Case 1

In HKSAR v WONG Tak-keung (FACC 8/2014), the appellant was convicted of conspiracy to traffic in 650 grammes of methamphetamine (commonly called “ice”) from Hong Kong to Australia. A 15-year-old courier was involved in the plan. The appellant was sentenced to 19 years’ imprisonment and he appealed against conviction. As jurisdiction of the offence was called into question, the Court of Final Appeal identified four categories of cases where the issue of jurisdiction might be raised. It is only in relation to the fourth category that controversy has arisen and the law has developed. This category involves cases where some of the constituent elements of the offence occur within the jurisdiction while other essential elements occur outside. The traditional view was that offences in this category were deemed to have been committed only in the place where the offence was completed. However, in recent English cases, a wider approach has been adopted whereby the substantive offence is held to be committed within the jurisdiction and thus justiciable by the English courts if “substantial activities constituting the crime” occurred within the jurisdiction but other essential elements of the offence occurred abroad. In the Canadian Supreme Court case of Libman v R (1985) 21 DLR (4th) 174, La Forest J in his dictum indicated that he preferred this wider approach to the earlier “terminatory” theory. The Court of Final Appeal found that the Libman decision had no application in the present case as the appellant’s acts, even if properly regarded as something agreed upon by the conspirators in Hong Kong, were to take place only in Australia. The appellant’s appeal was allowed and his conviction was accordingly quashed.

In HKSAR v LEUNG Shing-chi & 2 Ors (FACC 4/2014), the three appellants were Correctional Services Department officers. They were convicted of inflicting grievous bodily harm on a 33-year-old Taiwanese inmate who subsequently died. Each of them was sentenced to 16 months’ imprisonment. They appealed on the sole ground on which leave was granted that their counsel was flagrantly incompetent because he had failed to give adequate or correct advice on whether or not they should testify and that he had given wrong advice on the basis of his misunderstanding of the law on joint enterprise. The Court of Final Appeal acknowledged that one of the most difficult tactical decisions encountered in the conduct of a defence is whether or not the defendants should testify. After reviewing the evidence and the procedure at trial, the Court held that it could not reasonably be said that counsel was incompetent. There was no question of flagrant incompetence in this case. Nor could it be said that the appellants did not have a fair trial. The appeals were dismissed.

In HKSAR v Koo Sze-yiu & Ma Wan-ki (FAMC 40/2014), Koo and Ma were convicted of attempting to desecrate the regional flag contrary to section 7 of the Regional Flag and Regional Emblem Ordinance (RFREO) for trying to set fire to the regional flag of the HKSAR. Koo received four months’ imprisonment (suspended for two years) whereas Ma was ordered to serve 230 hours’ community service. On appeal, their convictions were upheld but their sentences were reduced to two months’ imprisonment (suspended for one year) and 110 hours’ community service respectively. They sought leave to appeal to the Court of Final Appeal against their conviction. The Appeal Committee held that there was no basis for revisiting or reversing the conclusion drawn by the Court of Final Appeal in HKSAR v NG Kung-siu & another (1999) 2 HKCFAR 442, namely, that section 7 of the RFREO was not unconstitutional. Their application was dismissed with costs awarded against them.

In Secretary for Justice v Ip Hon-ming & Yeong Yun Hong Gary (CAAR 3/2014), the Secretary for Justice applied for review of the sentences imposed upon Ip (a recovery agent) and Yeong (a solicitor) following their conviction of a total of 26 charges of champerty. Each charge concerned a different complainant in a personal injuries civil action. The trial judge sentenced Ip and Yeong to 12 months’ and 15 months’ imprisonment respectively and ordered those sentences to be suspended for 18 and 24 months respectively. The Secretary for Justice sought to review such sentences on the ground that they were manifestly inadequate and/or wrong in principle. The Court of Appeal found that the trial judge fell into error in the approach which she adopted in determining whether or not to impose a suspended sentence. Moreover, the sentences imposed on the respondents were both wrong in principle and unduly lenient. The Court of Appeal granted the Secretary for Justice’s application and substituted a sentence of two years and two months’ imprisonment for Ip and three years and two months’ imprisonment for Yeong, both sentences to be served immediately.

