HKSAR v. Yeung Wai Chun

[English translation – 英譯本]

HCMA 603/2021

[2022] HKCFI 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 603 OF 2021

(ON APPEAL FROM ESCC 2342/2020)

____________

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Before:  Hon Barnes J in Court

Date of Judgment: 15 March 2022

JUDGMENT

A. Introduction

1.The appellant was charged with an offence of “criminal intimidation”, contrary to sections 24(a)(i) and 27 of the Crimes Ordinance, Cap 200, Laws of Hong Kong.  The appellant pleaded not guilty and was convicted after trial by Ms Winnie Lau (“the magistrate”) of the Eastern Magistrates’ Courts and sentenced to imprisonment for 7 months and 15 days.  The appellant appeals against the sentence.

B. Admitted facts and the magistrate’s findings of facts

2.The magistrate has set out the facts of the case and her findings of facts in the Reasons for Sentence:

“Facts

2. The admitted facts [Exhibit P1] mainly reveals the following:

i. The Police College is situated at No 18 Ocean Park Road, Wong Chuk Hang (‘the College’), in which there is a canteen providing meals and refreshment to the police trainees.

ii. The said canteen ordered food from Million Food Service Limited (‘Million Food’) from time to time.

iii. On 5 February 2020, the defendant began to be employed by Million Food as a lorry attendant and delivery worker.

iv. On 11 February 2020, the said canteen placed an order with Million Food for a batch of 20 packs of cervelats, consisting of 200 pieces in total.

v. At around 10 am on 12 February 2020, the defendant went by the lorry of Million Food to deliver the said cervelats to the canteen. On the way, the defendant used his mobile phone iPhone XR [Exhibit P2] to photograph the invoice of the said cervelats [Exhibit P3] and add on the photo a sentence ‘I have to get you all fail to pass out’, and then uploaded the image onto his own Instagram account ‘ywc____’ [Exhibit P4]. After that, the defendant together with the lorry driver delivered the above cervelats to the canteen. The chief cook of the canteen checked the food and on finding no problem, signed and stamped on P3.

vi. On the afternoon of 13 February 2020, the police started an investigation on P4.

vii. On the morning of 14 February 2020, the manager of the transportation section of Million Food, Mr Chiu Fu (transliteration) phoned the defendant and asked if the defendant had uploaded P4 onto Facebook. The defendant answered, ‘I didn’t take it to Facebook. I only put it on IG.’ At noon on the same day, Million Food dismissed the defendant.

viii. At 0642 hours on 18 February 2020, the police went to the defendant’s residence with a search warrant. The defendant was arrested by the police inside his residence for the offence of criminal intimidation, and he said under caution, ‘Since I do not like the police, seeing the invoice that it was a delivery to the school, on a whim I photographed the invoice, added a sentence and posted it on Instagram. I just thought of having fun at that moment.’ The police seized P2 inside the defendant’s bedroom and it was found upon preliminary inspection that P2 had been installed with Instagram, and the account name was ‘ywc____’. The police took photographs of what was found in P2 at that time. Afterwards, the defendant was taken to the police station. At 0952 hours on the same day, the police had a video-recorded interview with the defendant [Exhibit P8, P8A being the transcript and MFI-1 a summary of the video-recorded interview].

ix. The defendant was born on 18 July 1999.

x. At all the material times, the defendant was aged 20.

xi. The defendant had no previous record of criminal conviction.

3. In short, my findings of facts mainly reveal the following:

i. In 2018, Mr Ng Tat Keung (transliteration) (PW1) and PC29181 (PW2) took Yi Jin programme and came to know each other.

ii. On the afternoon of 12 February 2020, Mr Ng saw an image of the above invoice being shared on the Instagram ‘IG’ platform. Being worried that PC29181 who was under training in the College might take in harmful food, he made a screenshot of that image and forwarded it to PC29181 through WhatsApp at 1052 hours on the same day to alert him.

iii. At 1830 hours on the same day, at the Police College, PC29181 returned to his own seat, took out and turned on his mobile phone. Upon finding the WhatsApp message and screenshot, he thought that the said lot of cervelats might have been contaminated with something added to cause them diarrhoea. Since they had eaten cervelats that morning, PC29181 worried about himself and told other trainees, showing the screenshot to them, including PC29195 (PW3), and they had a discussion.

