Sentencing – TOC

Leave a reply

General Sentencing Principles

  • overview of sentencing approaches – R v Sargeant (1974) 60 Cr. App. R. 74 [useful quote: “被告人已經被關押…，已受過牢獄之苦，監獄鐵鎖鋃鐺之聲將永遠在被告耳邊縈繞，提醒他以後要生性做人，不再犯事” – “…It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.”]
  • wherever possible, avoid imposing deterrent sentence upon a first offender – Chan Chi Ming [2003] 3 HKLRD 654; HCMA 115/2003 (15 July 2003) [should have asked for CSO reports before giving sentence, citing Bokhary JA’s quote in AG v Ng Sai Man [1994] 1 HKC 151; CAAR 11/1993 (25 January 1994), at [15] – “if is not necessary to send a man to prison for very long it may well not necessary to send him to prison at all” – for the quote only, a deterrent sentence was actually justified in this case] – CAVEAT: Good character/first-time offending is no bar to a deterrent sentence should the circumstances demand it – Chan Mo Kong [1998] 1 HKLRD 678; HCMA 194/1998 (17 April 1998) – In R v Ng Tat Shing & Anor [1977-1979] HKC 71 it was noted that although the general rule may be that an accused person of clear record would not normally be given a deterrent sentence, there were exceptions in certain cases. The exceptions include trafficking in drugs, kidnapping and cases where there was an element of corruption.
  • deterrence in personam or in rem? Hiroyuki Takeda [1998] 1 HKLRD 931 [“9. Where deterrence is the paramount consideration because of the particular facts or circumstances of the case, then a robust approach to sentencing is appropriate [per Li V-P in AG. v. TANG King-ming [1986] HKLR 211]. A deterrent sentence may be in personam or in rem. Normally if the circumstances that pertain to an offender are such that the court is of the opinion that it must be brought home to him that he is not to commit such offences again, for example, a repeat offender, a deterrent sentence in personam is proper. When an offence is, inter alia, so prevalent or is so serious within its class, and the court is of the opinion that those of like minds are to be strongly discouraged from committing the same or similar offences, then a deterrent sentence in rem is called for.”] – Law Haw Moon HCMA 1132/2001 (27 December 2001) [“6. … However, as a general rule, although it is not wrong in principle to pass a deterrent sentence in personam on a first offender, a deterrent sentence in rem on a first offender is generally wrong in principle, (see the case of HKSAR v. Hiroyuki Takeda [1998] HKCFI 152; [1998] 1 HKLRD 931). That case of course was dealing with quite a different offence, an offence of publishing obscene article but the principle remains the same.”]
  • deterrence needed for persistent re-offending as a protection of the public – Chan Pui Chi [1999] 2 HKLRD 830
  • deterrence – reoffenders – proportionality of the deterrent sentence – increase from the last sentence a factor of consideration – 黃華慰 [2018] HKCFI 2794, para. 15.
  • mental illness – Chiu Peng Richard [2002] 1 HKLRD 185; [2002] 1 HKC 401; CACC 287/2001 (29 January 2002)
  • deprivation of children’s care by reason of sentences – Chan Kin Chung & Anor [2002] HKCA 121; [2002] 4 HKC 314; CACC 299/2001 (5 September 2002) – survey of authorities – its basis on the balanced approach of sentencing; not residual merciful discretion
  • prevalence – Bondzie [2016] Crim LR 591 – applications in Khalid [2017] EWCA Crim 592 (12 April 2017) or Ajayi & Anor [2017] EWCA Crim 1011 (13 July 2017) – in the local context, see also s. 27 of OSCO
  • determining prevalence and the role of magistrates – 黃華慰 [2018] HKCFI 2794 [“13. 「濫收車資」是十分嚴重的問題 … 作為主任裁判官，羅裁判官必定瞭解區內的罪案趨勢。他當然有權判斷，哪些罪行需要打擊和嚴懲。”]
  • protecting HK’s reputation – refer to research notes
  • Sentencing Guidelines and the use of precedents – Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004) [“14. It must be remembered that sentencing guidelines are the exception, not the rule. Where guidelines are laid down and principles established, this should be done by the collective wisdom of three judges in the Court of Appeal and announced as such. Further, the Court of Appeal emphasized in R v. Lou Wah Theam [1997] HKCA 118; [1997] 1 HKC 412, at page 415C, that: “Where this court intends to provide sentencing tariffs for any specific offence it makes it clear that the case is a guideline case.” 15. Most appellate judgments on sentencing, both of the Court of First Instance and the Court of Appeal, do no more than uphold, reduce, or increase a particular sentence. They are no more than examples of how a particular court has dealt with a particular offender in relation to the particular circumstances of his offence. They are not intended to provide guidance for the future. They are certainly not authorities, let alone binding precedents, and they should not be cited in argument. Although the Court of Appeal has repeatedly deprecated the citation of comparable decisions which do not purport to establish any principle, or provide any guidelines, practitioners continue to pray them in aid, as was the case in this appeal.”]

