Editor-in-Chief: The Hon. Mr. Justice Bokhary
General Editor: Professor Simon Young
November 2018
Preface: I am honoured to assume the general editorship of this great practitioners’ work. The number of times Archbold Hong Kong has been cited is a sign of its influence. As of today, I count around 300 Hong Kong judgments since the work was first published in 2004. Other than the White Book, probably no other single text has been cited more often. It is mentioned at all levels of court, including in many Chinese language judgments and seven Court of Final Appeal (CFA) decisions. It is relied upon in both criminal and civil cases. It has even been cited favourably in two 2016 judgments of the High Court of Fiji. Could we see more common law jurisdictions referencing the work and following Hong Kong sources of criminal pleading, evidence and practice? I think there is much promise in this as there are many ways in which criminal law, evidence and procedure have developed distinctively in Hong Kong. All these points remind us of the importance for Archbold Hong Kong to state the law accurately, succinctly, yet comprehensively. For this I am extremely grateful to all of the expert contributing editors, the gracious Editor-in-Chief, and the dedicated colleagues at Sweet & Maxwell. To this team, I add my three student editors (Josh Baker, Eric Chan and Wilson Lui) who have ably assisted me with the General Editor’s Updates.
In the past year, we continued to see examples of distinctive Hong Kong criminal law written by our courts. In HKSAR v Choi Wai Lun (2018) 21 HKCFAR 167, the Court did not follow R v K [2002] 1 AC 462 (HL) on the mens rea for the age element in in- decent assault, in cases where the complainant was under the age of 16 years. Instead, the Court found the presumption of mens rea displaced, and, applying its distinctive approach to strict liability set down in HKSAR v Hin Lin Yee (2010) 13 HKCFAR 142 and HKSAR v Kulemesin (2013) 16 HKCFAR 195, the defendant had to prove he honestly and reasonably believed the complainant was over age to be acquitted. The deci- sion makes it even more difficult to decide between the second and third Hin Lin Yee alternatives, but positively the Court signaled a willingness to revisit HKSAR v So Wai Lun [2005] 1 HKLRD 443, which held that the offence of sexual intercourse with a girl under 16 years was one of absolute liability. In another case, the Court of Appeal affirmed Hong Kong’s approach to sentencing drug traffickers based on the weight of the drug trafficked even in cases of couriers; Macrae VP wrote separately that “we must apply a policy suited to our own needs, which may be very different from those of the county towns of England or the leafy suburbs of Australia”, HKSAR v Kilima Abubakar Abbas [2018] HKCA 602, [71].
Of course, in most judgments from last year, the courts applied doctrine based on longstanding principles and practices of the common law. The two much publicised sentencing decisions for unlawful assembly (Secretary for Justice v Wong Chi Fung [2018] HKCFA 4; Secretary for Justice v Leung Hiu Yeung [2018] HKCFA 43) brought to public attention the fundamental principle against retrospective punishment, which one can trace to article 39 of the Magna Carta. Other notable judgments affirmed the prosecution’s loss of the right to make a closing speech where the unrepresented defendant called no witnesses other than himself (HKSAR v Leung Chun Kit Brandon [2018] HKCFA 30), the prosecution’s duty to call witnesses named on the back of the indictment (HKSAR v Lam Chun Man [2018] 1 HKLRD 539), and the minimalistic direction on the standard of proof (HKSAR v Fok Ka Po, Joe [2018] 2 HKLRD 1223). In three statutory interpretation cases, the CFA reiterated the need to interpret words in criminal legislation purposively, contextually and with common sense (HKSAR v Cheung Wai Kwong (2017) 20 HKCFAR 524; HKSAR v Wan Thomas [2018] HKCFA 15; HKSAR v Lam Tan Ching Paul (2018) 21 HKCFAR 1).
Practitioners should heed the three messages, which resonated through multiple judgments, directed at those who practice criminal appeals. The CFA emphasised the need for a “palpably sound basis” before arguing flagrant incompetence by trial counsel and for “great care to be exercised before such an accusation can responsibly be leveled at the counsel or solicitors involved” (HKSAR v Li Xiaoxiang (2018) 21 HKCFA 272, [31]-[32]; HKSAR v Cheng Yim Fung, Flora [2018] HKCFA 5; HKSAR v Dramane Mouhamed Saiti [2018] HKCA 338; HKSAR v Lam Mei Ching, Bet [2018] 3 HKLRD 68; HKSAR v Lo Pui Yi Cat [2018] 2 HKLRD 1176). Relatedly, where incompetence is not alleged, it is “not permissible on appeal... to advance grounds of appeal based on the submission that counsel for the applicant could have conducted the trial in a wholly different way, in particular that he could have taken objection to the admissibility of evidence and advanced submissions, which in fact were not made at trial” (emphasis in original) (HKSAR v Ezeh Christian Ifeanyi [2018] HKCA 57, [15]; HKSAR v Liu Sun Kong [2018] 1 HKLRD 216). Another concern of the Court of Appeal was “the culture of certain appeal counsel to include [an allegation of the summing up being unfair and unbalanced] almost as a matter of course in grounds of appeal, regardless of their merits” (HKSAR v Wiwik Lestari [2018] 3 HKC 110, [75] & [108]; HKSAR v Tse Hin Yeung [2018] HKCA 196; HKSAR v Chen Keen (alia Jack Chen) [2018] HKCA 121). Notwithstanding these latter concerns, the court found the summing up not to be fair and balanced in HKSAR v Yuen Cheung Ming, Leon [2018] HKCA 13.
In concluding this roundup, I note several successful appeals from the past year where there were errors in the summing up related to propensity evidence (HKSAR v Wang Jinwei [2018] 1 HKC 135; HKSAR v Liu Sun Kong [2018] 1 HKLRD 216), drawing inferences from primary facts (HKSAR v Chung Yiu Lam [2018] HKCA 153), and evidence of flight (HKSAR v Yuen Yu Kin [2018] HKCA 354).
Finally, I wish to pay tribute to several senior members of the criminal bar who passed away recently. I did not know all of them but their work captured in judgments continue to live on in the pages of this text.
Professor Simon NM Young
Parkside Chambers
8 October 2018
Very gracious!
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