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13 | 1 | {
"en": "Hon Yeung VP (giving the judgment of the Court):",
"zh-HK": "高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書："
} |
13 | 2 | {
"en": "Introduction",
"zh-HK": "引言"
} |
13 | 3 | {
"en": "The applicant Ma Ming pleaded guilty before Deputy District Judge Joseph To (“the trial judge”) to one count of conspiracy to aid, abet, counsel and procure the transfer to another travel documents (the 1st charge) and one count of aiding, abetting, counselling or procuring the transfer to another a travel document (“the 5th charge”). He was sentenced to a total term of imprisonment of three years. The trial judge took four and a half years and two years as the respective starting points of the two charges, and then reduced them by one third to three years and 16 months respectively on account of the applicant’s pleas of guilty. The sentences were ordered to run concurrently, making a total sentence of three years.",
"zh-HK": "申請人（馬明）在區域法院暫委法官杜浩成（原審法官）席前承認一項串謀協助、教唆、慫使及促致向另一人轉讓旅行證件罪（第一項）及一項協助、教唆、慫使及促致向另一人轉讓旅行證件罪（第五項）後，被判入獄共3年。原審法官分別以4年半及2年作為該兩項控罪的量刑基準，並因申請人認罪而將刑期扣減三分一至3年及16個月。原審法官下令兩項控罪同期執行而達致最終的3年總刑期。"
} |
13 | 4 | {
"en": "The applicant felt aggrieved at the sentence of the first charge, the conspiracy charge and, with Mr. David Ma of counsel acting for him, applied for leave to appeal against the sentence.",
"zh-HK": "申請人不服第一項串謀控罪的判刑，現由馬維騉大律師代表提出申請，要求獲准就判刑上訴。"
} |
13 | 5 | {
"en": "Prosecution case",
"zh-HK": "控方案情"
} |
13 | 6 | {
"en": "On 30 April 2011, someone placed an advertisement on the Oriental Daily News, offering to buy passports and left a contact telephone number. Subsequently, an undercover officer made a call at that telephone number and told the person on the other side of the phone (Mr. Wong) that he wanted to sell his HKSAR passport. Mr. Wong arranged with the undercover officer to meet [each other] at 6 p.m. on the same day in a male toilet at the Sheung Shui station of the MTR. The undercover officer met the applicant at the appointed location and handed a HKSAR passport to him, who paid $1,000 to the undercover officer as the price for buying the passport. Upon the completion of the transaction, the applicant left the toilet and at that moment he was arrested by law enforcing officers, who were waiting outside the toilet. Apart from the HKSAR passport, which was the subject-matter of the transaction, the officers found in the applicant’s backpack another passport, the holder of which was Tang X X. The younger brother of Tang X X admitted that he sold Tang’s passport to the applicant for $600 without his elder sister’s consent.",
"zh-HK": "2011年4月30日，有人在東方日報刊登廣告，徵求他人出售護照，並留下聯絡電話。其後有卧底人員打該電話並向對方（王先生）表示希望出售其香港特區護照。王先生約了卧底人員在同日下午約6時在港鐵上水站的男廁內見面。卧底人員在應約地點見到申請人，並將一本香港特區護照交了給申請人，而申請人則支付了1,000元給卧底人員作為購入該護照的代價。交易完成後，申請人離開廁所時，遭在廁所外等候的執法人員拘捕。除了上述交易涉及的香港特區護照外，執法人員在申請人的背囊搜出另一本持有人為鄧XX的護照。鄧XX的弟弟承認在未得其姐姐同意下，將其護照以600元出售給申請人。"
} |
13 | 7 | {
"en": "Having been arrested, the applicant admitted to the police officers that he, at the bidding of Ah Kun, placed [an] advertisement on [a] newspaper, offering to buy passports at the price of $700 to $1,000 each. He said he could earn a reward of RMB 200 for each passport. He said that within two to three months he acquired ten odd passports, which he gave to Ah Kun, who then took them to the Mainland for sale. This confession formed the factual basis of the 1st charge, the conspiracy charge, against the applicant.",
"zh-HK": "申請人被捕後向警員承認受“阿坤”指使登報以每本700至1,000元徵收護照，而他則可獲每本200元人民幣的報酬。申請人聲稱在兩個多月內，成功收集了10多本護照，並將護照交了給“阿坤”，而“阿坤”則將護照帶入內地轉售。上述招認構成了針對申請人的第一項串謀控罪的基本事實。"
} |
13 | 8 | {
"en": "The applicant was 42 years old. He had two previous convictions, which were about offences of a nature different from that of this case, but both involved dishonesty. He had been sentenced to imprisonment of the terms of six months’ and eight months.",
"zh-HK": "申請人42歲，有兩項定罪記錄，和本案性質不同，但都涉及不誠實行為。申請人曾遭判監6個月和8個月。"
} |
13 | 9 | {
"en": "The applicant had divorced and remarried. He has two step children, who are six and seven years old respectively.",
"zh-HK": "申請人離婚後再婚，有一對六、七歲的繼子女。"
} |
13 | 10 | {
"en": "He emphasized that he was not the mastermind and that it was for financial reasons that he committed the offences. He said he pleaded guilty on his own initiative and was remorseful, and he asked for leniency.",
"zh-HK": "申請人強調自己並非主謀而是因為經濟理由而犯案，他表示自己主動認罪亦對事件有悔意，故望輕判。"
} |
13 | 11 | {
"en": "Sentences passed by the trial judge",
"zh-HK": "原審法官的裁決"
} |
13 | 12 | {
"en": "The trial judge considered that arrangements between Hong Kong and other countries concerning visa-free entry for tourism were constantly increasing, that Hong Kong had the duty to ensure that HKSAR passports would not fall into the hands of criminals, and that therefore the sentences passed by the court should have a deterrent effect.",
"zh-HK": "原審法官認為近年香港和各地免簽證旅遊安排不斷增加，香港有責任確保香港特區護照不會落在犯罪份子手中，故法庭應判處具阻嚇性判刑。"
} |
13 | 13 | {
"en": "The trial judge placed emphasis on the fact that the applicant conspired with another person to abet and procure over just a short period of time from ten odd people the transfer of passports to the applicant, and that the passports were then taken to the Mainland for sale to make a profit. The element of cross-boundary crime in the present case made it a more serious one among this kind of cases.",
"zh-HK": "原審法官強調申請人在短時間與另一人串謀教唆及促致10多人將護照轉讓給他，再交到內地轉售圖利，故案件具跨境犯罪因素，是同類案件中較嚴重的一宗。"
