was convicted of two offences of arson with intent, contrary to s 60(2) of the Crimes Ordinance, Cap 200. (These were charges 3 and 5 on the charge sheet.) The facts of charge 3 were that at 4.45 am on 5 August 2004, outside two flats on the 10th Floor of Block 2, the Seacrest, No. 1, Hang Kwai Street, Tuen Mun, where the Applicant lived at Flat A, 13th floor, slippers, shoes, carpets, wooden doors and lift doors were damaged by fire. Charge 5 took place at 6.30 am on 16 September 2004, when a rubbish bin in the staircase at the 15th floor of the same block was damaged by fire. The judge held that the fires had been started by the Applicant. Whether the Applicant had the requisite state of mind was central to the defence. The judge applied the Caldwell test on recklessness, which was followed in R v Chau Ming-cheong [1983] 1 HKC 68, and R v Dung Shue-wah [1983] 2 HKC 30. The judge felt bound to apply this test when he convicted the Applicant on 8 February 2005, although by then Caldwell had itself been departed from in England by R v G [2004] 1 AC 1034. According to Caldwell, recklessness was to be judged by the standard of the reasonable prudent man, such that it had been held in R v Coles [1995] 1 Cr App R 157, that expert evidence of the defendant’s capacity to foresee the risks which arose from his setting fire to hay in a barn had been rightly rejected. In Sin Kam-wah v HKSAR [2005] 2 HKLRD 375, the Court of Final Appeal held on 26 May 2005 that the Caldwell test should no longer be followed in Hong Kong. Instead, the prosecution had to show that:

the defendant’s state of mind was culpable in that he

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acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk. Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions.

On appeal Held : (1) It was incorrect to say that the Caldwell test had two limbs, a subjective and an objective one. The Caldwell test was a single test, and it was that test which the House of Lords in R v G departed from. That single test was followed in R v Chau Ming-cheong and R v Dung Shue-wah. Those decisions were overruled by Sin Kam-wah v HKSAR [2005] 2 HKLRD 375; (2) Although the decision in the present case pre-dated the decision in Sin Kam-wah, this did not mean that Sin Kam-wah did not apply to this application. Cross and Harris Precedent in English Law, 4th ed., Chapter VIII, referred to retrospective overruling ‘as the current invariable practice’. No argument was addressed to the court in Sin Kam-wah about prospective overruling. No view would be expressed about whether prospective overruling was possible, and that was to be considered by a different division of the court in HKSAR v Hung Chan-wa Cr App 411/2003 and HKSAR v Asano Atsushi Cr App 61/2004. The Applicant’s appeal should be decided on the Sin Kam-wah test; (3) Section 60(2)(a) of the Crimes Ordinance was simple enough. Normally, if one set fire to an object, it was easy to infer that one intended to damage the object by fire. Thus, both charges alleged such intention against the Applicant. However, in relation to s 60(2)(b), the endangering of life, the charges did not allege actual intention but recklessness. It was therefore critical to these charges that the judge should decide whether the Applicant was ‘reckless as to whether the life of others would thereby be endangered ’. The Respondent conceded that the judge had probably adopted the objective test in relation to charge 5, and on charge 3 he had referred to the Caldwell test, which was a single test; (4) Because the judge applied the Caldwell test, he made no finding on the Applicant’s state of mind, although the Applicant

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had alleged in his statements that he had taken certain medication and alcohol. He had also said that when he burnt something at the rear staircase he had not thought it would ‘affect others at all ’. He thought the guards ‘would smell the smoke, and would very quickly put out the fire ’ . None of this was dealt with by the judge in his judgment. On the Caldwell test, they mattered little; (5) Although there were passages in the video interview which supported a case of recklessness based on the Sin Kam-wah test, the Applicant was entitled to a trial based on the correct test. On the authorities as they were at trial, the judge and counsel proceeded on the basis of the Caldwell test in which expert evidence of the capacity of the Applicant to foresee the risk was not admissible. In a new trial, such evidence might well be admissible. Moreover, as held in Sin Kam-wah, it was necessary for the judge to decide whether the Applicant ‘genuinely did not appreciate or foresee the risk ’ that the life of others would be endangered. That was in fact the Applicant’s defence; (6) It was not appropriate to apply the proviso, as the Applicant was entitled to have a trial based on the correct test for recklessness. Result - Appeal allowed. Retrial ordered.

