HKSAR v. Ngai Ho Ting

CACC 417/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 417 OF 2011

(ON APPEAL FROM DCCC NO. 542 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon McWalters J (giving the Reasons for Judgment of the court):

Introduction

1.On 30 September 2011, the appellant was convicted on his own plea before Deputy District Judge M. Chow on one count of trafficking in a dangerous drug (Charge 1) and one count of possession of equipment fit and intended for the inhalation of a dangerous drug (Charge 2). He was sentenced on 3 October 2011 to 3 years and 4 months imprisonment on Charge 1 and 2 months imprisonment on Charge 2, both sentences to run concurrently.

2.On 10 February 2012, Hon Yeung VP granted the appellant leave to appeal against sentence.  Throughout the appellate process and at the hearing of this appeal the appellant was unrepresented.

3.At the hearing of the appeal we allowed the appeal, set aside the sentence in respect of Charge 1 and substituted for it a sentence of 2 years and 3 months imprisonment.  The sentence of 2 months imprisonment for Charge 2 remains unaltered as does the order that it be served concurrently with the sentence for Charge 1.  We said we would subsequently give our reasons for allowing the appeal and this we now do.

Background to the Offences

4.The offences occurred on 17 February 2011 when the appellant returned to Hong Kong from the Mainland.  At the Lo Wu Control Point he was intercepted by Customs Officers for the purpose of inspection.  A search of his person revealed three plastic straws containing traces of suspected ICE and one cigarette box containing two tissue papers in the appellant’s left inner jacket pocket.  When the tissue papers were examined Customs Officers found five plastic bags containing suspected ICE.  Under caution the defendant admitted that the contents of these plastic bags was ICE and said that the ICE was for his own consumption.

5.In a subsequently conducted cautioned interview the appellant confirmed that the drugs belonged to him and that he had bought them from an unknown male in the Mainland at a price of RMB$1,500 and that he had purchased them in order to consume them over the ensuing 6 months.  He said he wrapped the drugs in the tissue papers and put them into the cigarette box.  In respect of the three plastic straws he said that he had used them to inhale ICE.  When the drugs were analysed by the Government Chemist they were found to be 5.21 grammes of a crystalline solid containing 5.09 grammes of methamphetamine hydrochloride. The three plastic straws were confirmed to contain traces of methamphetamine.

6.The estimated retail value of these drugs was $3,339 at the time of their seizure.

Grounds of Appeal

7.The appellant is unrepresented and his grounds of appeal are derived from three letters he has written to the court.  In his first letter dated 16 January 2012 he explained how his financial losses incurred in the 2008 economic downturn caused an overwhelming blow to his wife’s mental condition and caused her to require treatment in hospital.  He said that as a result of the stresses this imposed on him he started to take ICE “to numb myself”.  In this document he makes no complaint in respect of the present sentence and simply throws himself on the mercy of the court.  He repeated his claim that the drugs were for his own consumption.

8.In his second letter dated 29 May 2012 he again said that he had no concrete grounds of appeal that would entitle him to a reduction of sentence and he simply explained the difficult times which he had been enduring with his wife’s illness.  He expressed great remorse for the harm he had caused to his family including his elderly parents.  He concluded by stating that the company that was employing him in Mainland China agreed to stand by him and confirmed that they are willing to continue employing him once he has served his sentence.

9.In his final letter dated 9 July 2012 he complains that his legal representative did not properly present his mitigation to the court.  In particular the appellant is concerned that the Judge misunderstood his financial condition and may have thought that he supported himself and his family through trafficking in dangerous drugs.  In order to provide this court with the true situation the appellant then set out details of six properties that his family acquired in the past 10 years.  Two of these properties were in Hong Kong and four were in the Mainland.

10.He refers to the three drinking straws found on him and submits that this proves he was in possession of the dangerous drugs for his own consumption.

11.He does not complain about the propriety of the sentence imposed on him by the Deputy District Judge but is aggrieved by what he asserted is the irresponsible attitude of his legal representative which caused the judge to misunderstand his financial position and how it was that he supported himself and could afford to purchase the drugs that were found on him.