} |
13 | 14 | {
"en": "The trial judge commented that the way in which the applicant perpetrated the crimes was not stupid, and that even if he was not the mastermind, he played an important role in this case.",
"zh-HK": "原審法官亦認為申請人的犯案手法並不愚蠢，而即使他不是主腦，亦有在罪行中扮演主要角色。"
} |
13 | 15 | {
"en": "The trial judge held that the appropriate starting points for the 1st and the 5th charges were respectively four and a half years and two years. He reduced the terms by one third to three years and 16 months by reason of the applicant’s guilty pleas, and ordered that the two sentences be run concurrently, making a total sentence of three years.",
"zh-HK": "原審法官認為第一和第五項控罪的適當量刑基準為4年半及2年。因申請人承認控罪，原審法官將刑期扣減三分一至3年及16個月。原審法官下令兩項控罪的判刑同期執行，而達至3年的總刑期。"
} |
13 | 16 | {
"en": "Grounds of appeal",
"zh-HK": "上訴理由"
} |
13 | 17 | {
"en": "Mr. Ma pointed out that the Court of Appeal had not laid down any sentencing guideline for this or similar kind of cases, but he stressed that the usual starting point for the offence of transfer to another a travel document was 12 months’ imprisonment.",
"zh-HK": "馬大律師指出上訴法庭並沒有就同類案件作出判刑指引，但強調“向他人轉讓旅行證件”罪一般的量刑基準是12個月監禁。"
} |
13 | 18 | {
"en": "Mr. Ma agreed that the culpability of a person who tempted people with money to sell their passports ought to be higher than that of someone who just sold his passport, but he argued that the starting point should not be as high as four and a half years.",
"zh-HK": "馬大律師同意以金錢利誘他人出售護照的罪責較出售護照者的罪責為重，但量刑基準不應高至4年半。"
} |
13 | 19 | {
"en": "Mr. Ma submitted that in HKSAR v Cheung Wai Ming (CACC 32/2005) the defendant bought a HKSAR passport from a law enforcing officer who went undercover, and was charged with a single count of aiding, abetting, counseling or procuring the transfer to another of a travel document. He pleaded guilty and was sentenced to 26 months’ imprisonment. The Court of Appeal said that while the starting point (equivalent to three years and three months) from which the sentence of 26 months was arrived at was not, in so far as a single passport was concerned, manifestly excessive, it might have been on the high side.",
"zh-HK": "馬大律師強調在HKSAR v Cheung Wai Ming（張偉明）（CACC 32/2005）案，被告人亦是因向一名卧底執法人員以1,000元收購香港特區護照而被控告一項協助、教唆、慫使或促致向另一人轉讓旅行證件罪，結果他認罪後，被判入獄26個月。上訴法庭認為，以涉及單一護照而言，26個月的判刑（等同3年3個月）的量刑基準並非明顯過重，但可能屬較高的一端。"
} |
13 | 20 | {
"en": "Mr. Ma averred that the applicant’s culpability was more or less on a par with that of the defendant in Cheung Wai Ming. He further said that if the case had something to do with a syndicate engaged in buying and selling passports, the actual number of passports involved was not the most material consideration.",
"zh-HK": "馬大律師力稱申請人的罪責和張偉明案的被告人的罪責相若。馬大律師更指如案件涉及一個買賣護照集團，涉案的實質護照數量並非是最重要的考慮因素。"
} |
13 | 21 | {
"en": "Mr. Ma pressed the point that the applicant became charged with the 1st charge as a result of his cooperation with the police and his frank confession. He submitted that for this reason the applicant was entitled to a further discount over and above the one third discount.",
"zh-HK": "馬大律師強調申請人是因為和警方合作，坦白招認而導致被控第一項控罪，故他應獲得超過三分一的額外刑期扣減。"
} |
13 | 22 | {
"en": "Discussion",
"zh-HK": "討論"
} |
13 | 23 | {
"en": "The further discount argued for by Mr. Ma was a discount in addition to the one third discount. In his written submission Mr. Ma did not provide any authorities which could support his argument. Later, at the behest of the court, a number of cases were submitted by the parties, which showed that there were occasions on which the court had exercised its discretion to give more than a one-third discount in the case of a defendant who voluntarily confessed and pleaded guilty to certain offences notwithstanding a lack of evidence from the prosecution to link the offences to him. The authorities submitted by the parties included SJ v Tsui Kim-ming Simon CAAR 4/1997, HKSAR v Ng Wing Chung CACC 176/2005, HKSAR v Tsang Kai On CACC 79/2010 and HKSAR v Hui Chi Tong CACC 414/2007. In these cases the defendants frankly disclosed the details of the commission of certain crimes and made a clean breast of their guilt. Had they not done so, the prosecution had no evidence against them at all. As a result, after they pleaded guilty they were given a discount of more than one third. There was no hard and fast rule as to the extent to which the further discount should be made, but it was not more than several months. In a case in which the starting point was more than ten years, the extent of the further discount was only six months.",
"zh-HK": "馬大律師所指的額外刑期扣減是超過三分一的刑期扣減。馬大律師並沒有在其書面陳述列出支持其立場的案例。其後在法庭的督促下，雙方向法庭呈交數宗案例，顯示法庭曾行使酌情權，在控方沒有證據支持控罪，而被告人是自動招認及承認控罪時，法庭可以給予被告人超過三分一的刑期扣減。雙方呈交給法庭的案例包括SJ v Tsui Kim-ming Simon CAAR 4/1997、HKSAR v Ng Wing Chung CACC 176/2005、香港特別行政區訴曾繼安 CACC 79/2010和HKSAR v Hui Chi Tong CACC 414/2007等案。在上述案件，被告人都是向執法機構坦白道出犯罪詳情及作出招認，否則控方是完全沒有證據指控他們的。結果在被告人認罪後，法庭給予他們超過三分一的刑期扣減。法庭給予被告人的額外刑期扣減幅度並沒有規範，但不多過數個月而在一宗量刑基準超過10年的案件，額外扣減幅度亦只是6個月。"
} |
13 | 24 | {
"en": "Where a suspect under arrest voluntarily discloses to a law enforcing authority the details of his commission of certain crimes, so that the authority obtains evidence of his guilt, that certainly is an element of leniency. In R v Ellis (1986) 6 NSWLR 603 the Supreme Court of New South Wales called this element a significant added element of leniency.",
"zh-HK": "一名被拘捕的嫌疑犯，自願向執法機構供認其犯罪詳情，令執法機構取得針對他的罪證，當然是減刑因素。在R v Ellis (1986) 6 NSWLR 603，澳洲新南威爾斯最高法院將該項減刑因素形容為significant added element of leniency（額外顯著的從寬判刑因素）。"
