Criminal Law Ordinances & Cases

Specimen Directions in Jury Trials – a slight misnomer as most of these directions apply equally to the tribunal of fact and law – Judge or Magistrate – in the District Court and Magistrates’ Courts in Hong Kong. However they are fundamentally important in all criminal trials and need to be understood, not least by practitioners, as well as jurors and defendants.

The UK version on which the HK version is based is called The Crown Court Bench Book

Legal System in Hong Kong (DOJ)
Law of Hong Kong (DOJ)
Hong Kong Bill of Rights Ordinance (Cap 383)
How to be a Witness in Court (HK Police)
Prosecution Code (DOJ)
Rules and Directions for the Questioning of Suspects and the Taking of Statements
Legal Aid Ordinance (Cap 91)

Criminal Law Ordinances

Costs in Criminal Cases Ordinance (Cap 492)
Crimes Ordinance (Cap 200)
Criminal Procedure Ordinance (Cap 221)
Criminal Appeal Rules (Cap 221A)
Complex and Commercial Crimes Ordinance (Cap 394)
Control of Obscene and Indecent Article Ordinance (Cap 390)
Dangerous Drugs Ordinance (Cap 134)
Drug Addiction and Treatment Centre Ordinance (Cap 244)
Detention Centre Ordinance (Cap 239)
District Court Ordinance (Cap 336)
Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405)
Evidence Ordinance (Cap 8)
Gambling Ordinance (Cap 148)
Independent Commission Against Corruption Ordinance (Cap 383)
Juvenile Offenders Ordinance (Cap 226)
Jury Ordinance (Cap 3)
High Court Ordinance (Cap 4)
High Court Rules (Cap 4A)
Homicide Ordinance (Cap 339)
Magistrates Ordinance (Cap 227)
Organised and Serious Crime Ordinance (Cap 455)
Offences Against the Person Ordinance (Cap 212) 
Police Force Ordinance (Cap 232)
Prevention of Bribery Ordinance (Cap 201)
Probation of Offenders Ordinance (Cap 298)
Rehabilitation of Offenders Ordiance (Cap 297
Road Traffic Ordinance (Cap 374)
Theft Ordinance (Cap 210)
Training Centre Ordinance (Cap 280)

Joint Enterprise –  Chan Wing- Siu v The Queen [1985] AC 168 overturned by the Supreme Court (UK) but not in Hong Kong.

R v Jogee [2016] UKSC 8 & Ruddock v The Queen [2016] UKPC 7 – in this landmark judgment the Supreme Court has corrected an ‘error’ at common law that has stood for over 30 years.

“77. The rule in Chan Wing-Siu is often described as “joint enterprise liability”. However, the expression “joint enterprise” is not a legal term of art. As the Court of Appeal observed in R v A [2011] QB 841, para 9, it is used in practice in a variety of situations to include both principals and accessories. As applied to the rule in Chan Wing-Siu, it unfortunately occasions some public misunderstanding. It is understood (erroneously) by some to be a form of guilt by association or of guilt by simple presence without more. It is important to emphasise that guilt of crime by mere association has no proper part in the common law.

However the CFA in HKSAR v Chan Kam Shing FACC 5/2016 firmly rejected following the change of approach adopted by the UK Supreme Court in R v Jogee and R v Ruddock [2016] 2 WLR 681. The CFA held that ‘The joint criminal enterprise doctrine based on Chan Wing Siu and the cases following it, endorsed by this Court in Sze Kwan Lung, continues to apply in Hong Kong, operating alongside the traditional accessorial liability principles.’ Per Ribeiro PJ at para 98.

For a full and very helpful commentary on the CFA decision ,see HKU Prof Michael Jackson here


Costs in Criminal Cases

Tong Cun Lin v HKSAR  CFA – (1999) 2 HKCFAR 531; [2000] 1 HKLRD 113 – This case sets out the criteria for judicial discretion on the issue of costs following a criminal trial. Other issues: whilst it is accepted that no appeal lies to the Court of Appeal from a judge’s refusal of costs in a criminal case, by s. 31(b) of the Court of Final Appeal Ordinance, (Cap. 484)  … ‘any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.’ – the CFA plainly does, although ‘it would be an extreme case before [the CFA] would interfere with the judge’s exercise of discretion on such a matter.’

Procedural Issues

Court of Appeal Bundles – New Procedure in the DC and CFI – see HKBA Circular No. 03/15

Loss of Time in Unmeritorious Appeals – Practice Direction SL 4 and Chau Ching Kay, Nauthum v HKSAR [2003] 1 HKLRD 99 paras 52 – 79.

Cross examination of vulnerable witnessesRegina v Pooley (Jonathan) Regina v Lubemba [2014] WLR (D) 472 – The court gave guidance as to what measures a trial judge might legitimately take to protect a vulnerable witness without impacting adversely on the right of a defendant to a fair trial. See comment here

Li Defan and Anor v HKSAR [2002] 1 HKLRD 527; (2002) 5 HKCFAR 320 – when may a judge/jury draw inferences against an accused because they had not given evidence – infringement to right to silence.

Sentencing Authorities

Mitigation – Stock VP on Mitigation – HKSAR v Yeung Kwun Kuen [2013] HKCA 455; [2014] 1 HKC; CACC 475/2012. See also Leung Pui Shan [2008] HKCA 48; CACC 317/207

One-Third ‘Discount’ HKSAR v Ng Wing Chung  CACC 176/2005  – additional discount (c. 10%) on guilty plea (total 40%) for admitting offences that the prosecution would otherwise not have been able to prove.