12.In an attachment to the third letter he set out some personal information on himself.  He said that he settled in Hong Kong in 1991 to assist his father in running a Silk Screen Plate Factory in Tsuen Wan.  In 1992 he established another company that imported and exported copper scrap metal. In 1996 he purchased a property at Kwai Chung jointly with his ex-wife and then later purchased another two properties at Riviera Gardens.  In 1997 he, together with his elder brother, operated a plastic packaging business.  He also established a Mainland company called Shanghai Yida Plastic Bag Company Limited.  However he went bankrupt after the 2008 financial crisis, he closed his Shanghai Yida Plastic Bag Company Limited and came back to live in Hong Kong in 2009.

13.Throughout the plea of guilty and in the documents that the appellant has written to the court he has maintained that all the drugs in his possession were for his own consumption.  Notwithstanding this claim, which was a key part of his mitigation, the trial judge refused to accept it.  An issue which appears to have concerned Hon Yeung VP in granting leave and which troubled this court at the first hearing of this appeal is whether or not the trial judge alerted the appellant’s counsel to the concerns she had in accepting the appellant’s assertion that the drugs were for his own consumption.  To this end we ordered that a full transcript of the mitigation be obtained.

The Mitigation

14.The Judge was told that the appellant was born in Shanghai and came to Hong Kong in 1991.  He is aged 53 and has no previous convictions.  He started to work in his father’s printing company.  In 1997 he returned to Shanghai and started his own business which closed in 2009.  He then returned to Hong Kong where he became involved as an employed director of another business called Grand China Financial.  In 2008 the appellant’s wife suffered in the Lehman Brother’s collapse and suffered a nervous breakdown for which she needed psychiatric treatment.  She was hospitalised in Mainland China but had returned to Hong Kong by the time of the appellant’s trial.

15.The appellant also had health problems at the time of the offence, having been diagnosed in January 2011 as having a kidney stone.  He said that it was in order to relieve his kidney pain that prompted him to purchase the drugs the subject of the charge for RMB$1,500.  He said that the quantity of drugs, 5 grammes, would last him 6 months and he claimed that this was the first occasion he had ever consumed drugs.  His lawyer said that he had purchased them at a night club in Shenzhen whilst in that city on business.

16.At the time of his arrest he had been working for Grand China Financial, which was the business of his friends, since July 2010.  However he left the company in January 2011.  This was apparently of his own volition and was intended only as a temporary suspension of his employment - a form of leave of absence - with an agreement from the employer that he could later return to his job, presumably when he was ready to do so.  He had been earning about $10,000 per month with the possibility of an end of year bonus but that had never eventuated because he had to spend so much time looking after his wife.

17.When the Judge enquired into the appellant’s living expenses, she was told that he and his wife lived in public housing and that the appellant’s total expenses amounted to $7,000 - $8,000 per month, of which $3,000 was money given by the appellant to his wife for household expenses.  Rent was $2,000 and the appellant sent $2,000 ‑ $3,000 each month to his 10 year old daughter who was studying in Shanghai.  It was his counsel’s submission that the appellant could afford to purchase this quantity of drugs for his own use.

The Reasons for Sentence

18.In her Reasons for Sentence the Deputy District Judge repeated the assertions made on behalf of the appellant by his counsel on his plea in mitigation.  The judge referred to the decision of this court in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and acknowledged that in determining whether a defendant brought drugs into Hong Kong for his own use or otherwise she should have regard to the different factors set out in that case.  She then said:

“In determining such factors this court is not required to hold a Newton hearing.”

19.Knowing that the appellant’s financial circumstances was one of the important factors to be considered she set out the various pieces of information provided to her in respect of his income and expenses.  She also took into account the quantity of ICE that the appellant had in his possession and noted that this seemed unusually large for a person who was, as the appellant claimed, a first time consumer.

20.Given the limited money available to the appellant to spend on personal items she concluded:

“It was totally impractical, unrealistic and not convincing at all to spend one thousand five hundred dollars to buy the “ICE” for his own consumption.”

21.She also noted that the drugs were divided into five small size packets ready for retail distribution.

22.Taking into account all these matters she concluded:

“To this end I refuse to accept the defendant’s assertion that the “ICE” was for his own consumption.”

She therefore allowed him no discount for this aspect of his mitigation.