} |
13 | 25 | {
"en": "In paragraph 25 of the judgment of Hui Chi Tong the Court of Appeal said:",
"zh-HK": "上訴法庭在Hui Chi Tong案的判案書第25段有以下詳論："
} |
13 | 26 | {
"en": "In Tsang Kai On, the Court of Appeal made similar comments in paragraph 14 of the judgment:",
"zh-HK": "在曾繼安案，上訴法庭在判案書的第14段亦有以下的相類似詳論："
} |
13 | 27 | {
"en": "“That the applicant still voluntarily pleaded guilty notwithstanding a lack of sufficient evidence from the Prosecution showed that he was genuinely remorseful. In these circumstances, the court should give a further discount to the applicant as an encouragement. This is also in the public interest…”",
"zh-HK": "“申請人在控方證據不足下仍然自願認罪，可見他是真誠懊悔。在此情況下，法庭應給予申請人額外扣減，以作鼓勵。此舉亦符合公眾利益…”"
} |
13 | 28 | {
"en": "In the above cases the court did not indicate by how much more the sentence should be reduced when giving this further discount. In Ellis, the Supreme Court of New South Wales remarked that “the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.”",
"zh-HK": "在上述案件，法庭並沒有列明額外刑期扣減的幅度。在Ellis案，澳洲新南威爾斯最高法院認為“扣減幅度應根據如被告人沒有招認時，執法機構能破案及能成功將有關人等定罪的可能性而定”（the degree of which will vary according to the degree of likelihood of that guilty being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.）。"
} |
13 | 29 | {
"en": "However, from a practical point of view, it is surely no easy matter to decide in individual cases how much the further discount should be according to the above-mentioned criterion.",
"zh-HK": "但從實際角度來考慮，在個別案件以上述理由來決定額外的扣減刑期幅度，絕非容易。"
} |
13 | 30 | {
"en": "Since the mid 1990s the courts in Hong Kong have adopted the sentencing policy that if a defendant enters a timely plea of guilty, as a rule he is entitled to one third discount on the sentence he would otherwise receive. In HKSAR v Chui Chi Wai & Another (No. 2) [2000] 1 HKLRD 704, the Court of Appeal had this to say on page 707 E-F:",
"zh-HK": "自上世紀90年代中開始，香港法庭採納了一項判刑政策，就是如被告人“適時”認罪（timely plea），他一般會獲得三分之一的刑期扣減。在HKSAR v Chui Chi Wai & Another (No 2) [2000] 1 HKLRD 704案判案書第707頁E-F行，上訴法庭有以下說法："
} |
13 | 31 | {
"en": "The theoretical basis of the principle of giving a discount to a defendant on his sentence who timely pleads guilty was examined by the High Court of Australia in R v Cameron [2002] 187 ALR 65. The significance of a plea of guilty was explained by Gaudron, Gummow and Callinan JJ in their joint judgment as follows:",
"zh-HK": "給予一名“適時”認罪的被告人刑期扣減的理論基礎在R v Cameron [2002] 187 ALR 65案獲澳洲最高法院審視。Gaudron, Gummow 和 Callinan法官在其聯合判案書中指出認罪的關鍵性如下："
} |
13 | 32 | {
"en": "“It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v R it was said:",
"zh-HK": "“認罪作為減刑理由早已確立。Siganto v R案表明："
} |
13 | 33 | {
"en": "‘... a plea of guilty is ordinarily a matter to be taken into account in mitigation: first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial ...’",
"zh-HK": "‘認罪一般而言是減刑理由，首先，它通常表示犯案者有悔意，除此之外，從實際角度而言，犯案者認罪導致社會無需浪費資源進行審訊…’"
} |
13 | 34 | {
"en": "It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.”",
"zh-HK": "明顯地，悔意並非認罪所表示的唯一要點。認罪亦表示犯案者承認責任及願意和執行公義過程充份合作。”"
} |
13 | 35 | {
"en": "Kirby J went further and clearly stated on page 81:",
"zh-HK": "Kirby法官更在判案書第81頁表明："
} |
13 | 36 | {
"en": "“... The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However, ‘remorse’ is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.",
"zh-HK": "“認罪所引發的刑期扣減之真確基礎並非作為悔意或其會導致的後果的獎賞，而是扣減是符合公眾利益的。當然，一名犯罪者真心悔過，給予他額外減刑亦符合公眾利益，以加強該名犯案者改過之決心，及作為他人之借鏡。但‘悔意’並非認罪而導致刑期扣減的先決條件，有其他公眾利益因素需給予比重。"
} |
13 | 37 | {
"en": "The main features of the public interest, relevant to the discount for a plea of guilty … include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service...",
"zh-HK": "和認罪導致刑期扣減之公眾利益主要特點包括犯案者認罪（一）會令社會免卻審訊必會導致之不便和其他代價；（二）會減省司法程序，法庭設施，控方檢控程序，法律援助，證人費和陪審員費用的支出及免卻陪審員面對之不便。"
} |
13 | 38 | {
"en": "… it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.”",
"zh-HK": "有罪人士承認控罪令審訊只需處理確有爭議的案件亦是符合公眾利益的。這樣會減低法庭因案件眾多而導致之延誤，亦會加快處理罪案，加強公眾對保障社會秩序的過程及執法之信心。罪犯認罪亦會加快受害人忘掉不快的經驗，令事件獲得澄清和令他們得到家庭、朋友或社會的幫助以減低他們所承受的傷痛。而在兇殺和性侵犯案件，犯案者認罪更會免卻受害人或其家家人、朋友因要作供而面對的折磨。”"
} |
13 | 39 | {
"en": "If unfruitful contest, delay and unnecessary expense of resources can be avoided, so that the court’s time can be allocated to cases which warrant more of its attention, thus ensuring that judicial proceedings will proceed more expeditiously and more efficiently, then giving the defendant who timely pleads guilty a one third discount is a policy decision which serves the public interest.",
"zh-HK": "避免無謂爭拗、延誤及浪費資源，令法庭能抽出時間處理一些更應當處理的案件，確保司法程序能更快捷及更有效地進行，給予一名“適時”認罪的被告人三分一的刑期扣減是符合公眾利益的政策決定。"
} |
13 | 40 | {
"en": "A discount of one third is quite a substantial discount. One of the main purposes of the court giving this one third discount to a defendant who pleads guilty is to encourage a guilty person to own up to the crimes he committed, so as to conserve the resources of the community and to ensure that justice can be administered more efficiently and matters can be concluded in the most expeditions manner.",
"zh-HK": "三分一的刑期扣減是極可觀的減刑幅度。法庭給予認罪的被告人三分一的刑期扣減的主要目的之一是鼓勵有罪的人坦白認罪，以節省社會資源，確保執行公義能更有效及能盡快處理完畢。"
} |
13 | 41 | {
