To : All Counsel/Senior Law Clerks/Prosecutions All Court Prosecutors/Magistracies / A Publication of the Prosecutions Division of the Department of Justice

CRIMINAL APPEALS BULLETIN

February Edition/2006

20062 General Editor

I Grenville Cross, SC

Associate Editors

D G Saw, SC

Patrick W S Cheung

Assistant Editors

Denise F S Chan

Lily S L Wong

Vinci W S Lam

This Bulletin summarises recent judgments which the editors consider of significance. ( * Denotes Government Counsel ( * # Denotes Appellants/Applicants/Respondents Counsel) #//)

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c.c. SJ DDPPs e mail LOs D of AD DSG Secretary, Law Reform Commission Editor/Hong Kong Law Reports & Digest DLA Bar Association (Attn : Administrative Secretary) Law Society (Attn : Secretary General) Editor/Hong Kong Cases Hong Kong Cases Faculty of Law, HKU (Attn : Dean of Faculty) Librarian (Law), City University () PHQ/HKPF (Attn : ACP/Crime) () ICAC (Attn : Head/Ops) PTS/HKPF (Attn : FTO(Exam)) () Administrator/Duty Lawyer Service C & E Training Development Group (Attn : Staff Officer) C & E Prosecution Group (Attn : Superintendent) LegCo Secretariat (Legal Service Division) D of Imm (Attn : AD(EL)) () Judiciary (PM/JISS Project) Librarian/D of J Director of Advanced Legal Education Hung On-to Memorial Library (HK Collection)/HKU Departmental Prosecution Sections

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INDEX

A. p. 4 - p. 6

46

Applications for Review of Sentence

B. p. 7 - p. 23 723

Criminal Appeals/Against Conviction /

C. p. 24 - p. 28 2428

Criminal Appeals/Against Sentence /

D. p. 29 - p. 31 2931

Magistracy Appeals/Against Sentence /

E. p. 32 - p. 36 3236

Basic Law and Bill of Rights

F. p. 37 - p. 40 3740

Practice and Procedure

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Appeal No.

(Date of Case Significance Judgment) Title A. APPLICATIONS FOR REVIEW OF SENTENCE AR 4/2005 Stuart-Moore VP Stock JA McMahon J (20.1.2006) *D G Saw SC & Grace Chan #H M Mughal

SJ v LEE Siu-kei

Dangerous drugs/Trafficking in large quantity of herbal cannabis by adult offender/Detention centre order wrong in principle The Respondent, aged 23, pleaded guilty to a charge of trafficking in 13.02 kg of herbal cannabis, and was sentenced to be detained in a detention centre. That was after a detention centre suitability report had indicated that he was a suitable candidate for the detention centre. In her Reasons for Sentence, the judge remarked that the Respondents offence would have attracted a sentence of 4 years imprisonment upwards for an amount in excess of 9 kg of cannabis resin, the more potent form of this drug, but that as this was over 13 kg of herbal cannabis, the judge was looking at a starting point of 4 years. The judge said:

Now, you are lucky because not everybody can get a favourable report for detention centre. It depends on your mental attitude; it depends on whether you are physically fit. You happen to be one of the lucky ones; otherwise, you are going to face a 4 year sentence. I am not going to pretend or tell you that this is not going to be a tough few months ahead of you in detention centre.

Section 4(2)(a) of the Detention Centres Ordinance, Cap 239, provided that the period of detention for a person of the Respondents age (23 years) was not less than 3 months and not more than 12 months. On review, it was submitted that the sentence was wrong in principle and/or manifestly inadequate for a case concerning drugs in such a large quantity, being supplied on what was plainly a regular commercial basis. The facts showed that the Respondent played an important role in the distribution of the drugs.

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Held : (1) The sentencing guidelines for trafficking in cannabis in all its forms were to be found in Attorney General v Chan Chi-man [1987] HKLR 221. Roberts CJ used phraseology which was echoed by the judge in the present case, that for over 9,000 grammes of cannabis resin, 4 years imprisonment upwards would be appropriate after trial. Roberts CJ dealt with the approach to the remaining two forms in which cannabis was generally found, saying:

So far, no clear distinction appears to have been drawn in sentences between cannabis in the three forms in which it commonly appears, that is to say herbal cannabis, cannabis resin and cannabis oil. The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol. The concentration of tetrahydrocannabol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabol concentration is about 15%. In cannabis oil, it is 60%. It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly.

(2) It was plain therefore, that when sentencing for an offence of trafficking in herbal cannabis, the starting point should normally be adjusted downwards, if at all, based upon the cannabis resin tariffs. This was to enable the court to take into account the fact that the concentration of tetrahydrocannabinol (THC) in cannabis resin was higher than it was in the herbal variety. Towards the end of the judgment in Chan Chi-man, the court recognised that better evidence might become available as to the dangerous effects of cannabis. This might yet be so. New scientific evidence had, however, been forthcoming to the effect that the concentration of THC to be found in cannabis resin was about four times higher than the average found in herbal cannabis. This was covered by Attorney General v Tuen Shui-ming and Another [1995] 2 HKCLR 129, and it was accordingly decided that the THC concentrations referred to in Chan Chi-man were no longer to be regarded as correct. Despite this, no adjustment was made to the guideline sentencing bands and the tariffs remained the same. Power VP, at 133, indicated that:

The court in Chan Chi-man was plainly dealing with the total volume of cannabis resin and that is the amount to which the tariff applies. If, for example, 9,000 grammes was seized, then the appropriate

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starting point would be 48 months. It would be proper for the sentencing court then to adjust that figure to a limited extent in accordance with the concentration of THC. In the present case, given that more than 50 kilogrammes was involved, seven years would have been an appropriate starting point. This could properly have been varied to six years given the very low concentration.

(3) Shortly after the decision on 9 June 1995 in Tuen Shui-ming, the court, on 31 October 1995, again made it clear in R v Chong Chak-on [1996] 1 HKC 152, that the sentence was governed by the weight of the herbal cannabis. In that case, where a 20-year sentence for trafficking in over 388 kg of herbal cannabis was upheld, the court said that the THC content was relevant only insofar as it allows the court to take a more lenient view of herbal cannabis than it would of an equivalent amount of cannabis resin; (4) The detention centre order was wrong in principle for a case as serious as this. There was nothing to warrant any departure from the guidelines. A starting point of about 5 years would have been appropriate, but having regard to the judges indication that she would have taken 4 years, that would be adopted. Reducing this by a third to reflect the Respondents plea of guilty, the resulting sentence would be 3 years. As this was a review and the Respondent had served about 5 months in the rigorous regime of a detention centre, a sentence of 2 years and 9 months imprisonment was appropriate. Result - SJs application allowed. Sentence of 2 years and 9

months imprisonment substituted.