Discussion

23.The transcript of the mitigation reveals the Judge engaging the appellant’s lawyer in probing questioning in the course of his mitigation all of which focussed on the appellant’s income and expenses.  The purpose of the questions was clearly to enable the Judge to critically analyse the assertion that all of the drugs were for the appellant’s own consumption.  But at no stage does the Judge indicate to the appellant’s counsel that she was not inclined to accept the mitigation.  Had she done so he could then have considered his position and decided whether he wished to call evidence from the appellant in support of his claim that the drugs were for his own consumption.

24.In the circumstances of this case was the Judge’s response to the mitigation all that the law required of her or should she have done more?  This question raises the issue of whether there is any obligation on a trial judge to alert defence counsel to the fact that he or she is not inclined to accept assertions in mitigation that are not inconsistent with his guilty plea or the Summary of Facts agreed by the parties and which set out the circumstances of the offence.  The purpose of alerting him would be so that he could consider whether he should call evidence in proof of his bar table assertions.

25.Clearly, before any such obligation might arise the assertion must be relevant to sentence in the sense that if accepted it would impact upon the judge’s determination of the appropriate sentence for the offender’s conduct. If it would not have any such impact then it is simply not a matter that calls for resolution by the judge.

26.In a case of trafficking in dangerous drugs by importation the question of whether the whole or a significant part of the dangerous drugs were for the consumption of the trafficker is a matter relevant to sentence.  This has been recognised since the decision of this Court in R v Chan Mung‑lung [1992] 2 HKCLR 127 where it was said at page 130, lines 17 ‑ 19:

“The question of whether or not the applicant was bringing the drugs into Hong Kong for his own consumption or for re-sale was highly relevant to the question of the proper sentence to be passed and, if they were only for his own use, was a strong mitigating factor.”

This decision has been repeatedly applied by this court in cases such as R v Chung Kam-fai [1993] 1 HKCLR 178; [1993] 1 HKC 42; HKSAR v Chong Chee Meng [2008] 6 HKC 407, HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.

27.If the assertion is a matter relevant to sentence then the judge will have to resolve it by making a finding accepting or rejecting it.  Whether the assertion can only be resolved by the calling of evidence will depend upon the nature of the assertion, the attitude of the prosecutor to it and the decision of the defendant’s counsel who has the ultimate say in how he presents his client’s mitigation and whether he wishes to call evidence in support of it.

28.Where the assertion is that all or part of the drugs that are the subject of a trafficking charge were for the defendant’s own consumption, then such a finding can be made by the judge with or without the calling of evidence in a formal Newton enquiry.  This court has laid down in HKSAR v Wong Suet Hau & Anor [2002] 1 HKLRD 69 guidelines on how a trial judge should approach such a task.

29.But this case is not concerned with that issue; rather with the antecedent issue of whether the judge is under any obligation to alert defence counsel to a preliminary disinclination that he, the judge, may harbour about accepting and acting upon the mitigation being advanced.

30.We are in no doubt that such an obligation exists.  It was discussed in some detail by this Court in R v Chung Kam-fai [1993] 1 HKCLR 178.  There the Court considered a decision of the English Divisional Court in Gross v O’Toole (1982) 4 Cr App R (S) 283.  It quoted from the judgment of Comyn J in this case saying at page 185, lines 11 ‑ 44:

“Perhaps more pertinent to the facts of the present case is the judgment of Comyn J, who stated at p.285:

“Everybody concerned with pleading mitigation has an important duty to perform. The person making it must make certain decisions, many of which are irreversible. He must decide, in particular, whether he is going to call evidence, how much evidence, and on what points; also, at what stage he seeks to call the evidence - before he begins, or in the middle of his mitigation or at the end. He cannot, having made a deliberate choice, easily be permitted to go back on it. The responsibility of the Bench, on the other hand, is this: that if, on a slightly important point on which there is room for some doubt, they have doubt about what the advocate is saying, they ought to tell him that before he concludes his mitigation, or shortly afterwards, so he can try to remedy it.

The result here is that the submission was made on behalf of the defence which was startling on the face of it, and which I am not surprised the justices rejected out of hand. It might have been better if the justices had said that they did not accept it, but it was not for them, in the circumstances, to express any view about it, because the defence had taken the course they did.” (Emphasis supplied.)