"en": "Difficulties and disputes may arise in carrying out this policy of giving a one third discount and in deciding what a timely plea of guilty is. Since there is a period of time between the moment when a suspect is put under arrest and the time when he appears in court to face the charge or charges, what happened during that period of time and the attitude taken by the suspect might influence the sentencing decision. If the court has to take into account all these factors before passing sentence, not a few disputes may arise and the sentence that will be passed ultimately would become uncertain. To give one example: Is a defendant who admits his guilt forthwith at the outset and cooperates with the prosecution entitled to a larger discount on his sentence when compared with a defendant who makes up his mind to plead guilty only when the trial begins? Many people will think that the answer is yes and, on the face of it, it seems reasonable. However, in order to put this kind of thinking into practice, the court may very likely have to go into fine distinctions and subtle differences between different cases and adjust the sentences according to such niceties and subtleties. Such an approach would lengthen and complicate the court proceedings, increase costs, adversely affect court efficiency and delay the handling of cases which genuinely require the court’s attention. It not only goes contrary to the policy and basic objective of giving a one third discount, but is also against public interest.",
"zh-HK": "在執法三分一刑期扣減的政策及決定何謂“適時”認罪時，亦會面對困難及爭議。一名疑犯由被拘捕至出庭面對控罪會有一段時間，期間發生的事項及該名疑犯的取態對判刑都可能有影響。如法庭要將該些因素全部考慮在內，才作出判刑，會引起甚多爭議而最終的判刑亦可能變得不明確。例如一名一開始就承認控罪並和控方合作的被告人和另一名在開審時才決定認罪的被告人相比，是否應獲得更大的刑期扣減呢？很多人會認為答案是應該的，而表面上該想法亦是合理的。但要執行該類想法時，法庭極可能要考慮極為細微的因素，並根據該些細微因素而調整判刑。這樣的做法會延長司法程序及令司法程序複雜，增加費用和影響法庭的效率，對其他確要法庭處理的案件造成延誤，不但和三分一刑期扣減的政策和基本目的有抵觸，亦不符合公眾利益。"
} |
13 | 42 | {
"en": "In view of this, when giving the one third discount the approach taken by the court is a firm and broad-brush approach. It gives a defendant who timely pleads guilty the one third discount, which is substantial, without regard for niceties, in order to discourage excessive arguments and to prevent wasteful use of the resources of the community.",
"zh-HK": "因此在執行三分一刑期扣減時，法庭會採納較為堅定及粗線條的處理方法，給予一名“適時”認罪的被告人可觀的三分一刑期扣減而不去理會一些細微的因素，避免過多爭拗，浪費社會資源。"
} |
13 | 43 | {
"en": "In SJ v Lee Chun Ho Jeef [2009] 6 HKC 471, this court gave a clear exposition of this stance. At A-C on page 44 [sic] 7 of the judgment the Court of Appeal pointed out that:",
"zh-HK": "本庭在SJ v Lee Chun Ho Jeef [2009] 6 HKC 471案，就上述立場作出了明確的表述。在該判案書第447A-C段，上訴法庭指出："
} |
13 | 44 | {
"en": "The applicant cooperated with the police and after he was arrested he frankly confessed. This led to his being charged with the 1st charge. We are of the view that this factor should also be subsumed within the one third discount, and should not be treated as a reason for giving any discount more than one third. Otherwise, it would be in conflict with the policy and purpose of giving the one third discount. Not only would it create uncertainly but also it would give rise to disputes, and so it is against public interest.",
"zh-HK": "本庭認為申請人和警方合作，在被捕後坦白招認而導致被控第一項控罪這因素亦應歸納在三分一刑期扣減之內，而非導致超過三分一刑期扣減的因素，否則會和三分一刑期扣減的政策和目的有抵觸，不但構成不明確因素，更會導致爭拗，和公眾利益不符。"
} |
13 | 45 | {
"en": "When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount. If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal.",
"zh-HK": "本庭不反對在個別案件及在處理整體判刑時，法庭可以行使酌情權，因為被告人的坦白招認是唯一支持控罪的證據，而將整體判刑作出輕微調整。但該因素不支持法庭必需給予該類被告人超過三分一的額外刑期扣減的立場。在法庭沒有給予該類被告人超過三分一的額外刑期扣減時，該因素亦非可爭拗的上訴理由。"
} |
13 | 46 | {
"en": "In giving the one third discount to the applicant upon his pleading guilty, the trial judge had already taken into account the applicant’s cooperation with the police, his voluntary confession and his guilty plea entered in court. That he was denied a further discount in addition to the one third discount cannot constitute a reasonable complaint, nor can it be a ground of appeal against sentence. This ground put forward by Mr. Ma is not substantiated.",
"zh-HK": "原審法官因申請人承認控罪而給予他三分一的刑期扣減已包括了申請人和警方合作、自動招認及在法庭上承認控罪等因素。申請人不能以未能獲得超過三分一的額外刑期扣減而有合理投訴，更不能以此為上訴理由，要求減刑。馬大律師提出的這一點上訴理由不成立。"
} |
13 | 47 | {
"en": "We agree with the trial judge’s view that the illegal selling of passports belonging to others is a serious crime. The people who buy other people’s passports will certainly use such passports which they obtained by illegal means for doing something illegal, including serious crimes. Therefore, a person who helps, in whatever manner, other people to unlawfully obtain passports belonging to others indirectly helps those people to commit crimes.",
"zh-HK": "本庭同意原審法官的看法，非法販賣他人護照是一項嚴重罪行。購買他人護照的人必然是利用非法取得的護照來進行其他犯罪活動，包括嚴重罪行活動，因此以任何形式協助他人非法獲得別人的護照，亦是間接協助他人犯罪。"
} |
13 | 48 | {
"en": "The trial judge correctly pointed out that in recent years tourism arrangements between Hong Kong and other countries concerning visa-free entry were constantly increasing. The court has the duty to deter commission of crimes in this area, so as to safeguard the integrity and reliability of the HKSAR passport.",
"zh-HK": "誠如原審法官指出，近年香港和世界各地免簽證的旅遊安排不斷增加，法庭有責任阻嚇有關罪行，確保香港特區護照的完整及可信賴性。"
} |
13 | 49 | {
"en": "We do not agree with Mr. Ma’s argument that the number of passports involved is immaterial. In paragraph 6 of the judgment of Cheung Wai Ming, the Court of Appeal specifically underscored the fact that the sentence in that case was passed on the basis that only one passport was involved. The necessary implication must be that if more than one passport was involved, the sentence should have been heavier.",
"zh-HK": "本庭不同意馬大律師的立場，指涉案護照的數目不重要，在上述張偉明案，上訴法庭在判案書第6段特別強調該案的判刑是建基在案件只涉及單單一本護照的事實上，其含意必然是如案件涉及多過一本護照時，則判刑必然應較重。"
