ARCHBOLD HONG KONG 2023Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor
Simon YoungSweet & Maxwell
October 2022
Preface by the General EditorThe past year saw only seven criminal law judgments from the
Court of Final Appeal, each having significance beyond the immediate case. They
are worth mentioning here. We saw the Court apply the ejusdem generis
rule of construction to read offences more narrowly than the position adopted
by the prosecution. There was the weapon and instrument offences in section 17
of the Summary Offences Ordinance (Cap 228), which the Court described as being
“rather poorly drafted” (HKSAR v Chan Chun Kit [2002] HKCFA 15,
[15]). Another case concerning the
falsity element in forgery-related offences adopted the narrower view that the
falsity must relate to the purported circumstances of the making or alteration
of the instrument and not to extraneous facts (HKSAR v Chan Kam Ching
(2022) 25 HKCFAR 48, [63]). It affirms the position that a forged document does
not merely tell a lie but tells a lie about itself (at [66]). The Court affirmed the principle of open justice in HKSAR
v Chan Hon Wing (2021) 24 HKCFAR 448, holding the principle had been
breached when jurors were provided with headsets to listen to a simultaneous
English to Chinese interpretation of the summing-up that was not recorded,
precluding verification of what the jurors had heard. The judgment contains the
quotable sentence: “Open justice requires that justice be seen to be done, not
assumed to have been done” (at [67]).
The issue of cross-examination as to credit was revisited in
HKSAR v Ng Fan Ying (2021) 24 HKCFAR 428, which highlighted a
“requirement of laying a proper foundation for casting an imputation of
misconduct against a witness” (at [32]).
The elements of the offences of unlawful assembly and riot were
clarified in HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 together with the
question of when the common law doctrine of joint enterprise liability applies
to these offences. The Court will
revisit what was said in this judgment, having granted leave to appeal in HKSAR
v Choy Kin Yue [2022] HKCFA 14.
In HKSAR v Fu Man Kit (2021) 24 HKCFAR 253, it was
held the double jeopardy principle, whether under the common law or the Hong
Kong Bill of Rights, was not engaged when a prisoner is prosecuted for conduct
which was earlier the subject of prison disciplinary penalties. Finally, the Court clarified that a
legislator may be prosecuted for the offence of contempt if he or she creates a
disturbance that interrupts a Legislative Council proceeding and the conduct
does not form part of any speech or debate (see Secretary for Justice v
Leung Kwok Hung (2021) 24 HKCFAR 234).
The Court of Appeal made important statements of the
practice expected of counsel in two cases. On the duty of counsel to inform the
court of procedural irregularities, the court referred to [10.39] of the 2018
revised version of the Bar’s Code of Conduct and stated: “Given the strict duty
imposed on counsel by the Court of Appeal and now reflected in the new Bar
Code, it is clearly no longer proper for counsel to consciously sit on an error
by the judge so as to make it a ground of appeal” (HKSAR v Chak Kong Fai
[2022] 1 HKLRD 370, [223]). Useful
guidance and reminders on the form and content of perfected grounds of appeal
can be found in HKSAR v Khaw Kim Sun [2022] HKCA 802, [126]-[137]. In summary it was said that the appeal should
focus on errors that affected the result and not inconsequential minutiae or new
unsupported theories about the case. It should have only a short and concise
statement of the essential issue to which the grounds relate. A number of
different grounds should not masquerade as a single ground of appeal. Avoid
repetition and obvious overlap between the various grounds.
As to legislative reforms in the past year, two statutes are
worth noting, both introducing enhanced protections to personal privacy. The
Crimes (Amendment) Ordinance 2021 introduced new offences of voyeurism,
unlawful recording or observation of intimate parts, publication of images
originating from these offences, and publication or threatened publication of
intimate images without consent. The
Personal Data (Privacy) (Amendment) Ordinance 2021 amended and introduced
offences for disclosing personal data without consent and conferred powers on
the Privacy Commissioner for Personal Data to investigate and enforce offences
including the power to prosecute.
Finally, Practice Directions 36 and 37, taking effect respectively on 6
June and 5 September, 2022, will hopefully remove some of the delay we have
seen in the handing down of judgments.
I am most grateful for the co-operation and contributions of the contributing editors and Sentencing Editor. I wish to thank particularly those who are stepping down this year and welcome on board the new editors who will be joining us soon. I thank the Editor-in-Chief for his constant support. Finally, I express my appreciation for the efficient and helpful assistance provided by the team at Thomson Reuters.
Professor Simon NM Young
Parkside Chambers
7 September 2022
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