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B. CRIMINAL APPEALS/ AGAINST SENTENCE 刑事上訴案件 /針對刑罰 CA 145/2005 Stuart-Moore ACJHC V Bokhary J (1.9.2005) *Vincent Wong #I/P

LEUNG Ka-yin

Dangerous drugs/Trafficking in large quantity of ecstasy/ Repeat offender/Family circumstances to be given little weight in mitigation of sentence for a serious offence of this type 危險藥物 – 販運大量忘我 – 累犯 – 在此類嚴重罪行中以家庭狀況作為求情理由的作用甚微 The Applicant pleaded guilty to a count of trafficking in a powder containing 7.11 kg of MDMA (‘ecstasy’), and was sentenced to 12 years’ imprisonment. The facts showed that when he returned to a car at the Sheung Shui Centre, he took out two paper bags. When he was intercepted, he dropped the bags and fled. He admitted delivering the drugs for a promised reward of $20,000. This he said was in order to help himself financially, because at the time his wife was pregnant. The value of the ecstasy trafficked by the Applicant, aged 31, was in excess of $4.5 million. He had a bad criminal record. His convictions included three offences of possession of dangerous drugs for which on each a DATC order was made. On 6 May 1999, he was convicted of six offences of trafficking in dangerous drugs and sentenced to 6 years’ imprisonment. The judge, who was aware of the Applicant’s family background, noted that in HKSAR v Lee Tak-kwan [1998] 2 HKC 371, the court had indicated that when the narcotic content exceeded 800 grammes, sentences of ‘8 years and upwards’ should be considered. In this case, the quantity was well over eight times that amount. Although this case did not involve importation, the judge treated the repeat-offending as an aggravating factor, and took 12 years’ imprisonment as an appropriate starting point. On appeal, the Applicant drew attention to his family circumstances. These included the fact that his father suffered from liver cancer, that his sister had mental problems and that his mother died when his youngest brother was born. Held : (1) The family circumstances, whilst deserving of sympathy, were not to be taken into account in any meaningful way for an offence as serious as this. The tariffs for trafficking in dangerous drugs were well known and were seldom, if ever, affected by

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personal considerations of this kind; (2) Trafficking in dangerous drugs disrupted families on a wide scale and destroyed countless lives. That was precisely why sentencing policy in Hong Kong availed itself of draconian measures as a counter to the threat posed by criminal gangs of traffickers and those they employed in the furtherance of their activities. In R v Lau Tak-ming and Others [1990] 2 HKLR 370, 386, Silke VP said:

It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors, which for less serious offences could lead to a discount, having little weight … Drug dealers are notorious for attempting to elicit sympathy from the courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.

Result - Application dismissed.

CA 160/2005 Stuart-Moore VP Beeson J (21.9.2005) *David Leung #Monica Chow

JIANG Siyuan

Theft/Pickpocketing by 2-way permit holders/21-year-old offender not to be sentenced differently from 17-year-old offender/Equal punishment for equal culpability 盜竊罪 – 雙程證持有人扒竊 – 21歲罪犯與17歲罪犯的刑罰不應有所不同 – 刑責相等應處以相等懲罰 The Applicant, aged 21, pleaded guilty in the District Court to a charge of theft. He was sentenced to 22 months’ imprisonment. The facts showed that the Applicant, together with a male accomplice (D2) aged 17, on their first day in Hong Kong as 2-way permit holders, boarded an MTR train at Tsim Sha Tsui. Police saw the Applicant use a bag to cover his hands as he unzipped the rucksack of an unsuspecting victim (PW1). He then stole a staff card and a key but his attempt to steal an MP3 player failed when the item slipped from his grasp. He then passed the stolen items to D2. Both men were arrested and later admitted the offence. Having referred to the sentencing guidelines for pickpockets contained in HKSAR v Ngo Van-huy [2005] 2 HKLRD 1, the judge considered the aggravating circumstances and stated:

… (i) the offence was committed inside a busy packed

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train compartment of the MTR during the rush hour on 3 January 2005, a working day on Monday; (ii) the defendants were working in concert with each other to distract the attention of the victim; (iii) there was this engagement of more than 1 participant to facilitate the disposal of the stolen property; (iv) this also rendered detection more difficult; (v) the engagement of youngsters such as the 17-year-old D2 to be a party in the pickpocketing act. The utilization of young criminals lowers the level of caution of the general public on the intended criminal acts of the group. This also pollutes the younger generation into engaging in criminal activities.

The properties stolen from the victim in the present case were not of significant financial value. But one [does] have to bear in mind the inconvenience caused to the victim with the loss of her staff card, and the likely use to the thieves of a key to her premises. I do not feel the degree of culpability in the current case is any less than that of the defendant in Ngo Van Huy.

For crowded area, an additional term of 3 months ought to be considered.

The defendants in the present case were visitors from the mainland. They engaged in the theft act the 1st day [they] arrived [in] Hong Kong on their 2-way permit. They acted in concert to facilitate their crime and to avoid detection. For the concerted operation of group defendants, I note the comments of Chan, J (as he then was) in Saldana CACC 655/96 and those of Lugar-Mawson, J in Liao Mei CACC 432/04, both of whom considered a starting point of 2½ years to be appropriate.

Bearing in mind the engagement of a youngster in the pickpocketing team, I consider a starting point of 2 years and 9 months appropriate for the present case.

The strongest mitigating factor for the 2 defendants is their plea of guilty indicating remorse, saving court’s time, prosecution’s time and the time of the witnesses, I do accord D1 a ⅓ discount and sentence [the Applicant] to a term of 22 months’ imprisonment in respect of his theft (pickpocketing) conviction.

In respect of D2, in light of his young age, I will call for a TC report and a background report before

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sentence. In the event, D2 was sentenced to 20 months’ imprisonment. On appeal, it was accepted that a starting point of 30 months, seemingly adopted in respect of D2, could not be criticised: R v Saldana Alca Jose and Anor Cr App 655/96. However, it was submitted that the judge erred in treating D2’s age as an aggravating factor in the Applicant’s case, and that the starting point of 2 years and 9 months was manifestly excessive. The essence of the argument was that there was nothing in principle to suggest that the Applicant’s culpability was greater than his accomplice’s, and as D2 had received 20 months’ imprisonment, there was no basis for the Applicant finding himself having to serve a more severe sentence than this. In particular, it was said that D2 was not so young that he could effectively be regarded as a child who had been used by an adult in the commission of a crime which, if such had been the case, would in all probability have called for the older offender to have received a considerable measure of additional punishment. Held : There was insufficient reason for the Applicant to have received a higher sentence than D2. Each of them, within a short time of their arrival in Hong Kong, was immediately engaged in stealing in a manner which indicated a practised and professional approach to the task. Despite an age gap of about 4 years, they were in all other respects equals in a planned, dishonest venture in Hong Kong. As such, they deserved to be punished equally. Result - Appeal allowed. Sentence of 20 months’ imprisonment

substituted.

