doc_id
int64 1
172
| seg_id
int64 1
397
| translation
dict |
|---|---|---|
2 | 32 | {
"en": "Appropriate Sentence",
"zh-HK": "適當的刑期"
} |
2 | 33 | {
"en": "The evidence shows there is obviously an upward trend for this kind of deception. The court should impose a deterrent sentence to stop the growth of such cases. In HKSAR v. Lee Sai Wing [1998] 4 HKC 281, HKSAR v. Tam Wai Pio [1994] 4 HKC 291 and HKSAR v. Cheung Wai Man & Ors [1998] 4 HKC 284, the Court of Appeal took the view that it would be appropriate to enhance the sentence of specified offences that involved triad background or organized crimes by 50%. In Cheung Wai Man it was further decided that for organized crimes involving vehicle smuggling, trafficking in women for the purpose of prostitution in Hong Kong, and the use of force to recover money lent at usurious rate to gamblers, it would even be appropriate to impose an enhanced sentence of more than 50%. However, in Lee Sai Wing the Court of Appeal also pointed out that for crimes that were becoming prevalent, if the sentence was enhanced by 50% without prior warning, it might lead to a sense of unfairness. In respect of crimes that were becoming prevalent the extent of enhancement would be decided by their gravity, prevalence and effect upon the community. The charges in that case were procuring entries in bank records by deception, the Court of Appeal took the view that it would be appropriate to enhance the starting point by 25% to 30%.",
"zh-HK": "這些証供顯示這一類的行騙案件明顯地有上升的趨勢，法庭是應該採取阻嚇的刑期來抑壓這類案件增長。在香港特別行政區訴李世榮[1998] 4 HKC 281、香港特別行政區訴譚偉標(譯音)[1994] 4 HKC 291及香港特別行政區訴張偉文及其他人[1998] 4 HKC 284，上訴法庭認為將涉及黑社會背景或有組織罪行的指明罪行加重50％的刑期是適當的。張偉文一案更指出就有組織罪行涉及偷運車輛，非法運婦女來港賣淫，及强行收回借給賭徒的高利貸的行為，加重刑罰甚至高於50%亦都是適當的。但在李世榮一案，上訴法庭同時指出，對一些逐漸普遍的罪行，未經事先警告而將刑罰加重到50%，可能會引起不公平的感覺。對於逐漸普遍的罪行應將刑罰加重多少，要看該種罪行的嚴重性、普遍性及對社會的影響而定。該案的控罪是以欺騙的手段，在銀行記錄內促致記項罪，上訴法庭在該案認為將刑期的起點調高25%至30%是適當的。"
} |
2 | 34 | {
"en": "10.According to this Court’s understanding, the judge’s reason for imposing an enhanced sentence in this case is because of the prevalence and gravity of similar cases, rather than because this is an organized crime case. Because of the rising trend of similar cases, this Court takes the view that it would be appropriate to enhance the sentence by 50% in order to deter the commission of such crimes. Nevertheless, prior to this case there was no precedent to indicate that the court would enhance the sentence by 50% for similar cases, (even though prior to the commencement of the trial, the prosecution had already served written notices upon the defendants to the effect that in case they were convicted, the prosecution would furnish to the court the above material under section 27(2)). In such circumstances, if the sentence were to be suddenly enhanced by 50%, the defendants would feel a sense of unfairness. As far as this case is concerned, this Court is of the view that the sentence of 2 years’ imprisonment should be enhanced by 25%, making the sentence one of 2 years and 6 months.",
"zh-HK": "10．根據本庭的了解，原審法官在本案加重刑罰的理由是因為類似案件的普遍及嚴重程度而不是這件案件是屬於有組織罪行的案件。因為同類案件是有上升的趨勢，本庭認為阻嚇這類案件，加重刑罰50%是適當的，但在本案之前，並沒有任何先例指法庭會就同類案件加重刑期50% (雖然控方在本案開審之前已經用書面形式通知各被告人如果他們被判罪，控方是會根據第27(2)條向法庭提供以上的資料)，在這情形之下，將刑期驟增50%對被告人來說會有一種不公平的感覺。本庭認為就本案之言，應該將2年的刑期加25%，即刑期為2年6個月。"
} |
2 | 35 | {
"en": "Conclusion",
"zh-HK": "總結"
} |
2 | 36 | {
"en": "11.We would allow the appeal, set aside the original sentence and substitute it with an imprisonment term of 2 years and 6 months. At the same time, this Court would point out that in future, it would not interfere with decisions to enhance the original sentence by 50% in similar cases.",
"zh-HK": "11.我們接納上訴，將原本的刑期擱置，代之為2年6個月的刑期。本庭同時要指出，以後涉及同類型的案件時，本庭是不會干預將原本刑期上調50%的決定的。"
} |
2 | 37 | {
"en": "Mr Y. M. Liu, Senior Government Counsel of Department of Justice, for HKSAR",
"zh-HK": "控方：由律政司廖遠明高級政府律師代表香港特別行政區政府"
} |
2 | 38 | {
"en": "Ms Terry S. C. Chan (assigned by Bar Free Legal Service Scheme), for the defendants",
"zh-HK": "辯方：由香港大律師公會法律義助服務計劃委派陳淑芝大律師代表"
} |
3 | 1 | {
"en": "Hon Barnes J (giving the reasons for judgment of the Court):",
"zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案理由書 ："
} |
3 | 2 | {
"en": "The applicant was charged with one count of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212 Laws of Hong Kong. The applicant pleaded not guilty. He was convicted after trial before Deputy District Judge Sham and was sentenced to 3 years’ imprisonment. He initially applied for leave to appeal both conviction and sentence. Subsequently he abandoned the appeal against conviction and sought leave to appeal the sentence only.",
"zh-HK": "申請人被控一項「有意圖而傷人」罪，違反香港法例第212 章《侵害人身罪條例》第17(a) 條。申請人否認控罪，經審訊後被區域法院暫委法官沈小民裁定罪名成立，被判監禁3 年。申請人本就定罪及刑期申請上訴許可，其後申請人放棄針對定罪的上訴，祇就判刑提出申請。"
} |
3 | 3 | {
"en": "After the hearing, we granted the applicant leave to appeal and, treating the application as the appeal proper, we allowed the appeal, set aside the 3 years’ imprisonment, and substituted therefor a term of 2 years and 3 months. Our reasons are set out below.",
"zh-HK": "本庭在聆訊後批准上訴申請許可，並視之為正式上訴。本庭裁定上訴得直，3 年監禁刑期撤銷，改判監禁2 年3 個月。以下是本庭的理由。"
} |
3 | 4 | {
"en": "Facts",
"zh-HK": "案情事實"
} |
3 | 5 | {
"en": "The facts as found by the Deputy Judge were as follows (page 19 of the appeal bundle):",
"zh-HK": "沈法官裁定的案情事實如下 (上訴文件第19 頁)："
} |
3 | 6 | {
"en": "“2.The facts show that both the defendant and the victim Cheung Kwun-wo (78 years old) were residents of Chung On Estate and they knew each other. Prior to the wounding incident, they had had a quarrel over a chess game. On the day of the offence, i.e. 23 June 2011, Mr. Cheung was in the park, where the offence was committed, watching people playing chess. The defendant went up to Mr. Cheung and asked him to pay compensation for what happened the day before yesterday. Because of that, an altercation broke out between them again. The defendant took out a knife. When the chess players saw that, they told Mr. Cheung to run away. Mr. Cheung did run, but after he ran for 60 to 70 metres, he was caught up by the defendant. The defendant stabbed him, injuring the area under the left armpit. The defendant continued to attack him with the knife. As he tried to fend off the attack with his left hand, his left thumb and left index finger were injured. Then the defendant ran away and the police were called.",