We are satisfied that the submission in the present case was not such that no one in court could have supposed it would be accepted, nor was it one which was startling on the face of it. The submission was seriously urged, it was of a nature which could have been supported by evidence and it was, moreover, an important mitigating factor. We are satisfied that before rejecting it the judge should have indicated to counsel that he was not prepared to accept it from the Bar. It would then have been for counsel to make his determination as to whether or not he would call evidence.

We are satisfied that Gross v. O’Toole does no more than indicate that, where counsel is putting forward mitigation which is, on its face, incredible, the court is not required to indicate that it has some doubt to its correctness. Where, however, the mitigation is not, on its face, incredible the court should, before rejecting it, indicate that it is not prepared to accept it from the Bar. In circumstances such as obtained here, if nothing is said, defence counsel could be unwittingly misled into thinking that the mitigation which he has urged would be acted upon.”[1]

31.The Court cited with approval the course commended by Bridge LJ in R v Lester (1976) 63 Cr App R 144 where, in commenting on the conduct of the trial judge in rejecting the mitigation advanced and drawing an inference adverse to the defendant, said at page 146:

“If the trial judge, in the face of what had been said on this appellant’s behalf by Mr. Shand in mitigation, was minded to draw such an inference adverse to the appellant, then at the least, in the judgment of this court, the appropriate course for the learned judge to have taken would have been to indicate to counsel for the appellant what was provisionally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence about this matter, as to which of course he would have been open to cross-examination by the Crown.

32.More recently in HKSAR v Chow Kam Lung [2010] 4 HKLRD 253 the applicant pleaded guilty to trafficking by importation and asserted that the drug in his possession was for his own consumption.  The trial judge in imposing sentence made no finding on this issue.  In allowing the appeal the Court of Appeal applied Chan Man Lung and said at page 256, paragraphs 13 – 15:

“13. Looking to the transcript of proceedings, it is not entirely clear whether the Judge was inclined to accept that the ketamine had been imported for the applicant’s sole use or not. Whichever way, the applicant’s contention that it was entirely for his own use was not so implausible that it could be dismissed without further inquiry.

14. If the Judge was prepared to accept the contention without the need for evidence, it constituted a strong mitigating factor which the Judge was obliged to take into account. This, unfortunately, he failed to do.

15. If the Judge did not accept the contention at face value, he was obliged to so indicate, giving applicant’s counsel the opportunity to call evidence. This the Judge failed to do.”[2]

33.The position in England was explained by Lord Bingham CJ in R v Tolera [1999] 1 Cr App R 29 at 32 E – F:

“A different problem sometimes arises where the defendant, having pleaded guilty, advances an account of the offence which the prosecution does not, or feels it cannot, challenge, but which the court feels unable to accept whether because it conflicts with the facts disclosed in the Crown case or because it is inherently incredible and defies common sense. In this situation it is desirable that the court should make it clear that it does not accept the defence account and why. There is an obvious risk of injustice if the defendant does not learn until sentence is passed that his version of the facts is rejected, because he cannot then seek to persuade the court to adopt a different view. The court should therefore make its views known and, failing any other resolution, a hearing can be held and evidence called to resolve the matter.”

34.It was said by Judge LJ in R v Underwood [2005] 1 Cr App R 178 at page 180, paragraph 2 in respect of the performance by the judge of his sentencing duty that:

“The essential principle is that the sentencing judge must do justice.”

From the different authorities quoted, it is clear to us that the obligation that is imposed on the sentencing judge to alert defence counsel that, provisionally, his mitigation is not being sympathetically received exists to serve two purposes which contribute to the sentencing judge achieving justice.

35.The first purpose is to ensure the fairness of the sentencing hearing.  The judge is overseeing a process which will result in him imposing a punishment on the defendant and this punishment may be a severe one involving the deprivation of the defendant’s liberty for a substantial period of time. It is important to the defendant and those close to him, and to the wider community, that the process be seen as a fair one.  If there is to be respect for the criminal justice process and acceptance of the punishment imposed then that process must not only be fair but be perceived to be fair by those involved in or affected by it.

36.The second is to ensure that the sentence imposed upon the defendant reflects the real and true facts of the offence.[3] Because the judge has a duty to sentence on the basis of the real and true facts of the offence, he has a role in ascertaining those facts, in so far as they may have a significant impact upon his sentence.  As Judge LJ commented in Underwood, to proceed to sentence without discharging this duty is only productive of injustice.  This is separate from the duties of the defence counsel who will have to decide how far he may wish to press certain aspects of his client’s mitigation and whether to call evidence on any of those aspects.