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C. MAGISTRACY APPEALS/ AGAINST CONVICTION 裁判法院上訴案件 /針對定罪 MA 327/2005 Pang DJ (6.9.2005) *Ho May-yu #C Grounds & Vod Chan

TSANG Kwok-hin

Child pornography/Possession of pornographic images on a computer disk/Not an offence of strict liability/Knowledge of the presence of the images required 兒童色情物品 – 管有電腦磁碟上的色情影像 – 不是嚴格法律責任的罪行 – 必須證明被告人知道影像存在 The Appellant was convicted after trial of a charge of possession of child pornography, contrary to s 3(3) of the Prevention of Child Pornography Ordinance, Cap 579. The particulars of the charge were that, on 3 May 2004, the Appellant had in his possession ten child pornography images inside a computer hard disk. The prosecution case was that when police visited the Appellant’s house they found an old computer disk storing the pornographic images. The Appellant did not challenge the police finding and did not testify, but called a witness whose evidence was that the images could have been looked at and automatically stored by the computer without informing its user. Although there was some disagreement on this by the prosecution expert, the magistrate concluded that this area of evidence was not material. His reasoning was thus:

Section 3(3) of the Child Pornography Ordinance states that ‘Any person who has in his possession child pornography ….. commits an offence’. I found that this section meant in the first instance that the prosecution only had to prove physical possession of the images until such times as the defendant had raised issue on one of ‘the facts’ found in Section 4. Once the defendant had done this to the extent required in the Ordinance then the burden shifted back to the prosecution to disprove that ‘fact’ beyond reasonable doubt. The issue of whether the Ordinance breached the defendant’s rights to silence was not raised in the trial. I found the defendant had to give evidence in this trial to raise issue on ‘the fact’, as I found he was unable to raise such issue by his cross-examination of the prosecution witnesses and his expert.

….

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….

I found therefore the Ordinance did not require the prosecution to prove knowledge of the presence of the images (as well as physical possession/control) until the defendant had raised an issue on the ‘fact’. I further found that in the absence of such evidence raising an issue on the ‘fact’, as I found in this case, the prosecution could prove the case without having to prove the defendant’s knowledge beyond reasonable doubt.

I therefore found that the prosecution had proved beyond reasonable doubt that the 10 child pornographic images were in the defendant’s physical possession on his old hard disk (agreed fact) and that they were child pornography in content (agreed fact) ….. Knowledge was not a requirement for the prosecution to prove in this particular case. No other defence under Section 4 was raised in the trial.

Section 4 of the Ordinance provided: (3) It is a defence to a charge under section 3(3) for

the defendant to establish—

(a) that his possession of the child pornography was for a genuine educational, scientific or medical purpose;

(b) that his possession of the child pornography otherwise served the public good and did not extend beyond what served the public good;

(c) that he had not seen the child pornography and did not know, nor did he suspect, it to be child pornography;

(d) that he had not asked for any child pornography and, within a reasonable time after it came into his possession, he endeavoured to destroy it; or

(e) that he believed that the person pornographically depicted in the child pornography was not a child when originally depicted and that the person was not depicted as a child.

(4) Unless subsection (5) applies, a defendant is to establish any fact that needs to be established for the purpose of a defence under this section on the balance of probabilities.

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(5) A defendant charged with an offence under section 3(3) is to be taken to have established any fact that needs to be established for the purpose of a defence under subsection 3(c), (d) or (e) if—

(a) sufficient evidence is adduced to raise an issue with respect to the fact; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

On appeal, it was submitted, inter alia, that the magistrate

had misdirected himself in his holding that the prosecution was under no duty to prove that the Appellant had knowledge of the presence of the images in question. In light of R v Smith; R v Jayson [2003] 1 Cr App R 13, the Respondent conceded the point, and submitted that s 3(3) of Cap 579 did not create a strict liability offence, as the magistrate seemed to have suggested. Held : (1) The concession of the Respondent related only to the point of knowledge of the presence of the images. The position as regards the offender’s knowledge of the nature of those images was reserved. It was unclear whether that would render s 3(3) a strict liability offence after all; (2) The English provisions on which the English decisions were based were fairly different from those in Hong Kong; (3) No argument had been offered on the true construction of sections 3 and 4 of Cap 579, and the construction of the Respondent was certainly one way of construing them. Result - Appeal allowed.