"zh-HK": "「2.案情透露，被告人與傷者張均和 (78歲)，都是頌安邨的街坊，彼此互相認識。在傷人事件之前，雙方曾經為下棋問題有所爭執，直至2011年6月23日案發當日，張伯在肇事現場的公園觀看他人下棋，被告人走到他身旁，為著前日所發生的事情，要求張伯賠償，雙方因此而又口角起來。被告人拿出一把刀，當時下棋的街坊看見這情況，著張伯走離開，張伯逃走，不過走了六七十米之後，給被告人追到，被告人用刀刺傷張伯左腋下位置，另外繼續用刀襲擊他，張伯以左手擋格的時候，左手拇指和食指受了傷，之後被告人走離開現場，其後事件報了警。"
} |
3 | 7 | {
"en": "Mr. Cheung was sent to hospital. The medical report said that there was a stab wound, 1.5 cm long, under his left armpit near the chest, and that there were also injuries on his left upper limb.” (explanation given by the court)",
"zh-HK": "3.張伯被送往醫院醫治，醫生報告指他左腋下胸口位置被刺傷，傷口1.5公分，而左上肢亦有受傷。」(本庭加以注釋)"
} |
3 | 8 | {
"en": "Applicant’s background and mitigation submissions",
"zh-HK": "申請人背景及求情陳詞"
} |
3 | 9 | {
"en": "The Deputy Judge set out the applicant’s background and mitigation submissions as follows (page 20 of the appeal bundle):",
"zh-HK": "沈法官列出申請人背景及求情陳詞如下 (上訴文件第20 頁)："
} |
3 | 10 | {
"en": "“4.The defendant is 72 years old. He has one conviction record (1988, one conviction for gambling). As that conviction was quite some time ago, I will treat him as a person of clear record when I consider the sentence. The defendant is a retiree. Before his retirement, he worked as a mini-bus driver. He is married. He has two sons and one daughter. As far as his health is concerned, he received a coronary bypass operation in 2009. In addition, he is suffering from a variety of ailments and illnesses, such as shortness of breath.",
"zh-HK": "「4.被告人現年72歲，過往有一項刑事紀錄 (1988年一項賭博案底)，由於案底距今已有一段時間，本席在量刑時，會視被告人為無案底的人。被告人已退休，退休前曾當小巴司機，已婚，育有兩名兒子、一名女兒。身體健康方面，在09年曾做過心臟搭橋手術，另外還有多種身體毛病，例如氣促等。"
} |
3 | 11 | {
"en": "5.By way of mitigation, the defence has submitted a number of letters for the court’s consideration, including letters from Legislative Councillor Mr. Chan Hak-keung [sic]; Madam Wong, Chairwoman of the Mutual Aid Committee of Chung On Estate; and the defendant’s children. In sum, they have made very positive comments on the defendant, describing him as easy-going, always ready to help others and eager to do voluntary social work, and stating their belief that the defendant’s commission of the present offence was out of his character.”",
"zh-HK": "5.求情方面，辯方呈上多封求情信給法庭考慮，包括立法會議員陳克強先生，頌安邨互助委員會主席黃女士，被告人的子女。總括而言，各人對被告人的觀感非常之好，指被告人一向性格隨和、樂於助人，又熱心社會義務的工作，對於今次被告人犯下這罪行，各人都相信是與他一貫性格不符。」"
} |
3 | 12 | {
"en": "Reasons for sentence",
"zh-HK": "判刑理由"
} |
3 | 13 | {
"en": "The Deputy Judge cited the authorities Hau Ping Chuen2 and Tse Hok Lam3[transliteration of 謝學林] and pointed out that this kind of offence called for severe punishment, with the usual sentence being imprisonment for 3 to 12 years. The Deputy Judge went on to say (page 21 of the appeal bundle):",
"zh-HK": "沈法官在引述案例 (侯炳全 及謝學林 ) 時指出，此類罪行要嚴懲及一般判刑範圍應是3 年至12 年後，說 (上訴文件第21 頁)："
} |
3 | 14 | {
"en": "“8.I consider that there are aggravating features in the present case. Before the wounding incident occurred, the defendant had a quarrel with Mr. Cheung over a chess game, following which he nursed a grievance against Mr. Cheung. It is obvious that the attack was premeditated, because on the day of the offence the defendant brought along knives for the purpose of attacking another person.",
"zh-HK": "「8.本席認為本案有其嚴重的地方。被告人因為在傷人事件之前，與張伯就下棋一事有所爭執，而他深深不忿，案發當日很明顯他是有計劃地進行是次襲擊，帶備刀子襲擊他人。"
} |
3 | 15 | {
"en": "9.On the basis of the admitted evidence, I believe that the defendant carried two knives with him at the material time, and that the knife produced at trial was not the one used in the wounding. However, taking into account the overall circumstances of the defendant’s attack on the victim, that knife would, I believe, at least have been as sharp as the one produced in court. In other words, I believe it was a sharp and lethal weapon.",
"zh-HK": "9.從法庭接納的證供來看，本席相信被告人當時帶備兩把刀，而呈堂的那一把刀並非兇刀。不過，從被告人以刀襲擊的整體情況來考慮，本席相信該把刀鋒利程度是不下於本案所呈上的刀子，換句話說，本席相信它是一把鋒利、可致命的武器。"
} |
3 | 16 | {
"en": "10.I also consider there were serious features in the circumstances of the offence. The defendant is an elderly person but so is the victim, who is 78 years old. The facts as found by the court were that when the defendant took out the knife, the victim actually chose to flee, but the defendant refused to let it go at that. He chased the victim with the knife in his hand. When he caught up with the victim, he attacked him at once and inflicted on him the injuries he suffered.",
"zh-HK": "10.在情節方面而言，本席認為也有嚴重之處，雖然被告人本身都是一位長者，但傷者同樣都是一位長者，年屆78歲。以法庭接納的案情來看，被告人拿刀子出來時，其實傷者已經選擇逃離現場，但被告人並沒有罷休，拿著刀子追著他，追到的時候就隨即向他作出襲擊，導致他受了本案的傷勢。"
} |
3 | 17 | {
"en": "11.An elderly person who is being chased after for 60 to 70 metres may fall or tumble at any moment during the chase. For an elderly person, a fall or tumble can entail serious consequences. Worse still, when the defendant caught up with the victim, he attacked him with a knife, pulling no punches. That the victim neither suffered very serious injuries nor was troubled by any sequelae is a matter of sheer luck, not because the defendant exercised any restraint on his attack.",
"zh-HK": "11.追一名老人家六七十米，他隨時會蟀倒，對於一名長者而言，蟀倒可導致很嚴重的後果。不單止這樣，被告人追到傷者的時候，他還持刀襲擊對方。被告人出手絕對不輕，傷者沒有受到很嚴重傷勢或後遺症，純粹他的運氣而已，並非被告人手輕。"
} |
3 | 18 | {
"en": "14.On the day in question the defendant attacked an elderly person with a lethal weapon he brought along. What he did was deliberate and premeditated. Such violent conduct may lead to serious consequences and is never tolerated by the courts.",
"zh-HK": "14.被告人當日是有意圖、有計劃地拿著可致命的武器，向一名上了年紀的人作出襲擊，這種暴力行為，法庭絕對不能夠容忍，因為其後果可以很嚴重。"
} |
3 | 19 | {
"en": "15.After consideration, I adopt 3½ years’ imprisonment as the starting point. In light of the fact that the defendant is in his 70s, that he has only one previous conviction for a relatively minor gambling offence, and taking into account everything said in his favour by those who wrote the letters of mitigation for him, I reduce the term by 6 months. To conclude, the defendant is sentenced to imprisonment for 3 years.”",
"zh-HK": "15.考慮過後，本席以三年半作為量刑起點，考慮到被告人七十多歲，過往只犯下一項較輕微的賭錢罪行，加上求情時替他寫求情信的人所講及關於對他有利方面的說話，減刑半年。最終的判刑是3年監禁。」"
} |
3 | 20 | {
"en": "Ground of appeal",
"zh-HK": "上訴理據"
} |
3 | 21 | {
"en": "The ground of appeal put forward by Mr. Hu, Counsel for the applicant, was essentially that the Deputy Judge had not adequately considered the victim’s injuries and the mitigating circumstances in favour of the applicant, as a result of which he imposed the sentence of 3 years’ imprisonment which was (the applicant submitted) manifestly excessive.",
"zh-HK": "申請人代表胡德理大律師提出的上訴理由，基本上是指沈法官無充分考慮傷者的受傷情況及申請人的求情理由，因此3 年監禁是明顯過重。"