} |
13 | 50 | {
"en": "Ten odd passports were involved in this case. If all these passports got into the hands of criminals, the community and the integrity and reliability of the HKSAR passport would have been adversely affected to a considerable extent. As far as the 1st charge is concerned, the four and a half years starting point adopted by the trial judge was not lenient, but having considered the facts of the case and the modus operandi of the applicant, it was not manifestly excessive.",
"zh-HK": "本案涉及10多本護照，如該批護照全數落入犯罪份子手上，對社會及香港特區護照的完整及可信賴性必會造成極大的負面影響。就第一項控罪，原審法官採納的四年半的量刑基準並非輕判，但以案件的背景及申請人的犯案手法而言，亦並非明顯過重。"
} |
13 | 51 | {
"en": "Conclusion",
"zh-HK": "結論"
} |
13 | 52 | {
"en": "In our judgment, the total sentence of three years was appropriate and was not manifestly excessive. We accordingly do not grant the applicant leave to appeal against sentence.",
"zh-HK": "本庭亦認為最終的三年總判刑是合適的，而非明顯過重，因此本庭不批准申請人就判刑上訴。"
} |
13 | 53 | {
"en": "Ms. Peggy Leung, Senior Public Prosecutor of the Department of Justice, for the Respondent.",
"zh-HK": "答辯人：由律政司高級檢控官梁寶琦代表。"
} |
13 | 54 | {
"en": "Mr. David Ma, instructed by Messrs. Sidney Lee & Co., assigned by the Legal Aid Department, for the Applicant.",
"zh-HK": "申請人：由法律援助署委派李志恆律師事務所轉聘大律師馬維騉代表。"
} |
14 | 1 | {
"en": "Hon Barnes J (giving the judgment of the Court):",
"zh-HK": "原訟法庭法官張慧玲頒發上訴法庭判案書 ："
} |
14 | 2 | {
"en": "The applicant was charged with two counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 Laws of Hong Kong, to which he pleaded guilty before District Judge Longley. On 26 January 2011 the learned judge sentenced him to 24 months’ probation for the two charges. Subsequently, in a report dated 6 January 2012, the probation officer complained that the applicant had breached the probation order and asked the court to discharge the order. On 10 January 2012, the applicant appeared before District Judge Stanley Chan and agreed with the contents of the probation report. Thereupon, the learned judge considered the sentence afresh and in the end sentenced the applicant to 12 months’ imprisonment for each of the two charges, which were to be served concurrently, making a total term of 12 months’ imprisonment. The applicant applies for leave to appeal the sentence.",
"zh-HK": "申請人被控兩項「入屋犯法」罪，違反香港法例第210 章《盜竊罪條例》第11(1)(b) 及 (4) 條。申請人在區域法院法官龍禮席前承認兩項控罪。龍禮法官在2011 年1 月26 日就該兩項控罪判處申請人接受感化24 個月。其後，感化官在2012 年1 月6 日的報告中指申請人違反感化令，要求法庭撤銷感化令。在2012 年1 月10 日，申請人在陳廣池法官席前同意感化報告的內容。陳法官重新判刑，就兩項控罪，分別判處申請人12 個月監禁，同期執行，總刑期12 個月。申請人不服判刑，提出上訴許可申請。"
} |
14 | 3 | {
"en": "Agreed facts",
"zh-HK": "承認案情"
} |
14 | 4 | {
"en": "The facts were that on two consecutive days, namely 14 and 15 May 2010, the applicant sneaked into the same flat. On the first occasion, no one was in the flat, and the applicant stole $6,000 cash and a mobile phone worth $2,800. On the second occasion, when he tried to steal again, he was discovered by the occupant of the flat. He fled without stealing anything.",
"zh-HK": "案情顯示，申請人在2010 年5 月14 日及15 日接連兩日，潛入同一涉案單位；首次單位內無人，申請人成功偷竊現金 $6,000及一部價值 $2,800的流動電話。翌日，他重施故技時，被單位戶主發覺，未能成功偷竊便落荒而逃。"
} |
14 | 5 | {
"en": "The applicant was arrested on the very night of 15 May. He admitted under caution that he stole approximately $2,000 from the flat on 14 May 2010 and that, having spent all the stolen money, on 15 May he tried to sneak into the flat again to steal.",
"zh-HK": "申請人在5 月15 日當晚被捕。警誡下，申請人承認在2010 年5 月14 日在涉案單位偷取了約 $2,000，花光了錢後便在5 月15 日再嘗試進入涉案單位偷竊。"
} |
14 | 6 | {
"en": "Applicant’s background",
"zh-HK": "申請人背景"
} |
14 | 7 | {
"en": "The applicant is now 21 years old. He has two conviction records for two counts of theft, for which he had been put on probation for 12 months. However, he breached the probation order and was accordingly sentenced to two weeks’ imprisonment instead.",
"zh-HK": "申請人現年21 歲。先前有兩項偷竊刑事紀錄，被判處接受感化12 個月，但申請人違反感化令，被法庭改判兩個星期監禁。"
} |
14 | 8 | {
"en": "The information shows that the applicant suffers from moderate mental retardation and does not have a proper job. In addition to the thefts which came before the courts, he had stolen the belongings of his fellow students and of a voluntary worker at the school where he studied. He had also stolen things from his father’s workshop. In May 2004, he was cautioned by a police superintendent after he stole a motor cycle.",
"zh-HK": "資料顯示，申請人屬中度智障，沒有正當職業。除了法庭已知悉的偷竊事件外，申請人曾在他就讀的學校偷竊同學和一名義工的物品；他亦曾在父親的工場進行偷竊。在2004 年5 月，他因為偷竊一輛電單車而遭警司警誡。"
} |
14 | 9 | {
"en": "District Judge Longley’s reasons for sentence",
"zh-HK": "龍禮法官的判刑理由"
} |
14 | 10 | {
"en": "Despite the applicant’s record of having breached a previous probation order, District Judge Longley considered the applicant’s background and the fact that a social worker was able to find a place for the applicant at a sheltered workshop cum hostel, and, in light of that, sentenced him to probation for 24 months. The probation was made subject to conditions, including that the applicant had to be of good behaviour and that he had to keep in touch with the probation officer.",
"zh-HK": "雖然申請人有違反感化令的前科，龍禮法官在考慮了申請人的背景後，仍然在社工能夠幫助申請人找到庇護工場宿舍後，判令申請人接受感化24 個月。感化條件包括申請人須行為良好及須與感化官保持聯絡等等。"
} |
14 | 11 | {
"en": "Breach of the probation order",
"zh-HK": "違反感化令的內容"
} |
14 | 12 | {