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B. CRIMINAL APPEALS/ AGAINST CONVICTION / CA 26/2004 Ma CJHC Woo VP Tang JA (26.1.2006) *Kevin Zervos SC & Winnie Ho #M Blanchflower SC & Maggie Wong

CHAN Kau-tai

Prosecutions duty of disclosure/Disclosure of prior convictions and disciplinary records/Prosecution to be proactive/ICAC officer not to be treated more favourably than other witnesses/ Discretion to exclude or admit evidence obtained in breach of constitutional rights/Need for balance between right involved and extent of breach The Applicant was a Chief Building Services Engineer of the Housing Department (HD ). He was convicted after trial of ten charges which alleged that he, as a public servant, had accepted an advantage, contrary to the Prevention of Bribery Ordinance, Cap 201. The Applicant was arrested by ICAC officers, led by Chief Investigator Yang (C I Yang ) on 4 August 2001. He was duly interviewed on three occasions by C I Yang, and each interview was video-taped. The admissibility of the video tapes and the transcripts was challenged in a voire dire, and ruled admissible by the judge. The credibility of both C I Yang and the Applicant was of critical importance to the admissibility and reliability of the interviews, the judge being primarily concerned with admissibility and the jury with reliability. The admissibility of these interviews was relevant to the first ground of appeal which concerned the non-disclosure of C I Yangs criminal convictions and disciplinary records. On 20 November 2001, C I Yang was convicted on his own pleas of offences committed on 28 August 2001: (i) driving a motor vehicle with alcohol concentration in his breath exceeding the prescribed limit, contrary to s 39A(1) of the Road Traffic Ordinance, Cap 374 (RTO ), and (ii) careless driving, contrary to s 38(1) of the RTO. As a result of the convictions, on 4 December 2001, the ICAC reprimanded C I Yang with a written warning of dismissal. Then, on 13 September 2003, he was given a verbal warning for failing to exercise due supervision over subordinate officers in the handling and disclosure of unused material. The Applicant submitted that C I Yangs convictions and

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disciplinary records should have been disclosed. It was said that this non-disclosure was in bad faith in that the concealment was deliberate. Another important source of evidence against the Applicant at trial was the edited portions of tapes recording activities in his office between March and August 2001. The surveillance was consented to by the Applicants superior, though not by him. The legality of this audio/visual surveillance and its admissibility at trial formed another ground of appeal. On appeal Held : (1) Both the Director of Public Prosecutions in The Statement of Prosecution Policy and Practice (2002) (DPPs Statement ) and the ICAC in the Commission Standing Order (the ICAC CSO ) dealt explicitly with the disclosure of previous convictions and other matters going to the credibility of prosecution witnesses; (2) Whereas a criminal records check (EPONICS) was conducted by the ICAC against all witnesses, and the defence would be informed of any criminal convictions discovered without any consideration of their relevance, no such check was conducted against any ICAC officer. All the ICAC officers who gave evidence explained that was not done because they did not believe any ICAC officer could have had a conviction involving dishonesty. If the DPPs Statement and the ICAC CSO had been complied with, as they should, in practice they would have resulted in the disclosure of all the convictions of prosecution witnesses, including ICAC officers;

(3) On the basis of the principles established by HKSAR v Lee Ming-tee (No 2) (2003) 6 HKCFAR 336, it was clear that the duty to disclose would apply to convictions and other matters relating to a witness which a reasonable jury or other tribunal of fact could regard as tending to shake confidence in the reliability of that witness. The convictions and disciplinary records of C I Yang were disclosable, as his credibility was an important issue in the voire dire, as well as at the trial. Although C I Yangs convictions did not involve any dishonesty on his part, disrespect for the law might also be of great significance: R v Brown [1998] AC 367; (4) Previous convictions were recognised as a suitable subject for cross-examination. As s 15 of the Evidence Ordinance, Cap 8, showed, a witness might be questioned as to whether he had been convicted of any indictable offence, and, on being so questioned, if he either denied or did not admit the fact or refused to answer, the

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conviction could then be proved. Thus, convictions of indictable offences not only might be the subject of cross-examination, they also were exceptional in the sense that evidence might be adduced in support of it. Ordinarily, rebuttal evidence on credibility was not permitted. The offence of drink driving was an indictable offence although in the present instance it was tried summarily; (5) Sometimes driving offences, such as the conviction for careless driving, could have no relevance to credibility. However, relevance would depend on the circumstances of the case. The submission that traffic convictions were not disclosable cannot be accepted as a universal and all-embracing proposition. Every case must be judged according to its own circumstances : Lee Ming-tee (No 2)(para 175). It was unsound to determine the relevance of a conviction without considering the circumstances of it. For the prosecution to discharge its duty properly, it must therefore carefully consider the circumstances of the offence before it decided that a conviction was irrelevant to credibility. Selective disclosure carried with it the risk of erring on the wrong side of what was required; (6) In our system, the prosecution would not know in advance just what the defence would be. Accordingly, in deciding the type of material to which access should be given to an accused, the prosecution was required to err on the side of caution. Although disclosure should only be of material relevant to an issue in the case , this term should be construed widely and included in every case the issue of the credibility of witnesses: R v Brown, Lee Ming-tee (No 2)(para 146). If there was to be any restriction, this should be left to the court restricting the use of material rather than its disclosure. Where a dispute arose as to disclosable material, it was for the court to decide the question, not the prosecution; (7) This requirement would, in practice, result in the disclosure of all convictions of witnesses whose credibility might be in issue, certainly in cases where the accused was charged with serious offences. That might be why, under the DPPs Statement, as well as the ICAC CSO, the practice was one of blanket disclosure. This was consistent with that said by the Court of Final Appeal in Ching Kwok-yin v HKSAR (2000) 3 HKCFAR 387, 390:

It is common ground that there is a duty on the prosecution to disclose to the defence details of the criminal convictions of any of its witnesses if it knows of them and that a breach of that duty is a material irregularity.

(8) The better practice to be followed was the disclosure of previous convictions of all prosecution witnesses. However, convictions which were clearly irrelevant need not, at least in

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theory, be disclosed. But if the prosecution should decide to withhold disclosure of any conviction, it should inform the defence of that fact, so that, if necessary, the matter could be decided by the court; (9) The duty of full disclosure, which was referred to by Lord Bingham of Cornhill in R v H [2004] 2 AC 134, as the golden rule , was one in which the prosecution ought to be proactive in at least making conscientious inquiries about the previous convictions of material witnesses; (10) An ICAC officer should not be treated more favourably than any other prosecution witness. The ICAC CSO as well as the DPPs Statement correctly recognized that materials requiring disclosure might include disciplinary findings. However, having regard to Lee Ming-tee (No.2), they did not seem to have gone far enough. The duty of disclosure might extend to the disclosure of the existence of an inquiry because that will enable the defence to pursue a train of enquiry which will lead to material which will be of advantage to the defence (para 174); (11) Both of the disciplinary reprimands of C I Yang were relevant. The first, which followed from the convictions, was relevant because it revealed the serious view which the ICAC took of a conviction of drink driving. The second was also relevant to the jurys assessment of his character, in so far as it might throw light on C I Yangs attitude towards compliance with measures designed to ensure fairness to a suspect, it was also relevant to the jurys assessment of his character; (12) Although there was no bad faith, it was disturbing that the question relating to disclosure should have been handled in such a haphazard manner. The fact that no proper record was made of any decision to withhold disclosure, underlined the desirability that if disclosure of any conviction or disciplinary proceedings were to be withheld, the defence should be informed. Although a material irregularity had taken place owing to the non-disclosure of relevant material, and which could not be cured by the application of the proviso, the proper course to take was to order a retrial on this basis alone. There was no proper basis effectively to put a halt to the prosecution of the Applicant; (13) The second ground of appeal, which concerned the question of the admissibility of the evidence obtained from the covert surveillance of the Applicant, raised the issue of what was the status of any evidence that had been obtained in consequence of a breach of a constitutional right (in this case, the right of privacy). Article 30 of the Basic Law protected the privacy of communication, whereas article 17 of the International Covenant