37.Given that this obligation on the sentencing judge exists, it must be emphasized that it is not open-ended and it will only operate in so far as it is necessary to serve these two purposes.  So that, for example, it would not apply to mitigation which was not relevant to sentence in the sense that we have explained; nor does it apply to mitigation which is on its face incredible. It has long been recognized that it is unnecessary for a judge to hold a Newton enquiry in respect of such assertions [4] - there is simply nothing for him to resolve as the assertions are, by reason of their incredulous nature, capable of being rejected out of hand and do not cause the judge to have any doubt as to where the truth lies.  But courts must be wary of too readily characterising assertions as being within this category.  Merely because an assertion is not supported by anything in the papers before the judicial officer or because it may seem on its face suspicious or unlikely does not necessarily place it in the category of incredible.

38.On this important issue we have become aware of another decision of this court which propounds a different approach to the role of the sentencing judge.  That decision is R v Cheung Hon-chung [1995] 2 HKCLR 94 which post-dates Chung Kam-fai but does not refer to it.  Litton V-P (as he then was), in delivering the judgment of the court, relied upon Gross v O’Toole to reject a submission that the sentencing judge was bound to indicate to defence counsel that he did not accept what was a relevant and important aspect of the defendant’s mitigation.

39.It is clear to us that the effect of Gross is correctly reflected in the judgment in Chung Kam-fai and that their Lordships in Cheung Hon‑chung did not have the advantage of close analysis of Gross. Accordingly, we are satisfied that the law in Hong Kong should be treated as that articulated in Chung Kam-fai.  Yetwe emphasise that Gross, as analysed in Chung Kam-fai, holds good: that is to say, counsel who advances mitigation must always remember that what he or she says from the Bar table is not evidence and it must not be assumed that whatever is said from the Bar table will be accepted by the sentencing tribunal.  It is a matter of convenience that much that is said in mitigation is in practice accepted by that tribunal without the need to call evidence. But counsel must:

(i)     always be prepared to make his or her mitigation good;

(ii)    where material mitigation is inherently implausible or is “quite inconsistent” with the information before the court, not assume that what he says will be accepted without evidential backing and he cannot in such circumstances complain where a court rejects that mitigation without prior warning; and

(iii)   not either intentionally or by lazy advocacy, create an appeal point by ‘slipping in’ or obscuring a material point in mitigation.

40.It comes then to this:

(i)     where mitigation is not inherently incredible or is not quite inconsistent with the material before the sentencing court and counsel has advanced the point in mitigation with such clarity as to make it obvious that he is advancing the point as a serious and significant point, it is then that a court not minded to accept the mitigation from the Bar table is under a duty so to notify counsel; counsel must then decide whether to make good the submission by evidence, with the understanding that if he does not, the point is lost to his client; and

(ii)    where the point is not on its face a credible one or is on its face quite inconsistent with material before the court, it is counsel’s job himself to recognize that fact; to make his recognition known to the court and to tell the court that unless the point be conceded by the prosecutor and accepted by the court from the Bar table, he intends to call evidence in support of it.

41.In respect of this appellant, can it be said that the assertion that all the drugs were for his own consumption was so manifestly false or so wholly implausible that it could be dismissed out of hand?  Here the answer is that it was plainly not wholly implausible and the respondent does not contend otherwise.  The thrust of the Deputy District Judge’s questions was to obtain a picture of the appellant’s income and expenses so that by a mathematical calculation of substracting one from the other she could conclude that spending an amount as large as RMB1,500 on drugs for his own use was “totally impractical, unrealistic and unconvincing.”  But this was to assume, for example, an absence of savings available to the appellant and that the appellant would be unable to credibly explain what the judge perceived to be a mathematical contradiction in the mitigation.

42.It is clear that what the judge was in fact doing was applying this Court’s decision in HKSAR Wong Suet Hau & Anor [2002] 1 HKLRD 69 and determining whether to accept the assertion in accordance with the guidance provided in that case.  The judge in fact said:

“As the mitigation was advanced on the basis of self consumption this court has to determine whether the defendant brought the drugs into Hong Kong for his own use or otherwise.

