Thursday, June 15, 2023

New Book: Archbold Hong Kong 2023 (Sweet & Maxwell)

Editor-in-Chief: The Hon Mr Justice Bokhary
General Editor: Professor Simon Young
Sweet & Maxwell
October 2022

Preface by the General Editor
The 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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