Guilty Plea

Binding Over

  • legal certainty over “good behaviour” – Lau Wai Wo [2004] 1 HKLRD 372; (2003) 6 HKCFAR 624; FACC 5/2003 (19 December 2003), following Steel v UK [1998] ECHR 95
  • 無刑事紀錄，更無暴力行為前科，不應單憑一次的事件(尤其是經審訊後他裁定被告人罪名不成立的案件)，在無證據、無前科顯示被告人將會對他人或財產施以暴力、或威脅施以暴力、或將會作出行為令他人有理由恐怕此等暴力將會出現的情況下，要被告人簽保 – 許智峯 [2018] 1 HKLRD 145; [2017] 4 HKC 318; HCMA 693/2015 (9 January 2017)

Community Service Order

  • R v Brown (Mark Andrew) (1981) 3 Cr. App. R. (S.) 294 – adopted into Hong Kong in Chow Chak Man [1999] 3 HKLRD 37 [although result of that case has been criticised in e.g. Wong Yiu-kuen [2002] 1 HKLRD 712; Po Yan Chuen [2002] 2 HKC 712 at 714]
  • Whether the court in R v Brown was laying down a conjunctive list of criteria?  – Sek Siu Fun [2002] 4 HKC 369; HCMA 1126/2001 (16 July 2002) – R v Brown itself is not a “guideline case” in the true sense – Wan Ka Kit [2006] 3 HKLRD 9 [“28. The court [in R v Brown], in other words, was not restricting the factors to be taken into account for the purposes of making a community serviceorder to the six which they had mentioned. Nor was it insisting that all six factors should necessarily be present, although wewould think that in the vast majority of cases where such an order was appropriate most, if not all, of these factors would be present”]
  • Even if a community service order was appropriate for a defendant, a magistrate was not bound to impose that order – SJ v Lin Min Ying & Another [2001] HKCA 15; [2002] 3 HKC 415; CAAR 7/2001 (16 October 2001) – unless the defendant was made have reasonable expectation of a non-custodial sentence – R v Gillam [1980] 2 Cr. App. R (S.) 267
  • genuine remorse, civil disobedience – 律政司司長 訴 黃之鋒及另二人 [2017] 5 HKC 116; CAAR 4/2016 (17 August 2017); 律政司司長 對 梁曉暘及另十二人 [2018] 1 HKLRD 702; [2017] 6 HKC 114; CAAR 3/2016 (11 September 2017)

Suspended Sentence

  • Activation of suspended sentences – s. 109C of the Criminal Procedure Ordinance, Cap. 221 [in R v Li Kim Wai [1980] HKLR 833, at 834, Huggins JA said of the approach to be taken by the courts to section 109C: “We think it is important that suspended sentences should be activated where the law so requires, otherwise suspended sentences lose all their effectiveness. The whole purpose behind the suspended sentence is that a defendant shall know that if he commits a further offence he will go to prison on an activated sentence, save in exceptional circumstances, and those exceptional circumstances will rarely occur.”]
  • To run consecutively or concurrently? – R v Ithell (1969) 53 Cr App R 210, where Edmund Davies LJ said at p 212: “The proper approach, where a fresh offence has been committed during the period of suspension of an earlier sentence and the wrongdoer is brought before the court, is that the court should first sentence him in respect of the fresh offence by punishment appropriate to that offence, and thereafter address itself to the question of the suspended sentence…unless there are some quite exceptional circumstances, the suspended sentence should be ordered to run consecutively to the sentence given for the current offence.” [recent application in SfJ v  Chan Ka Wah [2008] HKCA 135; [2008] 4 HKC 532; CAAR 5/2007 (16 April 2008)]
  • Not activated due to Case Nature and Proximity to Expiry – Fung Shun Kwai 馮順貴 [1995-2000] HKCLRT 517 (Chinese Original); 521 (English Translation); HCMA 532/2000 (27 June 2000) [c.f. R v Li Kim Wai [1980] HKLR 833, where Huggins JA said “…mere dissimilarity between offences does not make it unjust” – recent application in Keita Ali CACC 419/2015 (21 March 2017)]