iv. PC29195 was alarmed because of the matter. He was not sure if he had eaten those cervelats but worried that he would really fail to pass out and his health and life were really in danger, eg having diarrhoea, because the person who disseminated that post appeared to have contaminated the sausages and there were many possible ways by which the sausages could be contaminated or poisoned in the course of delivery to the College. PC29195 described that at that time, he and other fellow trainees who saw the screenshot had ‘more or less the same’ feeling. Upon discussion, PC29181 became the one responsible for informing the class-master of the matter.

v. On the next morning, in class, some trainees expressed to SGT45915 (PW4) that they were worried about failing to pass out because PC29181 had received that screenshot and they worried that the cervelats which they had eaten might have been contaminated. SGT45915 requested PC29181 to show him the screenshot but no mobile phone was allowed in the classroom and hence, he directed PC29181 to show it to him later. On the afternoon of the same day, SGT45915 saw the screenshot sent through WhatsApp by the class-monitor. Under normal circumstances, the police trainees would all pass out except a few, and the image of the invoice contained the address and telephone number of the College. Hence, SGT45915 thought that the matter was malicious and targeted at the police and all police trainees, and the person who created the image had access to the food of the College. SGT45915 reported the matter to his superior and the College in order to [prevent] such person from tempering with the food in some malicious ways, such as contaminating the food to get someone poisoned or even more seriously causing death, and making the police trainees fail to pass out by improper means. Since food contractors were under the supervision of the support unit of the College, they could contact the contractor concerned and take action. SGT45915 asked the fellow trainees if they felt unwell after eating. No one indicated any sickness.

vi. On seeing the screenshot, each of the above prosecution witnesses had the worry and/or fear as described by him.

vii. The way in which the defendant photographed the invoice, including folding up the invoice in half beforehand, showing in the image only part of the information (namely, the package, description of goods, delivery address, three lines of clauses at the bottom of the invoice and real time information ‘11 February 2020, 14:27:36, Yip Pui Ling (transliteration)’) and adding the words ‘I have to get you all fail to pass out’, reflected that the photograph was taken by the defendant after consideration and much thinking. In the image of the invoice, the content as a whole plainly meant that the cervelats had been improperly dealt with so that the police trainees would have health problems after eating them and hence fail to pass out. This was clearly a threat to the trainees that they would be physically harmed, and such threat was made by the defendant with intent.

viii. The defendant chose to upload the said image of the invoice to his IG public account. At the time of the offence, the said account had 415 followers and 21 friends who were permitted by the defendant to follow him. This reflected his intent to let many people see the content of the image. No evidence showed that there was any police trainee among the large number of followers and friends. Nevertheless, by the time of the offence, the defendant had used that IG public account for a period (ie he began to use it four years before). Knowing that a large number of people could see the image of the invoice, he still chose to use that IG public account (whilst he also had an IG private account 990718, a Facebook account, a Telegram account and a Snapchat account at the material time) for uploading and posting the image of the invoice. He ought to have known, believed or expected that among his followers and friends who could see the image of the invoice, someone would, due to various reasons, forward and/or send the image of that invoice to other people (namely people other than the followers and friends who were permitted by him to see the image), and that among those other people, there were police trainees and/or people connected with them, and so the image of the invoice would be made known to the police trainees. The defendant made the threat with the obvious intent of alarming the police trainees.

ix. I do not believe or accept the exculpatory and explanatory excuses made by the defendant under caution (verbally and in the video-recorded interview(s)), including the statements that he had no intent to commit any offence, such as being on a whim, for momentary fun and out of curiosity, having naughty hands, finding it funny, venting of mood, having no plan to do anything, and that he did not know if his followers and friends would forward or send the image to other places on seeing it. I rule out the possibility of the defence’s versions completely, including the possibility of those words being jokes and wild and whirling words.”