} |
3 | 22 | {
"en": "(I)The injuries",
"zh-HK": "(一)受傷情況"
} |
3 | 23 | {
"en": "Mr. Hu cited the English case of R v Nottingham Crown Court, ex parte DPP4 and submitted that, in considering the gravity of the case in question and the appropriate sentence, the court could take into account the injuries suffered by the victim.",
"zh-HK": "胡大律師引用英國案例R v Nottingham Crown Court, ex parte DPP ，指法庭可因應受害人的受傷情況去考慮案件的嚴重性及作出恰當的判刑。"
} |
3 | 24 | {
"en": "Mr. Hu referred to a number of decided cases involving the offence of wounding with intent5 to support his contention that, in the circumstances of the present case, 3 years’ imprisonment was manifestly excessive.",
"zh-HK": "胡大律師引用多宗有關「有意圖而傷人」的案件 ，指以本案案情而言，3 年監禁刑期是明顯過重。"
} |
3 | 25 | {
"en": "Mr. Hu placed particular reliance on the case of Yeung Kam Kwai6, because the appellant and the victim in that case were aged 69 and 76 respectively at the time of the offence, and their ages were close to those of the applicant and the victim in the present case. Mr. Hu submitted that the injuries suffered by the victim in that case were more serious than those suffered by the victim in the present case. In the end, the Court of Appeal imposed a sentence which enabled the appellant, who had served 9½ months of the original sentence, to be immediately released. Mr. Hu submitted therefore that the Deputy Judge erred in adopting 3½ years as the starting point.",
"zh-HK": "胡大律師特別依賴楊金葵 一案，因該名上訴人在案發時年69 歲，而傷者則是76 歲，與本案的申請人及傷者有相似之處。胡大律師指在該案的受害人傷勢較本案的傷者為重，最終上訴庭在楊服刑9½ 個月後判其即時獲釋，因此，沈法官在本案採納3½ 年為量刑起點是錯誤的。"
} |
3 | 26 | {
"en": "(II)Mitigating factors",
"zh-HK": "(二)求情因素"
} |
3 | 27 | {
"en": "Mr. Hu stressed that at the time of the offence the applicant was an elderly person aged 72 and had no criminal record except one conviction for illegal gambling, and that the victim had done something which provoked the applicant. For these reasons, Mr. Hu submitted that although the Deputy Judge correctly reduced the term of imprisonment by 6 months, the starting point of 3½ years was still too high.",
"zh-HK": "胡大律師強調申請人案發時已是72 歲高齡，除了一次非法賭博外，並無其他刑事紀錄。傷者曾對申請人作出激怒行為，因此，雖然沈法官適當地扣除6 個月刑期，但3½ 年量刑起點仍是過高。"
} |
3 | 28 | {
"en": "Mr. Hu complained that the Deputy Judge failed to have sufficient regard to the applicant’s age and to the fact that he had no record of violent behaviour, that the victim had acted in a way which provoked him, and that the attack was an isolated incident and the result of a momentary impulse. For these reasons, Mr. Hu submitted that the sentence of 3 years’ imprisonment was manifestly excessive.",
"zh-HK": "胡大律師指沈法官並無充分考慮申請人的年紀及在以往並無暴力紀錄，傷者亦曾對申請人作出激怒行為，襲擊屬個別事件及一時衝動的行徑，沈法官判以3 年監禁是明顯過重。"
} |
3 | 29 | {
"en": "Respondent’s reply",
"zh-HK": "答辯人回應"
} |
3 | 30 | {
"en": "The respondent’s position, as explained by Mr. Kuan, Senior Public Prosecutor for the respondent, is that the applicant wounded the victim with a knife at the slightest provocation, and that such conduct warranted a deterrent sentence: see Hung Kar Chun7.",
"zh-HK": "答辯人代表高級檢控官關百安的基本立場是申請人受到輕微挑釁便使用刀刃傷及傷者，法院必須判以阻嚇式的刑罰：案例熊家駿 。"
} |
3 | 31 | {
"en": "Mr. Kuan conceded that all the following were mitigating factors: at the time of the offence the applicant was 72 years old; he had undergone a heart operation; the attack did not result in serious injuries to the victim’s heart; the laceration did not penetrate into the thoracic cavity; and there was no pneumothorax or pleural effusion. However, he submitted that by comparison there were even more aggravating factors:",
"zh-HK": "關大律師指出申請人事發時年72 歲，曾造過心臟手術，而他對傷者的襲擊，並無對後者心臟造成嚴重創傷，傷口沒有深至胸腔，亦沒有氣胸或肺積水，這些都是求情因素。但相比求情因素，加刑因素則更多："
} |
3 | 32 | {
"en": "The incident was induced by a quarrel over a chess game.",
"zh-HK": "事件誘因是下棋引起的爭執。"
} |
3 | 33 | {
"en": "When the applicant went to the scene with two knives on him, three days had already elapsed since the quarrel8. The knife seized by the police was lethal, as was the other knife with which the applicant attacked the victim.",
"zh-HK": "爭執後3 天 ，申請人仍帶備兩把刀到場。警方撿獲的一把刀已能致命，申請人用以襲擊傷者的另一把刀亦足以致命。"
} |
3 | 34 | {
"en": "The applicant concealed the knives in a newspaper. This showed that he was coolheaded and his acts were premeditated.",
"zh-HK": "申請人將刀藏於報紙內，是冷靜及有預謀的事。"
} |
3 | 35 | {
"en": "When the applicant took out a knife, the 78-year-old victim chose to run away, but the applicant did not let him go and chased him for 60 to 70 metres.",
"zh-HK": "申請人亮刀時，78 歲的傷者已選擇逃跑，但申請人仍追60至70 米仍不罷休。"
} |
3 | 36 | {
"en": "The applicant did not stop the attack even after he stabbed the victim under his armpit. The victim tried to snatch the knife but failed, and his left hand was also injured.",
"zh-HK": "申請人剌了傷者腋下後沒有停止襲擊，傷者試圖用手搶走刀子，但不成功，左手亦受了傷。"
} |
3 | 37 | {
"en": "The victim ran inside the office of a District Councillor and stayed there and hence managed to free himself from the applicant, but the applicant remained outside the office and shouted abuses.",
"zh-HK": "傷者逃至區議員辦公室，成功躲避；申請人仍在辦公室外謾罵。"
} |
3 | 38 | {
"en": "The applicant pleaded not guilty and put the blame on the victim.",
"zh-HK": "申請人不認罪，將責任推在傷者身上。"
} |
3 | 39 | {
"en": "Mr. Kuan submitted that the applicant mounted the attack, which was premeditated, when he was coolheaded. He submitted that the victim did not suffer more serious injuries not because the applicant showed mercy towards him, but because of sheer luck. He also contended that the victim’s injuries were one of the sentencing considerations but not the sole sentencing factor.",
"zh-HK": "關大律師指申請人作出的襲擊是冷靜及有預謀的，傷者無受到更嚴重的傷害純屬僥倖，並非申請人留手。傷者傷勢祇是判刑因素之一，並非唯一因素。"
} |
3 | 40 | {
"en": "Mr. Kuan averred that in the circumstances of the present case, the starting point of 3½ years was by no means manifestly excessive. In view of the applicant’s complete lack of remorse and taking into account his age and physical condition, the Deputy Judge adopted what could be described as a lenient approach by reducing the term of imprisonment by 6 months. Mr. Kuan submitted that 3 years’ imprisonment was not manifestly excessive.",
"zh-HK": "關大律師指以本案案情而言，3½ 年量刑起點絕非明顯過重。沈法官在申請人毫無悔意情況下，考慮了申請人的年齡及身體狀況而給予他半年扣減，可謂相當寬宏大量。關大律師指3 年刑期並非明顯過重。"
} |
3 | 41 | {
"en": "Our views",
"zh-HK": "本庭所作的考慮"
} |
3 | 42 | {
"en": "There are no sentencing guidelines for the offence of wounding with intent. In Hung Kar Chun the Court of Appeal established a range of 3 to 12 years’ imprisonment for this offence (see Yuen Wai Kui9).",