Court of Appeal in HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 pointed out that a number of factors have to be taken into consideration.  In determining such factors this court is not required to hold a Newton hearing.”

In conducting her analysis of the merits of the mitigation in accordance with Wong Suet Hau the judge was implicitly recognizing that the mitigation was neither so manifestly false nor so wholly implausible as to be capable of being dismissed out of hand.  It merited investigation and this she carried out by her probing questions of counsel.

43.In these circumstances it was incumbent upon her to alert defence counsel to her preliminary disinclination to accept the mitigation so that he could then decide whether to continue to press it and if so how he might substantiate it.  Her failure to do so meant that the appellant lost the opportunity of testifying in support of his asserted mitigation; an opportunity which, if taken, might have persuaded the judge that it was a meritorious assertion resulting in a different and more favourable sentence.  For this reason we allowed the appeal.

44.This Court then had to decide how it should dispose of the claim by the appellant that all of the drug was for his own consumption.  It has previously been decided by this Court that it does not have available to it the option of remitting the matter back to the trial judge to determine this issue of fact.  This is a power that the Court of Appeal simply does not possess.[5] The only other alternatives are for this court to conduct its own Newton enquiry,[6] hear evidence on the matter and determine this factual issue, or, as was done in Chan Mung-lung, re-sentence the appellant on the version of the facts most favourable to him.  This latter course seems to be the one most commonly adopted by the Court of Appeal [7] and in the circumstances of this case is the option that commends itself to us.

45.Adopting the version of the facts most favourable to the appellant involves accepting that all the drug found in his possession was for his own consumption.  The quantity of drug was 5.09 grammes of ICE which on the authority of Attorney General v Ching Kwok-hung [1991] 2 HKLR 125, as amended by HKSAR v Capitania CACC 28/2004, unreported 11 August 2004, would attract a sentence within the 3 - 7 years band as this band applies to quantities of up to 10 grammes.  Thus the appropriate starting point for 5.09 grammes is 5 years imprisonment.  The fact that all of the drug was for self-consumption is a substantial mitigating factor but as this Court has repeatedly said, it does not reduce the culpability of trafficking to the level of simple possession.  Trafficking by importation is a serious offence requiring the imposition of a deterrent sentence.

46.The extent to which an appropriate starting point can be discounted to allow for self-consumption is a fact sensitive issue which does not lend itself to mathematical precision.  It must inevitably vary from case to case depending on the circumstances of the offence and of the offender.  Here the amount involved was small and all, as opposed to only a part, was intended for self-consumption.  The offender has no history of trafficking and has not been a long term or heavy abuser of drugs.  In all the circumstances it seemed to us that a further discount of 13 months, on top of the one third discount for his plea of guilty, resulting in a sentence of 2 years 3 months imprisonment, was appropriate.

Mr Martin Hui SADPP, of Department of Justice, for the respondent

The appellant appeared in person

[1] This case was applied to trials in the magistracy by Deputy Judge McMahon, as he then was, in HKSAR v Lai Yip Sing [2001] 2 HKLRD 601.

[2] See also the decision of this Court in HKSAR v Chan Lap Pui [2007] 2 HKC 342 at page 346, paragraph 15.

[3] See R v Beswick [1996] 1 Cr. App. R. (S.) 343; HKSAR v Yee Yiu Sam [2002] 3 HKC 21; and HKSAR v Cheung Cho Fat [2010] 5 HKC 400 where this Court said at page 406, paragraph 37:

“It is axiomatic that whenever a court is to sentence an offender it should do so on a basis, which so far as it is relevant, is true.”

[4] See HKSAR v Tong Chi Keung CACC 332/1997 (unreported, 27 November 1997), HKSAR v Yee Yiu Sam [2002] 3 HKC 21, HKSAR v Yan Wai Man & Anor [2010] 3 HKC 503 and HKSAR v Cheung Cho Fat [2010] 5 HKC 400.

[5] See R v Chan Mung-lung [1992] 2 HKCLR 127 at 130, lines 10 - 13.

[6] This was done in Secretary for Justice v Wong Kwong Fei & Anor [1998] 1 HKC 739.

[7] See, for example, R v Chung Kam-fai [1993] 1 HKCLR 178 and HKSAR v Chow Kam Lung [2010] 4 HKLRD 253.