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on Civil and Political Rights (ICCPR ), which was applicable by reason of article 39 of the Basic Law, was in wider terms, and referred simply to privacy . In the present context, while article 30 of the Basic Law was relevant to the consideration of the audio part of the surveillance tapes (being communications), only article 17 of the ICCPR was relevant regarding the visual part as these were not communications; (14) The concept of privacy was a wide one, covering an extremely diverse range of situations. In the Shorter Oxford English Dictionary, privacy was defined as The state or condition of being withdrawn from the society of others or from public attention; freedom from disturbance or intrusion; seclusion. Thus, for example, a conversation with a friend on the street could be said to involve some element of privacy as would obviously activities within ones own home. A right to privacy would exist generally where the person in question had a reasonable expectation of privacy: Campbell v MGN Ltd [2004] 2 AC 457, R v Wong (1990) 60 CCC (3d) 460; (15) The present case concerned covert surveillance of the Applicant in his office, and in R v Wong, at 465, Lamer CJC said that the nature of the place in which the surveillance occurs will always be an important factor to consider in determining whether the target has a reasonable expectation of privacy in the circumstances. There was no reason why a person should not be entitled to privacy in his office or workplace: Halford v United Kingdom (1997) 24 EHRR 523; (16) It was an admitted fact that there were no legal procedures or provisions in place at the time the covert surveillance took place. There was no doubt that the Applicants constitutional right to privacy contained in article 30 of the Basic Law and article 17 of the ICCPR was breached by the covert surveillance that was carried out in his office between March and August 2001. There was no material to show that the Applicant could not have had any reasonable expectation of privacy in his office. The issue which arose therefore was whether the evidence obtained by the covert surveillance in breach of the Applicants rights was rendered inadmissible; (17) The courts in Hong Kong had previously decided that the test of admissibility of evidence was relevance, and that it was not part of a judges function to exercise discipline over a law enforcement agency or the prosecutor over the way the evidence was obtained: R v Sang [1980] AC 802, R v Cheung Ka-fai [1995] 3 HKC 214. In Sang, the House of Lords did not have to deal with any constitutional or convention provisions, nor any statutory provisions. However, it was noteworthy that in the present context

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(namely, the discussion as to the admissibility in criminal proceedings of evidence obtained in breach of constitutional or common law rights), Lord Scarman recognized, first, the existence of a discretion to exclude as well as admit; second, the emphasis in the exercise of discretion on ensuring the fair trial of an accused. The fairness of a trial must also include the concept of justice being done in fairness to the accused himself: Kuruma v The Queen [1955] AC 197. These two features were recognized by the Court of Final Appeal in considering the admissibility of evidence obtained in covert operations by the ICAC: Secretary for Justice v Lam Tat-ming and Another (2003) 3 HKCFAR 168, 178. But it was now necessary to decide what effect the provisions of the Basic Law and ICCPR had on the exercise of discretion to exclude evidence in criminal matters. Did they eliminate the existence of the discretion altogether or if not, how prominent were they in the exercise of the discretion? (18) Whilst account had to be taken by the court of any breach or breaches of rights contained in the Basic Law or ICCPR, any breach would not, automatically, result in the exclusion of the evidence obtained in consequence of the breach. The court still retained a discretion to admit or exclude the evidence. The discretion in the court to admit or exclude evidence involved a balancing exercise in which the breach of constitutional rights was an important factor whose weight would depend on mainly two matters: the nature of the right involved and the extent of the breach; (19) The decision of the judge to admit the edited portions of the tapes of the covert surveillance was correct. First, the judge accepted the Applicants right to privacy had been infringed, and that no legal procedures were in place regarding the use of covert surveillance techniques. Second, the judge recognised the fact that the ICAC had obtained the permission of the Director of Housing to conduct the covert surveillance and this took place in the Applicants office. He noted that the use of covert tactics was at times an essential weapon and referred to the Chief Justices judgment in Lam Tat-ming at 180-181, where he said that: The law recognises that the use of undercover operations is an essential weapon in the armoury of the law enforcement agencies; particularly their use when the criminal activities are ongoing but also their use after crimes are completed to obtain evidence to bring the criminal to book . This ground of appeal failed. Result - Appeal allowed. Retrial ordered.

CA 356/2004 Stuart-Moore VP

(1) TSOI Chung-wang

Flight/Failure of defendants to appear on trial date/Nexus between conduct and offence/Drawing of inferences a matter for the jury/No explanations for absence or breach of bail

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Stock JA McMahon J (12.1.2006) *Ian McWalters SC & Winnie Ho #Daniel Fung SC & Graham Harris

(2) NG Yee-nei

terms After trial, the Applicants were convicted of one count of conspiracy to defraud. The particulars of offence charged that between 30 June 1997 and 30 April 1998 they conspired with others to defraud such companies and persons as might be caused loss by the dishonest copying, manufacturing and distribution of films, computer games, and sound recordings, the copyright in which and the manufacturing and distribution rights of which belonged to companies and persons other than the said persons so conspiring.

On appeal, it was submitted, inter alia, that the judge wrongly admitted evidence of flight, or, more particularly in this case, evidence of the failure of the Applicants to present themselves for trial at the date originally fixed for their trial. At trial, an issue was raised before the judge as to the admissibility of the evidence that the Applicants had failed to appear at the trial when first listed, but the judge admitted the evidence. The Applicant contended that in order for flight to be capable of being supportive of the prosecution case, there must be some evidence which establishes a nexus between the flight of the applicants and the offence in question in other words there has to be some evidence that their flight was not due to any innocent reason. The suggestion was that the only evidence relied upon by the prosecution was the fact of the non-appearance of the Applicants at the pre-trial reviews and upon the original trial date, combined with the fact that the Applicants knew they had to attend the trial. On the strength of Chan Kwok-keung v R [1989] 2 HKC 9, it was said this did not suffice; that the prosecution had produced no evidence to establish that the Applicants had been hiding away or behaving in an unusual manner. Stress was placed upon the fact that according to the original bail conditions, A2 was permitted to leave Hong Kong and that she had supplied the ICAC with her Canadian address where she resided at all times. It was said that the prosecution failed to adduce any evidence that would entitle the jury to infer that flight was not due to an innocent motive on her part. There was, it was argued, no onus on the Applicants to provide an explanation for their absence but that, even so, explanations had been provided that were consistent with innocence.

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Held : (1) Chan Kwok-keung did not avail either party. That was because the factual premise upon which that appeal was allowed was materially different from the facts in this case. It was there held by the Privy Council that flight of an accused after an offence might be tantamount to an admission of guilt, but that in order for flight to be capable of amounting to such an admission there had to be some evidence which established a nexus between the conduct and the offence. Lord Ackner, at pp 12-13, said:

It is common ground that conduct, and in particular the flight of an accused after an offence has been committed, may be tantamount to an admission by him of his guilt of that offence, and as such, admissible evidence. Their Lordships attention was invited to a number of Australian authorities which illustrate this proposition. But each case must depend on its own particular facts. In those cases to which their Lordships were referred, the flight of the accused had occurred within a short space of time of the offence being committed and in circumstances which clearly connected the accused with the offence. In this case, the appellants were found stowed away nearly 10 months after the commission of the crime. The prosecution led no evidence to suggest that they had been hiding for all or any part of this period.

In this case, the prosecution produced no evidence to establish that either of the appellants had been hiding away or otherwise behaving in unusual manner in this period of nearly 10 months. There was therefore no material which could have justified the jury inferring the only reasonable explanation the appellants staying away on the ship from Hong Kong to Macau was that they were on the run because they might be arrested or charged with this murder. It could have been of a variety of other reasons for their having stowed away nearly 10 months after the murder.