"en": "In the report dated 6 January 2012 the probation officer stated that there were occasions on which the applicant did not stay at home during holidays but instead lingered at video game centres, and that he had repeatedly stolen things and attacked inmates and staff members in the sheltered workshop. Besides, he damaged various articles in the hostel during his occasional temper outbursts. By reason of his unsatisfactory behaviour, he was expelled from the sheltered workshop cum hostel on 15 October 2011.",
"zh-HK": "根據感化官在2012 年1 月6 日的報告中指出，申請人在假日曾沒有按照指示留宿家中，在遊戲機中心留連。他亦曾多次在庇護工場內偷竊和襲擊院友和工作人員。他亦曾發脾氣、破壞宿舍物品。由於申請人的行為未如理想，在2011 年10 月15 日他被逐出庇護工場。"
} |
14 | 13 | {
"en": "After the applicant ceased to work and reside at the sheltered workshop cum hostel, he spent all his time at video game centres. The applicant strongly denied that he had engaged in any illegal activity, but his parents were very concerned about him. His father asked him to work at an air-conditioner repair company but he refused. The probation officer commented that the applicant had performed poorly during the probation period, that he had failed to comply with the probation order, and that he had disregarded the probation officer’s advice and guidance. The officer concluded that the probation order was of no use whatsoever to the applicant and therefore recommended that the order be discharged.",
"zh-HK": "申請人不再在庇護工場宿舍工作和住宿後，終日在遊戲機中心留連。雖然申請人極力否認他曾從事任何不法工作，申請人的父母對他的情況非常關注。申請人的父親曾要求他到冷氣維修公司工作，但遭申請人拒絕。感化官認為申請人在感化期間表現差劣、不遵照感化命令，亦不理會感化官的教誨。感化官認為感化令對申請人毫無作用，要求撤銷感化令。"
} |
14 | 14 | {
"en": "District Judge Chan’s reasons for sentence",
"zh-HK": "陳法官的判刑理由"
} |
14 | 15 | {
"en": "Having considered the applicant’s records, age and mental ability, District Judge Chan took the view that the detention centre, the training centre and the rehabilitation centre were all unsuitable for the applicant. In light of the special circumstances of the applicant, the learned judge considered it necessary to take “an exceptional approach”. He adopted 18 months’ imprisonment as the starting point for each charge and reduced it to 12 months on account of the applicant’s guilty plea. The sentences were ordered to run concurrently. The learned judge exhorted the applicant to keep his promise to work at his father’s place, and also hoped that the applicant’s parents could positively put the applicant under their supervision.",
"zh-HK": "陳法官在考慮了申請人的前科、年齡和智商後，認為勞教中心、教導所和更生中心非適合申請人。陳法官認為基於申請人的特殊情況，他須作出一個「特殊的處理方法」，就每項控罪他以18 個月為量刑起點，因為申請人認罪而減為12 個月，同期執行。陳法官亦強調申請人須依從承諾，到其父親的地方工作。陳法官亦希望申請人父母能真正監管申請人。"
} |
14 | 16 | {
"en": "Application for leave to appeal",
"zh-HK": "申請上訴許可"
} |
14 | 17 | {
"en": "The applicant was initially unrepresented. On 29 March 2012, at the hearing of the applicant’s application for leave to appeal against sentence, Cheung JA adjourned the case and allowed the applicant to be represented by Counsel. He also ordered that a clinical psychologist’s report and a psychiatrist’s report be prepared and submitted to the court.",
"zh-HK": "申請人原本沒有律師代表，在2012 年3 月29 日，在上訴庭法官張澤祐席前申請判刑上訴許可時，張法官將案件押後，批准申請人由律師代表出庭。另外，張法官下令索取申請人的臨床心理和精神科報告。"
} |
14 | 18 | {
"en": "Clinical psychologist’s report and psychiatrist’s report",
"zh-HK": "臨床心理學家及精神科醫生報告"
} |
14 | 19 | {
"en": "The clinical psychologist opined that the applicant possessed adequate cognitive ability to understand that stealing was unlawful, and that the applicant’s stealing activities were motivated by his desire to obtain monetary gains. The psychiatrist did not consider that the applicant was suffering from any psychiatric disorder.",
"zh-HK": "臨床心理學家認為申請人有足夠的認知能力，明白盜竊是非法的，申請人盜竊的動機是希望能獲金錢利益。精神科醫生認為申請人沒有任何精神病況。"
} |
14 | 20 | {
"en": "Grounds of appeal",
"zh-HK": "上訴理由"
} |
14 | 21 | {
"en": "Mr. Bernard Yuen, Counsel for the applicant, has put forward two main grounds of appeal:",
"zh-HK": "申請人代表袁國華大律師基本上提出兩個上訴理由："
} |
14 | 22 | {
"en": "Before he considered the sentence afresh, District Judge Chan did not consider discharging or decide to discharge or in fact discharge the 24-month probation order imposed on the applicant by District Judge Longley. Therefore, in respect of the two charges, the applicant is subjected to a probation order and a custodial sentence of imprisonment at the same time, which is wrong both in principle and as a matter of procedure.",
"zh-HK": "陳法官在重新判刑前並無考慮、決定或實行撤銷由龍禮法官判處申請人的24 個月感化令，因此就該兩項控罪，申請人同時有感化令及被判處監禁，原則上及程序上均犯錯。"
} |
14 | 23 | {
"en": "In imposing a custodial sentence on the applicant, District Judge Chan did not have sufficient regard to the applicant’s special circumstances (particularly the fact that he was suffering from moderate mental retardation), and the custodial sentence was not passed after properly balancing the need to assist the applicant in his rehabilitation, the interests of justice and the interests of the general public.",
"zh-HK": "陳法官在判處申請人入獄時，沒有充分考慮申請人的特殊情況 (尤其是申請人是中度智障的情況)，判處他入獄並不符合協助申請人改過自新、公義及社會利益的平衡考慮。"
} |
14 | 24 | {
"en": "In relation to ground (1), Mr. Yuen relies on section 3A of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong, which provides that an offender in whose case a probation order is made shall not be sentenced further, and submits that District Judge Chan therefore erred in passing the custodial sentence without discharging the probation order and that the probation order should have been discharged.",
"zh-HK": "就上訴理由 (1)，袁大律師依賴香港法例第298 章《罪犯感化條例》第 3A條，指出在所犯案件中被判令接受感化的罪犯，不得被進一步判處刑罰。因此陳法官在沒有撤銷感化令的情況下，判處申請人監禁是錯誤的，該感化令應被推翻。"
} |
14 | 25 | {