Training Centre

  • Wong Chun Cheong v HKSAR [2000] 3 HKLRD 840; (2001) 4 HKCFAR 12; [2001] 1 HKC 1; FACC 9/2000 (8 January 2001) [whether appropriate to impose TCO where the minimum period of detention equals to or exceeds the maximum period of imprisonment for the offence – jurisprudential aspect of the issue – JS Mill, Hart cited – resolved by statutory interpretation of s. 4(1) of the Training Centre Ordinance, Cap. 280 – meaning of “in the interest of  community”/”the circumstances of the offence”/”in lieu of any other sentence” – principles re: TCO summarised at para. 41]

Forfeiture Order

  • Nature & General Principles – Wong Hon Sun (黃瀚笙) (2009) 12 HKCFAR 877; [2010] 1 HKC 18; FACC 1/2009 (24 July 2009)
  • Chan Chi Wai, Jimmy [2011] 4 HKLRD 302; [2011] 5 HKC 144; HCCC 300/2010 (2 August 2011)
  • under Drug Trafficking (Recovery of Proceeds) Ordinance – NGOMA Juma Shabani  [2015] 5 HKLRD 57; [2015] 5 HKC 447; CACC 214/2014 (2 September 2015)
  • CA’s discussion on procedure, with McWalters JA’s dissent – Shoki Fatuma Ramadhani [2015] 2 HKLRD 696; [2015] 4 HKC 55; CACC 187/2014 (30 March 2015)

Common Assault & AOABH

  • involving domestic helpers as victims – refer to previous research
  • throwing stuff at politicians – 陳德章 HCMA 741/2014 (29 April 2015)

Fraud, involving breach of trust – refer to previous research

Money laundering – refer to quantum table

Unlawful intercourse with underage girls (ss. 123 / 124) – refer to quantum table

Armed robbery – Mo Kwong-sang [1981] HKLR 610, affirmed in Secretary for Justice v Ma Ping Wah [2000] 2 HKC 566

  • monetary loss of the victim not the primary concern in sentencing because “it’s not the gravamen of the offence” – 林俊南 [2008] 2 HKCLRT 133
  • the victim’s perception of whether the defendant was armed vs whether the defendant was actually armed? Is the distinction artificial? Yu Tai Wing [1995] HKCA 318; [1995] 1 HKC 837; CACC 454/1994 (28 February 1995) [Macdougall VP – “14. For policy reasons we take the view that in the case of bank robberies, jewellery shop and goldsmith shop robberies, security van or payroll robberies and such the like, no distinction should be made between cases where genuine firearms are used but not discharged and those in which imitation firearms are used. Obviously the risk that a loaded genuine firearm carried by a robber might be discharged in the course of such robbery does not exist where the robber is armed with an imitation firearm. But the chance that the police or security guards who are called to or happen upon the scene might open fire in the course of such robberies cannot be overlooked. The risk of innocent bystanders being killed or injured is always present in circumstances where decisions have to be made in split seconds“]; On Ling [2005] HKCA 673; [2005] 1 HKC 227; CACC 386/2004 (4 January 2005) [Yu Tai Wing distinguished on the ground that the case should not be regarded as an armed robbery]; revisited in TAM Tak-cheung (譚德祥) CACC 209/2017 [On Ling approach questioned – discussed whether the victim “could see”/”would have believed”/”would be reasonable to believe” – but did not resolved the issue because emphasis was on the seriousness of the offence – “23. I have to say, respectfully, that I have difficulty with the reasoning in HKSAR v On Ling, where the Court held that the purported carrying of a weapon, which was in fact a roll of newspapers, took the case outside the Mo Kwong Sang v R guidelines. It is no consolation to the terrified victim of a robbery that, contrary to the defendant’s claim, there was in fact no weapon when he said, and the victim believed, that there was. Nevertheless, the facts in HKSAR v On Ling were somewhat different. There, the victim was able to see that what was pointed at him was in fact a roll of newspapers, before he immediately collapsed on the ground out of fright.”]