In HKSAR v Hui Rafael Junior & 4 others (HCCC 98/2013), the former Chief Secretary for Administration, the vice-chairmen and managing directors of Sun Hung Kai Properties Limited (SHKP), an executive director of SHKP and the former chief operating officer (COO) of the Hong Kong Futures Exchange (HKFE) were charged with various offences including misconduct in public office (MIPO) and conspiracy to offer an advantage to a public servant.

After trial, Rafael Hui, the former Chief Secretary, was found guilty of one count of conspiracy to commit MIPO, three counts of MIPO and one count of bribery offence under the Prevention of Bribery Ordinance (Cap 201) (POBO). The vice chairman of SHKP, Kwok Ping-kwong, Thomas, was found guilty of one count of conspiracy to commit MIPO. Kwok’s aide Chan Kui-yuen, Thomas, and the former COO of HKFE Kwan Hung-sang, Francis, were both convicted of one count of conspiracy to commit MIPO and a POBO offence.

Hui was sentenced to a total term of seven years and six months’ imprisonment and ordered to pay the Government $11.182 million as restitution. Kwok was sentenced to five years’ imprisonment and a fine of $500,000. Chan was sentenced to a total term of six years’ imprisonment with a fine of $500,000. Both Kwok and Chan were disqualified from being company directors for five years and six years respectively. Each of them also had to pay $12.5 million of the prosecution’s costs. Kwan was sentenced to five years’ imprisonment. All defendants have filed applications for leave to appeal.

In HKSAR v Chow Chi-wai & Another (HCCC 458/2013) - Chow and Lai, respectively the coxswains of two vessels Lamma IV (a passenger launch) and Sea Smooth (a high speed catamaran), were each charged with 39 counts of manslaughter and two counts (alternative to each other) of endangering the safety of others at sea. At the time of the offence, Sea Smooth was engaged in a scheduled service from Central to Yung Shue Wan, whilst Lamma IV was then carrying staff and family members of the Hong Kong Electric to the Victoria Harbour for viewing the National Day fireworks. Despite the fact that the weather was clear and that both vessels were equipped with a radar, they collided with each other, resulting in the rapid sinking of Lamma IV and the death of 39 passengers on board. After a 64-day trial in the Court of First Instance, Chow was found not guilty of the manslaughter charges but guilty of the endangering offence. He was sentenced to imprisonment for nine months. Lai was found guilty of all 39 counts of manslaughter and also of endangering. He was sentenced to imprisonment for a total of eight years’ imprisonment. Lai has lodged an appeal against conviction and sentence.

In HKSAR v Lin Kei-tat (CACC 11/ 2013), the appellant, a self-confessed bookmaker, pleaded guilty to two counts of money laundering offences, for which he was sentenced to three years and six months’ imprisonment. The value of the proceeds of crime was about $39 million. A confiscation order was made against the appellant pursuant to section 8 of the Organized and Serious Crimes Ordinance (Cap 455) (OSCO) in the sum of $10.3 million, which was the value of his realisable property. The appellant was ordered to serve a default term of imprisonment of five years, to be activated upon his failure to comply with the confiscation order before the deadline.

The appellant appealed against the confiscation order, contending that according to HKSAR v Li Kwok Cheung George (2014) 17 HKCFAR 319, when the Court of Final Appeal held that proceeds of crime must be in the nature of reward, the recoverable amount should be the net profits gained from the relevant criminal conduct. The Court of Appeal held that the legislative intent of OSCO was to effectively combat organised and serious crimes by having draconian provisions to confiscate the proceeds of crime. The proceeds of an offence, as defined in OSCO, refer to any payments or other pecuniary advantage obtained in connection with commission of that offence, but not just to “profit”. Confiscation is not restricted to “profit” after deduction of expenses. Also, in determining the imprisonment in default under section 13(1) of OCSO, the Court of Appeal held that the matter should not be approached on a simple arithmetical basis. The periods set out in the table under section 13(2) of OSCO are maximum periods and the court has the discretion to impose a period below the maximum. The normal procedure is for the court to impose a default sentence that falls between the maximum for the band immediately below and that for the band itself. The Court should not encourage a defendant in any way in his non-compliance with the order, and it should be made clear to the defendant that he has nothing to gain by non-compliance. In fixing such default imprisonment, it is not required to have regard to the totality principle in relation to the sentence imposed for the substantive offence. The appellant’s appeal was dismissed.