(2) The present case was somewhat different. The Applicants had been committed for trial but, without giving any notification to the prosecuting authorities or to the court, simply failed to turn up. There was no record of A1 having left Hong Kong, itself possibly suggestive of a furtive departure. A1 was in overt breach of his bail conditions, having failed to surrender his travel documents and having left Hong Kong. A2 stayed in Canada and returned only after a provisional warrant for her arrest was issued by the Canadian authorities, having previously made no attempt to seek an adjournment of her trial. Each was aware of the trial date. That trial was for the very offences for which they ultimately stood

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trial in 2004. To say there was no evidence establishing a nexus between the conduct and the offences in question was unrealistic. It was not for the judge, at the time the application was made to admit the evidence, to determine whether the adverse inference that the prosecution would be asking the jury to draw was the only inference to be drawn. That was a question for the jury. What the judge had to decide was whether there was evidence upon which such an inference could properly be drawn. It was a question of potential proof of a fact which, if proved, was relevant to an issue at trial. Being relevant, ... both primary facts and the inferences therefrom are matters generally speaking within the province of the jury both can be critically affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, must conclude at the moment, but what a jury could, may or might properly conclude in the future: Attorney General v Li Fook-siu Ronald [1990] 1 HKC 1, 9; comments made in relation to the establishment of a prima facie case, but equally relevant here; (3) The proposition that the judge could only admit such evidence if he was satisfied that there was in fact no innocent explanation was far-reaching, and suggested that the judge took the place of the jury in its fact-finding role. If correct, evidence of flight or, for that matter, lies, which fell within a similar category for these purposes, would never be admissible if the judge at the admissibility stage had himself to decide that there was no conceivably tenable innocent explanation. That point was made the more stark in this particular case when one realized that no evidence was led by the Applicants at the admissibility stage, or indeed later, as to why they failed to turn up. Save for an untested affirmation by A2 that the judge apparently had in mind, there was no evidence at all as to why no explanation was given to the trial court, or why A1 was in clear and deliberate breach of his bail conditions. Result - Application dismissed.

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CA 198/2004 Stuart-Moore VP Stock JA Burrell J (1.2.2006) *A Sham & A Pang #J Haynes (A1) G Plowman SC (A2) M Tracy (A3) D Percy (A4)

(1) LEE Kwan-kong (2) MACH

Sindy (3) LAM

Wai-kit (4) LI

Wai-yan, Jessica

Murder/Joint enterprise/When Nedrick direction necessary/ Virtual certainty direction rarely needed/Clear directions required where possibility of withdrawal from joint enterprise Nedr ick

On 31 March 2003, Yung Cho-hing (the deceased), aged about 42, died as a result of multiple injuries. A1, A2 and A3 were jointly charged with murder, and duly convicted. At the outset of the trial, A1 entered a plea of guilty to manslaughter, which the prosecution rejected. A3 also entered a plea of manslaughter, but this was rejected. Although A2 did not plead guilty to a lesser alternative count, her defence at trial was run on the basis that her guilt extended only to assaulting the deceased thereby occasioning him actual bodily harm. Her offer to plead to this as an alternative to murder was also rejected by the prosecution. Following the killing, A1, A2 and A3 each became a party to a cover-up when they engaged in the removal of the deceaseds body and a number of articles from the original crime scene in an endeavour to distance themselves from the killing. This activity was covered by a second count, to which A1, A2 and A3 all pleaded guilty, and of which A4 was convicted after trial, of conspiracy to pervert the course of public justice. The evidence of participation in the attacks upon the deceased was derived entirely from the confessions made by A1, A2 and A3, and the prosecution relied on these as evidence of their presence and participation in the joint enterprise. All three Applicants admitted they had taken part in the repeated assaults on the deceased over a period of time at two locations. They also admitted that in the course of the assaults, a pipe and the handle of a mop were used to beat the deceased and all stated that either they themselves had stamped on/kicked at the chest of the deceased or they were present when such stamping/kicking took place. The prosecution case was that during the assaults the deceased yelled and they could see he was in pain and at times, the deceased was gasping for air. Although in their interviews the Applicants denied having any intent to beat the deceased to death, the prosecution proceeded on the basis of an intent to cause grievous bodily harm, and not an intent to kill. On appeal, it was submitted, inter alia, that a direction along

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the lines recommended in R v Nedrick (1986) 83 Cr App R 267, should have been given. In that case, the appellant had been convicted of murder after he had set light to the paraffin he had poured through the letter box at the house of a woman to whom he had earlier made the threat that he would burn her out . A child in the house died when the house was burned down. The Court of Appeal in England held that the trial judges direction to the jury that if the appellant knew it was highly probable that the act would result in serious bodily injury to somebody inside the house, even though he did not desire it he is guilty of murder , was wrong in that this equated foresight with intent, because foresight of consequences, as an element bearing on the issue of intention in murder belongs not to the substantive law, but to the law of evidence . A2 further submitted that the jury were never directed that they could not convict her if they thought it possible that she had withdrawn from the joint enterprise before the infliction of the fatal injuries upon the deceased . It was also said that the judge had failed to direct on the circumstances in which the jury could convict A2 on the plea offered, of assault occasioning actual bodily harm, instead of either manslaughter or murder. Held : (1) In Nedrick, the court said:

What then does a jury have to decide as far as the mental element in murder is concerned? It simply has to decide whether the defendant intended to kill or do serious bodily harm. In order to reach that decision the jury must pay regard to all the relevant circumstances, including what the defendant himself said and did.

In the great majority of cases a direction to that effect will be enough, particularly where the defendants actions amounted to a direct attack upon his victims, because in such cases the evidence relating to the defendants desire or motive will be clear and his intent will have been the same as his desire or motive. But in some cases, of which this is one, the defendant does an act which is manifestly dangerous and as a result someone dies. The primary desire or motive of the defendant may not have been to harm that person, or indeed anyone. In that situation what further directions should a jury be given as to the mental state which they must find to exist in the defendant if murder is to be proved?

We have endeavoured to crystallise the effect of their

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Lordships speeches in R v Moloney (supra) and R v Hancock ([1986] 82 Cr App R 264 and [1986] 2 WLR 357) in a way which we hope may be helpful to judges who have to handle this type of case.

It may be advisable first of all to explain to the jury that a man may intend to achieve a certain result whilst at the same time not desiring it to come about. In Moloney at pp 106, 107 and p 926 of the respective reports Lord Bridge gave an illustration of the distinction: A man who, at London Airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit.

The man who knowingly boards the Manchester aircraft wants to go there in the sense that boarding it is a voluntary act. His desire to leave London predominates over his desire not to go to Manchester. When he decides to board the aircraft, if not before, he forms the intention to travel to Manchester.

In R v Hancock the House decided that the Moloney guidelines require a reference to probability. Lord Scarman said at p 276 and p 364: They also require an explanation that the greater the probability of a consequence the more likely it is that the consequence was foreseen and that if that consequence was forseen the greater the probability is that that consequence was also intended.

When determining whether the defendant had the necessary intent, it may therefore be helpful for a jury to ask themselves two questions: (1) How probable was the consequence which resulted from the defendants voluntary act? (2) Did he foresee that consequence?

If he did not appreciate that death or really serious harm was likely to result from his act, he cannot have intended to bring it about. If he did, but thought that the risk to which he was exposing the person killed was only slight, then it may be easy for the jury to conclude that he did not intend to bring about that result. On the other hand, if the jury are satisfied that at the material time the defendant recognised that death or serious harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act, then that is a fact from which they may find it easy to infer that he intended to kill or do serious bodily harm, even though he may not have had

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any desire to achieve that result.

As Lord Bridge said in Moloney (p 106 and p 925): the probability of the consequence taken to have been foreseen must be little short of overwhelming before it will suffice to establish the necessary intent. At p 926 he uses the expression moral certainty; at p 929 he said, will lead to a certain consequence unless something unexpected supervenes to prevent it.

Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that such was the case.

Where a man realises that it is for all practical purposes inevitable that his actions will result in death or serious harm, the inference may be irresistible that he intended that result, however little he may have desired or wished it to happen. The decision is one for the jury to be reached upon a consideration of all the evidence.