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D. MAGISTRACY APPEALS/ AGAINST SENTENCE 裁判法院上訴案件 /針對刑罰 MA 380/2005 Pang DJ (25.8.2005)

*Fung Mei-ki #I/P

CHEN Huihua

Immigration/Possession of forged identity card by visitor/ Enhanced sentence where identity card used to disguise visitor’s true status 入境 – 訪客管有偽造身分證 – 因使用身分證以掩飾其訪客的真正身分而被加重刑罰 The Appellant pleaded guilty to an offence of breach of condition of stay, and one offence of possession of a forged identity card, contrary, respectively, to s 41 of the Immigration Ordinance, Cap 115 and s 7A(1) of the Registration of Persons Ordinance, Cap 177. She was sentenced to concurrent terms of imprisonment of, respectively, 1 month and 15 months’ imprisonment. The admitted facts stated:-

At 1955 hours on 24th March 2005, PW1 arrived at Shanghai Street near the junction with Bowring Street, Yaumatei. When he saw D acting suspiciously at the location, PW1 stopped D for enquiry. D produced a Hong Kong Identity Card to PW1, but PW1 suspected it to be a forged one. D later brought the police back to her residence across the street (5/F, 66 Shanghai Street) and produced her Chinese Two-way Permit in the name of CHEN Fenzhu. PW1 arrested D and she admitted her guilt under caution. In further questioning, D also admitted that she intended to look for jobs with the forged identity card. After examination, government forensic scientist Dr NG Po-king opined that the HKID Card is forged.

PW2 took over the investigation later and brought D back to her residence for further enquiry. Inside her residence, D also surrendered her Chinese Passport (which she had used to enter Hong Kong). The Traffic Index record revealed that D entered Hong Kong on 26.10.2004 and was permitted to stay in Hong Kong for 7 days only.

In sentencing, the magistrate remarked that he had borne in mind all that was submitted. This would have included such matters as that the Appellant was 41, married and had two teenage children whom she could hardly provide for financially. It was also submitted that she had never actually used the forged identity card in question.

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On appeal Held : (1) Since the decision of the Court of Appeal in HKSAR v Li Chang-li HCMA 935/2004, the usual sentence for possession by visitors of a forged identity card, whether or not overstaying, had been set at 12 months after plea. If the identity card was produced either to obtain work or to disguise the visitor’s true status, then it should be increased to 15 months; (2) The Appellant’s sentence fell squarely within the second scenario. Result - Appeal dismissed.

MA 493/05 V Bokhary J (13.9.2005) *Eddie Sean #Monica Chow

GANZON Fermin Arlyine

Theft/Restitution made after sentencing taken account of on appeal/Sentencing process lasts until appeal 盜竊罪 – 判刑後歸還財物可在上訴時作為考慮因素 – 量刑過程持續至上訴階段 The Appellant pleaded guilty to seven charges of theft. The magistrate sentenced her to a total of 8 months’ imprisonment by taking a starting point of 12 months’ imprisonment on each charge, giving a one-third discount and making all the sentences concurrent. Charge 1 was for theft of a friend’s bank card. On the day after the theft of that card, the Appellant used it six times; twice to withdraw cash and four times to make purchases. Charges 2 to 7 were based on those withdrawals and purchases. The withdrawals and purchases totalled $25,400. On appeal, it was submitted, inter alia, that additional discount and credit should be given to the Appellant to reflect the fact that full restitution had been made to the victim on 10 May 2005, four days after the Appellant was sentenced. Held : Since restitution to victims was always to be encouraged and the sentencing process continued until the appellate stage, an appellate court could properly reduce a sentence for restitution made after sentence had been passed at first instance. It was appropriate to reduce the sentence for the restitution made thereafter.

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Result - Appeal allowed. Each concurrent sentence reduced by

2 months, producing a total sentence of 6 months’ imprisonment.