In HKSAR v Minney John Edwin [2013] 6 HKC 10, the Court of Final Appeal confirmed that in sentencing a defendant charged with possession of dangerous drugs, the court is entitled to apply the latent risk principle which allows it to adopt a higher sentencing starting point than usual if the court considers that there is a real risk that some of those drugs might be redistributed to others. In this case, the appellant pleaded guilty to two counts of possession of cocaine in small quantities. In sentencing, the trial judge applied the latent risk principle and increased the starting point by three months. The appellant challenged the constitutional validity of the principle but the Court of Final Appeal, in dismissing the appeal, confirmed that it did not contravene the presumption of innocence under the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383).

In HKSAR v Kulemesin Yuriy & Another (FACC 6 & 7/ 2012), the appellants were the master (A1) and senior pilot (A2) of an oil rig supply vessel and a bulk carrier respectively. The two ships collided with each other in the North Coast of Lantau Island, resulting in 18 deaths. A1 and A2 were convicted of the offence of endangering the safety of others in the sea, contrary to section 72 of the Shipping and Port Control Ordinance (Cap 313). The Court of Final Appeal held that the lower courts had fallen into an error in treating section 72 to be an offence of absolute liability. After considering the legislative background of section 72, the seriousness of the offence and the wide range of situations covered by the section, the court determined that section 72 is a strict liability offence. However, if there is evidence capable of raising a reasonable doubt that a defendant may have acted or omitted to act in the honest belief on reasonable grounds that his conduct was not such as to cause danger to the safety of others, he should be acquitted unless the prosecution established beyond reasonable doubt that the defendant either did not have such belief or that his belief though honestly held was not based on reasonable grounds. In the end, A1’s appeal was dismissed while A2 was acquitted. This is a landmark decision setting out the applicable principles on interpreting strict or absolute liability offences.

Case 2

In HKSAR v Francis Lee Kwok-wah [2013] 2 HKLRD 1009, the Applicant appealed against his conviction and sentence for three counts of unlawful sexual intercourse with a girl under 16, one count of indecent assault, and one count of indecent conduct towards a child. He was sentenced to a total term of eight years’ imprisonment. The victims were underage female orphans from an orphanage in Yunnan province operated by the Applicant, a HKSAR permanent resident. The Applicant contended, inter alia, that the extra-territorial effect of section 153P(1) of the Crimes Ordinance (Cap 200), in respect of a specified offence committed by a HKSAR permanent resident outside the HKSAR was incompatible with the principle of “equality before the law” under Article 22 of the Hong Kong Bill of Rights and Article 25 of the Basic Law, as non-HKSAR residents would not be so liable under section 153P(1). The Court of Appeal held that under the United Nations Convention on the Rights of the Child, it is necessary for the HKSAR to legislate provisions such as section 153P to protect children from crimes committed on them both within and outside the jurisdiction of the HKSAR. Section 153P is found to have complied with the rationality and proportionality test, and it therefore does not contravene the relevant articles of equality. The court also applied the Court of Final Appeal’s ruling in HKSAR v Lee Ming-tee & Another (2001) 4 HKCFAR 133 on the impact of pre-trial publicity on the jury’s ability to reach a fair verdict.

In HKSAR v Tse Man-lai [2013] 3 HKLRD 691, the Applicant was convicted of two counts of obtaining access to a computer with a view to dishonest gain for himself or another, contrary to section 161(c) of the Crimes Ordinance (Cap 200). It was alleged that he had sent a large number of attacking packets (known as a Denial of Services Attack) from his computer to the website of HKExnews, a website set up by the Hong Kong Exchanges and Clearing Limited for disseminating information to the public in respect of stock transactions. As a result of the attacks, seven listed companies were forced to suspend from trading. The Applicant conducted the attacks in order to promote his computer software business. The Court of Appeal held that a person is to be regarded as obtaining access to a computer in respect of each separate discrete use of the computer and the law operates to catch a person who obtains access to a computer with a view to a dishonest gain, even in circumstances where the earlier access by that person to the computer had been entirely innocent.