One Third Discount Reviewed  – HKSAR v Ngo Van Nam (CACC 418/2014) and HKSAR v Abdou Maikido Abdoulkarim (CACC 327/2015) see Legal Circular No5 of2016  The issue has arisen in earlier appeals: in HKSAR v Lo Kam Fai [2016] HKEC 593, Yeung and Lunn VPP and Macrae JA all agreed that it is appropriate to consider whether there should be a different approach to sentencing between a Defendant who enters a “timely plea” and a Defendant who enters an “untimely plea”.

Macrae JA put it thus:

[T]he defendant on a rape charge, who indicates his intention of contesting his guilt, thereby obliging the case to be fully prepared with expert DNA and other scientific evidence and fixed for trial before the High Court, with the jury about to be empanelled and the traumatised victim poised to give evidence, will receive the same discount if he pleads guilty at arraignment as the drug trafficker who tenders a plea of guilty in the magistrate’s court and is committed to the High Court for sentence. The defendant who obliges the prosecution to prepare a complex fraud case over months, sometimes years, with flow charts, schedules, banker’s affirmations and expert accounting evidence, on the basis that he will plead not guilty but then changes his plea on the first day of a trial set down for several months, will generally receive the same discount for that plea as the defendant who acknowledges his guilt from the outset, cooperates with the authorities and demonstrates genuine remorse.

It seems to me that the concept of a “timely plea” has now lost much of its meaning, yet the “untimeliness” of the plea when a defendant absconds prior to trial and is subsequently re-arrested and charged with absconding is regarded as justification for reducing his discount for the original substantive offence, notwithstanding the addition of a consecutive element of sentence for having absconded. The noted American jurist, Oliver Wendell Holmes, put it well when he said:

“A good catchword can obscure analysis for 50 years.”

With respect, it is time the courts examined again what it is that amounts to a genuinely “timely plea”, what is not “timely” and what the sentencing consequences are for the “untimely plea”. (paras. 88–89).

Theft – Ng Kwok Wing [2008] 4 HKLRD – Tariff for theft – breach of trust guidelines – see also HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and  HKSAR v Yueng Chiu [2010] 3 HKLRD 339

Voir Dire

Chau Ching Kay, Nauthum v HKSAR [2003] 1 HKLRD 99; (2002) 5 HKCFAR 540 – It is settled law that a confession statement may be admitted in evidence if it was made voluntarily in the sense that it has not been obtained from an accused either by fear of prejudice or hope of advantage excited or held out by a person in authority or by oppression. Secretary for Justice v. Lam Tat Ming & another (2000) 3 HKCFAR 168; Ibrahim v. R. [1914] AC 599; DPP v. Ping Lin [1976] AC 574; and R. v. Lam Yip Ying [1984] HKLR 419.

SJ v Lam  Tat Ming and Anor [2000] 2 HKLRD 431; (2000) 3 HKCFAR 168 – appeal, inter alia, concerns the proper approach to the exercise of this residual discretion in relation to a voluntary confession. Where a law enforcement agency through an undercover operation obtained from a suspect a confession which is held to be voluntary, how should the court approach the exercise of this residual discretion ?

Admission of Letters as Evidence of Good Character

The above case involved an allegation of indecent assault which took place on a plane during its flight from Munich to Hong Kong.   The 22-year old Appellant was a fourth-year medical student in a university in Sydney at the material time.   During the trial, four letters concerning the good character of the Appellant were produced collectively as defence exhibit D2 without any challenge by the prosecution.

It is not clear from the appeal bundle before the Court in what way those letters had been produced in court.   Enquiry made with fiat counsel revealed that the letters were produced under section 65B of the Criminal Procedure Ordinance (“CPO”).   However, this issue was not raised during the appeal.   Those letters covered not only the general and professional conduct of the Appellant, but also his attitudes and behaviour towards young women as observed by people surrounding him during the previous years.

In his judgment which was handed down on 17 February, 2017, DHCJ S T Poon made the following comment at paragraph 19:

” It is not the first occasion I encountered the situation where character evidence is produced or sought to be produced in the form of letters by merely marking those letters as exhibits by consent at trial.   I shall point out that this is not the proper way to adduce evidence of character witnesses.   If the character witnesses are not called to give evidence at trial, the proper way to adduce their evidence shall be under s 65B or 65C of the Criminal Procedure Ordinance (Cap. 221) and the proper procedure thereof must be followed.   There is at present in our system no “short-cut” for admission of this kind of evidence.   Whilst I note that letters of mitigation are often produced at the sentencing stage by merely handing over the letters for the court’s consideration, such practice shall not be extended to a trial proper where the rules of evidence are expected to be strictly adhered to. ”

From time to time counsel for the defence may seek to adduce evidence of the defendant’s good character.

If on a sufficient basis prosecuting counsel agrees to the production of the evidence without calling the witness to give evidence at the trial, the evidence should be properly adduced under section 65B or section 65C of CPO.   Facts admitted under section 65C are deemed to be conclusively proved.   Whereas evidence tendered under section 65B has the same effect of direct oral evidence being given by the witness, such evidence can be undermined in the usual way and the Court is not bound to accept it.

The Appellant in the present appeal is an Australian with no previous criminal conviction in Hong Kong.   At trial, parties agreed that “The defendant has a clear record” by way of an admitted fact under section 65C of CPO.   Such an overall admission of a “clear record” should not be made without any factual basis.   In the absence of reliable information about a defendant’s criminal record outside Hong Kong, a restrictive admission such as “The defendant has a clear criminal record in Hong Kong” is considered to be more appropriate.   It would be a matter for the defence to adduce evidence of lack of criminal record elsewhere by calling evidence.

Copy of the judgment in HCMA 502/2016