"zh-HK": "有意圖而傷人罪並無量刑指引。上訴庭在熊家駿 一案亦確立了涉及有關罪行的刑期是由3 年至12 年不等 (見袁偉渠 案件)。"
} |
3 | 43 | {
"en": "It is true that the range of 3 to 12 years is not a sentencing tariff, and the court is not obliged to impose 3 years’ imprisonment as the minimum term.",
"zh-HK": "誠言，該3 年至12 年刑期並非量刑指引，法官無須必定以3 年為最低判刑。"
} |
3 | 44 | {
"en": "For the offence of wounding with intent, the circumstances of the offence and the background of offenders differ from case to case, and other decided cases are, in our view, of limited reference value.",
"zh-HK": "有意圖而傷人罪涉及的案情事實及犯案人的背景不盡相同，其他案件對本庭而言，其參考價值有限。"
} |
3 | 45 | {
"en": "We agree with the respondent’s submission that there were aggravating features in the present case. The applicant had a quarrel with the victim over a chess game. The attack on the victim was not made when the applicant was in a rage in the heat of the quarrel; instead, one to three days later (the quarrel could have taken place on 20 June, 21 June or 22 June) the applicant, hiding two sharp knives on his person, went to the victim to get even with him. The",
"zh-HK": "本庭認同答辯人陳詞指本案有其嚴重之處。申請人與傷者因下棋而發生爭執，申請人並非在爭執時因盛怒而襲擊傷者，而是在事隔1至3 天後 (即不論先前爭拗是發生在6 月20 日、6 月21 日或6 月22 日)，身藏兩把利刀前往找傷者算賬。在傷者走避時窮追傷者，用利刀剌傷者。申請人是向傷者的左胸部份進行襲擊，致令傷者左腋下流血。傷者並無遭受更嚴重的傷害、並無傷及心臟或胸腔，屬實可幸。但申請人的襲擊行為是可令致傷者受到嚴重傷害的。"
} |
3 | 46 | {
"en": "Decision",
"zh-HK": "裁定"
} |
3 | 47 | {
"en": "For the above reasons, we have granted leave to appeal against sentence and, treating the application as the appeal proper, we have allowed the appeal, set aside the sentence of 3 years’ imprisonment and substituted therefor imprisonment for 2 years and 3 months.",
"zh-HK": "基於上述理由，本庭批准就判刑提出的上訴申請許可，並視之為正式上訴。上訴得直，3 年監禁刑期撤銷，改判2 年3 個月監禁。"
} |
3 | 48 | {
"en": "Mr. Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the HKSAR",
"zh-HK": "答辯人：由律政司高級檢控官關百安代表香港特別行政區"
} |
3 | 49 | {
"en": "Mr. Derek Hu, instructed by Messrs. K.B. Chau & Co., for the Applicant",
"zh-HK": "申請人：由周啟邦律師事務所轉聘胡德理大律師代表"
} |
4 | 1 | {
"en": "Hon. Mr Justice Woo, JA (delivering the judgment of the court):",
"zh-HK": "高等法院上訴法庭法官胡國興宣讀上訴法庭判案書:"
} |
4 | 2 | {
"en": "The applicant for leave to appeal, Ho Bing-kee, was convicted of 9 charges after trial by Deputy District Court Judge M Tong on 20 December 1999 and was sentenced to 3 1/2 years’ imprisonment. On 4 January 2000 the applicant applied for leave to appeal against sentence and on 29 February 2000 for leave to appeal against conviction out of time.",
"zh-HK": "上訴許可申請人何炳基於1999年12月20日經審訊後被區域法院暫委法官唐文裁定九項罪名成立，判刑3年半監禁。申請人於2000年1月4日提出就刑罰上訴許可的申請，又於2000年2月29日提出逾期申請，要求許可就判罪上訴。"
} |
4 | 3 | {
"en": "At the trial the applicant was the 1st defendant, the other person Wong Chi-kong, 71 years of age, was the 2nd defendant. The applicant was charged with nine charges, ie, the 1st to 4th and the 7th to 11th charges, while Wong Chi-kong was charged with two charges, the 5th and 6th charges. Wong Chi-kong turned prosecution witness after admitting the 5th charge.",
"zh-HK": "在原審中申請人為第一被告，另一人黃志剛（71歲）為第二被告。申請人被控九項罪名，即第1至4項及第7至11項，而黃志剛則被控兩項罪名，即第5及6項。黃志剛承認第5項控罪後，轉為控方證人。"
} |
4 | 4 | {
"en": "The 1st to 4th and the 7th charges stated that the applicant made false representations for the purpose of obtaining an entry permit, contrary to s. 42(1)(c) of the Immigration Ordinance Cap. 115. Those five charges stated that the 1st defendant, on respectively 1 October, 11 October, 5 December, 13 December of 1996 and 29 January 1997 made representations, knowing the same to be false or not believing the same to be true for the purpose of obtaining a Hong Kong Entry Permit Audit No. 071044 in that, in the application for the said entry permit, he falsely represented that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin (who in fact was Leung King-wah). The 8th charge stated that the applicant, on 24 April 1997, had in his possession of the said unlawfully obtained Hong Kong Entry Permit. The 9th and 10th charges stated that the applicant, on respectively 16 February 1998 and 8 July 1998, aided, abetted, counselled or procured Leung King-wah to make a representation which he (the applicant) knew to be false or did not believe to be true, for the purpose of obtaining six Hong Kong Entry Permits Audit Nos. E005652 to E005657 ie, that the said Leung King-wah was Wong Chi-yin and that the said Leung King-wah was applying for the said entry permits on behalf of Wong Chi-yin’s six children, namely, Wong Man-lan, Wong Kwun-kin, Wong Kwun-yin, Wong Man-yee, Wong Man-ping and Wong Kwun-keung. The 11th charge stated that the applicant, on 8 July 1998, had in his possession the said six unlawfully obtained Hong Kong Entry Permits. The aiding and abetting offences stated above were contrary to s.89 of the Criminal Procedure Ordinance Cap. 221 and s.42(1)(c) of the Immigration Ordinance Cap. 115; the offences of unlawful possession were contrary to s.42(2)(c)(i) of Cap. 115.",
"zh-HK": "控罪第1至4及7項分別控訴申請人為取得入境證而作出虛假的申述，違反香港法例第115章《入境條例》第42(1)(c)條。該五項控罪內容分別指第一被告於1996年10月1日、10月11日、12月5日、12月13日及1997年1月29日等日子，為取得核數編號為071044的香港入境證而作出明知為虛假或自己亦不相信為真確的申述，即在申請該入境證時，虛假地表示是代表黃志賢（其實該人是梁敬華）申請該香港入境證。第8項控罪指申請人於1997年4月24日管有非法取得的該香港入境證。第9及10項控罪則分別指申請人於1998年2月16日及1998年7月8日協助、教唆、慫使或促致梁敬華作出明知為虛假或自己亦不信為真確的申述，即表示該梁敬華是黃志賢及該梁敬華代表黃志賢的六名子女，即黃敏蘭、黃冠堅、黃冠賢、黃敏儀、黃敏冰及黃冠強，申請六張核數編號為E005652至E005657的香港入境證。第11項控罪指申請人於1998年7月8日管有該六張非法取得的香港入境證。上述的協助或教唆罪行，是違反香港法例第221章《刑事訴訟程序條例》第89條及第115章《入境條例》第42(1)(c)條，而管有罪則違反香港法例第115章第42(2)(c)(i)條。"
} |
4 | 5 | {
"en": "The 5th charge which Wong Chi-kong admitted was also aiding and abetting the making of a false representation for the purpose of obtaining an entry permit in that Wong Chi-kong, on 13 December 1996, in Hong Kong, aided and abetted Ho Bing-kee (the applicant) to make a representation, which he knew to be false or did not believe to be true for the purpose of obtaining Hong Kong Entry Permit Audit No. 070144, in that he aided and abetted the said Ho Bing-kee to represent that he was applying for the said Hong Kong Entry Permit on behalf of Wong Chi-yin ( who in fact was Leung King-wah ).",
"zh-HK": "黃志剛所承認的第5項控罪，亦是協助及教唆取得入境證而作出虛假的申述，其內容為黃志剛於1996年12月13日在香港，協助及教唆何炳基（即申請人）為取得核數號碼為070144的香港入境證，而作出明知為虛假或自己亦不相信為真確的申述，即協助及教唆何炳基表示他代表黃志賢（其實該人是梁敬華）申請該香港入境證。"
} |
4 | 6 | {