Theft by pickpocketing – tariff – Ngo Van Huy [2005] 2 HKLRD 1 – should not be regarded as immutable or ceiling – categories of aggravating features not closed [Macrae J’s (as he then was) in Sandagdorj Altankhuyag & Anor [2014] 1 HKC 206] – 可因加刑因素偏離準則，但法庭須顧及案情 (但並非加刑因素)，包括失物的價值、受害人年紀及犯案手法等等。法庭須避免在採納12至15 個月在何處著墨時，考慮了「加刑」因素，因而引致「雙重計算」- Chiu Suet Yee Angel (趙雪儀) (unrep., CACC 105/2010, Barnes J, 27 October 2010)

Theft by shoplifting – 在香港特別行政區訴楊艷雲 [[2014] 1 HKLRD 546] HCMA 54/2013 (未經彙編，2013年4月30 日)，胡國興法官指出：- “17. … 法庭對於積犯或慣犯的判刑沒例外地判處監禁或提升刑期。如果涉案的物品很小、像日常一般飲品食物，而價值也不高，法庭對初犯者多會判以罰款，但是對於重犯者，而所涉物品價值超過$100以上，最低的量刑基準為3個月監禁，同類前科越多則量刑基準提升越高。”

Possession of forged identity card – Li Chang Li (李長利) [2005] 1 HKLRD 864 [“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes. 41. If the offender has actually produced or used a forged identity card or identity card belonging to another in order to conceal his identity, work illegally or unlawfully further his stay in Hong Kong, then the starting point upon a plea of guilty should be 15 months’ imprisonment.”] – overruled V Bokhary J’s “guidelines” in Chan Man Mo [2001] 1 HKLRD 121 – previous inconsistencies between Chan Man Mo and Shamin Nawaz [1994] HKCLR 195 (Barnett J); see discussion in e.g. Lau Sau King (unrep., HCMA 701/2004, Lugar-Mawson J, 14 September 2004)

Management vice establishment – 高等法院暫委法官杜溎峰 (當時官階) 在香港特別行政區 訴林詩琪及另一人 [2005] 3 HKLRD 273，第279頁表示： 「 15. 從HKSAR v Lee Tang Yau HCMA 602/2011與香港特別行政區 訴 張招財及另一人 HCMA 531/2003兩件案可見，法庭普遍認同管理賣淫場所的量刑起點為十二個月監禁。本席認為在釐定量刑起點時，裁判官應考慮有關賣淫場所的規模、運作模式、所提供的賣淫活動、場所的面積、僱員的人數、妓女的人數、顧客的數目、所收取的費用、營業利潤與營業額等。一般的賣淫場所僱用不超過五名僱員及不超過十名妓女，管理模式較為簡單。本席認為管理這類賣淫場所的恰當量刑起點是十二個月監禁。裁判官可視乎該賣淫場所的規模與運作模式釐定恰當量刑起點。此外，裁判官亦可考慮其他嚴重情況而提高量刑起點：如所僱用妓女的年紀、 她們是否非法居民、她們可否在香港受僱傭等。協助管理這類賣淫場所的恰當量刑起點可以比管理者為低， 但這視乎他所協助的性質與程度。」

Road Traffic Offences

  • Drunk driving – see quantum table
  • “Failing to report an accident which involved damage”, contrary to section 56(2A) and (6) – Wei, Edmund Chih Chan (unrep., HCMA237/2016, Deputy High Court Judge CP Pang, 14 March 2017)
  • Disqualification order – 高院原訟庭暫委法官陳嘉信 (當時官階) 在香港特別行政區訴何炳崇 HCMA 603/2015 一案第11段指出，停牌令的長短必須在公眾利益和上訴人的個人情況之間取得平衡。而且，停牌多久才算合適，並無量刑指引，一切須以個別案件情況而定 – 高院原訟法庭暫委法官張慧玲 (當時官階) 在香港特別行政區訴蔡林飛 HCMA 539/2006 一案第17段表示，當犯案者是職業司機時，法庭一方面需要考慮「停牌」對他構成的經濟困境，尤其是會否將犯案者「逼上梁山」(即令他無法維生而為非作歹) 。另一方面，法庭亦須考慮犯案者若以其不正確的駕駛態度長時間在道路上駕駛，對公眾構成危害的風險。故法官/裁判官行使酎情權時，需考慮如何在兩者之間取得平衡。

Leave a Reply

Your email address will not be published. Required fields are marked *