From the emphasised passages, it was plain that the cases in which a Nedrick direction needed to be given would be rare, particularly where a defendant had been involved in a direct attack on his victim; (2) In R v Woollin [1999] 1 AC 82, 95, the appellant had lost his temper and killed his son aged 3 months after throwing him onto a hard surface causing the boys skull to fracture. Lord Steyn said:

It may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act. But I accept the trial judge is best placed to decide what direction is required by the circumstances of the case.

(3) In the present case, the trial judge chose to give the standard direction for murder, making it plain that the prosecution had presented their case solely on the basis of an intent to cause really serious injury to the deceased. This was not a case in which a Nedrick direction was required. On any view, the circumstances of this case revealed an admitted desire on the part of A1, A2 and A3 to cause injury to the deceased. The jury had to decide whether an intent to cause really serious injury had been established against one or more of them and, if so, whether at the time of such injury they were acting jointly in causing the death of

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the deceased. This was, in other words, not one of those rare cases , as Lord Lane put it in Nedrick, which required a direction to the effect that the defendant whose case the jury was considering recognised that (death or) really serious bodily harm would be virtually certain (barring some unforeseen intervention) to result from his voluntary act; (4) If further support were required for the proposition that a virtual certainty direction would rarely be needed, it could be found in R v Moloney [1985] 1 AC 905, 926, where Lord Bridge said:

The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jurys good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence.

(5) Although the judge had rightly directed the jury that each of the confessions made by the Applicants was evidence against only the maker of the confession, the judge ought at the same time to have indicated that they could take favourably into account in A2s case what had been said by A1 and A3 about their resumption of the assault upon the deceased long after A2 had left the scene. Instead, the way the judge dealt with the relevant matters of law and fact, so far as they affected A2, was by way of general directions without specifically setting out how her defence might succeed. The jury was given no direction that the answers given by A2 in her interviews could be taken to amount to a withdrawal from the joint enterprise at the time she went to bed; (6) Although the directions given by the judge were perfectly valid so far as they went, the jury had to be satisfied that no fatal

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injuries were sustained when the joint enterprise was continuing, that the accused was still acting within that joint enterprise, and that the acts which caused the death were within the scope of the joint enterprise: R v Mitchell and Another (1999) 163 JP 75, R v OFlaherty and Others [2004] 2 Cr App R 315; (7) The omission to provide the jury with specific directions to cover A2s absence from the last of the violent assaults on the deceased, described in the confessions made by A1 and A3, was a material irregularity in that a potential defence for A2, and, in reality, the only defence she had, was never explained to the jury. Hence, the offer to plead guilty to assault occasioning actual bodily harm was made. Result - Applications of A1 and A3 dismissed. Application of

A2 allowed, conviction for murder quashed, and conviction substituted for assault occasioning actual bodily harm.

[See also Criminal Appeals/Against Sentence: Ed]

CA 77/2005 Stuart-Moore VP McMahon & Lunn JJ (26.1.2006) *Anna Lai #I/P

YAU Lai-kit

Robbery/Defence impugning character of prosecution witnesses/Cross-examination of defendant on prior convictions appropriate/Criminal record relevant to credibility, not to propensity The Appellant was convicted after trial in the District Court of an offence of attempted robbery. The evidence showed that the Appellant attempted to rob a prostitute in domestic premises. Having posed as a customer, he put a knife to her neck and demanded money. She said she had none, whereupon he demanded her telephone and searched the drawers of her room. She cried out and begged to be let go. On appeal, it was submitted, inter alia, that it was unfair of the judge to permit evidence to be adduced of the Appellants previous convictions. In reply, the Respondent highlighted the judges observation that the defence involved serious imputations on the character of the prosecution witnesses . The judge had, in the following statement, recognised the limited purpose for which such evidence

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might be used, namely:

the only reason it was admitted was to shed some light on the character of the defendant in an attempt to assist the court to evaluate the serious imputations and allegations that he had made against various prosecution witnesses. Apart from that, this evidence has no relevance whatsoever to the central issue in this case whether or not the defendant did attempt to rob PW1

Held : (1) It was apparent that the conduct of the defence in the voire dire did involve serious imputations and allegations against the police officers of violence, together with threatening and oppressive behaviour towards the Appellant prior to the conduct of the video-recorded interview. In those circumstances, the judge acted within his discretion in permitting the prosecution to ask questions of the Appellant about his criminal convictions; (2) Of the ambit of the cross-examination, the judge noted that the Appellant admitted that in September 2001 he had been convicted of a robbery in which the victim had been tied up and adhesive tape put on her mouth. In respect of the other convictions admitted by the Appellant, the judge did no more than recite the offences concerned, the date of conviction and the age of the Appellant at the time of that conviction. The nature of the cross-examination of the Appellant fell squarely within the relevant propositions stated in R v McLeod [1995] 1 Cr App R 591. In respect of the appropriateness of cross-examination in that particular case of a defendant in respect of details of a previous conviction, which included reference to a person being locked up in a cupboard during a robbery, Gage J (at 405) said:

it merely showed that this offence was somewhat more ruthless than may normally be the case in a robbery where by definition violence, or the threat of violence is used.

Such considerations were relevant to the details in respect of the robbery committed by the Appellant for which he was convicted in 2001. In that case, there were aggravating features in the commission of the offence; (3) It was clear that the judge approached the relevance of the evidence of the Appellants previous convictions correctly. It was relevant only to the credibility of the Appellant, not to his propensity to commit the crime. Result - Appeal dismissed.

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C. CRIMINAL APPEALS/ AGAINST SENTENCE

/ CA 454/2005 Stuart-Moore VP McMahon & Lunn JJ (15.2.2006) *Wong Kam-hing #I/P

LEE Sing-wai, Stephen

Imprisonment/Suspended sentence/Commission of further offence/Date of second offence relevant for deciding whether breach of suspended sentence, not date of conviction The Applicant sought leave to appeal against the activation, on 18 October 2005, of a part of a suspended sentence imposed on 21 June 2002. On 21 June 2002, the Applicant pleaded guilty in the District Court to a charge of creating a false or misleading appearance of active trading, contrary to s 135(1)(a) of the Securities Ordinance, Cap 333. The judge concluded that a 9-month sentence of imprisonment, suspended for 3 years, was appropriate. On 7 October 2005, the Applicant pleaded guilty at Kwun Tong Magistrates Court to a charge brought by the Securities and Futures Commission (the SFC ) of failing to comply with the requirement to attend before an investigator on 25 September 2003 without reasonable excuse (the SFC offence ). This offence related to the investigation of dealings in the shares of Essex bio-Technology Ltd, contrary to s 33(12)(c) of the Securities and Futures Commission Ordinance, Cap 24, and was committed in breach of the suspended sentence imposed by the judge. The Applicant was fined $15,000 on 7 October 2005 for the SFC offence. The magistrate referred the case back to the judge for consideration as to whether action should be taken on the breach of the suspended sentence caused by the Applicants commission of the SFC offence approximately 14 months after the suspended sentence had been imposed. On 18 October 2005, the Applicants counsel submitted to the judge that there was no jurisdiction to activate the suspended sentence imposed on 23 July 2002 because the date of the conviction for the most recent offence, as opposed to its commission, fell outside the 3-year period of the suspension. Reliance was placed on HKSAR v Ali Amjad MA 689/2005. The judge ruled against this submission and activated the suspended sentence, reducing its length to 6 months. On appeal, it was submitted that because the SFC offence resulted in a conviction on 7 October 2005, it fell outside the 3-year operational period of the suspended sentence, and was thereby rendered incapable of being activated.