"en": "At the outset of the trial, the Prosecution and the Defence were able to agree extensively regarding the facts of the case and, in accordance with s. 65C of the Criminal Procedure Ordinance, reached agreement on the seizure and handling of a large volume of documentary evidence. The Prosecution only called two witnesses. PW1 was Leung King-wah named in the particulars of the offences. He was a mainlander whose native place was QingYuan, Guangdong. He was a merchant who came to Hong Kong by way of a two way permit to give evidence for the Prosecution and he was under an immunity granted by the Secretary for Justice that he would not be prosecuted for the offences he had committed on which he would give evidence at the trial. PW2 was the 2nd defendant in this case, Wong Chi-kong. After he admitted the 5th charge, he was willing to give evidence for the Prosecution. He was born in Hong Kong but fled from the place with his parents to their ancestral home town PanYu during WWII when the Japanese invaded Hong Kong. In 1949 he returned to Hong Kong and in 1957 settled back in PanYu. On 6 April 1995, he came to Hong Kong holding the Hong Kong Entry Permit obtained by the applicant on his behalf from the Immigration Department. He has two younger brothers and two younger sisters. Wong Chi-yin is one of his younger brothers who was also born in Hong Kong and later brought back to the mainland. Since 1950, Wong Chi Yin had already settled and worked in QinHuangDu of Hebei. Wong Chi-kong had all along kept in contact with Wong Chi-yin and he knew that he had two sons, namely Wong Hiu-ning and Wong Hiu-dong.",
"zh-HK": "案件開審時，控辯雙方均能就案情達致廣泛的共識，並據《刑事訴訟程序條例》第65C條，就大量文件證物的檢獲及處理達成協議。控方只傳召了兩名證人在庭上作供。控方第一證人是控罪內容所提及之梁敬華。他是一名內地人士，原藉廣東清遠，是一名商人。他以雙程證來港為控方作供，並獲律政司司長承諾不會因他在本案作供中述及他所干犯有關的罪行而對他進行起訴。控方第二證人為案中之第二被告黃志剛。他承認了第5項控罪後，願意為控方作證。他在香港出生，但由於日本人在第二次世界大戰時入侵香港，所以他當時隨父母逃難回到祖藉番禺。1949年他回到香港，1957年再到番禺定居。1995年4月6日，他持着申請人替他向香港入境處申請到的香港入境證來港。他共有兩弟兩妺，而黃志賢就是他其中一名弟弟。黃志賢亦是在香港出生，之後被帶回大陸，自1950年起，他便已經去了河北省秦皇島定居及工作。黃志剛一直與黃志賢保持聯絡，知道他有兩名兒子，分別為黃曉寧及黃曉東。"
} |
4 | 7 | {
"en": "On 6 April 1995, Wong Chi-kong came to settle in Hong Kong, holding the Hong Kong Entry Permit obtained through the assistance of the applicant. Thereafter, the applicant asked for his help to make an application in his brother’s name for a person from QinXinXian to come to Hong Kong. In view of the fact that the applicant had successfully applied on his behalf for him to come to Hong Kong, Wong Chi-kong agreed to his request. Wong Chi-kong wrote down two sets of documents at the applicant’s dictations on two separate occasions. The documents were given to the applicant in support of Wong Chi-yin’s application for immigration. Wong Chi-kong, of course, was well aware of the fact that his brother Wong Chi-yin had no intention of coming to Hong Kong. Besides, Wong Chi-kong, under the abetment of the applicant, falsely represented to Immigration officers that the applicant for entry, the so- called Wong Chi-yin, was his own brother and made false replies to them as instructed by the applicant.",
"zh-HK": "黃志剛於1995年4月6日持由申請人協助下所得到的香港入境證來港定居後，申請人要求他協助，以他弟弟的名義，替一個清新縣的人申請來港。黃志剛鑑於申請人曾代其成功申請來港的關係，所以答應他的要求。黃志剛分別兩次在申請人背默的方式下，書寫兩份文件，交給申請人支持黃志賢的入境申請。當然黃志剛清楚知道他的弟弟黃志賢根本沒有打算來香港。另外，黃志剛亦在申請人教唆下向入境處職員訛稱申請入境的所謂黃志賢為其親弟弟，並依照申請人教他的方法，向入境處人員作出虛假的回應。"
} |
4 | 8 | {
"en": "PW1 Leung King-wah, born on 18 November 1950, had 4 children with his wife. The so-called six children of Wong Chi-yin, as referred to in the 9th to 11th charges, were not his children. He said his first meeting with the applicant was inside the flat of a friend, Chu Han-lan. Chu Han-lan addressed the applicant as “Uncle Kee” as she introduced him to PW1. The applicant told the witness that the witness could assume Wong Chi-yin’s name by a Hong Kong Birth Certificate in Wong’s name so as to apply for himself and his children to come to Hong Kong. Though the witness did not quite believe in what the applicant had said, still he agreed to the plan. The applicant then asked the witness to arrange for some certificates of identity sufficient to prove that he was Wong Chi-yin. During the meeting, the three of them had discussed to let Chu Han-lan and her daughter pretend as Wong Chi-yin’s children for their applications for immigration to Hong Kong. Eventually, as PW1’s children had no intention of coming to Hong Kong, the applicant arranged four other persons together with Chu Han-lan and her daughter, all assuming to be the children of PW1 who went under Wong Chi-yin’s name.",
"zh-HK": "控方的第一證人梁敬華於1950年11月18日出生。他與太太共有四名子女，而第9至11項控罪中所提及的黃志賢的所謂六名子女均非他的子女。他說他第一次與申請人會面是在他的一名朋友朱杏蘭的家中進行。朱杏蘭介紹申請人稱他為“基叔”給控方第一證人。申請人向證人說證人可以用一張以黃志賢為名的香港出生紙冒名頂替黃志賢，申請證人自己及他的子女到香港。證人雖然不太相信，但還是同意了有關的計劃。申請人於是要求證人弄來一些足以證明其身分為黃志賢的證件，以證明他是黃志賢。在會面中，三人曾相議讓朱杏蘭及她的女兒冒充黃志賢的子女，以之申請來港。其後由於控方第一證人的子女均不想到香港，所以申請人便找來另外四人與朱杏蘭母女一併冒充是控方第一證人冒名的黃志賢的子女。"
} |
4 | 9 | {
"en": "PW1 deceived the relavant authorities in the mainland and was issued six sets of birth certificates containing false particulars, all for the use of Chu Han-lan and her daughter as well as the other four mainlanders arranged by the applicant. PW1 also obtained four mainland certificates of identity together with other proofs of identity in Wong Ch-yin’s name including a certificate of identity, a marriage certificate, a bicycle card, a certificate of residence and a ration card, all of which he gave to the applicant.",
"zh-HK": "控方第一證人欺騙了內地的有關單位，並獲發給六張載有虛假內容的出生證明書，以供朱杏蘭母女及另外申請人所找來的四名內地人士之用。另外控方第一證人又取得四張內地身分證及其他以黃志賢為名的內地身分證、結婚證明書、單車證、戶口簿及糧食證等等，交給申請人。"
} |
4 | 10 | {
"en": "Around June 1997, the applicant told PW1 that he had obtained a Hong Kong Entry Permit for him. The applicant asked for HK$300,000 from PW1 as his reward for arranging him to come to Hong Kong. As the witness had no money, he gave the applicant an IOU signed by him dated 19 July 1997, with a title deed as security. Later as the applicant was not satisfied with the arrangements he asked PW1 to sign additionally a promissory note dated 21 July 1997 and also produce a copy of the registration certificate of his car, putting up a Benz 300, registration number Gui K01070 as a security for his debt in the sum of HK$300,000. Subsequently due to the applicant’s pressure for money, PW1 paid the applicant RMB￥30,000 in Guangzhou, the receipt of which was acknowledged in writing signed by the applicant. The documents mentioned above were exhibits produced with the agreement of the Prosecution and the Defence. After obtaining the Hong Kong Entry Permit from the applicant, PW1 then came to Hong Kong on 23 July 1997. Following his application for a Hong Kong ID card and Re-entry Permit, he returned to the mainland. During his stay in Hong Kong, he saw the applicant once to twice, mainly for plotting the arrival of the 6 children who passed off as Wong Chi-yin’s children under the assumed names as stated in the 9th and 10th charges.",