C. Reasons for sentence

3.In the Reasons for Sentence, the magistrate set out the submissions for mitigation and then elaborated on her reasons for sentence:

“Reasons for sentence

13. I have [carefully] considered the charge, the facts of the case, everything said in mitigation (including the written submissions and documents for mitigation) and the content of the background report.

14. A person on summary conviction of this charge shall be liable to a fine at level 1 and to imprisonment for two years, and shall be liable on conviction upon indictment to imprisonment for five years. Such penalties reflect that the charge is serious rather than minor in nature.

15. There is no sentencing guideline for this charge. However, as shown in the precedents referred to by the defence, in general the court regards the charge as serious and normally imposes an immediate imprisonment.

16. The defence has cited several cases, but the facts of each of them are quite different from those in this case, and therefore I think they are of limited value for reference.

17. The defence submitted that the defendant had only put up a post with time limit on his own social media account. Moreover, the words added did not involve any violence or obscenities, or commission of offence by using instrument and/or jointly with others. In comparison with cases of similar nature, it was minor and not to be regarded as serious. With respect, I do not agree.

18. In my view, the facts of this case are serious and the main points are as follows:

i. The target of the defendant’s threat was the police trainees under training at the material time. They consisted of a particular group of people, not just an individual or a single person.

ii. The police trainees were under training at the material time and could pass out and serve the public only after passing the examinations.

iii. As a result of the incident, the police trainees who are witnesses and those who had knowledge of the matter at the material time were nervous about their personal safety, being subject to threats in various degrees psychologically and worried that they could not pass out.

iv. The police trainees would officially serve the public and assume the important duty of maintaining the overall public order of the Hong Kong community as police officers, and it is the duty of the court to protect them.

v. The defendant committed the offence after much thinking and planning. He chose to upload the post on the IG public account which had a large number, namely over 400 followers and friends, apparently for showing it to a large number of followers and friends in a short time, so as to achieve the purpose of having the threatening message reached the police trainees shortly. As shown by the facts of this case, shortly after the defendant had put up the post, Mr Ng saw it and then forwarded it to PC29181. Therefore, even though the post of the image had a time limit of 24 hours, the gravity of the case would not be reduced by the short time span.

vi. Among those people who saw the image of the invoice (regardless of seeing it through the IG public account or having it forwarded or sent to them), there must be someone who liked and supported the police officers and trainees and someone who disliked them. Their emotion would also likely be affected by the image of the invoice so that those who liked and supported the police would feel nervous and anxious about the safety of police trainees and officers as well as public order, whereas the negative emotion of those disliked the police would be provoked, and they might even conduct themselves in ways endangering the safety of police trainees and officers and putting public order and safety in danger. In other words, apart from the said witnesses and police trainees who were alarmed and worried, a wide spectrum of the community could be reached when he committed the offence through the social media. The adverse influence and the risk of causing danger which were likely brought to public order and safety were serious.

19. Considering the nature of the offence and gravity of the case as a whole, I do not think that a community service order as suggested by the defence is an appropriate sentence, nor is it sufficient to reflect the gravity of the offence and the facts. In my view, an immediate imprisonment is required for deterrence, which is also the only appropriate sentence, and nine months is a proper starting point. Moreover, I do not see any special or exceptional circumstances which justify a suspended sentence.

20. In addition, at the time of the offence, the defendant was close to 20 years and 7 months old and was an intellectually mature adult.  I do not think that a detention centre order is an appropriate sentence or is sufficient to reflect the gravity of the offence and the facts.  The defence had not made such request either.

21. The defendant is convicted after trial and there will be no discount for any guilty plea.

22. As to the submission that the defendant had been under pressure because of this case, the defence does not suggest that the prosecution has caused any delay in dealing with the matter, nor do I see anything of this sort. Therefore, the pressure which the defendant has been subject to is the consequence that an offender should expect to bear and face and does not amount to a mitigating factor.

23. However, having regard to the defendant’s young age and clear record, and his remorse shown by apologizing to the police trainees which suggests the chance of reoffending is not high, I exercise my discretion and reduce his sentence by one and a half months. Save and except this, I do not see any other mitigating factor, and therefore he is sentenced to imprisonment for seven and a half months. For the avoidance of doubt, I also make it clear that half month means 15 days, and that is to say, he is sentenced to imprisonment for a term of 7 months and 15 days.”