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Held : (1) Section 109B(1) of the Criminal Procedure Ordinance, Cap 221, provided that:

A court which passes a sentence of imprisonment for a term of not more than 2 years for an offence, other than an excepted offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than 1 year nor more than 3 years from the date of the order, the offender commits in Hong Kong another offence punishable with imprisonment and thereafter a court having power to do so orders under s 109C that the original sentence shall take effect.

(2) The power of the court on conviction of a further offence to deal with the suspended sentence was covered by s 109C(1), which provided:-

(1) If an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence or if, during such period, he breaks a condition imposed under s 109B(3)(a) and either he is so convicted by or before a court having power under s 109D to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods-

(a) the court may order that the suspended sentence shall take effect with the original term unaltered;

(b) it may order that the sentence shall take effect with the substitution of a greater or lesser term for the original term;

(c) it may by order vary the original order under s 109B(1) by substituting for the period specified therein a period expiring not later than 3 years from the date of the variation; or

(d) it may make no order with respect to the suspended sentence,

and a court shall make an order under paragraph (a) of

this subsection unless the court is of opinion that it would be unjust to do so in view of all the

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circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons.

(3) Section 109D(2) provided:

(2) Where an offender is convicted by a magistrate of an offence punishable with imprisonment and the magistrate is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Court of First Instance or the District Court (Amended 25 of 1998 s. 2)

(a) the magistrate may, if he thinks fit, commit him in custody or on bail to the court having power to deal with him in respect of the suspended sentence; and

(b) if he does not, shall give written notice of the conviction to the clerk of the court by which the suspended sentence was passed.

(4) Plainly, the SFC offence, which carried a maximum sentence of 6 months imprisonment on summary conviction, was committed during the 3-year operational period of the suspended sentence and the judge had power to activate that sentence by reason of the breach; (5) Although in HKSAR v Ali Amjad MA 689/2005, it was held that the relevant date which would determine whether a suspended sentence could be activated was not the date on which the fresh offence was committed but the date upon which the conviction for the new offence was recorded, this judgment was plainly in error and was not to be followed. The legislation was plainly designed to target the date of the commission of the fresh offence for the purposes of deciding whether there had been a breach of the suspended sentence. Result - Application dismissed.

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CA 198/2004 Stuart-Moore VP Stock JA Burrell J (1.2.2006) *A Sham & A Pang #D Percy

LI Wai-yan, Jessica

Conspiracy to pervert the course of public justice/Disposal of body of murder victim and of material articles/Seriousness of agreement to impede homicide investigation Yung Cho-hing, the deceased, died as a result of multiple injuries. Three persons were duly convicted of his murder. Following the killing, the three persons each became a party to a cover-up where they engaged in the removal of the deceaseds body and a number of articles from the original crime scene in an attempt to distance themselves from the killing. Those three persons, together with the Applicant, and a fifth defendant, were charged with a conspiracy to pervert the course of public justice. Except for the Applicant, all those charged pleaded guilty. The evidence against the Applicant, of her involvement in the disposal of the deceaseds body and other items connected with the killing, was based entirely upon her confession to the police which, in turn, was borne out by the police investigation. The Applicant described how, having learnt about the death of the deceased, she discussed with others what should be done. She was a party to the disposal of the body by acting as a look-out. She also helped in cleaning away the bloodstains left behind on the stairs and in getting rid of such items as clothes which might have been bloodstained. The judge adopted a 5-year starting point. Having described the Applicants only real mitigation as being the fact that she was not the leader of the conspiracy, and had acted to protect another or others , the judge passed a 4-year sentence. The judge pointed out that a conspiracy of this kind was always serious and is particularly serious when it is in respect of a homicide investigation . On appeal, it was submitted that this was an offence which had been carried out in an amateurish way and that, when compared to the facts of a number of other cases, the 5-year starting point was too high. It was said that a sentence of 3 years, as opposed to 4 years, would have been appropriate. Held : A sentence of 4 years imprisonment was not manifestly excessive. A conspiracy of this kind, where the investigation involved homicide, was serious because it involved an agreement

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to dispose of evidence and to distance the body from the scene of the crime. The Applicant had shown no contrition despite her earlier confession to the police, and the mitigation, such as it was, seemed to have been fully taken into account. Result - Application dismissed. [See also Criminal Appeals/Against Conviction: Ed]

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D. MAGISTRACY APPEALS/ AGAINST SENTENCE / MA 1011/2005 Line DJ (25.1.2006) *G Shiu #I/P

BUI Thi Thanh Binh

Theft/Professional shoplifting/Family circumstances no basis for reduction in sentence The Appellant was convicted of an offence of theft, and was sentenced to 12 months imprisonment. The facts showed she was one of three people who stole seven pieces of clothing worth over $4,500 from a shop in Causeway Bay. On appeal, it was submitted, inter alia, that the Appellant had a child aged 4 and a mother aged 72, and she wished to be at liberty to look after them. Held : A reduction in sentence was not justified, not least because the claims of her relatives upon her were well known to the Appellant when she decided deliberately to join in professional shoplifting. Result - Appeal dismissed.

MA 1047/2005 MA 1048/2005 Lunn J (27.1.2006) *Tsang Oi-kei #R Donald

CHAN Wing-kuen

Road traffic/Appalling traffic record/Detention centre a valid sentencing option for driving whilst disqualified/Consecutive terms of disqualification appropriate

In these conjoined appeals, the Appellant appealed against the sentences imposed on him following his pleas of guilty on 28 September 2005 to seven separate charges, four of which arose from events that occurred on 1 September and three of which arose from events which occurred on 13 September 2005. All charges, except for that of using a vehicle without third-party insurance, of which the Appellant was convicted and

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sentenced, were brought under the Road Traffic Ordinance, Cap 374. The offences that arose out of the events of 1 September 2005 were: speeding, contrary to s 41(1)(a); driving whilst disqualified, contrary to s 44(1)(b); using a vehicle without third-party insurance, contrary to ss 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272; and driving a motor vehicle with an alcohol concentration in breath exceeding the prescribed limit, contrary to s 39A(1). For Charge 1, the Appellant received an absolute discharge; for Charge 2, he was sentenced to detention in the detention centre and disqualified from driving for 3 years; for Charge 3 he was sentenced to the detention centre and to a disqualification from driving order for 12 months, to be served concurrently with the disqualification order made on Charge 2; and on Charge 4 to detention in the detention centre. The offences that arose out of the events of 13 September 2005 were: speeding, contrary to s 41(1)(a); driving whilst disqualified, contrary to s 44(1)(b); and using a vehicle without third-party insurance, contrary to ss 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. For Charge 1, the Appellant received an absolute discharge; for Charge 2, he was sentenced to detention in the detention centre and disqualified from driving for 3 years, the said disqualification to run consecutively to the term imposed on Charge 2 related to the events of 1 September 2005; for Charge 3, he was sentenced to detention in the detention centre and disqualified from driving for 12 months, to be served concurrently with the disqualification order of 3 years imposed in respect of Charge 2. The overall effect of the sentences was that he was ordered to be detained in a detention centre and disqualified from driving for 6 years. In respect of the offences of driving whilst disqualified, contrary to s 44(1)(b) of the Road Traffic Ordinance, the magistrate concluded that s 44(2)(iii) was quite specific, and the periods of disqualification had to be consecutive. Given that the minimum term for disqualification was 3 years, a period of 6 years, concluded the magistrate, was the absolute minimum period that I could impose . The Appellant, aged 24, was employed as a technician, and had previously committed similar offences, for which he received non-custodial sentences.