"zh-HK": "1997年6月左右，申請人告訴控方第一證人已替他取得香港入境證。申請人向控方第一證人索取300,000元港幣作為安排他到香港的報酬。由於證人沒有錢，所以他簽了一紙日期為1997年7月19日的欠單，以房契作為欠款的抵押品，交給申請人。後來由於申請人不滿意有關安排，又要求控方第一證人簽了另外一張日期為1997年7月21日的承諾書，並交出一張其車輛登記證的副本，把一輛編號為《桂K01070》的奔馳300型號的房車抵押該筆300,000港元的欠款。其後又因申請人要求緊迫的關係，控方第一證人曾在廣州付過30,000元人民幣給申請人，申請人並且為此簽紙作實。上述各文件皆為控辯雙方同意之呈堂證物。控方第一證人由申請人處取得香港入境證後，便在1997年7月23日來到香港，之後他便申領了香港的身份證及回港證，跟着便返回內地。在港期間，他曾經見過申請人一至兩次，主要是為了策劃那六名偽冒黃志賢的子女來港，而他們的偽冒名字即為第9及10項控罪所述的名字。"
} |
4 | 11 | {
"en": "In his Reasons for Verdict, the trial judge gave a detailed description and evaluation of the evidence mentioned above, reminding himself of the following regarding the witnesses and the following evidence:",
"zh-HK": "在裁決理由書中，原審法官就上述的證據作出了詳細的陳述及評估，更就證人及下列各項證據向自己作出提醒："
} |
4 | 12 | {
"en": "The applicant had chosen not to give evidence. However, as he was a person with no conviction record, the judge reminded himself to consider carefully that he was less likely to commit the offence;",
"zh-HK": "申請人並沒有選擇作供。但是由於他是沒有犯罪紀錄的人，法官提醒自己要小心考慮申請人因此會干犯控罪的可能性較低；"
} |
4 | 13 | {
"en": "Although the applicant chose not to give evidence, the judge would not draw any unfavourable inference against him; and",
"zh-HK": "雖然申請人選擇不作供，法官不會因此對他作出任何不利的推論；和"
} |
4 | 14 | {
"en": "PW1 Leung King-wah and PW2 Wong Chi-kong were accomplices in this case, as alleged in the charges, such that they might try to shirk the responsibility for the crimes onto the applicant to their benefit. Accordingly the judge reminded himself to handle the evidence of the accomplices with extra care and to look for corroborative evidence in order to determine the weight of the testimonies of the two witnesses.",
"zh-HK": "控方第一證人梁敬華及控方第二證人黃志剛皆是控罪所指案件之同謀，故他們作證時可能嘗試把案中的刑責推卸到申請人身上，從而使自己得益。故此法官提醒自己在處理共犯證據的時候，要格外小心及尋求佐證，以决定該兩名證人口供的份量。"
} |
4 | 15 | {
"en": "The judge had also considered carefully the evidence of PW1 and PW2. There were some discrepancies regarding dates and what kind of documents they had read. However the judge considered that these discrepancies were of secondary importance and on minor issues, and that the evidence in these areas was less accurate due to a lapse of two to three years between the time of the incident and the time of the trial. It was not surprising at all that there were discrepancies in these peripheral matters; on the contrary, it rather underlined that the witnesses did not have any intention to fabricate against the applicant.",
"zh-HK": "法官亦仔細考慮控方第一證人及第二證人的證供，在日子方面和他們曾看過甚麼文件方面上，有些出入，但法官認為這些都是次要的環節及枝節的問題，證供在這些地方不太準確，是因為案發時與審訊時有兩、三年的距離，所以證供在這些枝節上有些出入，實不足為奇，反而特顯出證人不是一心一意地去誣陷申請人。"
} |
4 | 16 | {
"en": "The judge also carried out evaluation on the two loan bills in the sum of HK$300,000 signed by PW1. Those bills did not account for how the loan was made at all and there was not any record of any cheque with which the applicant had passed the money to PW1. Or, if the loan in the sum of HK$300,000 had been passed to PW1 in the form of cash, there was no acknowledgement of receipt whatsoever of the said sum by PW1. Therefore the judge did not accept the suggestion of the counsel for the applicant that the applicant had lent HK$300,000 to PW1. The judge found that the reason why PW1 was willing to sign the loan bills with his landed property and car as security was only for the exchange of the entry permit in Wong Chi-yin’s name. All these strongly corroborated the evidence of PW1. Besides, the judge also dealt with the applicant’s defence that he believed PW1 to be Wong Chi-yin, Wong Chi-kong’s blood brother. However, when PW1 and Wong Chi-kong’s evidence was viewed as a whole, they all pointed to the fact that the applicant knew perfectly well that Wong Chi-yin, on whose behalf he was making the application, was only the name of Wong Chi-kong’s younger brother. PW1 Leung King-wah was a QingYuan native. He was not in any way related to Wong Chi-kong and his brother Wong Chi-yin whose native place was PanYu. Moreover the applicant was well aware that Chu Han-lan and her daughter had falsely represented themselves as Wong Chi-yin’s children. These pieces of evidence as well as other documentary evidence firmly proved that the applicant had provided information which he knew to be false to the Immigration Department to obtain the entry permit in Wong Chi-yin’s name for the use of PW1 Leung King-wah and that he aided and abetted PW1 to deceive the Immigration Department to obtain the Hong Kong Entry Permits for those who assumed themselves to be Wong Chi-yin’s children as stated in the 9th to the 11th charges.",
"zh-HK": "法官亦就控方第一證人所簽的300,000港元兩張借據，作出評估。該等借據根本沒有對借錢作出交待，也沒有任何申請人將錢交給控方第一證人的票據紀錄，但如該300,000港元的借款是以現金方式交給控方第一證人，卻又沒有任何控方第一證人的簽收作證。所以法官不接納代表申請人的大律師所提議申請人曾借給控方第一證人300,000港元。法官認為證據明顯證明控方第一證人之所以肯以房產及汽車抵押而簽下借據，僅是為了換取那個以黃志賢為名的入境證，均可作控方第一證人證供有力的佐證。另外，法官亦處理申請人的抗辯理由，就是他相信控方第一證人為黃志剛的親弟黃志賢。但是綜合控方第一證人及黃志剛的證供，明顯指出申請人明知他要代為申請入境的黃志賢，只是黃志剛的弟弟的名字，而控方第一證人梁敬華是一名清遠人士，與黃志剛及他的弟弟黃志賢兩人及他們原藉的番禺，並無關係，且申請人又明知朱杏蘭母女偽稱為黃志賢子女。這些證據和其他文件上的證據，確實證明申請人提供他明知虛假的資料給入境處，以獲取以黃志賢為名的入境證，供控方第一證人梁敬華之用，更協助及教唆控方第一證人向入境處騙取控罪第9至第11項所指之六個黃志賢的偽冒子女的香港入境證。"
} |
4 | 17 | {
"en": "The evidence in this case is irrefutable and the trial judge has not erred in dealing with and evaluating the various aspects of the evidence; thus there would not be any chance of success for the applicant’s appeal against conviction.",
"zh-HK": "此案證據確鑿，而原審法官在處理及評估各項證據方面，並無犯錯，固此申請人上訴推翻判罪，並無成功機會。"
} |
4 | 18 | {
"en": "The applicant stated in this court that the trial judge had erred in that he had not considered the applicant’s evidence in relation to this case. Nevertheless this could not be a ground of appeal because at the trial, the applicant had chosen not to give evidence, so the trial judge had no way to consider his evidence.",
"zh-HK": "在本庭，申請人說原審法官犯錯，因他沒有考慮申請人有關本案之證供。但是這不能成為上訴理由，因為在原審時申請人自己選擇不作供，原審法官無從考慮。"
} |
4 | 19 | {
"en": "In the applicant’s application for leave to appeal against sentence dated 4 January 2000, above the part where he put down his signature was printed the following:",
"zh-HK": "在申請人2000年1月4日的判刑上訴許可申請通知書中，在申請人簽名的部份上面，印有如下的文字："
} |
4 | 20 | {