D. Grounds of appeal

4.Mr Francis Yip, counsel for the appellant, has advanced two grounds of appeal and I will start with the first ground.

E.1. Ground of appeal (1)

5.In considering the gravity of the case, the magistrate (i) misconceived or misinterpreted the evidence, (ii) wrongfully considered hearsay evidence, and (iii) wrongfully considered the factual basis beyond the charge faced by the appellant, which were mistakes in principle and unfair to the appellant.

(i) Misconception or misinterpretation of evidence

6.It was submitted that the magistrate found the appellant had “committed the offence after much thinking and planning.  He chose to upload the post on the IG public account having a large number, namely over 400 followers and friends, apparently for showing it to a large number of followers and friends in a short time, so as to achieve the purpose of having the threatening message reached the police trainees shortly”[1].

7.According to the evidence admitted at trial, the appellant disseminated the image of the invoice (exhibit P4) through his own IG public account which he had begun to use four years before the time of the offence[2]. Clearly the IG public account was not opened as a plan for disseminating the said image of the invoice.  The evidence also showed that at the material time, apart from the said IG public account, the appellant also had an IG private account 990718 and accounts with Facebook, Telegram and Snapchat[3].  He did not choose to disseminate the said image at the same time through the accounts with other social media then also under his control and there was no evidence showing that the IG public account used by him to disseminate the said image had the largest number of followers or friends among the social media accounts under his control.  Moreover, the evidence revealed that the appellant had set a time limit of 24 hours for the post when he disseminated the said image[4].

8.Therefore, although the magistrate said that the appellant “committed the offence after much thinking and planning... for showing it to the large number of followers in a short time, so as to achieve the purpose of having the threatening message reached the police trainees shortly”, it was not the only reasonable and irresistible inference which could be drawn from the evidence admitted, nor was it an argument or interpretation more favourable to the appellant among the reasonable inferences which could be possibly drawn.  This was a mistake in principle and unfair to the appellant.

(ii) Wrongful consideration of hearsay evidence

9.In relation to the evidence of the alarmed police trainees, the prosecution called two police trainees to give evidence, who were PW2 and PW3.  In considering the evidence in this regard, the magistrate found that “the police trainees who are witnesses and those who had knowledge of the matter at the material time were nervous about their personal safety, being subject to threats in various degrees psychologically and worried that they could not pass out”[5].

10.The evidence of other trainees’ reaction upon knowing about the matter at that time came from PW3 and was hearsay evidence: “PC29195 [ie PW3] was alarmed because of the matter…. PC29195 said that at that time, he and other fellow trainees who saw the screenshot had ‘more or less the same’ feeling.”[6]

11.Admittedly, in respect of the charge in the present case, the prosecution was not required to prove if any trainee was really injured.  However, the magistrate did consider the evidence in this regard and treated such evidence as an aggravating factor.  She was plainly wrong to consider the hearsay evidence given by PW3, to treat its content as proved to be true and to find that on such basis, apart from PW2 and PW3, others who had knowledge of the matter at the material time were also nervous about their personal safety, being subject to threats in various degrees psychologically and worried that they could not pass out.  This was a mistake in principle and unfair to the appellant.

12.The appellant referred to the judgment in Subramaniam v PP[7] to support his argument.

(iii) Wrongful consideration of the factual basis beyond the charge faced by the appellant

13.In view of the gravity of the case, the magistrate took the view that regarding the people who saw the image of the invoice, “[t]heir emotion would possibly also be affected by the image of the invoice... whereas the negative emotion of those who disliked the police would be provoked, and they might even conduct themselves in ways endangering the safety of police trainees and officers and putting public order and safety in danger”[8].

14.Generally speaking, a defendant ought not to be sentenced for an offence with which he has not been charged.  The appellant referred to para 21-8 in Chapter 21 “Factual Basis for Sentence” in Cross & Cheung : Sentencing in Hong Kong (9^th Edition) to support his argument[9].