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The detention centre report recommended a period of disciplinary training, and described the Appellant as suitable for detention in a detention centre. On appeal, it was submitted, inter alia, that the magistrate had erred in imposing a sentence of detention in a detention centre for the offence of driving whilst disqualified, as this was not authorised by law. It was further said that the magistrate erred in concluding that he was compelled to impose consecutive periods in respect of Charge 2 in each set of offences. The sentences and disqualification periods were described as manifestly excessive and wrong in principle. Held : (1) It was clear that under the current legislation it was open to the magistrate to impose a detention centre order; (2) Having regard to the Appellants traffic record and his commission of these offences, a detention centre order was fully justified; (3) As regards the issue of mandatory disqualification in respect of s 44 of the Road Traffic Ordinance, the magistrate, in dealing with two separate offences of driving whilst disqualified, was not obliged by s 44(3) to make the minimum periods of disqualification, namely 3 years, consecutive with one another. They were not disqualifications ordered under any other provision of this ordinance . They were disqualifications ordered under the same provision of the Ordinance, namely, s 44(2); (4) Having regard to the appalling traffic record of the Appellant, and the fact that the second set of offences was committed whilst the Appellant was on bail for the first set, the magistrate imposed the appropriate orders of disqualification upon the Appellant. Result - Appeal dismissed.

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E. BASIC LAW AND BILL OF RIGHTS CA 411/2003 CA 61/2004 Ma CJHC Stuart-Moore VP Stock JA (26.1.2006) *G McCoy SC & G Shiu #C Grossman SC & H M Mughal (Benjamin Yu SC, as amicus curiae )

(1) HUNG Chan-wa (2) ATSUSHI Asano

Prospective overruling/Effect on previous cases of holding that presumptions in ss 47(1) and (2) of the Dangerous Drugs Ordinance created an evidential onus only, and not a persuasive burden of proof/BL art 160 not engaged 47(1) (2 ) 160 Each of the Appellants had been convicted of trafficking in dangerous drugs. The issue canvassed on appeal was whether the presumptions raised by ss 47(1) and (2) of the Dangerous Drugs Ordinance, Cap 134, if read as imposing persuasive burdens of proof upon defendants, were compatible with the presumption of innocence to which constitutional protection was afforded by article 39 of the Basic Law and, if not compatible, whether it was possible, in accordance with applicable canons of construction, to read the provisions as imposing an evidential burden. On 23 June 2005, the court decided that the subsections, if read as imposing persuasive burdens, were not compatible with the presumption of innocence thus protected, but that it was reasonably possible to construe the presumptions as ones that created an evidential onus only and that they should be so read. Since at the trials of the Appellants the jury were directed to apply persuasive burdens, the appeals of each were allowed and retrials were ordered. [See Criminal Appeals Bulletin, August 2005, at pp 50-52.] In argument, the court was invited to declare, in the event of a determination that a persuasive burden was in the context of these subsections unconstitutional, that the effect of the decision was prospective so that it would apply only to such cases as were determined thereafter; but not wholly prospective, meaning that the court was asked both by the Respondent as well as by the Appellants to enable the decision to enure to the benefit of these Appellants as well as to other convicted persons still in the system , meaning those whose appeals were pending at the date of the decision as well as those whose time for filing an application for leave to appeal had not at the date of the decision expired. The Respondent applied for a declaration that the courts interpretation of the effect of the presumptions in ss 47(1) and (2) of the Dangerous Drugs Ordinance was, subject to specified

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exceptions, to apply only from 24 June 2005. The Respondent feared that as a result of the courts decision, thousands of previous convictions for trafficking in, and possession of, dangerous drugs would be the subject of challenge or attempted challenge. The Respondent submitted that by reason of article 160 of the Basic Law, prospective overruling was the required norm in those cases where it was decided after 1 July 1997 that a law enacted before 1 July 1997 contravened the Basic Law. Held : (1) The fundamental problem with the Respondents argument was that the court had not found either statutory provision, that was to say either of the presumptions created by ss 47(1) and 47(2) of the Dangerous Drugs Ordinance, to be inconsistent with the Basic Law. What had been determined by the earlier judgment was that in the face of competing available constructions, the legislature should be taken to have intended a provision compatible with the requirements of the Covenant , and that it was reasonably possible to construe the words until the contrary is proved in ss 47(1) and (2) of the Dangerous Drugs Ordinance as imposing only an evidential burden upon an accused. In other words, the court did not hold the relevant statutory provisions to be unconstitutional. What it did was to assume an intent on the part of the legislature to enact provisions that were compatible with the ICCPR, to which domestic effect had been given before the date of enactment, and to construe them accordingly. It followed that the premise upon which the article 160 argument was based did not arise in the present case; (2) Article 160 of the Basic Law did not mandate temporal limitation upon the effect of a judicial interpretation of a statutory provision or upon a judicial declaration of incompatibility of a statutory provision with the Basic Law; (3) It was not necessary for the purpose of the issues decided by the judgment of 23 June 2005 to determine whether, otherwise, temporal limitation upon the effect of judicial decisions - whether interpretations of statutes or declarations of incompatibility - was part of the remedial armoury available to the courts of this jurisdiction, for even were that armoury available, there would be no justification for extending the limited boundaries of its use as exemplified in those jurisdictions that had utilised or expressed a willingness to utilise the technique, and the decisions that arose here fell outside those boundaries; (4) If at a future date an application was, or applications were,

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made for leave to appeal out of time which were based in whole or in part upon a suggested changed interpretation or perception of the nature of the reverse onuses in s 47 of the Dangerous Drugs Ordinance, they would be dealt with then for what they were - applications for leave to appeal out of time. It might then be necessary in the light of the case itself - or, perhaps, a representative selection of several cases - to examine the applicable principles. This would not be done in the absence of any such application. Result - Application rejected.

HCAL 107/2005 Hartmann J (9.2.2006) *K Zervos SC & A Stock #I/P(1) P Dykes SC & Hectar Pun (2)

(1) LEUNG Kwok-hung (2) KOO Sze-yiu

Executive Order of Chief Executive a lawfully made administrative order, but not in compliance with BL art 30/ Section 33 of Telecommunications Ordinance unconstitutional/ Chief Executive acted lawfully in not bringing into effect the Interception of Communications Ordinance/Remedy of temporary validity

30 33 On 16 August 2005, the Applicants filed a notice of application for leave to apply for judicial review with the Court of First Instance, seeking:

(a) a declaration that the Law Enforcement (Covert Surveillance Procedures) Order (the Executive Order ) promulgated by the Chief Executive on 30 July 2005 was unconstitutional and of no effect insofar as it purported to authorise or regulate covert surveillance conducted by law enforcement agencies;

(b) a declaration that, insofar as s 33 of the Telecommunications Ordinance, Cap 106 (TO), authorised or allowed access to or disclosure of the contents of any message or any class of messages, it was unconstitutional, void and of no legal effect in that it violated articles 30 and 39 of the Basic Law and article 17 of the International Covenant on Civil and Political Rights (ICCPR ), that article being incorporated in domestic law by article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383;

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(c) a declaration that the Chief Executive had a legal obligation to appoint a day by notice in the Gazette for the Interception of Communications Ordinance (IOCO) to come into effect in its present form.