"en": "“It has been explained to me in detail that my appeal against sentence could be lodged along with my appeal against conviction. The appeals would be dealt with severally and the determination on each case would not bear any effect on the other.”",
"zh-HK": "“本人經獲詳細解釋可用時「判罪」及「刑期」一併提出上訴，而兩項上訴當會獲得分別審理，且其裁決結果互無影響，各不相干。”"
} |
4 | 21 | {
"en": "The applicant wrote on the notice of application for leave to appeal, “I, Ho Bing-kee (P197869), think that the sentence is too severe and therefore wish to apply for appeal to have the sentence reduced.” This shows that at that time his application for leave to appeal was only made against sentence. Moreover he clearly knew that the appeal against conviction and the appeal against sentence were different appeals but he only chose to apply for leave to appeal against sentence.",
"zh-HK": "申請人在該通知書中親自寫上“本人何炳基（編號P197869）因對判刑之刑期過重，故欲申請上訴減刑。”由此可見，申請人當時只對刑期作出上訴許可的申請，且他亦應明顯知道，上訴判罪及上訴刑期是兩項不同的上訴，而他只選擇就刑期作出上訴許可的申請。"
} |
4 | 22 | {
"en": "In his application for leave to appeal dated 29 February 2000, the applicant affirmed “I, Ho Bing-kee, had applied within the limit of 28 days for leave to appeal to have the sentence reduced. As I was not familiar with the proceedings I thought that the appeal against sentence covered the appeal against conviction. When I was in prison I learned from an officer that appeal against conviction and that against sentence were two different matters. Therefore I ask the authorities concerned to allow the application for leave to appeal out of time against conviction.”",
"zh-HK": "在2000年2月29日的上訴許可申請通知書中，申請人宣誓“本人何炳基，已於28天限期內申請上訴減刑，當時因不懂法律程序，以為上訴減刑已包含上訴不服。但是本人在坐監期間，從所員處得知，原來上訴不服與減刑為兩回事。因此，本人要求有關方面批准過期上訴不服之申請為禱。”"
} |
4 | 23 | {
"en": "In the notice of application dated 4 January 2000, the applicant should have understood from its content that the applications for leave to appeal against conviction and that against sentence were two different matters; therefore this court does not believe that the applicant, on signing the first notice of application, did not understand that the application for reduction of sentence did not include the application for leave to appeal against conviction. Further, in the words he had written he only stated that the sentence was too severe that he wished to apply for the sentence to be reduced. This clearly bore no reference to his conviction. Thus, his application for leave to appeal out of time against conviction is without sufficient grounds. Besides, this court has already stated above that the trial judge did make detailed evaluations in respect of various evidence and exhibits in this case, and in so doing he had not made any mistake. Therefore the appeal against conviction would have no chance of success. Accordingly this court refuses the application out of time for leave to appeal against conviction.",
"zh-HK": "因在2000年1月4日的申請通知書中，申請人應從它的內容明白申請判罪及刑期上訴許可實為兩件不同之事，故此本庭不相信申請人在簽署該第一份通知書時，並不明白他減刑的申請不包括他判罪上訴許可的申請。再者，在他本人所書寫的文字中，只指出所判之刑期過重，故欲申請上訴減刑，明顯與他之被判罪名成立全無關係。故逾期申請上訴判罪之許可，並無足夠理由支持。另外，本庭已於上文指出，原審法官就本案之各項證供及證物皆有詳盡之評估，並無犯錯，故上訴判罪並無成功機會。因此，本庭拒絕判罪上訴許可逾期之申請。"
} |
4 | 24 | {
"en": "Regarding sentence, the applicant was sentenced to 31/2 years’ imprisonment in respect of each charge, all to run concurrently.",
"zh-HK": "刑期方面，申請人就九項控罪各被判入獄3年半，同期執行。"
} |
4 | 25 | {
"en": "In his reasons for verdict, the trial judge said as follows:",
"zh-HK": "在判刑理由書中，原審法官有如下的說話："
} |
4 | 26 | {
"en": "“The charges with which the 1st defendant was found guilty were very serious charges. The maximum sentence for all charges was 14 years’ imprisonment and $150,000 fine. The said charges showed clearly that the 1st defendant plotted and organised the offences which he committed with a view to make Hong Kong Immigration Department believe that PW1 and his six assumed children were legal Hong Kong residents so that seven entry permits would be issued to them enabling them to come to Hong Kong with those documents while the 1st defendant obtained benefits from them, in that he made PW1 sign loan bills in the sum of HK$300,000 and also in fact obtained a sum of RMB￥30,000 from him.",
"zh-HK": "“第一被告在本案中被本席裁定罪名成立的控罪，均為非常嚴重的控罪，所有控罪的最高刑罰為14年監禁及罰款15萬元。而有關的控罪明顯顯示第一被告是有計劃地及有組織地干犯上述罪行，其目的是要令香港人民入境事務處誤信第一控方證人及有關其六名僞冒子女均為香港的合法居民，從而對他們發出有關的七張入境證，讓他們得以持該等證件來港，而第一被告則收取他們的利益，即令第一控方證人簽下了30萬港元的借據及實際上由他那裡取得到了3萬元人民幣。"
} |
4 | 27 | {
"en": "As Hong Kong is a small place with a large population, those who enter Hong Kong by way of illegal means will be sentenced severely. An illegal immigrant who has no previous conviction and admits his guilt in court will still face an immediate imprisonment of 15 months. If this case had not been exposed by the mainland authorities, the 1st defendant would have obtained, by illegal means, the right of abode in Hong Kong for seven mainlanders, enabling them to live and work freely in Hong Kong. The gravity of the circumstances in this case was self-evident.",
"zh-HK": "由於香港是一個地小人多的社會，法庭對於從非法入境方式進入香港人士，均一律會判處重刑。就是一名在法庭認罪，沒有案底的非法入境者，也會面對15個月的即時監禁。而第一被告在是次計劃中，倘若不是由內地揭發出這宗案件的話，將會令七名內地人士可以非法取得香港的合法居留權，使他們可以隨意在香港定居及工作，其情節之嚴重自是不言而喻。"
} |
4 | 28 | {
"en": "In my judgment the punishment will not serve as a deterrent if the 1st defendant is not severely sentenced. Therefore I take a total of 4 years as the starting point in this case. As the defendant has no previous convictions, after due consideration to the totality, I make a reduction on his sentence to 31/2 years. I now impose on the defendant a sentence of 3 years and 6 months for each charge of which he was convicted. As the charges formed one transaction, I order the term on each charge to run concurrently.”",
"zh-HK": "為此，本席認為非重判第一被告，不足以儆效尤，故現在本席以整體4年為量刑起點，但鑑於被告是沒有案底，故本席將其刑罰酌量減為3年半，現本席判第一被告就每項被本席定罪的控罪，需要服刑3年零6個月。由於各項控罪均關乎一整體性的犯罪行為(one transaction)，故本席下令有關每控罪的刑期均同期執行。”"
} |
4 | 29 | {
"en": "This Court considers that the reasons for the sentence mentioned above ample and unassailable and accepts all of them. The maximum sentence for each charge is 14 years’ imprisonment. The judge had in fact been very lenient to the applicant by taking a starting point of four years. This Court takes this opportunity to indicate that in this kind of cases — deceiving related authorities in the mainland and the Hong Kong Immigration Department by various illegal and deceptive means with planning and organisation to obtain, by way of deception, Hong Kong Entry Permits for pecuniary benefits — are very serious offences. If our courts are to deal with cases with similar features, the starting point of four years’ imprisonment should be viewed as too low.",