15.The appellant has also cited Poon Kam Wing[10], in which the defendant had been convicted of unlawful trafficking in a dangerous drug.  In sentencing, the trial judge raised the starting point having regard to the defendant’s involvement in manufacturing dangerous drugs.  After summarising and considering a series of cases, the Court of Appeal held that the trial judge was wrong in sentencing the defendant on the basis of an offence with which he had not been charged.

16.In the present case, the offence faced by the appellant was “criminal intimidation” under sections 24(a)(i) and 27 of the Crimes Ordinance (Cap 200) rather than “sedition” under sections 9 and 10.  Since “criminal intimidation” did not involve any seditious intention, whether the appellant’s post would raise other people’s emotion was irrelevant to the charge of this case.  On the basis that people who disliked the police might be provoked into conducting themselves in ways endangering the safety of police trainees and officers and causing danger to public order and safety, it was concluded that the present case was serious among cases of “criminal intimidation”.  Obviously, it has gone beyond the factual basis of the offence of “criminal intimidation” and the sentence was imposed for an offence with which the appellant was not charged.  This was a mistake in principle and unfair to the appellant.

E.2. Respondent’s reply

17.Miss Jessie Sham, Senior Public Prosecutor, acting for the respondent replied to the first ground of appeal as follows.

18.In respect of point (i), ie misconception and misinterpretation of the evidence, the respondent submitted that the magistrate said in para 18(v) of her Reasons for Sentence that the appellant “committed the offence after much thinking and planning” because of how the appellant had created the image of the invoice in question, including folding up the invoice in half before photographing it, showing in the image only part of the information (namely, the package, description of goods and delivery address on the left side of the invoice, the three lines of clauses at the bottom and the real time information reading “11 February 2020 14:27:36 Yip Pui Ling”), and adding the words “I have to get you fail to pass out”, saying that taking photographs in this way reflected the appellant’s consideration and much thinking.

19.At para 18(v) of the Reasons for Sentence, the magistrate said that the appellant did so “for showing it to the large number of followers and friends in a short time, so as to achieve the purpose of having the threatening message reached the police trainees shortly” because he chose to use his IG public account to disseminate the image in question so as to achieve the above purpose even though he had an IG private account.  The magistrate had never found the appellant “opened an IG public account as a plan” and, on the contrary, she particularly mentioned that “[n]evertheless, by the time of the offence, the defendant had used that IG public account for a period (ie he began to use it four years before)”.

20.In addition, in the Reasons for Sentence, the magistrate has all along described the number of followers or friends as a “large number” rather than “the largest number” as alleged by the appellant presently.

21.The respondent submitted that in view of the above, the magistrate had not misconceived or misinterpreted the evidence.

22.As to point (ii), wrongful consideration of hearsay evidence, the respondent submitted that the magistrate had sufficiently noticed that what was in question was PC29195’s description.  She particularly referred to PC 29195’s description, namely, that at that time, he and other fellow trainees who saw the screenshot had “more or less the same” feeling.  However, it was also mentioned in the evidence that PC29195 had shown the screenshot to and discussed with other trainees.  Hence, from the discussion he personally had with other trainees, he was in a position to know other trainees’ feeling and make comparison with his own.  This was not hearsay evidence.

23.It can be seen that the magistrate was not wrong for she did not consider hearsay evidence.  In any event, in the evidence of the case, PW2 and PW3 had already indicated their fear, and PW4 as their class-master also considered the matter so serious that he had to inform his superior and the College.  Therefore, the magistrate was in a position to find that the case was serious because people were alarmed.

24.As to point (iii), wrongful consideration of the factual basis beyond the charge faced by the appellant, the respondent submitted that in considering this regard in sentencing, the magistrate had to determine the influence resulted from the appellant’s act of criminal intimidation.  Since the appellant disseminated it through the public account, which would possibly be read by other people, the influence on the public could be taken into account.  The magistrate did not wrongfully consider the factual basis beyond the charge faced by the appellant.

E.3. My consideration

25.In respect of points (i), (ii) and (iii) advanced by the appellant, I fully agree with the submissions of the respondent.  The magistrate did not make the mistakes in principle as alleged by the appellant.  She properly considered all the circumstances relevant to the present case before passing the sentence.

26.This ground of appeal fails.