Held : (1) The Executive Order made pursuant to the powers of the Chief Executive under article 48(4) of the Basic Law was an administrative order which had no legislative effect. Its purpose was to lay down legal procedures governing all forms of covert surveillance. The Executive Order did not purport to have legislative effect. It was no more than an administrative order and, being such, was lawfully made; (2) The contention that the Executive Order, in laying down a body of legal procedures , complied with the requirement of article 30 of the Basic Law, was incorrect. The Executive Order, as an administrative order, did not comply with article 30 nor was it capable of doing so. For the purposes of clarity, there would be a declaration to this effect; (3) Section 33 of the TO gave the power to the Chief Executive, when he considered it to be in the public interest, to order the interception of telecommunication messages. That section, insofar as it authorised or allowed access to, or the disclosure of, the contents of telecommunication messages, was inconsistent with articles 30 and 39 of the Basic Law, and, through article 39, with article 14 of the Bill of Rights. The Applicants would be granted a declaration that s 33 was unconstitutional, void and of no legal effect; (4) The IOCO was enacted in June 1997. In terms of s 1(2), the Chief Executive had the duty to bring it into effect on a day to be appointed by him. It had not been demonstrated that the Chief Executive, in failing to appoint a date for the implementation of the IOCO, had exceeded his powers and thereby acted unlawfully. He had at all times acted within his powers. There would be no declaration that he had acted unlawfully nor would there be a declaration that he must forthwith appoint a day for implementing the IOCO; (5) Any legal vacuum created by the declarations made would constitute a real threat to the rule of law in Hong Kong if law enforcement agencies were unable to conduct covert surveillance, including the interception of private communications, until corrective legislation could be put in place. That, so the court was informed, might take six months. That being so, the effect of the

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declarations made would be suspended for six months. Result - Orders in terms.

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F. PRACTICE AND PROCEDURE CA 26/2004 Ma CJHC Woo VP Tang JA (26.1.2006) *Kevin Zervos SC & Winnie Ho #M Blanchflower SC & Maggie Wong (P Dykes SC, for Intended Intervener)

CHAN Kau-tai (Applicant) ICAC (Intended Intervener)

Criminal appeal/Intervention by outside party accused of bad faith at trial/Intervention possible but almost unheard of in criminal case/Criminal and civil proceedings contrasted/ Respondent able to represent interests of outside party The Applicant applied for leave to appeal in respect of ten charges of having accepted advantages contrary to ss 4(2)(c) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. One ground of appeal alleged, firstly, that the prosecution had failed at trial to disclose the previous convictions of a material witness (ICAC Chief Investigator Yang), secondly, that there had been non-disclosure of a written disciplinary reprimand as a result of one of the convictions, and, thirdly, that a disciplinary record related to C I Yang had not been disclosed to the defence at trial. A number of affidavits were produced regarding the issue of non-disclosure. The Applicant then submitted that he wished, on the material before the court, to raise the issue of bad faith on the part of the ICAC, meaning the deliberate concealment of the previous convictions and disciplinary reprimand of C I Yang. In light of that, an adjournment became necessary, not least because live evidence was required to be heard by the court regarding the non-disclosure and bad faith issues. By a Notice of Motion, the Intended Intervener, the ICAC, applied for leave to intervene in the present appeal. In support of the application, it was said that the ICAC required independent representation if the conduct of its officers during the criminal investigation was to be inquired into by the court, and that the Respondents counsel felt that if he was to assist the court to achieve a just disposal of the appeal he could not in the process also take into account the interests of the ICAC or its individual officers. Held : (1) Intervention by outside parties was much more common in the civil context than the criminal. Although intervention in criminal matters was not impossible, it must, in the absence of statutory authority, be almost unheard of. While in civil matters

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the courts discretion to allow intervention by non-parties would generally be exercised where the intended intervener had a legitimate interest in the litigation (whether legal or financial) and it was just and convenient to allow this interest to be determined by the court (see, e g, RHC O 15 r 6(2)(b)(ii) and Hong Kong Civil Procedure 2006 Vol. 1 at para 15/6/7), the position was markedly different in criminal matters. Here, the emphasis was on the trial of the accused and this involved only two parties: the prosecution and the accused. The courts criminal procedures were designed to enable the just and efficient resolution of the prosecution of an accused person. That was why the representation before the courts in criminal matters almost invariably involved only the prosecution and the accused, while the interests of any other persons, such as witnesses or the investigating authorities, though affected (even seriously so), were not represented. Although a jurisdiction did exist to allow intervention in criminal matters, it was difficult to conceive of any situation in which this would be permitted. Whereas in civil matters, intervention was permitted so as to avoid a multiplicity of proceedings, by contrast in criminal matters, the emphasis could only be on the trial of the accused; (2) Where statute allowed intervention in criminal matters by outside parties, the position was of course quite different, and any intervention would then be governed by the terms of the statute in question. One example was the right of parties affected by a compensation or restitution order to be heard on appeal: see r 25 of the Criminal Appeal Rules, Cap 221A. Another was the right to intervene in private prosecutions by the Secretary for Justice: see s 14 of the Magistrates Ordinance, Cap 227; (3) In the present case, while the issue of bad faith and non-disclosure was directed at the ICAC rather than the Department of Justice or prosecution counsel, on analysis the complaint could only have been directed at the prosecution. What was at the heart of the ground of appeal was the extent of the duty of disclosure on the prosecutions part. Whether one regarded the ICAC as being a part of the prosecution or merely an investigating authority was immaterial for present purposes; the responsibility for full and proper disclosure lay with the prosecution and the prosecution must take responsibility for any deficiency on the part of the investigating authorities (be it the police or, as in this case, the ICAC): see HKSAR v Lee Ming-tee and Securities and Future Commission (2003) 6 HKCFAR 336, (Lee Ming-tee (No. 2) ). The ICAC did not have a direct duty of disclosure to the Applicant separate from the prosecution: Lee Ming-tee (No. 2) at 391 C-D; (4) In Lee Ming-tee (No. 2) , the Court of Final Appeal did, curiously, allow an intervention by the SFC and it was on this legal basis that the ICAC sought to justify its application to the

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court to intervene in the present application. However, the reasons for allowing the SFC to intervene in the appeal before the Court of Final Appeal were obscure, and did not appear in the judgment of the court. It was apparent from the Determination of the Appeal Committee of the Court of Final Appeal giving leave in that case that the Committee was of the view that leave to intervene should be given to the SFC but, as noted in the Determination, this was a decision that was made without submission being addressed to the Committee. Section 385 of the Securities and Futures Ordinance, Cap 571, expressly excluded criminal proceedings from the ambit of judicial proceedings in which the SFC might seek leave to intervene. The decision giving leave to the SFC to intervene in that case was a special one and could not provide any justification or guidance for a general right to intervene in criminal matters; (5) The Respondents position was not that he could not represent the interests of the ICAC while discharging its own duties as the prosecution. Rather, the Respondents counsel clarified that he had merely suggested to the ICAC whether their interests needed to be separately represented. His position was that, ultimately, he was not embarrassed nor did he see any conflict of interest between the Respondent and the ICAC; (6) In these circumstances, the Intended Intervener withdrew the application for leave to intervene. This was right, as there was simply no justification to intervene. Attention had not been drawn to any statutory provisions allowing the ICAC to intervene in the appeal. Result - Motion dismissed.

CA 254/2005 Yuen JA (26.1.2006) *Jackson Poon #I/P

CHAN Ka-man

Bail pending appeal/Principles applicable to granting of bail/ Failure to show prima facie chance of success After trial, the Applicant was convicted of two counts of indecent assault, one count of attempted rape and one count of rape, and sentenced to 8 years imprisonment. He sought bail pending appeal. Held : (1) The court had an unfettered discretion in deciding whether to grant bail pending appeal. But it was usually only granted

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where it appeared prima facie that the appeal was likely to be successful; (2) Bail pending appeal might also be granted if there was a risk that the sentence would have been served by the time the appeal was heard: R v Watton (1979) 68 Cr App R 293, R v Lee Hoi-kwong [1993] HKLY 216. But that did not apply in this case as the sentence was 8 years, and the Applicant had not sought leave to appeal against sentence; (3) The Applicant had not shown prima facie that the appeal was likely to be successful. Result - Application dismissed.