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E. JUDICIAL REVIEW 司法覆核 HCAL 111/2005 Hartmann J (24.8.2005)

*Ian McWalters SC #Cheng Huan SC Bernard Chung & Hectar Pun

MO Yuk-ping

District Court refusing to order stay of trial/Test for granting of leave/Criminal process to be interrupted only in exceptional cases/Availability of alternative remedy of criminal appeal/ Judicial review a remedy of last resort/Integrity of criminal process to prevail 區域法院拒絕下令擱置審訊 – 給予許可的驗證標準 – 只在特殊情況下刑事程序方會中斷 – 是否可用刑事上訴作為替代的補救方法 – 司法覆核是萬不得已的補救方法 – 須以維持刑事程序的完整性為前提 The Applicant faced charges of conspiracy to defraud and conspiracy to pervert the course of public justice in the District Court. When the trial began, an application for a permanent stay was made on two grounds. First, a fair trial for the Applicant was impossible. Second, this was one of those rare cases where the circumstances of the prosecution involved an abuse of power which so offended justice and propriety that the prosecution should be stopped. The Applicant contended that the prosecution was obliged to disclose all unused material including material created by the ICAC telephone interceptions, the tapes and the notes and the like. This was because it could be directly relevant to her defence. The material, however, had been destroyed. This denied the Applicant a fair trial, and was such a breach of constitutional rights that the prosecution should be stayed. It was submitted that s 33 of the Telecommunications Ordinance, which gave the Chief Executive power to order intercepts, was inconsistent with the right to privacy contained in art 30 of the Basic Law. The district judge held that a fair trial remained possible and that this was not a rare case that demanded a stay in order to protect the integrity of the criminal justice system. The Applicant sought leave to challenge the decision of the district judge by way of judicial review. Held : (1) The judge had decided that a fair trial was still possible, and that there had not been an abuse of process which went to

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undermine the integrity of the justice system; (2) The judge had held that even if s 33 was inconsistent with art 30, this was not so profound in this case as to deny the Applicant a fair trial or so to shock the conscience of the court as to demand a stay; (3) Not all breaches of the Basic Law or the Bill of Rights demanded remedial action, or should halt criminal trials. It was a question of weighing all relevant matters. If it was otherwise it would become a game of ‘spot the constitutional slip and avoid the trial ’. The Basic Law was not such a draconian document; (4) The standard test for the grant of leave was whether the material disclosed matters which, on further consideration, might disclose an arguable case. It was not a high test, and was intended only to eliminate vexatious or hopeless cases. Although this was not a hopeless case, issues of law arose in criminal trials all the time and in many cases it might properly be argued that the decision in law should have been other than the one made by the trial judge. That was why the appeal process existed; (5) In Dairy Farm Co Ltd v Director of FEHD CACV 283/2004, Rogers VP said:

It is undesirable that there should be appeals and applications at an interlocutory stage of prosecution with a view to stifling the prosecution. This court is mindful that it is undesirable to encourage judicial review proceedings in such circumstances as it would have a tendency to prolong proceedings and make what should be comparatively simple prosecutions into long, drawn-out litigation with consequential satellite litigation.

(6) The criminal process must be allowed to continue and only in very exceptional cases – invariably cases when matters go to fundamental jurisdiction – would the collateral process of judicial review be permitted. In the present case, the fundamental jurisdiction of the court to conduct the trial could not be questioned. The stay application was a matter for the judge to determine in his discretion. He had the power to do so and his decision did not undermine his jurisdiction. Whether he was right or wrong did not go to fundamental jurisdiction. It was a matter which, if necessary, could be dealt with on appeal; (7) It was important to consider not only whether there was an alternative remedy, namely, an appeal, but whether the real issue could be conveniently determined by that means. If it could then clearly the alternative procedure – appeal – should prevail and

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should be the route adopted by the aggrieved person. If, on the other hand, the alternative procedure was not apt to deal with the real issue then there was nothing to prevent an application for judicial review. In this case the alternative procedure was the entirely correct procedure to deal with the real issues arising out of the stay application and the judge’s decision in that regard. In the criminal jurisdiction, the Court of Appeal dealt regularly with profound constitutional issues and was the appropriate court. Judicial review was a remedy of last resort and all too often attempts were made to make it a remedy of first resort; (8) This was not an exceptional case which required the court to exercise its supervisory jurisdiction. The imperatives pointed to the fact that justice in the longer term was answered by having the trial completed and then, if necessary, having the issues resolved on appeal against a fully realised evidential background. The integrity of the criminal process must prevail. Result - Leave refused.