"en": "As for ground (2), Mr. Yuen cites paragraph 5-301 of Archbold, which states that, even for a serious offence, probation may be considered where the defendant suffers from a psychiatric condition, because in such a situation the court must consider and strike a balance between his duty to the public on the one hand and, on the other hand, the order which can most properly assist the defendant in the given circumstances.",
"zh-HK": "就上訴理由 (2)，袁大律師引用權威著作Archbold第5-301 段，引述作者指當一名被告人有精神病患時，即使罪行嚴重，仍然可以考慮判以感化，因為在此情況下，法庭一方面要考慮對社會人士的職責，另一方面要考慮在有關情況下，最能夠妥善協助被告人的判令是甚麼，以平衡兩者。"
} |
14 | 26 | {
"en": "Mr. Yuen submits that, although the psychiatrist’s report states that the applicant does not display any sign of a psychiatric disorder, the above mentioned principle, namely the paramount consideration is to assist the defendant in his rehabilitation and integration into society rather than to punish him, should be equally applicable to a mentally retarded person. Mr. Yuen asks this Court to reverse or set aside the decision of District Judge Chan.",
"zh-HK": "袁大律師指出，雖然精神科醫生報告指申請人並無任何精神病的跡象，但考慮了上述原則：即以協助申請人改過自新和融入社會為前提，而不是以懲罰申請人為重點，該原則應該同樣適用於一名有智障情況的人身上。袁大律師要求本庭推翻或撤銷陳法官的判決。"
} |
14 | 27 | {
"en": "Mr. Yuen also submits that the applicant started serving the custodial sentence on 10 January 2012 and has therefore been serving almost half a year of the term of sentence. Mr. Yuen urges this Court to set aside the District Judge’s decision so that the applicant can be released forthwith.",
"zh-HK": "袁大律師亦指，申請人自從2012 年1 月10 日已經開始服刑，實質上已服了近半年的刑期，故懇請法庭撤銷陳法官的判令，令申請人可以即時獲釋。"
} |
14 | 28 | {
"en": "Respondent’s reply",
"zh-HK": "答辯人的回應"
} |
14 | 29 | {
"en": "On behalf of the respondent, Ms. Chiu, Acting Senior Public Prosecutor, points out in reply that what District Judge Chan was dealing with at the hearing was the recommendation made by the probation officer for a discharge of the probation order against the applicant. At the outset (paragraph 1) of his Reasons for Sentence, the learned judge made it clear that the applicant had breached the probation order and that he had to consider the sentence anew. In light of the overall circumstances of the present case and taking into account the word “afresh” used by the learned judge, it is obvious that he had no intention to allow the probation order to stand. It is submitted that the applicant’s allegation that the learned judge imposed a custodial sentence on top of the probation order is untenable.",
"zh-HK": "答辯人代表署理高級檢控官招秉茵回應指，陳法官在審訊時是處理感化官向法院提出解除申請人的感化令的要求。陳法官在判刑理由書的第1 段已開宗明義，指出申請人違反感化令，他須重新判刑。縱觀事件的來龍去脈，加上陳法官使用「重新」二字，明顯他並無保留感化令的意思。申請人指陳法官在感化令上另外判處監禁是沒有根據的。"
} |
14 | 30 | {
"en": "The respondent also relies on the relevant part of section 4(6) of the Probation of Offenders Ordinance, Cap. 298 Laws of Hong Kong (i.e. “… where the probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect.”) and submits that the applicant’s probation order had ceased to have effect.",
"zh-HK": "答辯人亦依賴香港法例第298 章《罪犯感化條例》第4(6) 條有關的條文 (即「…. 如受感化者因導致其被判接受感化的罪行被判處刑罰，則有關的感化令即告失效。」)，指申請人的感化令已告失效。"
} |
14 | 31 | {
"en": "As regards ground of appeal (2), the respondent submits that, according to the sentencing guideline laid down by the Court of Appeal, the starting point upon conviction for the offence of burglary in a residential property is imprisonment for 3 years. Where the defendant’s mental ability is lower than average and there is evidence that although he knew what he did was wrong, he could not fully appreciate how wrong it was, then that will be regarded as a mitigating factor: R v Taylor [1983] 5 Cr App R (S) 241 and R v Harvey [1984] 6 Cr App R (S) 184,186.",
"zh-HK": "就上訴理由 (2)，答辯人指，根據上訴法庭訂下的判刑指引，一名人士在住宅物業內干犯入屋犯法罪，一經定罪，判刑的起點是3 年。假如一名被告人的智商較一般人為低，而有證據顯示他雖然知道自己犯錯，但不能完全理解錯誤的嚴重性，法庭是會視之為減刑的因素：R v Taylor [1983] 5 Cr App R (S) 241及R v Harvey [1984] 6 Cr App R (S) 184, 186。"
} |
14 | 32 | {
"en": "The respondent submits that, although the applicant is suffering from moderate mental retardation, the clinical psychologist’s report stated that the applicant knew he was doing something wrong and that the offence was merely motivated by his desire to obtain monetary gains. It is submitted that the applicant’s conduct and motive were no different from those of the defendants in the usual cases of offences involving dishonesty. Notwithstanding that, District Judge Chan treated the applicant leniently by considering sentencing options other than an immediate custodial sentence. However, as the applicant had been assessed to be unsuitable for admission to a training centre, and taking into account his special circumstances and his conviction records for similar offences, as well as the fact that he had previously been incarcerated and neither the detention centre nor the rehabilitation centre was considered suitable for him, the only viable sentencing option was an immediate custodial sentence. It is submitted that the learned judge had taken into account all the circumstances, and the starting point of 18 months that he adopted is lower than that set out in the sentencing guideline by as much as 50%.",
"zh-HK": "答辯人指，本案的申請人雖屬中度智障，但根據臨床心理學家報告，申請人知道自己犯錯，而他犯案的動機祇是希望從中得到金錢上的利益。答辯人認為申請人的行為動機與一般干犯不誠實罪行的被告人無異。儘管如此，陳法官對申請人寬大處理，他首先考慮了即時監禁以外的判刑選擇，不過申請人較早前被評定為不適合進入教導所，另外申請人的狀況特殊和過往有同類的定罪紀錄，加上曾被判監、勞教中心和更生中心，對申請人均不適合，唯一可行的判刑選擇祇有即時監禁。陳法官已經考慮了所有因素，採納18 個月監禁為量刑起點，有關的量刑起點足足較判刑指引輕一半。"
} |
14 | 33 | {