"zh-HK": "本庭認為，判刑理由充分，無懈可擊，全為本庭所接納。控罪的最高刑罰為14年監禁，而法官只以4年監禁為量刑起點，其實對申請人已異常寬大。本庭更趁此表示，在此等案件中， 以各式各樣的非法及欺詐手法，矇騙內地有關單位及香港人民入境事務處，為了金錢上的利益而有計劃及組織地騙取香港入境證，實是極為嚴重的罪行，如有情節相約案件發生為法庭處理時，則4年監禁的量刑起點，應被視為過低。"
} |
4 | 30 | {
"en": "This Court refuses the application for leave to appeal against sentence.",
"zh-HK": "本庭拒絕上訴減刑許可的申請。"
} |
4 | 31 | {
"en": "Miss Sin Pui-har Sr Asst DPP for HKSAR",
"zh-HK": "香港特別行政區：由高級助理刑事檢控專員冼佩霞代表"
} |
4 | 32 | {
"en": "Applicant for leave to appeal: in person",
"zh-HK": "上訴許可申請人：無律師代表"
} |
5 | 1 | {
"en": "Hon Yeung JA (giving the Judgment of the Court):",
"zh-HK": "上訴法庭法官楊振權頒發上訴法庭判案書："
} |
5 | 2 | {
"en": "Background facts",
"zh-HK": "背景事實"
} |
5 | 3 | {
"en": "In the morning of 14 March 2007, customs officers began their surveillance operation near the Regal Oriental Hotel in Kowloon City. At around 1 p.m. on the same day, the officers found the 1st applicant, Ngan Ka-chun (“Ngan”) and the 2nd applicant, Tsui Wai-sing (“Tsui”) appearing outside the hotel one after another and leaving the hotel together at about 1:30 p.m. for an eatery nearby (“Wong Ming Kee”). Later, the two of them returned to the hotel and went upstairs by lift. About 10 minutes later, the two left the hotel and went to Wong Ming Kee again. They left Wong Ming Kee after staying there for about 10 minutes, and boarded a taxi to go to Festival Walk. They were intercepted by customs officers when they alighted from the taxi at Festival Walk. They put up resistance and struggled with the officers in a bid to flee but were eventually subdued and arrested by the officers. Throughout the course of the surveillance and during the arrest, Ngan was carrying a backpack on his back. After the two applicants were arrested, the officers found six black plastic bags in the backpack, containing a total of 5,844.25 grammes of crystalline solid containing a total of 4,680.2 grammes of N,N-dimethylamphetamine (NNDMA).",
"zh-HK": "2007年3月14日上午，海關關員在九龍城富豪東方酒店附近開始監視行動。同日正午約1時，關員發現第一申請人顏家俊及第二申請人徐偉勝先後在酒店門外出現，並在約1時30分一起離開酒店前往附近一食肆（“黃明記”）。其後兩人返回酒店並進入了電梯上樓。大約10分鐘後，兩人離開酒店再前往“黃明記”。他們在“黃明記”逗留約10分鐘後離開，並登上一部的士前往又一城。當他們在又一城下車時遭關員截查。他們曾掙扎並和關員糾纏及嘗試逃走，但不成功，最終被制服及拘捕。在關員監視及拘捕兩人期間，顏家俊全程都背著一背囊。拘捕兩名申請人後，關員在該背囊內搜獲6袋黑色膠袋，共載有5,844.25克的晶狀固體，內含共4,680.2克N N二甲基安非他明(NNDMA)。"
} |
5 | 4 | {
"en": "When the customs officers searched Ngan’s residence subsequently, they found 166 millilitres of liquid containing 0.08 gramme of methamphetamine, two tablets containing 9 milligrammes of NNDMA, 7 milligrammes of ketamine and 0.14 gramme of 3,4-methylenedioxymethamphetamine.",
"zh-HK": "其後關員搜查顏家俊的住所並再搜獲166毫升液體，內含0.08克甲基苯丙胺，兩片片劑，內含9毫克N N 二甲基安非他明、7毫克氯胺酮及0.14克3,4亞甲二氣基甲基安非他明。"
} |
5 | 5 | {
"en": "As a result of the above incident, the two applicants were jointly charged with the first charge of trafficking in a dangerous drug, namely the 4,680.2 grammes of NNDMA seized from the backpack that Ngan carried. Ngan was additionally charged with the second charge of possession of dangerous drugs, namely the small quantity of dangerous drugs found in his residence.",
"zh-HK": "上述事件導致兩名申請人同被控第一項販運危險藥物罪，即在顏家俊所攜背囊內搜獲的4,680.2克N N二甲基安非他明。顏家俊被加控第二項管有危險藥物罪，即在其住所內搜獲的小量危險藥物。"
} |
5 | 6 | {
"en": "The two applicants pleaded not guilty to the first charge of trafficking in a dangerous drug while Ngan pleaded guilty to the second charge of possession of dangerous drugs.",
"zh-HK": "兩名申請人否認第一項販運危險藥物罪，但顏家俊承認第二項管有危險藥物罪。"
} |
5 | 7 | {
"en": "The case was tried before Deputy High Court Judge M. Poon (as she then was) sitting with a jury. In the end, both applicants were found guilty of the first charge of trafficking in a dangerous drug and both of them were sentenced to a term of 18 years’ imprisonment for that charge. On the second charge of possession of dangerous drugs, Ngan was sentenced to 6 months’ imprisonment, to run concurrently with the 18 years’ imprisonment imposed on the first charge.",
"zh-HK": "案件在高等法院暫委法官潘敏琦（當時職級）席前會同陪審團審理。結果兩名申請人都被裁定第一項販運危險藥物罪罪名成立。就該項販運危險藥物罪，兩名申請人都被判入獄18年。就第二項管有危險藥物罪，顏家俊被判入獄6個月，和第一項控罪的18年判刑，同期執行。"
} |
5 | 8 | {
"en": "Both applicants applied for leave to appeal against the conviction on the first charge and the sentences. As the application made by Tsui in respect of his conviction was out of time, he sought an extension of time from the court.",
"zh-HK": "兩名申請人都不服就第一項控罪的定罪及判刑決定，故提出上訴許可申請，要求獲准就定罪及/或判刑上訴。徐偉勝就定罪的申請已逾期，他要求法庭延展其申請的期限。"
} |
5 | 9 | {
"en": "In their applications for leave to appeal against sentence, Ngan and Tsui are represented by Mr. Andrew Kan of Counsel and Mr. Andy Hung of Counsel respectively. Both of them are unrepresented and act in person in respect of their applications against conviction. At the first hearing of the applications on 16 December 2008, Ngan abandoned his application against conviction and the application was dismissed accordingly. As a result, we need only to deal with Tsui’s application against conviction and both applicants’ applications against sentence.",
"zh-HK": "就判刑申請，顏家俊和徐偉勝分別由簡定濤 大律師及孔慶碩大律師代表。就定罪申請，他們沒有律師代表，親自行事。2008年12月16日，在本申請首次開庭時，顏家俊放棄就定罪的申請，該申請亦隨即被撤銷。因此，本庭只需處理徐偉勝就定罪的申請及兩名申請人就判刑的申請。"
} |
5 | 10 | {
"en": "Prosecution’s allegations and evidence",
"zh-HK": "控方的指控及證據"
} |
5 | 11 | {
"en": "The prosecution alleged that the two applicants jointly trafficked in the dangerous drug referred to in the first charge. Apart from the undisputed background facts set out above, both the prosecution and the defence agreed that the two applicants each carried a mobile phone at the material times. Between the 1st and 14th of March 2007, the two applicants had communicated with each other via their mobile phones a total of 15 times, 8 of which were conducted between 1501 hours on 13 March 2007 and 1306 hours on 14 March 2007.",
"zh-HK": "控方指兩名申請人共同販運第一項控罪所指的危險藥物。除了上述不具爭議的背景事實外，雙方亦同意兩名申請人在案發時都各自攜有一個手提電話。在2007年3月1日至14日期間雙方透過手提電話通話共15次，其中8次是在2007年3月13日下午1501時至2007年3月14日1306時進行的。"
} |
5 | 12 | {
"en": "At the time of the arrest and at the subsequent interviews, both applicants had offered explanations to the allegations of the prosecution. Ngan stated that Tsui had asked him to carry the backpack and had told him that the backpack contained “ga shan” (equipment). But he did not know what the backpack actually contained.",
"zh-HK": "被捕及在其後的會面時，兩名申請人都對控方的指控作出解釋。顏家俊表示背囊是徐偉勝吩咐他攜帶的，並告訴他背囊載有“架生”，但他不知悉背囊所載確實是甚麼東西。"
} |
Subsets and Splits