F.Ground of appeal (2)

27.The appellant contended that in respect of the facts of the present case, having considered that the appellant was aged 20 and a first offender at the time of the offence, the magistrate adopted a starting point of nine months’ imprisonment and finally made it a term of 7 months and 15 days, which was manifestly excessive.

28.It was submitted for the appellant that the facts of the case were unique and could be hardly compared with other decided cases. However, as those who were subject to intimidation in the present case were police officers under training, it was submitted that the situation was more similar to cases of “criminal intimidation” involving public officers in the execution of duties.

29.Two cases were cited on behalf of the appellant.

30.In Mo Ngai Keung[11], the appellant of the case initially stood behind a team of hawker control officers and scolded one of them.  Suddenly, he detoured, bypassed other people, dashed forward, pointed at that person’s face with his finger and said to him loudly, “Be fxxking careful,” and alleged that since that person “has been so antagonistic towards the shop that he told his colleagues to come to book them so often, a dozen people were called to wait for him to clock out”.  During the incident, the appellant of the case was pointing at that person furiously.  Wong J of the High Court considered that the case involved the verbal intimidation made by the appellant of the case to public officers in the execution of duties, which was considerably serious, and a short term of immediate imprisonment was appropriate. However, having regard that the appellant, being a first offender, was emotionally agitated at the time of the offence and the case did not involve more serious circumstances, he considered that he could deal with it leniently and he sentenced the appellant to imprisonment for three weeks, which was suspended for two years.

31.In Man Ying Fai[12], when the staff of the management company of the market removed the two foldable nylon beds and one aluminium ladder from the roof of the appellant’s stall to the garbage box outside the market, the appellant of the case was furious and intimidated one of the staff by saying, “You antagonise me. I’ll chop you to death.”  He opened the roller shutters, went into the stall and took a cleaver from the knife stand.  He walked towards the staff member with the cleaver in his hand and said, “You throw away my stuff. I’ll chop you to death so that you are doomed and will lie underneath the corpse.”  The appellant of the case moved forward in a fierce manner.  Nguyen J of the High Court said that since that staff member was then executing his duty, he should be protected properly; otherwise, it would be hard to maintain the community in order, and he thus upheld the sentence in the case, which was a fine of $1,000 and imprisonment for two months suspended for two years.

32.The appellant submitted that the facts of the present case were different from those in Mo Ngai Keung that involved obscenities and insulting elements.  Although the police trainees might be alarmed, the situation did not appear to be more serious than the victim in Man Ying Fai, who saw someone coming to him with a cleaver in hand, claiming to chop him to death.

33.The appellant in the present case was only 20 years old at the time of the offence and just 21 years and 4 months at the time of sentence. It was submitted that, however, the magistrate failed to give sufficient consideration to the requirements under subsections (1) and (1A) to section 109A of the Criminal Procedures Ordinance, Cap 221, in sentencing.  The present case involved “criminal intimidation” which was not an excepted offence.

34.The appellant referred to Dhaliwal Jaspreet Kaur[13], in which Macrae VP had the following observations:

“36. One should remember that an offender’s young age holds out the hope of reform and rehabilitation, which can be easily undermined by a crushing sentence of imprisonment in an adult prison. The goal of ensuring that a young offender does not proceed down the path of crime can, for certain cases, be more effectively achieved by the lighter touch of a more lenient and compassionate sentence than by the heavier hand of punitive and deterrence one.”

35.It was submitted for the appellant that having regard to his age at the time of the offence, his clear record, his sincere and regretful attitude revealed in the background report and apologies made to the police trainees in his letter for mitigation, the sentence imposed by the magistrate was manifestly excessive and too harsh for the appellant.  She has also ignored that a relatively lenient sentence should be passed for young offenders so as to give them the chance for rehabilitation.

F.2. Respondent’s response

36.The respondent submitted that the two cases cited by the appellant, namely Mo Ngai Keung and Man Ying Fai, were completely different from the present case and did not have much reference value in sentencing in the present case.  The target of the appellant’s intimidation in the present case were police trainees then under training, who consisted of a group of people and not just an individual or a single person.  The present case happened to take place when many events of a large-scale social movement occurred.  The appellant had also explicitly expressed his discontent against the police whom he thought made arrests indiscriminately.  Therefore, the appellant’s threats were not resulted from other people’s provocation at the scene and he made the threat to the police trainees on purpose.  Therefore, it was different from the above two cases and the facts of the present case were more serious.