HCAL 56/2005 Hartmann J (21.9.2005) *D G Saw SC #I/P

KWAN Sun-chu Pearl

Director of Public Prosecutions/Refusal to prosecute not amenable to judicial review/No evidence of bad faith or dishonesty/Decision taken honestly and rationally on the evidence 刑事檢控專員 – 拒絕檢控的決定不容司法覆核 – 沒有證據顯示有不真誠或不誠實之處 – 有關決定是根據證據而誠實和理性地作出的 The Applicant claimed to have been the victim of an assault, which took place on the evening of 22 June 2004 at Hung Leng Village, New Territories. She received a minor injury to her ankle. The Applicant complained that although the police investigated the case and referred their findings to the Department of Justice, the Department declined to institute criminal proceedings against her alleged assailant Mr Wong Kun-wai. She sought a judicial review of that decision, and an order to quash the decision. The unspoken thrust of the Applicant’s representations were to the effect that the police and/or members of the Department of Justice had not only been guilty of negligence but perhaps of bad faith too. Government Counsel filed an affirmation in which she set

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out her involvement in the matter. She concluded by saying :

It suffices to say that there was no clear and unambiguous picture of the events of that evening. I was not satisfied upon my evaluation of the available evidence that there was sufficient likelihood of a conviction for any offence against any of the persons arrested (which included this Applicant) and applying the appropriate guidelines that there was no reasonable prospect of a successful prosecution and I was so advised. Mr Thomas Law, SADPP, concurred and the police were advised in terms.

In coming to this conclusion, I took into account all of

the then available evidence which included the medical reports of the Applicant and Mr Wong.

Held : (1) Village confrontations of the kind revealed in this case could result in long term bitterness and enmity. However, there were no grounds for suggesting that the Department of Justice came to a plainly wrong decision not to prosecute. It was not a decision which was unreasonable in law. The allegations of the Applicant were made out of desperation, and all objectivity had been lost; (2) The law, as it presently stood, prevented the Applicant from obtaining leave. The headnote to the judgment of the Court of Appeal in Keung Siu-wah v Attorney General [1990] 2 HKLR 238, stated:

It was a constitutional imperative that the court would not interfere with the Attorney General’s discretion to prosecute. However, the court retained an inherent jurisdiction to prevent an abuse of process.

(3) There had been changes to the law in England and judicial review had been used sparingly where the Director of Public Prosecutions (‘DPP ’ ) had chosen to prosecute or not to prosecute. However, as Lord Steyn observed in R v Director of Public Prosecutions ex parte Kebeline [2000] 2 AC 326, 371:

I would rule that absent dishonesty or malafides or exceptional circumstances, the decision of the Director to consent to the prosecution of the applicants is not amenable to judicial review.

Lord Hope, at 376, added:

There are strong grounds for the view that, in the absence of dishonesty, bad faith or some other exceptional circumstance, the Director’s decision to

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consent or not to consent to a prosecution is not amenable to judicial review … To this must be added that the process of judicial review could do no more than require the Director to reconsider his decision. It could not require him to change his view.

(4) Even if Keung Siu-wah was to be read as allowing judicial review of the DPP in cases where abuse of process was identified, in the present case it was not possible to identify anything that even arguably could constitute a basis for suggesting that there had been abuse of process. Even if the English authorities were binding, or should be followed, the position was that absent dishonesty, bad faith or some other exceptional circumstance, the decision of the DPP was not subject to judicial review; (5) That the court might have reached a different decision from the Department of Justice was not the point. Judicial review was not concerned with the merits of a decision. It was concerned with the legality of the process, and there was nothing to suggest that the Department of Justice had not acted entirely honestly and rationally on the evidence presented to it. Result - Application refused.