"en": "The respondent submits that, while there are mitigating factors, the gravity of the case and the need for deterrence cannot be overlooked. The applicant broke into the same residential unit on two consecutive days to steal, and such conduct was outrageous. The respondent maintains that an immediate custodial sentence is the only appropriate sentencing option, and that the starting point and final sentence imposed by District Judge Chan are neither wrong in principle nor manifestly excessive.",
"zh-HK": "答辯人指，本案存有一定減刑的因素，不過，同時亦不能忽略案件的嚴重性，須要加以阻嚇。申請人接連兩日侵入同一個住所進行盜竊，行為猖獗。答辯人認為即時監禁是唯一的合適判刑選擇。陳法官採納的量刑起點及最終判刑均並非原則性犯錯或明顯過重。"
} |
14 | 34 | {
"en": "Our views and considerations",
"zh-HK": "本庭作出的考慮"
} |
14 | 35 | {
"en": "In respect of ground of appeal (1), we accept the respondent’s submissions. Although in passing sentence District Judge Chan did not expressly say that the probation order in question was discharged, when everything is put in context — he was dealing with an application by the probation officer to discharge the probation order and he clearly said that he had to consider the sentence “afresh” — his intention to set aside the probation order should become obvious. Even if he did err in not discharging the probation order so that it co-existed with the custodial sentence, this Court would be in a position to rectify the mistake.",
"zh-HK": "就上訴理由 (1)，本庭接納答辯一方的陳詞見解。雖然陳法官在判刑時並無明確指出有關的感化令已被撤銷，但縱觀上文下理，基於當時他處理的申請是感化官要求法庭撤銷感化令，而他亦明言他「重新」判刑，所以明顯他的目的是將感化令撤銷。即使陳法官確是犯錯，沒有正式撤銷感化令而使感化令與監禁共存，本庭可作出修正。"
} |
14 | 36 | {
"en": "Having said that, in order to avoid misunderstanding, the court should have made a formal order discharging the probation order. We hope that in future the courts will bear this in mind when dealing with similar applications.",
"zh-HK": "誠然，法庭應正式作出撤銷感化令的判令，以避免發生誤會。本庭希望以後法官在處理同樣申請時能注意此點。"
} |
14 | 37 | {
"en": "Turning to ground of appeal (2), in sentencing the applicant District Judge Longley did consider his background. Even though the applicant had previously been put on probation for theft and had breached the probation order, the learned judge still gave him a chance. As the probation officer had found a place for him at a sheltered workshop cum hostel where he could work and reside, the learned judge put him on probation again. However, the applicant did not treasure this chance at all. He repeatedly violated the probation order not only by continuing to steal, but also by going on to attack inmates and staff members and damage various articles in the hostel. He was expelled from the sheltered workshop cum hostel due to his unsatisfactory performance. This being the case, the probation officer quite justifiably concluded that the probation order was of no assistance to the applicant. To continue to put the applicant on probation would not serve any useful purpose.",
"zh-HK": "就上訴理由 (2)，事實上，龍禮法官在判刑時，已考慮了申請人的背景，即使申請人已經有因為盜竊而被判感化和曾違反感化令的前科，龍禮法官仍給予申請人一次機會，在感化官代申請人找到庇護工場給他工作和有宿舍供他住宿時，仍判處他接受感化。但申請人根本毫不珍惜這個機會，他不止一次違反感化令，不單繼續其盜竊行為，更加有襲擊院友、工作人員和破壞宿舍物品此等行徑。申請人亦因為其行為未如理想，而被逐出庇護工場。在此情況下，感化官認為感化令對申請人並無作用，這個看法是正確的。繼續判處申請人接受感化根本毫無作用。"
} |
14 | 38 | {
"en": "In light of all the circumstances pertaining to the applicant at the material time, we are unable to discern any proper sentencing approach other than imposing an immediate custodial sentence. In view of the applicant’s previous convictions and his persistent transgressions of the law notwithstanding the fact that he had been repeatedly punished, we do not think that a community service order is an appropriate option.",
"zh-HK": "以申請人當時所有情況，除了即時監禁外，本庭實在看不到有其他恰當的方法處理。基於申請人的前科及屢罰屢犯的情況，本庭不認為社會服務令是一個恰當的考慮選擇。"
} |
14 | 39 | {
"en": "The applicant had previously been sentenced to two weeks’ imprisonment for breach of a probation order. This short-term imprisonment apparently did not have any deterrent effect on him because he continued to commit the offence of theft. District Judge Chan had taken into account the applicant’s special circumstances and reduced the usual starting point of 3 years’ imprisonment to 18 months accordingly. He also ordered that the 12-months term for each of the two charges to run concurrently. We do not consider this sentence of 12 months’ imprisonment to be wrong in principle or manifestly excessive.",
"zh-HK": "申請人以往曾因違反感化令而被判處兩個星期監禁，明顯這個短期監禁對他完全沒有阻嚇作用，因為申請人繼續干犯偷竊罪行。陳法官已經考慮了申請人的特殊情況，因此將一般的3 年監禁量刑起點調低至18 個月的量刑起點。陳法官亦判令兩項控罪的12 個月監禁同期執行。本庭不認為12 個月監禁此刑期有任何原則性的錯誤或明顯過重。"
} |
14 | 40 | {
"en": "Conclusion",
"zh-HK": "總結"
} |
14 | 41 | {
"en": "For the above reasons, we dismiss the application for leave to appeal the sentence. For the sake of caution, we also formally discharge the probation order against the applicant.",
"zh-HK": "基於上述理由，本庭駁回申請人就判刑的上訴許可申請。為了謹慎起見，本庭亦正式撤銷申請人的感化令。"
} |
14 | 42 | {
"en": "Ms. Samantha Chiu, Acting Senior Public Prosecutor of the Department of Justice, for the HKSAR",
"zh-HK": "答辯人：由律政司署理高級檢控官招秉茵代表香港特別行政區"
} |
14 | 43 | {
"en": "Mr. Bernard Yuen, instructed by Yip & Partners on assignment by the Legal Aid Department, for the Applicant",
"zh-HK": "申請人：由法律援助署委派葉偉全律師事務所轉聘袁國華大律師代表"
} |
15 | 1 | {
"en": "Barnes J (giving the judgment of the Court):",
"zh-HK": "原訟法庭法官張慧玲宣讀上訴法庭判案書 ："
} |
15 | 2 | {
"en": "The applicant pleaded guilty to one count of Attempted Robbery before Deputy District Judge Sham and was sentenced to 4 years and 4 months’ imprisonment. He applies for leave to appeal against sentence.",
"zh-HK": "申請人在區域法院暫委法官沈小民席前承認一項「企圖搶劫」罪，被判監禁4 年4 個月。申請人就判刑提出上訴許可申請。"
} |
15 | 3 | {
"en": "The facts of the case",
"zh-HK": "案情"
} |
Subsets and Splits