37.In response to the submission that the appellant was aged only 20 at the time of the offence and just 21 years and 4 months at the time of sentence and thus there should be other appropriate ways to handle it instead of imprisonment, the respondent submitted that the magistrate had obtained a background report and carefully considered the charge, the facts, everything said for mitigation (including the written submissions and documents for mitigation) and the content of the background report before passing the sentence.  A person on summary conviction of this charge shall be liable to a fine at level 1 and to imprisonment for two years and shall be liable on conviction upon indictment to imprisonment for five years.  Such penalties reflect that the gravity of the charge is serious and not minor.  There is no sentencing guideline for this charge.  However, as shown in the cases cited by the respondent, the court generally considers the charge serious and normally imposes an immediate custodial sentence.

38.The respondent submitted that the appellant was convicted after trial and the magistrate considered that an immediate custodial sentence was required so to reflect the gravity of the offence and the facts and for deterrence.  She also saw no exceptional circumstances which justified the sentence be suspended.  Nevertheless, having taken into account that the appellant was a young offender with a clear record and that the apology he made to the police trainees demonstrated his remorse as well as low chance of re-offending, the magistrate exercised her discretion and reduced his sentence by one and a half months.  The respondent submitted that such generous approach was not wrong, and the sentence was not manifestly excessive.

F.3. My consideration

39.In respect of the second ground of appeal, I also fully agree with the respondent’s arguments.  The appellant’s choice of using his public account to upload the image of the invoice created by him in a specific way was an obvious result of much thinking and planning.  The facts of the two cases cited for the appellant are completely different from those of the present case and simply not comparable.  I am of the view that the facts of the present case were as serious as what the magistrate described.  The magistrate had given thorough consideration in passing the sentence.  It is my view that the starting point of nine months was not manifestly excessive.  Furthermore, the sentence was already reduced by one and a half months in view of the appellant’s age and the magistrate imposed a term of 7 months and 15 days.  In my view, the appellant has already been dealt with mercifully.

40.This ground of appeal fails.

G. Conclusion

41.In the light of the above reasons, the appeal against the sentence is dismissed.

Miss Sham Wing Yan, Jessie, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr Francis Kim-Ming Yip, instructed by Yung, Yu, Yuen & Co., assigned by the Legal Aid Department, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.

[1]  See Reasons for Sentence, para 18(v)

[2]  See Reasons for Sentence, para 3(viii)

[3]  See Reasons for Sentence, para 3(viii)

[4]  See Reasons for Sentence, para 18(v)

[5]  See Reasons for Sentence, para 18(iii)

[6]  See Reasons for Sentence, para 3(iv)

[7]  [1956] 1 WLR 965

[8]  See Reasons for Sentence, para 18(vi)

[9]  “An accused ought not to be sentenced for offences with which he has not been charged and which he has denied or declined to admit: R v Canavan, Kidd and Shaw [1998] 1 Cr App R 79,81.  If the accused is convicted of unlawful trafficking in dangerous drugs, the sentence ought not to be increased on the basis, in the absence of a specific charge, that he also had been involved in manufacturing the drugs: HKSAR v Poon Kam-wing [2012] 5 HKC 251, [2012] 4 HKLRD 555. Any other approach would offend the ‘principles of common fairness’: Hogan v R (2008) 186 A Crim R 52,69.”

[10]  See HKSAR v Poon Kam Wing [2012] 5 HKC 251, 256C-257B

[11]  HKSAR v Mo Ngai Keung (transliteration) (香港特別行政區訴巫毅強) HCMA 126/2015

[12]  HKSAR v Man Ying Fai (transliteration) (香港特別行政區訴文應輝)HCMA 1060/2007

[13]  HKSAR v Dhaliwa Jaspreet Kaur and Another [2019] 5 HKLRD 428, at p 439, para 36