In HKSAR v Pang Hung-fai (FACC 8/2013), the Court of Final Appeal revisited the established test in deciding the mens rea element of the offence of dealing with property known or believed to be proceeds of an indictable offence, contrary to section 25(1) of the Organized and Serious Crimes Ordinance (Cap 455) (commonly known as the money laundering offence). In approaching this element, the court considered that for the phrase of “knowing or having reasonable grounds to believe” - the two mental elements should be understood as if they read “knew or ought to have known” . References (as employed in the test in the past) to “objective” and “subjective” elements, to “reasonable person” (as opposed to focusing attention on the accused), to “first step” and “second step”, and to “facts” known (as opposed to “grounds”), divert attention away from the proper test. On most occasions when an alternative formulation may assist a jury in its deliberations, the Seng Yuet Fong formulation will be all that is required:

“To convict, the jury had to find that the accused had grounds for believing; and there was the additional requirement that the grounds must be reasonable: That is, that anyone looking at those grounds objectively would so believe.”

When assessing the whole of the evidence, the judge or jury can give such weight to an accused’s belief, perception or prejudice as he/she believes is warranted. No doubt, in many cases, that decision maker will entirely discount such evidence of the accused. Nevertheless, they are “grounds” which stand or fall by the test of reasonableness.

In the HKSAR’s first marked oil case, HKSAR v Sze Meimun and 4 others (2014) 3 HKLRD 452, the Hong Kong Customs and Excise Department restrained $240 million of crime proceeds under the Organized and Serious Crimes Ordinance (Cap 455). The proceeds came from a cross-boundary syndicate smuggling marked oil from the HKSAR to the Mainland. The case originated from a joint investigation between the Hong Kong Customs and Excise Department and the Customs of the People’s Republic of China that had begun in late 2009. At trial, the prosecution called 47 witnesses among whom four were serving sentences in the Mainland. By way of Letters of Request made to the Mainland authorities, evidence-taking hearings had been carried out at the Shenzhen Municipal Intermediate People’s Court. The evidence was subsequently received and accepted by the District Court. All five defendants were convicted of one count of conspiracy to export unmanifested cargo. In addition, they were also convicted either jointly or individually of charges of money laundering. They were sentenced to imprisonment terms ranging from four to six years. Most of their convictions were upheld by the Court of Appeal. Their sentences were also confirmed. Leave to appeal to the Court of Final Appeal was dismissed by the Appeal Committee. The confiscation application against the defendants will be heard in due course.

In HKSAR v Mui Kwok-keung (DCCC 890/2012), the defendant, a practising barrister, was convicted of five counts of champerty. He agreed with five clients to make personal injuries claims and would charge them legal fees by taking sums between 25 per cent and 30 per cent from the damages to be recovered in successful claims. He took over $1.6 million from four of his victims. Upon conviction, the defendant was sentenced to a total term of three and a half years’ imprisonment. The defendant’s subsequent appeal against conviction and sentence was dismissed by the Court of Appeal (CACC 133/2013).

In HKSAR v Mak Chai-kwong & Tsang King-man (DCCC 956/2012), Mak Chai-kwong, the former Secretary for Development; and Tsang King-man, an Assistant Director of the Highways Department, were jointly charged for having conspired to defraud the Government of the HKSAR in claiming and receiving Private Tenancy Allowance. It was alleged that they had made false representation by claiming that they had no financial interest in the flats that they respectively leased and that the leases were genuine ones. Both faced a further count of corruption offence, contrary to section 9(3) of the Prevention of Bribery Ordinance (Cap 201). Both defendants were convicted as charged and were sentenced to eight months’ imprisonment suspended for two years. Their appeals against conviction were dismissed by the Court of Appeal (CACC 309/2013). An application for leave to appeal to the Court of Final Appeal was made but a hearing has not yet been fixed (FAMC 75/2014).